Ministry of Housing and Local Government v Sharp: CA 1970

Mr Sharp was the local land registrar with statutory duty to maintain the local registry, issuing certificates in response to search requests. A clerk who had been seconded by another Council to assist him negligently issued an inaccurate certificate to a prospective purchaser of land, omitting any reference to a claim to reimbursement of compensation which the Ministry had against the seller. The result was to extinguish the right which the Ministry would otherwise have had to pursue its claim against the purchaser. It was conceded that, if the clerk was liable in negligence to the Ministry, then the council was vicariously liable for its clerk.
Held: The clerk was liable. The Court rejected the argument that a voluntary assumption of responsibility was the sole criterion for imposing a duty of care for the negligent preparation of a search certificate in the local land charges register.
Lord Denning MR disagreed with the proposition that a duty of care could not fall on someone accepting an assumption of responsibility non-voluntarily: ‘It has been argued . . that since the council did not voluntarily make the search or prepare the certificate for their clerk’s signature they did not voluntarily assume responsibility for the accuracy of the certificate and accordingly owed no duty to the Minister. I do not accept that, in all cases, it necessarily depends upon a voluntary assumption of responsibility.’ and ‘The object of the register is to provide security for two classes of people, incumbrancers and purchasers.’
Cross LJ saw ‘no sufficient reason why in an appropriate case the liability should not extend to cases in which the defendant is obliged to make the statement which proves to be false.’
he said: ”In 1888 the registrar [i.e. the Chief Land Registrar] was expressly exempted from liability to be sued for acts done in exercise of his powers under the Land Transfer Act, 1875; so Parliament at that date cannot have thought that there was anything inherently objectionable in the fact that members of the public who suffered through innocent mistakes in the registry should have no civil remedies. As he was exempt from liability under the Land Transfer Act, to subject him to liability under the Land Charges Act would, prima facie, be anomalous. The anomaly would, however, be explicable if and so far as the various officers of the Supreme Court who were directed to maintain registers by the Acts scheduled to the Conveyancing Act, 1881, and similar Acts, were themselves liable to be sued, for the provisions for official searches and certificates made applicable to the registrar in 1888 were taken from the provisions in section 2 of the Conveyancing Act, 1882. Further, in 1900, two registers formerly kept by the registrar of judgments were transferred to the land registrar. But if and so far as the court officials were not themselves liable to be sued I find it very difficult to suppose that Parliament intended to subject the land registrar to liability by the Act of 1888. The natural assumption would be that Parliament either considered that no express exemption corresponding to the Land Transfer Act provision was necessary or, more probably, simply forgot to put one in.
So the point which to my mind is crucial is to what extent, if at all, the various ‘proper officers’ were liable to be sued. Douglass v. Yallop, (1759) 2 Burr. 722, to which the Master of the Rolls refers, shows that the senior master of the Court of Common Pleas, who received five shillings for each entry, would have been liable to be sued for any damages suffered by the plaintiff for his failure to register a judgment presented for registration under the Judgments Act, 1838. Of course, by 1888, the registrar of judgments (the senior master of the Queen’s Bench Division) received a fixed salary and it might perhaps be argued that his personal liability to be sued for the failure of one of his clerks to register a judgment did not survive the legislation which reorganised the courts. But even if that is not so, what we are concerned with is the obligation to issue certificates of search which was first created by the Conveyancing Act, 1882. That Act was a code applicable to all registers kept, or apparently to be kept, in the Central Office under the Acts scheduled to the Conveyancing Act, 1881, and any other Acts; so that it might apply to functionaries of varying status. I find it difficult to suppose that Parliament in the year 1882 intended by such an Act to make these unidentified officers of the court paid by salary personally liable to ensure the accuracy of the certificates of search issued in respect of registers under their charge.’
Salmon LJ held that the local registrar was not liable for breach of an absolute statutory duty, which was what had been alleged. It had been accepted that the local registrar had not been negligent in any way and that he was not vicariously responsible for the negligence of the council’s servant who had carried out the search and issued the certificate. He noted indications in favour of civil liability, on the basis of an absolute obligation, saying: ‘It is clear that section 17(1), (2) and (3) of the Land Charges Act 1925 were enacted particularly for the benefit of chargees, incumbrancers (of whom the Minister is one) and purchasers rather than for the benefit of the general public. Purchasers, chargees and incumbrancers may suffer the most grave financial loss if the search which section 17(2) requires is not properly carried out or the certificate which it requires is inaccurate.’
The statutory duty was one of due diligence, not an absolute duty and because the claim had been put on the basis of an absolute duty, he held that it failed. As to section 131, he said: ‘It was, in my view, designed to protect those working in the registry from being plagued by vexatious actions. It accordingly provided that any claim, save a claim in fraud, could be struck out in limine. The indemnity in section 85 was a beneficent provision, possibly in part to compensate for the loss of a cause of action in negligence, and which, in any event, justice demanded. It might well have been introduced into the Land Charges Act, 1925, but only in so far as concerned Her Majesty’s Land Registry, for in 1925 Parliament could hardly have been expected to set up a central fund in effect to indemnify local authorities against the mistakes of their own servants. Accordingly, the fact that no provisions corresponding to sections 83, 85 or 131 of the Land Registration Act appear in the Land Charges Act seems to me to be irrelevant to the question we have to decide.’
Lord Denning MR, Salmon LJ, Cross LJ
[1970] 2 QB 223, [1970] 1 All ER 1009
Land Charges Act 1925 17(1) 17(2) 17(3), Land Registration Act 1925 131
England and Wales
CitedDouglass, Widow And Administratrix, v Yallop, Esq 1759
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Updated: 13 January 2021; Ref: scu.186284