Summary

Appeal from an order of Master Bowles of 2 July 1999 where the claim against the fifth defendant, the Chief Land Registrar ('the registrar'), was struck out.

Facts

The proceedings were against the claimant's former wife, her lover, his brother ('the third defendant'), a solicitor and the registrar. In 1981 the claimant, a Kenyan citizen, bought a property in the UK as an investment through the medium of a Gibraltar company, but took no interest in the running of the company or the property. The wife and her lover had the company struck off the Register of Companies in Gibraltar and a company of exactly the same name was incorporated which then purported to deal with the property by allowing it to be purchased by the third defendant. The mortgage payments on the property went into default and the mortgage company took possession and sold the property. The claimant initiated proceedings in June 1996. The claim against the registrar was under s.83 Land Registration Act 1925 as the registrar was liable to indemnify a person if rectification was not possible. In May 1997 a deputy master ordered, inter alia, discovery and witness statements to be served. Eventually, as no evidence was served by the claimant, the registrar applied to have the claim against him struck out for failure to comply with the deputy master's order. At the hearing in July 1999 Master Bowles held that communication between the parties was difficult due to, inter alia, the claimant's residence in Kenya and that it was unlikely that the case could be tried properly. After that hearing the claimant produced a witness statement and indicated that future communication would be easier. Accordingly on appeal the judge considered whether the claimant's delay of 22 months before serving a witness statement was such that the claim should be struck out for failure to comply with the deputy master's order per the court's powers under CPR 3.4(2)(c).

Held

(1) The judge had no doubt that Master Bowles' decision had been correct on the material before him. However the situation had changed, for example the claimant had now served a witness statement and the judge had to take those changes into account. The exercise of the court's powers were governed by the overriding objective of CPR 1.1. There was no prejudice suggested to the fairness of the trial or an increase in costs as a result of the delay for example and the present delay was not contumacious. The only thing that had happened was delay, which was one of the considerations to which the court had to have regard under CPR 1.1(2)(d).

(2) The strike out sanction for breach of procedural rules by late compliance had to be exercised with care. The court had new powers (ie CPR) where in most monetary claims the court could order a remedy for the delay that was less than a strike out and thus proportionate to the consequences of delay. For example interest could be refused in any award or costs could be deducted from an award for the period of the delay. In the present case it would have been appropriate for the lesser sanction of preventing the claimant gaining interest on any award as the matter was now ready to go to trial and it was not just that it should be struck out.

(3) As the case was ready for trial the judge had to consider the question of whether the claim was good enough to justify a trial. The registrar accepted that if the claimant had suffered loss only "partly" as a result of his own lack of proper care, per s.83(5) of the Act, the matter would have to go to trial. On the evidence the claimant's loss had been "wholly" through his lack of proper care as he had failed to pay any attention to the operation of the company and this was something his witness statement demonstrated. He had also let his wife have the title deeds to the property despite having suspicions as to her behaviour. Where anyone owned a property directly or indirectly the registrar was entitled to expect the owner of the property to take proper care of it or to see that it was properly managed. The claimant simply did nothing and, but for his failure, the fraud by his wife would not have happened. Accordingly, on the evidence, there was no real prospect of the claimant succeeding. Whilst the judge had sympathy with the claimant it was not a matter for which the registrar should have to compensate him for.

Appeal dismissed with costs. Permission to appeal refused.