Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

“Neither the licensor nor anyone who claims through him can disregard the contract, except a purchaser for value without notice.”426

No authority was cited since there was none to cite.427

Lord Denning MR returned to the assault when he dissented in Binions v. Evans.428 Tredegar Estate provided for the widow of its chauffeur by allowing her to remain living in their tied cottage, rent free for the rest of her life, on her promise to maintain it in good condition and to cultivate the garden. The Tredegar Estate sold the house at a low price, reduced to reflect the widow’s contractual licence, but the builder who bought it sought possession six months later with the widow still alive. Lord Denning MR held that her contractual right to reside in the house gave her an equitable interest in the land, which bound any purchaser with knowledge of her right. By 1981 the impact of Lord Denning’s judicial activity was such that the Court of Appeal could assume that a contractual licence enjoyed proprietary force.429

Rejection of proprietary character is technically obiter in Ashburn Anstalt v. Arnold,430 but Fox LJ’s reasoning is carefully considered and authoritative. A company sold its shop to developers but with a licence (the obiter discussion assumes) to occupy the shop until needed by the developers for redevelopment. The freehold was sold. Could the new owners dispossess the licensees? Fox LJ decided that a contractual licence was inherently incapable of binding freehold purchasers. He emphasised the settled state of the law before Errington,431 and rejected the central dictum by Denning LJ as unnecessary, unsupported by authority, and given per incuriam.432 Proprietary status could not attach to contractual obligations. The contrary view, heretical as it was, was finally repudiated.433

Some remnants of proprietary character have not been expunged. Damages for breach of a contractual licence may be awarded if the land increases in value through an unlawful revocation.434 Statutory compensation is payable on compulsory purchase.435

3.Licence coupled with an interest

[19.77] A licence coupled with an interest enjoys the proprietary character of the right with which it is associated. Thus a legal profit to fish in a river carries with it a licence

426[1952] 1 KB 290, 299. For hostile comment see: RH Maudsley (1956) 20 Conv (NS) 281; HWR Wade (1952) 68 LQR 337.

427Ashburn Anstalt v. Arnold [1989] Ch 1, 17, Dillon LJ.

428[1972] Ch 359, CA; SM Bandali (1973) 37 Conv (NS) 402.

429Midland Bank v. Farmpride Hatcheries [1981] 2 EGLR 147, CA; RE Annand [1982] Conv 67; Heslop

v.Burns [1974] 1 WLR 1241, 1251G, Scarman LJ; S Moriarty (1984) 100 LQR 376, 388–397.

430[1989] Ch 1, CA; MP Thompson [1988] Conv 201; AJ Oakley [1988] CLJ 353; J Hill (1988) 51 MLR 226; P Sparkes (1988) 104 LQR 175; G Battersby [1991] Conv 36.

431At 15H.

432At 17, 22.

433Camden LBC v. Shortlife Community Housing (1992) 25 HLR 330, 341, Millett J; Sparkes v. Smart

[1990] 2 EGLR 245, CA; IDC Group v. Clark [1992] 1 EGLR 187, 189 on appeal [1992] 2 EGLR 184, CA; Nationwide Anglia BS v. Ahmed (1995) 70 P & CR 381, CA (no rights against lender).

434Tanner v. Tanner [1975] 1 WLR 1346, CA; W v. W [1976] Fam 107, 113A–B, Baker P.

435Compulsory Purchase Act 1965 ss 5, 10; DHN Food Distributors v. Tower Hamlets LBC [1976] 1 WLR 852, CA; Pennine Raceway v. Kirklees MBC [1983] QB 382, CA; MacDougall v. Wrexham Maelor BC

(1993) 33 RVR 141.

to use the river bank from which to fish, which is itself essentially a legal interest in the land. If this was not so the profit would be useless, for the licence could be revoked after sale of the burdened land, leaving a profit that could not be exploited. The licence must take on the character of the property right to which it is attached.436 A licence is proprietary if coupled with an interest which is proprietary.

