REF/2014/0854

PROPERTY CHAMBER LAND REGISTRATION

FIRST-TIER TRIBUNAL

LAND REGISTRATION ACT 2002

 

IN THE MATTER OF A REFERENCE FROM HM LAND REGISTRY

 

BETWEEN

(1)   JOHN ALFRED CASTON

(2)   RICHARD JOHN GREEN

(3)   MICHAEL GEORGE CASTON

(4)   ANDREW MICHAEL CASTON

APPLICANTS

and

 

(1)   SELENA FARNESE

(2)   MARK ROBERT CASTON

RESPONDENTS

 

Property Address: Land on the south-east side of Salhouse Road, Rackheath, Norwich

 

Title Number: NK279709

Before: Judge Owen Rhys

Sitting at:  10 Alfred Place, London

On: 17^th August 2015

Applicant representation:                 Ms Zoe Barton of Counsel instructed by Hatch Brenner Solicitors

Respondent representation:             In person

           

________________________________________________________________________­__________

D E C I S I O N

__________________________________________________________________________________

1.      The Applicants are the legal owners of a parcel of land on the south-east side of Salhouse Road, Rackheath, Norwich (“the Land”).  On 8^th July 2014 they applied to Land Registry for first registration of the Property.  The Respondents have the benefit of two cautions against first registration (“the Cautions”), and on 15^th August 2014 they objected to the application.  On 31^st July 2014 the Applicants applied to Land Registry for cancellation of the Cautions, to which the Respondents objected.  Both disputes – in reality there is only one – were referred to the Tribunal on 11^th November 2014.  Statements of Case were served by both parties.  On 22^nd April 2015 the Applicants applied to the Tribunal under Rule 9(3)(e) for summary disposal of the matter, and served a number of witness statements in support.  I shall consider the provisions of Rule 9 in due course.

 

2.      The background to the dispute is as follows.  By a Conveyance dated 12^th October 1959 (“the 1959 Conveyance”) and made between Mr and Mrs Symonds (1) and Castons (Builders) Limited (“the Company”) (2), the Land was conveyed to the Company in fee simple.  The Company was beneficially owned by Alfred Caston and his nephews, George William and Robert Charles Caston (“Robert”).  Robert was the uncle of the Respondents, who are siblings, and they are beneficiaries of his estate.  By a Conveyance dated 25^th July 1983 (“the 1983 Conveyance”) and made between the Company (1) and Nigel Robert Caston (“Nigel”), George William Caston (“George”), Robert Charles Caston (“Robert”), Vera Rose Green (“Vera”) and John Alfred Caston (“John”) (together defined as “the Purchasers”) (2), the Company conveyed the Land to the Purchasers in fee simple in consideration of the sum of £31,350.  By clause 2 of the Conveyance, the Purchasers declared that they held the Property on trust for sale for themselves as tenants in common in the shares set out in sub-clauses (i), (ii) and (iii).  The shares were as follows: one-third for Nigel, one-third for George and one-third for Robert, Vera and John jointly.

 

3.      On 30^th January 1984 a Declaration of Trust was executed by Nigel, George, Robert, Vera and John (1) and Thelma Beryl Hudson (“Thelma”) (2) (“the 1984 Declaration”).  This deed was stated to be supplemental to the 1983 Conveyance, and intended to correct a mistake in the beneficial shares.  The effect of the 1984 Declaration was to substitute Thelma for Robert as one of the one-ninth share beneficiaries.  Following the 1984 Declaration, there have been a number of deaths and grants of representation, with the combined effect that the Applicants say they are the present legal owners of the Land and are entitled to be registered as such, hence the applications that I have referred to.  John is the only serving trustee originally appointed by the 1983 Conveyance.

4.      The Respondents, as I have said, have registered cautions against first registration, and have separately objected to the Applicants’ application for first registration.  Their case is that Robert’s signature on the 1984 Declaration, and possibly on the 1983 Conveyance, was forged.  When Mr Farnese argued the Respondents’ case at the hearing before me, he did not positively argue that the 1983 Conveyance also contained a forged signature.  This may be due to the handwriting evidence which he relied on, and to which I refer below. However, the Respondents’ Statement of Case, and their response to the application dated 23^rd April 2015, allege that both documents were “invalid”, containing a forged or “invalid” signature, and for the purposes of this application I think I must assume that they are maintaining that both documents contain forgeries of Robert’s signature.  They are claiming, therefore, that in some way Robert’s estate retains an interest in the Land and they, through the estate, are therefore entitled.

