The Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003

PART 5 HEARINGS AND SUBSTANTIVE DECISIONS

Scope of this Part

32.  This Part sets out the procedure for determination of references and rectification applications, the format of substantive decisions and substantive orders and rules on costs.

Substantive decision without a hearing

33.—(1) There is a presumption that a substantive decision is made following a hearing.

(2) Subject to paragraph (1), the adjudicator may make a substantive decision without a hearing if—

(a) he is satisfied that there is no important public interest consideration that requires a hearing in public; and

(b) unless paragraph (3) applies, he has served written notice on the parties in accordance with these Rules that he intends to make a substantive decision without a hearing or that he has received an application requesting that the substantive decision be made without a hearing and—

(i) the parties agree to the substantive decision being made without a hearing; or

(ii) the parties fail to object within the specified period for objection to the substantive decision being made without a hearing.

(3) The adjudicator is not required to serve notice under paragraph (2)(b) if all parties have requested the adjudicator to make the substantive decision without a hearing.

Notice of hearing

34.—(1) Where the adjudicator is to hold a hearing, he must serve written notice of his intention to hear on such parties as he considers necessary.

(2) The adjudicator must specify in the notice under paragraph (1), the date, time and location of the hearing.

(3) The adjudicator must serve the notice under paragraph (1)—

(a) no later than 28 days before the hearing; or

(b) before the expiry of such shorter notice period as agreed by all the parties on whom he intends to serve notice under paragraph (1).

Representation at the hearing

35.—(1) At the hearing a party may conduct his case himself or, subject to paragraph (2), be represented or assisted by any person, whether or not legally qualified.

(2) If, in any particular case, the adjudicator is satisfied that there is sufficient reason for doing so, he may refuse to permit a particular person to represent or assist a party at the hearing.

Publication of hearings

36.  The adjudicator must publish details of all listed hearings at the office of the adjudicator and, if different, the venue at which the hearing is to take place.

Attendance at hearings by members of the Council on Tribunals

37.  A member of the Council on Tribunals shall be entitled to attend any hearing of the adjudicator whether or not it is in private, but shall take no part in the hearing or in the deliberations on the matter.

Absence of parties

38.—(1) If any party does not attend and is not represented at any hearing of which notice has been served on him in accordance with these Rules, the adjudicator—

(a) may proceed with the hearing and reach a substantive decision in that party’s absence if—

(i) the adjudicator is not satisfied that any reasons given for the absence are justified;

(ii) the absent party consents; or

(iii) it would be unjust to adjourn the hearing; or

(b) must otherwise adjourn the hearing.

(2) Following a decision by the adjudicator under paragraph (1) to proceed with or adjourn the hearing, the adjudicator may make such consequential directions as he sees fit.

Substantive decision of the adjudicator

39.—(1) Where there is a hearing, the substantive decision of the adjudicator may be given orally at the end of the hearing or reserved.

(2) A substantive decision of the adjudicator, whether made at a hearing or without a hearing, must be recorded in a substantive order.

(3) The adjudicator may not vary or set aside a substantive decision.

Substantive orders and written reasons

40.—(1) A substantive order must—

(a) be in writing;

(b) be dated;

(c) be signed by the adjudicator;

(d) state the substantive decision that has been reached;

(e) state any steps that must be taken to give effect to that substantive decision; and

(f) state the possible consequences of a party’s failure to comply with the substantive order within any specified time limits.

(2) The substantive order must be served by the adjudicator on—

(a) every party to the proceedings; and

(b) where the substantive order requires the registrar to take action, the registrar.

(3) A substantive order requiring a party to provide or produce a document or any other material may require the party to provide or produce it to any or all of the adjudicator, the registrar or another party.

(4) Unless the adjudicator directs otherwise, the substantive order must be publicly available.

(5) Where the substantive order is publicly available, the adjudicator may provide copies of it to the public on request.

(6) The adjudicator must give in writing to all parties his reasons for—

(a) his substantive decision; and

(b) any steps that must be taken to give effect to that substantive decision.

(7) The adjudicator’s reasons referred to in paragraph (6) need not be given in the substantive order.

Substantive orders on a reference that include requirements on the registrar

41.—(1) Where the adjudicator has made a substantive decision on a reference, the substantive order giving effect to that substantive decision may include a requirement on the registrar to—

(a) give effect to the original application in whole or in part as if the objection to that original application had not been made; or

(b) cancel the original application in whole or in part.

