Barons Finance Ltd., R (on the application of) v Chief Land Registrar

1. MR JUSTICE SIMON: This is a renewed application for permission to bring judicial review proceedings on behalf of Barons Finance Limited against the Chief Land Registrar.

2. The decisions which it is sought to challenge are decisions to remove and to cancel a unilateral notice registered against title MX235589.

3. The facts relied on are these. The claimant company, represented today by Mr Gopee, a director, advanced sums to the registered owners of property under the terms of a mortgage dated 21st September 2007. Unknown to the claimants, Barclays Bank already had a charge over the property in respect of a prior loan, which it did not register until after the date of the claimant's charge. Barclays then sold the property as mortgagee in possession without discharging the claimant's charge. The purchasers applied for and became registered proprietors of the property and then applied for cancellation of the claimant's unilateral notice. The notice came to be cancelled despite the claimant's objection.

4. The claim is for a mandatory order requiring the defendant to reinstate the unilateral notice with retrospective effect and an order quashing the decision of the Land Registry to cancel the unilateral notice. The grounds of the claim are founded on the claimant's right to protection of property under Article 1 of the first protocol.

5. Like the single judge, it seems to me that there is a problem with this claim, namely that it is not a suitable case for a judicial review. There is an alternative remedy, namely a claim against the defendant in the Chancery Division for rectification and/or payment of an indemnity. Such a course has the additional advantage that the claimant could adduce the evidence that it now wishes to adduce as of right. If there is a dispute of fact it can be resolved in the customary way.

6. In a witness statement produced in court today and dated 11th February, Mr Gopee draws the court's attention to the fact that he has made a claim against the defendant for rectification of the Register and an indemnity and that has been refused in the terms of a letter dated 22nd December 2009.

7. If the claimant has a valid claim, that is not the end of the matter. If he does not of course, it is again a matter that can be dealt with in the course of civil litigation. For these reasons the renewed application is refused.

8. Thank you for your submissions Mr Gopee.