4.Estoppel licences

[19.78] An interest created by proprietary estoppel has the characteristic of endurability against future owners of the land, including purchasers: notice doctrine applies to informal burdens affecting unregistered land.437 Proprietary status is now confirmed if the estoppel affects registered land,438 and it then usually be overriding through occupation.439

Estoppel can be used to give proprietary status to an occupational licence. As it happens almost all of the cases have concerned enforcement against the recipient of a gift rather than against a purchaser. Inwards v. Baker 440 is an archetype. An estoppel was raised against a father who encouraged his son to build a bungalow on his land and who raised in his son’s mind the expectation that he would be allowed to stay for life. When the father died, this right was held binding on his personal representatives, who sued on behalf of the successors entitled on the fathers death. The decision to refuse possession shows that the estoppel created an unprotectible and novel equitable interest.441

It is also possible to reassign contractual licences – which are personal – to estoppel doctrine.442 Enforcement against a successor may be allowed if the previous owner created an expectation of residential security on which the licensee has acted to his detriment.

N. CONSTRUCTIVE TRUST DOCTRINE

[19.79] The property law objection to enforcement of a contract443 or licence against a purchaser can be side-stepped by imposing a constructive trust on a person who accepts the burden of it when he buys.444 This proprietary novation requires more than the mere existence of a contractual licence,445 since, as Ashburn Anstalt v. Arnold

436See above [19.70].

437ER Ives Investment v. High [1967] 2 QB 379, CA; see below [23.40].

438LRA 2002 s 116.

439LRA 2002 sch 1 para 2, sch 3 para 2.

440[1965] 2 QB 29, CA.

441S Moriarty (1984) 100 LQR 376, 393; J Hill (1988) 51 MLR 226, 233; J Dewar (1986) 49 MLR 741, 742; G Battersby [1991] Conv 36, 46.

442Lloyds Bank v. Carrick [1996] 4 All ER 630, CA, holds this reassignment to be illegitimate if the contract is registrable, but this has no impact on licence cases where the contract is not to create a legal estate, and is not registrable. Reassignment of Errington [1952] 1 KB 290, CA, began early: RH Maudsley (1956) 20 Conv (NS) 281.

443AJ Oakley (1972) 35 MLR 551, 557; MP Thompson [1988] Conv 201.

444Gissing v. Gissing [1971] AC 886, 905, Lord Diplock.

445Despite DHN Food Distributors v. Tower Hamlets LBC [1976] 1 WLR 852, 859, Lord Denning MR, 860–861, Goff LJ.

demonstrates, a contractual licence is not itself proprietary.446 A burden, such as a contractual licence, needs to have some added factor X.447 Case-law eliminates certain possible Xs – notice,448 occupation,449 and actual knowledge by itself.450 This leaves two recognised grounds for imposing a constructive trust.

1.Payment of a reduced price

[19.80] It is legitimate to impose a constructive trust where the price paid for the land is reduced to reflect the fact that vacant possession will not be given, since such a purchaser could not without gross inequity defeat the licence. In Bannister v. Bannister451 the owner of two cottages sold them to a buyer who gave an oral undertaking that the seller would be allowed to live in her existing cottage for as long as she wanted. The conveyance did not refer to this arrangement. The buyer secured both cottages at a bargain price, since he was only obtaining vacant possession of one of them. It was a fraud by the buyer to insist on the absolute character of the conveyance to defeat her interest,452 and a constructive trust was imposed to protect her licence.453 In Binions v. Evans454 the purchasers had been supplied with a copy of the agreement covering Mrs Evans occupation, they paid a reduced price, and then “it would be utterly inequitable for the plaintiffs to turn the defendant out contrary to the stipulation subject to which they took the premises.”

2.Purchase subject to a specific burden

[19.81] The acceptance of a new obligation is crucial.455 In Lyus v. Prowsa Developments456 a development site was sold by a lender457 subject to a contract for the sale of the house built on one of the plots. The developer who bought the whole

446Ashburn Anstalt v. Arnold [1989] Ch 1, 24E; Lyus v. Prowsa Developments [1982] 1 WLR 1044, Dillon J; J Hill (1988) 51 MLR 226. Query Re Sharpe [1980] 1 WLR 219; see JE Martin [1980] Conv 206.