(2) A requirement on the registrar under this rule may include—

(a) a condition that a specified entry be made on the register of any title affected; or

(b) a requirement to reject any future application of a specified kind by a named party to the proceedings—

(i) unconditionally; or

(ii) unless that party satisfies specified conditions.

Costs

42.—(1) In this rule—

(a) “all the circumstances” are all the circumstances of the proceedings and include—

(i) the conduct of the parties during (but not prior to) the proceedings;

(ii) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(iii) any representations made to the adjudicator by the parties; and

(b) the conduct of the parties during the proceedings includes—

(i) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(ii) the manner in which a party has pursued or defended his case or a particular allegation or issue; and

(iii) whether a party who has succeeded in his case in whole or in part exaggerated his case.

(2) The adjudicator may, on the application of a party or of his own motion, make an order as to costs.

(3) In deciding what order as to costs (if any) to make, the adjudicator must have regard to all the circumstances.

(4) An order as to costs may—

(a) require a party to pay the whole or such part of the costs of another party and—

(i) specify a fixed sum or proportion to be paid; or

(ii) specify that the costs are to be assessed by the adjudicator if not agreed; and

(b) specify the time within which the costs are to be paid.

(5) An order as to costs must be recorded in a costs order.

(6) A costs order must—

(a) be in writing;

(b) be dated;

(c) be signed by the adjudicator;

(d) state the order as to costs; and

(e) be served by the adjudicator on the parties.

(7) Where the costs are to be assessed by the adjudicator, he may assess the costs—

(a) on the standard basis; or

(b) on the indemnity basis,

but in either case the adjudicator will not allow costs that have been unreasonably incurred or are unreasonable in amount.

(8) The adjudicator must inform the parties of the basis on which he will be assessing the costs.

(9) Where the amount of the costs are to be assessed on the standard basis, the adjudicator must—

(a) only allow costs which are proportionate to the matters in issue; and

(b) resolve any doubt that he may have as to whether costs were reasonably incurred or reasonable and proportionate in favour of the paying party.

(10) In deciding whether costs assessed on the standard basis were either proportionately and reasonably incurred or proportionate and reasonable in amount, the adjudicator must have regard to all the circumstances.

(11) Where the amount of the costs are to be assessed on the indemnity basis, the adjudicator must resolve any doubt that he may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the paying party.

(12) In deciding whether costs assessed on the indemnity basis were either reasonably incurred or reasonable in amount, the adjudicator must have regard to all the circumstances.

(13) Once the adjudicator has assessed the costs, he must serve on the parties written notice—

(a) of the amount which must be paid;

(b) by whom and to whom the amount must be paid; and

(c) if appropriate, the time by when the amount must be paid.

Costs thrown away

43.—(1) In this rule—

“costs thrown away” means costs of the proceedings resulting from any neglect or delay of the legal representative during (but not prior to) the proceedings and which—

(a)

have been incurred by a party; or

(b)

have been—

(i)

paid by a party to another party; or

(ii)

awarded to a party,

under an order made under rule 42;

“an order as to costs thrown away” means an order requiring the legal representative concerned to meet the whole or part of the costs thrown away; and

“the legal representative” means the legally qualified representative of a party.

(2) The adjudicator may, on the application of a party or otherwise, make an order as to costs thrown away provided the adjudicator is satisfied that—

(a) a party has incurred costs of the proceedings unnecessarily as a result of the neglect or delay of the legal representative; and

(b) it is just in all the circumstances for the legal representative to compensate the party who has incurred or paid the costs thrown away, for the whole or part of those costs.

(3) If the adjudicator has received an application for or proposes to make an order as to costs thrown away, he may give directions to the parties and the legal representative about the procedure to be followed to ensure that the issues are dealt with in a way that is fair and as simple and summary as the circumstances permit.

(4) An order as to costs thrown away may—

(a) specify the amount of costs to be paid by the legal representative; and

(b) if the adjudicator considers it appropriate, specify the time within which the costs are to be paid.

(5) An order as to costs thrown away must be recorded in a costs thrown away order.

(6) A costs thrown away order must—

(a) be in writing;

(b) be dated;

(c) be signed by the adjudicator;

(d) state the order as to costs thrown away; and

(e) be served by the adjudicator on the parties and the legal representative.