[2025] UKUT 144 (LC)

The first ground of appeal is that the FTT was wrong to find that there was a mistake on the register, for a number of reasons:

Pausing there, I can begin by dismissing points d and e above, neither of which were pursued by Mr Denner at the hearing of the appeal. There is no enhanced standard of proof or any special need for “cogent” evidence where two mistakes rather than one are alleged. The decision in Re H has no relevance to proof of title to land. As to disclosure, it is not said what inference should have been drawn. In my judgment the late disclosure of the 1903 and 1946 deeds is irrelevant to this appeal. Whether he has adduced sufficient evidence to prove that one or more mistakes were committed is another matter.

Points a and b above are the crux of this ground: Mr Suhitharan says that in order to succeed Mr Iwaskiewicz had to show that not one but two mistakes had been made, and he had to show what those mistakes were.

The judge in the FTT in refusing permission to appeal said: “It is unsurprising, on the facts of this matter, that if the Disputed Land was mistakenly omitted from [Mr Iwaskiewicz’s] title, it is to be found mistakenly within [Mr Suhitharan’s] title.”

I do not understand that. Certainly there are instances where a mistake on the register affects two titles, for example on a sale of part where too much or too little land is included in the sale. But this is not such a case because number 4 and number 2 are separate titles. As the judge said, there is no evidence going back to a time when they were in common ownership, if ever they were. They were two separate unregistered titles, and (barring implausible coincidence) they must have come to first registration on different dates. If number 4 was registered first without the disputed land as a result of a conveyancer’s error, there is no reason why on a later first registration of number 2 another conveyancer would make the converse error and include the disputed land as part of number 2. Such a mistake could have been made but it would be an odd coincidence; and the inclusion of land to which the owner of number 2 had no title would be unlikely to be overlooked by a purchaser or by the registrar. Likewise, if number 2 was registered first, its registration with the disputed land included by mistake (even if that got past the purchaser’s scrutiny) would not cause a different, later conveyancer to get the plan for number 4 wrong by omitting the disputed land.

In other words, the omission and inclusion are not two sides of the same coin as they would be on a sale of part; neither mistake makes the other one “unsurprising” so that they can be regarded as the same mistake. Mr Iwaskiewicz had to prove not that there was one mistake on the register but that there were two separate mistakes.

Mr Iwaskiewicz had to prove that on the balance of probabilities, i.e. he had to show that it was more likely than not to have happened. And in a situation where there are other possible explanations for the omission of the disputed land from number 4 and its inclusion in number 2, some information about the two suggested mistakes on the register is required to show that that is the most probable of the possible explanations.

One such possible explanation is that the disputed land was sold to number 2. That could have happened in 1973 or at any time before Mr Iwaskiewicz bought in 2000, either at the same time as a transfer of whole or as a separate transaction. The judge said there was “nothing that remotely suggests such a transaction took place”; but it was not for Mr Suhitharan to prove that it had (as he said in his grounds of appeal - point c at paragraph 24 above). Rather, it was for Mr Iwaskiewicz to show that the mistake (which as I have said was actually two independent mistakes) was more likely to have happened than a sale.

Another possible explanation is that number 4 was indeed registered first, that the disputed land was omitted by mistake, and that later the disputed land was acquired by the owner of number 2 by adverse possession and then incorporated in the registered title of the whole. There is plenty of time for that to have happened between 1946 and 2000, and there is no reason why there would be any trace of it on the register as it stands today (there is no information as to what the register looked like in 2000).

In either case, the estate agent in 2000 could have included the garage in the text of the advertisement in error (I note that the photograph on the advertisement was correct in that it did not include the garage; only the text was wrong). Whether the vendor was aware of that error is not known; Mr Iwaskiewicz did not say that he had been told by his vendor that the disputed land was part of the property. Why is it more likely that two conveyancers made independent and complementary errors (a matching omission and inclusion) than that an estate agent made a mistake in 2000? Why was it more likely that two such errors were made than that the two neighbours at some stage before 2000 agreed a sale of the garage?

I have considered carefully whether Mr Iwaskiewicz’s use of the garage and drive since 2000 is itself evidence of a mistake on the register. But Mr Iwaskiewicz explained his belief that he owned the disputed land by reference only to the estate agent’s particulars. He did not suggest that a previous owner had told him that the disputed land was within the title, nor that he had legal advice to that effect. His belief and his activity add nothing to the information available about the title because they are explained by the estate agent’s particulars. Moreover, the judge made no finding that either Ms Ruffhead or her predecessor in title acquiesced in or failed to protest about Mr Iwaskiewicz’s use; he made a finding of fact only about what Mr Iwaskiewicz did, not about what his neighbour thought about it.

Accordingly the judge’s finding that there was a mistake, without any finding as to what happened and when, mean that his conclusion was unexplained. Moreover, and for the same reasons, on the evidence before him there was no basis on which the judge could have found that these two mistakes happened on the balance of probabilities.

Accordingly the first ground of appeal succeeds.

That means that ground 2 does not arise, but since it was argued (and in case I am wrong about ground 1) I go on to make a finding about it in any event.