447Ashburn Anstalt v. Arnold [1989] Ch 1, 23C, 26E, Fox LJ; IDC Group v. Clark [1992] 1 EGLR 187, 189 on appeal [1992] 2 EGLR 184, CA. It is not necessary to show that a trust is intended: Bannister v. Bannister [1948] 2 All ER 133, 136, Scott LJ; Lyus v. Prowsa Developments [1982] 1 WLR 1044, 1053A. Query Re Schebsman [1944] Ch 83, 89, Lord Greene MR; Canadian Imperial Bank of Commerce v. Bello

(1992) 64 P & CR 48, 51; IDC Group v. Clark [1992] 1 EGLR 187, 189 on appeal [1992] 2 EGLR 184, CA.

448Lyus v. Prowsa Developments [1982] 1 WLR 1044, 1051D, Dillon J; London CC v. Allen [1914] 3 KB 642, CA (covenant); Miles v. Bull (No 2) [1969] 3 All ER 1585, Bridge J; Kewal Investments v. Arthur Maiden [1990] 1 EGLR 193, Ch D; Canadian Imperial Bank of Commerce v. Bello (1992) 64 P & CR 48, 51, Dillon LJ.

449Lyus at 1051, Dillon J; but see Binions v. Evans [1972] Ch 359, 368–369.

450Lyus at 1051; Chattey v. Farndale Holdings Inc (1998) 75 P & CR 298, 313, Morritt LJ.

451[1948] 2 All ER 133, CA.

452The conveyance itself need not be fraudulent.

453Booth v. Turle (1873) LR 16 Eq 182; Chattock v. Muller (1878) 8 Ch D 177; Re Duke of Marlborough

[1894] 2 Ch 133; Rochefoucauld v. Boustead [1897] 1 Ch 196.

454[1972] Ch 359, 368–369, Lord Denning MR. Less clear is Sparkes v. Smart [1990] 2 EGLR 245, 249H–250F, Purchas LJ, but see at 251M–252D, Ralph Gibson LJ.

455Lloyd v. Dugdale [2001] EWCA Civ 1754, [2002] 2 P & CR 13 at 167, [52–53], Peter Gibson LJ.

456[1982] 1 WLR 1044, Dillon J; TG Youdan [1984] CLJ 306; PH Kenny (1983) 46 MLR 96; C Harpum [1983] CLJ 54; P Jackson [1983] Conv 64; P Bennett (1984) 47 MLR 476. Another contract case is Lloyd v. Dugdale [2001] EWCA Civ 1754, [2002] 2 P & CR 13 at 167.

457They chose to honour a contract which they had priority to override had they chosen to do so.

20

BURDENS ON REGISTERED LAND

LR Notices. Agreed and unilateral notices. Removal of spent entries. Restrictions. Protective occupation. Overriding interests: nature; a list. Burdens on first registration. Priority: first in time; protection of purchasers.

A. LAND REGISTRY NOTICES

1.Burdens

[20.01] The Land Registration Act 2002 adopts a category of burdens, which will bind a purchaser if properly protected. No purpose would be served by alerting a purchaser to an interest affecting the title that is, in its nature, incapable of enduring to bind him. Endurability is central to registered land law, with the same proprietary categories as in the unregistered system, and the same proscription of equitable child bearing.1 A non proprietary interest cannot be protected on the register.2 It is now made clear, for the registered system alone, that proprietary status is conferred on rights of pre-emption, estoppel rights and mere equities.3

2.Notices

[20.02] Protection of a burden is by a notice entered in the charges register of the title or charge affected.4 This will be described in this book as a land registry notice where this is needed to avoid confusion.

