1st Dec 2022
Daniel Feetham KC and Rowan Pennington-Benton Instructed by Madison Legal (London) for the Respondent.
LORD KITCHIN AND LADY ROSE (with whom Lord Hamblen, Lord Burrows and Lord Stephens agree):
It has been appreciated for very many years that a clear and effective land registration system is extremely beneficial in that, through a register which is open for public inspection, reliable information can be obtained as to the ownership of land and whether rights are held by one person over land owned by another. A registration system in this way provides security to homeowners and those wishing to buy or invest in land, and it allows the property market to operate effectively by reducing the complexity, cost and uncertainty which otherwise are so often features of property transactions and conveyances.
The Law Commission of England and Wales recognised these benefits in their 2016 Consultation Paper No 227 about the system of land registration that operates in England and Wales entitled “Updating the Land Registration Act 2002” (the “2016 Consultation Paper”). They explained, in chapter 2, that any system of land registration is underpinned by some basic principles: first, that the register should be an accurate reflection of the property rights in relation to a piece of land; secondly, that the register does not contain details of the beneficial ownership of land; and thirdly, that the register operates more or less as a guarantee of title.
One system of land registration was developed by Sir Robert Torrens and introduced by him in South Australia in the nineteenth century. This system and many developments and variations of it are now known as “Torrens systems”. The central feature of a Torrens system is that registration confers title on the registered proprietor. As Lord Phillips explained, giving the judgment of the Board in Quinto v Santiago Castillo Ltd  UKPC 15; (2009) 74 WIR 217, at para 4, a merit of such a system is that a purchaser from the registered proprietor generally does not have to look further than the register for reassurance that the vendor has good title. In some of these systems, once a title to land is registered it is indefeasible. In others, anyone purchasing land bona fide from a registered proprietor, once they are registered, will obtain an indefeasible title to that land.
It is recognised that a Torrens system of land registration can work an injustice in some cases, however, and particularly so if the registration of the title is brought about by fraud or mistake. Hence, as the Board emphasised in Santiago Castillo, again at para 4, it is for this reason that many such systems make provision for rectification of the register. But the nature of those provisions varies from system to system and the effect of each will depend on its own terms.
This appeal is concerned with the provisions of the Registered Land Act, Cap 8:01, the Revised Laws of Montserrat 2008 (“the RLA 2008”), and their application to a series of transactions which took place in 2007 and 2008 and by which the appellants claim to have purchased and acquired title to various parcels of land in the parish of St Peter’s in Montserrat. The parties have referred only to terms of the RLA 2008 and the Board will do the same. It is accepted that the RLA 2008 provides for a Torrens system of land registration, and that prior to the events giving rise to these proceedings, the parcels of land in issue in these proceedings were owned by the first respondent, Providence Estate Limited (“PEL”), and PEL appeared on the register as proprietor.
The purported sale of the parcels of land to the appellants did not take place with the authority or consent of PEL, however. Instead, and as the Board will elaborate in due course, Mr Warren Cassell, purporting to act as a director of PEL and as its attorney, caused PEL to enter into the various transactions and arranged for the disposition of the relevant parcels of land to the appellants; and in each case the transactions culminated in the registration of the appellants as proprietors of the parcels of land under the RLA 2008. Further, the purchase moneys have never been paid to PEL. Instead, at Mr Cassell’s instigation, they were paid to a company owned and controlled by him called Cassell and Lewis Inc.
In these proceedings the appellants sought declarations that they were the absolute owners of the land and that they had been duly and properly registered as proprietors of that land. PEL and Mr Owen Rooney, the second respondent and a director of PEL at the relevant times, resisted the claim and sought rectification of the register.
The resolution of these claims and counterclaims depends upon the provisions of the Torrens system of land registration as it applies in Montserrat; whether and in what circumstances the register can be rectified; or whether there is any other basis upon which PEL can recover the parcels of land or at least their value. The Board will address these questions in a moment. But before doing so it is necessary to summarise the essential aspects of the rather complex background to these proceedings, the relevant provisions and also to say something about the history of the proceedings themselves.