 

5.      Before I summarise the evidence relied on by each party, I must set out what I consider to be the correct approach to an application made under Rule 9(3)(e) of the The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013.  The Applicants contend that “there is no reasonable prospect” of the Respondents’ case succeeding, in the words of the sub-rule. There is no guidance given in the Rules themselves as to the principles to apply.  It may be noted that there are clear similarities between these provisions, and the Court’s power to grant summary judgment under Part 24 of the Civil Procedure Rules, also having regard to the Practice Direction applicable to a Rule 9(3)(e) application.   However, the form of words used in each case is different.  Thus under CPR Part 24 summary judgment may be given where there is “no real prospect”, rather than “no reasonable prospect”, of succeeding.   Furthermore, under Part 24 there is an additional hurdle for an applicant to overcome, namely that “there is no other compelling reason why the case or issue should be disposed of at trial”.   It must be doubted, in my view, that despite these semantic and other differences there was any intention to require a radically different test.  The jurisprudence that has grown up around CPR Part 24, is extensive and the principles well-known.  It would be right, in my judgment, to use the cases decided under Part 24 as strong guidance to the proper approach to an application under Rule 9(3)(e).  If anything, the requirement of a “reasonable” prospect sets a lower threshold than the requirement of a “real” prospect, but for the reasons given I shall treat the tests as being in substance identical.

 

6.      There is helpful guidance to be found in the White Book at CPR 24.2.3.  The need to show a “real” prospect of success is said to rule out cases which are false, fanciful or imaginary.  A case must be better than merely arguable, although obviously the respondent is not required to show that the case will probably succeed at trial. A case may be held to have a “real prospect of success” even if improbable, although (under Part 24) a conditional order might be made in such circumstances.  The hearing of an application for summary judgment is not a summary trial.  The court should not conduct a “mini trial” of the issues.  The underlying approach was described in this way by Lord Hope in Three Rivers DC v Bank of England [2001] UKHL 16:

“94. For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is - what is to be the scope of that inquiry?

95. I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all.”

 

7.      For the purposes of this application, the Applicants have mounted a frontal attack on the Respondents’ case, as set out in the Statement of Case.  Their argument is contained in the witness statement dated 22^nd April 2015 of Mr Mark Fitch, the Applicants’ solicitor.  First, he points to the absence of any expert handwriting evidence provided by the Respondent in support of their claim that the signatures were forged – although such evidence was in fact produced (by both sides) prior to the hearing before me.  Secondly, he points out that the Respondents advance no positive case as to the legal ownership of the Land.  If they are correct that the 1983 Conveyance is in some way vitiated by the forgery, it seems to follow that the Company never disposed of the Land.  However, it is known that in August 1983 the members resolved that the Company should be voluntarily wound up, and it was dissolved in 1987.  If the Land remained in the Company’s ownership at that date, it would now be bona vacantia and would not belong to Robert or his estate. He also points to evidence that the Company and its members treated the Land as having been sold prior to the date of dissolution. Thirdly, he refers to a number of documents and transaction that post-date the 1983 Conveyance and 1984 Declaration that are wholly inconsistent with the Respondents’ case.

 

8.      The Company documents require further examination.  The Special Resolution to wind up the Company voluntarily is dated 9^th August 1983, and appointed William Peter Favor Hill, a Chartered Accountant, as Liquidator. Notice of his appointment was given on 17^th August 1983.  His first Statement of Account (commencing on 9^th August 1983), as verified by affidavit, was submitted to the Companies Registry and bears the date stamp 28^th November 1984.   In the Schedule of realizations, there are two items dated 5^th January 1984, against the names of “V.R.Green” and “J.A.Caston”.  Under the heading “Nature of assets realised” has been written “1/9 share of Rackheath land”, the amount in each case being £3,483.33. There are no unrealised assets referred to.  It will be recalled that under the 1983 Conveyance, the consideration was stated to be £31,500.  Vera Rose Green and John Alfred Caston were stated to be beneficially entitled to one-ninth shares.  One-ninth of £31,500 is £3,483.33.  The Liquidator’s subsequent six-monthly Accounts show no further realisations (other than small amounts of interest), and the final account dated March 1986 refers to a delay in termination caused by finalisation of tax liability.  As I have said, the Company was finally dissolved on 7^th August 1987.  It must be inferred, I think, that the dissolution would not have taken place unless the Liquidator had been satisfied that the Company’s assets had been realised, all liabilities discharged and final distributions made to the members.

 

9.      The Applicants also rely on a great number of other documents relating to the Land as being wholly inconsistent with the Respondents’ case.  The Respondents, as I understand their case, do not contend that any documents other than (possibly) the 1983 Conveyance and (certainly) the 1984 Declaration contain forgeries or are otherwise invalid.  It follows that on the hypothesis that the 1983 Conveyance is valid, the devolution of the legal estate in the Land to the Applicants is not challenged.  Indeed, only one subsequent document deals with the legal estate, as opposed to the beneficial interests in the Land.  This is the Deed of Appointment and Retirement dated 28^th June 2014, stated to be supplemental to the 1983 Conveyance as amended by the 1984 Declaration.  By the date of this deed, John and Vera were the sole surviving trustees of the 1983 Conveyance.  Vera retired from the trusteeship, but John continued, and they both appointed the three additional trustees to act as trustees of the trusts declared by the 1983 Conveyance.  Subject to the initial validity of the 1983 Conveyance, therefore, there can be no doubt that the Applicants herein are entitled to be registered as proprietors of the Land.

 

10.  In addition to this document relating to the legal estate in the Land, the Applicants adduce in evidence a whole series of documents which purport to deal with the beneficial interests in the Land.  These are all exhibited to their Statement of Case.  These deeds contain a series of dispositions, both inter vivos and testamentary, by various beneficiaries named in the 1983 Conveyance, of their respective shares in the Land.  Amongst these documents is a Deed of Variation dated 30^th April 1988, whereby Nigel’s will was varied so as to deal specifically with Nigel’s share of the Land as declared by the 1983 Conveyance.  Robert was Nigel’s father, and his executor, and in that capacity executed the Deed of Variation and a subsequent Assent giving effect to it.  As executor, he filed an Estate and Trust tax return which makes specific reference to Nigel’s share in the Land.  Other documents, including tax returns filed by other beneficiaries, are entirely consistent with the beneficial interests declared by the 1983 Conveyance as varied.   This evidence is summarised at paragraph 15 of Mr Fitch’s witness statement.

 

11.  The Applicants also rely on various witness statements.  Sylvia Gambling and Hazel Mayes were witnesses to Robert’s signature to the 1983 Conveyance.  Miles Wilson was a witness to Nigel’s Will.  Paul Caston deals with the administration of Nigel’s estate, and Robert’s role within it.  Ken Fisher was the tenant of the Land for many years.  They also obtained a report from a forensic document examiner, Ellen Radley.

 

12.  The Respondents’ case, insofar as it can be understood, is that at the date of his death Robert owned, or at least had an interest in, the Land.  It is not clear how they allege that he obtained the Land, other than by means of the 1983 Conveyance, given that it had previously been owned by the Company, and there is no allegation or documentary evidence of any conveyance to Robert alone.  They do produce a statement from Peter Robert Caston, the half brother of Robert, who states that “the land was part of a gentleman’s agreement and the last living partner of Caston Builders would become the legal owner.” They deny that he ever gave up his interest in the Land, and allege that the 1984 Declaration – by which he relinquished his share in favour of Thelma – was not binding on him since he never signed it.  They rely on the fact that Robert always used to refer to the Land as “his”, and that the tenant, Mr Fisher, used to pay rent to Robert until his death.  Mr Fisher made a statement to this effect upon which they rely.  They claim that the 1983 Conveyance (also a possible forgery) is incorrect, because it recites the receipt of the full purchase price (£31,350), yet the Liquidator’s Account shows that two beneficiaries did not pay for their shares until January 1984.  They make generalised allegations of underhand dealings by members of the family.  They say that the land has considerable planning potential and is worth £4-6m “with a buyer waiting” which “brings out the worst in families and greed takes over”.  They also refer me to correspondence with the solicitors (Hatch Brenner, who are acting for the Applicants’ in these proceedings) who acted for Robert’s estate in 2006, from which it appears that they originally considered the Land to be an asset of Robert’s estate.  However, in 2008 they wrote to the Respondents, stating that the deeds to the Land had been found, and it was therefore apparent that the estate had no interest in the Land. Finally, the Respondents suggest that Robert may have acquired a title to the Land by way of adverse possession, by virtue of collecting the rents from the Land and retaining them for his own benefit.

 

13.  The Respondents also rely on a report from Simone Tennant, a Graphologist, who was asked to express an opinion as to whether Robert’s purported signatures on the 1983 Conveyance and the 1984 Declaration were genuine. She was furnished with a copy of each document, and a number of specimen signatures. Her conclusion (see page 4 of her report) is that: (a) there is very strong evidence that the signature on the 1984 Declaration was a forgery; (b) there is very strong evidence that the signature on the 1983 Conveyance was genuine.  I should say that Ellen Radley, in her report, makes a number of serious criticisms of Nicole Tennant, both as to her methodology and as to her qualifications and credibility as an expert.

 

14.  That, in summary, is the evidence relied on by the parties.  Obviously, I cannot resolve disputed issues of fact on an application for summary judgment, and I must take the evidence at face value unless it is manifestly unreliable.  On that basis, my conclusions on the application for summary judgment are as follows.    The dispute between the parties, as referred by the Land Registry, relates to the Applicants’ application for first registration as proprietors of the Land.  In order to be registered, the Applicants must establish that they are the current unregistered legal owners.  For the reasons that I have explained, if the 1983 Conveyance is a valid document, it follows that the Applicants are the legal estate owners.  The 1984 Declaration deals only with the beneficial interests in the Land.  Beneficial interests are not entered on the register and take effect behind the legal title.  They may be protected by a restriction or similar entry on the register, but do not affect the registration of the legal estate owners.  Accordingly, in my view the principal issue in the dispute, as referred by the Land Registry, relates to the validity of the 1983 Conveyance.  If this document is valid and effective, the Applicants must succeed, leaving the Respondents to pursue any alleged beneficial interest in the proceeds of sale of the Land by other means.

 

15.  In my judgment, the Respondents have no reasonable prospect of establishing that the 1983 Conveyance is invalid, or otherwise not binding on Robert and his estate.  My principal reasons are as follows:

 

a.       There is not a shred of evidence to support the Respondents’ vague allegations of forgery.  The document appears on its face to have been properly executed.

b.      The Respondents’ own “expert” states that there is very strong evidence that Robert’s signature on the document is genuine.

c.       The unchallenged (and unchallengeable) evidence relating to the Company’s liquidation in the period 1983 to 1987 is wholly consistent with the terms of the 1983 Conveyance, and would be incomprehensible if the 1983 Conveyance had not been executed.

d.      All relevant members of the Caston family, including Robert himself, have conducted themselves since 1983 on the basis that the 1983 Conveyance was a valid, binding and effective document, creating beneficial interests in the Land.

e.       The Respondents have not identified the alleged forger of the signature, or the reasons for the forgery, or indeed the beneficiary of the forgery.  There is perhaps a vague hint from them that the document is a recent concoction – designed to deprive Robert of his alleged absolute interest in the Land – but for the reasons given in the preceding sub-paragraphs this would be quite impossible, unless all the documentary evidence dating back to 1983 was itself forged.  It must be borne in mind that an allegation of forgery is a serious one, and requires a proper degree of proof, albeit that the civil standard of proof is applicable.

f.       The suggestion that Robert may have acquired a title to the Land by way of adverse possession is untenable.  First, because there is uncontroverted evidence, in the form of tax returns, that beneficiaries were receiving their share of the rent – see the documents referred to at paragraphs 14 and 15 of Mr Fitch’s witness statement.  Secondly, because Robert was a trustee of the Land, and time would not run in the trustee’s favour under the Limitation Act 1980 section 21(1)(b).

 

16.  I have no hesitation in finding that the Respondents’ case – such as it is – regarding the authenticity of the 1983 Conveyance, and Robert’s signature on it, is entirely fanciful, not to say false and imaginary.  It has no reasonable prospect of succeeding. On this basis, I shall direct the Chief Land Registrar to give effect to the Applicants’ applications, with the result that they will be registered as proprietors of the Land.

 

17.  Strictly, I do not need to consider the Respondents’ case as regards the authenticity of the 1984 Declaration.  The devolution of the beneficial interests in the Land – including the variation effected by the 1984 Declaration – is not material when considering the legal title.   

 

18.  In view of the outcome, I consider that the Respondents should pay the Applicants’ costs.  I direct the Applicants to file a Costs Statement within 7 days.  The Respondents may file and serve submissions on costs – both as to the principle that they should pay the costs, and as to the amounts claimed – within 14 days of receiving the Costs Statement.  Any response by the Applicants is to be filed and served 7 days thereafter.  I shall then consider the matter further. 

 

Dated this 22^nd day of September 2015

 

 

 

BY ORDER OF THE TRIBUNAL