3.The taxonomy of registered land

[20.03] Although the substantive law dovetails, it is not helpful to use the unregistered categories to analyse burdens affecting a title once it is registered.5 Any burden involves a benefit (a plus) and a burden (a minus). When title is registered the primary categories are:

1See above [6].

2Blenheim Estates v. Ladbroke Retail Parks [1993] 4 All ER 157.

3LRA 2002 ss 115–116; Law Com 271 (2001), [5.26–5.38].

4LRA 2002 s 32(1)–(2); DLRR 2003, 32.

5Elias v. Mitchell [1972] Ch 652, 664, Pennycuick V-C.

(1)guaranteed protectible burdens – interests substantively registered so that the registrar guarantees the validity of the right (the plus) of which the burden (the minus) is recorded against the title affected by it by a notice;

(2)protectible burdens – the validity of these is not guaranteed but the burden (the minus) is protectible by a notice on the charges register of the title affected or, alternatively, through occupation;

(3)overreachable interests – beneficial interests and burdens on beneficial interests which can be protected by restriction;6 and

(4)overriding interests – these bind without any entry on the register, though it is desirable for them to be entered on the register when they fall into class (2) above.

It will be seen that the negative aspect of categories (1) and (2) is very similar, protected in both cases by entry of a notice. In the absence of a legislative descriptor for this category,7 interests which can be protected by notice are described by New Land Lawyers as “protectible burdens”.

4.Guaranteed burdens

[20.04] Some rights are guaranteed by the registrar because the positive aspect of the right, that is the benefit of the interest, is substantively registrable. The most obvious example is a mortgage entered on the charges register as a burden against the title mortgaged, but guaranteeing the lender his rights in the land.8 A more tactile example is the long lease.9 This is a burden on the landlord’s title (assuming it is a head lease), recorded against anyone buying the freehold estate by entry of a notice against it. If the leasehold estate created is for more than seven years,10 the tenant must apply for substantive registration of the leasehold title, and in the course of that process when it is accepted for registration with its own separate title, the registrar guarantees the tenant’s holding for the future. A shorter lease (below seven years but of at least three years11) is not registered with its own title, and its validity is not in any way confirmed, but the notice recording the lease as a burden on the landlord’s title will look very similar.

Just the same might apply to the benefit of any right which appears in the property register of the title,12 such as an easement granted by the proprietor of title XY01 to the proprietor of title XY02, this burden should appear as a notice on XY01 as well as being an appurtenant right to the property register of XY02.13 The same would apply to other rights capable of substantive registration for which a separate register is

6These are excluded “interests” ie not protectible by notice: LRA 2002 s 33; Law Com 271 (2001), [6.9], EN [165]; see below [20.05].

7Unfortunately the proposal to create clearly defined categories was not adopted: Law Com 254 (1998),

[3.2].

8DLRR 2003 r 34; see below [28.06].

9LRA 2002 s 38; DLRR 2003 r 33; see below [25.02].

10See below [25.36].

11See below [25.53].

12DLRR 2003 r 5.

13Willies-Williams v. National Trust (1993) 63 P & CR 359, 361, Hoffmann LJ.

created – rights to mines, rentcharges, franchises, profits in gross, and manors.14 Only by registration is legal status conferred and the land registry guarantee of entitlement brought into force.15

5.Non-guaranteed burdens

[20.05] In all other cases – where the right is not the subject of a substantive registration, a notice records a claim to the interest. Entry is made in the charges register of the title affected,16 but it does not by itself guarantee anything other than the priority of the claim.17 Anyone buying the land will take subject to the interest noted, but only if it proves to be valid.18 In White v. Bijou Mansions,19 a restrictive covenant on a building estate was noted against the freeholder’s title and this bound a person who bought a leasehold estate in one plot, without knowledge of the freeholder’s title or the covenant. A notice will not revivify an interest already void for non-protection as a land charge before first registration.20

Interests that are proprietary and not overreachable may be protected by notice, including the following wide range:

(1) “Land charges”

Interests within the classes of land charge for unregistered land are protectible by land registry notice. Examples are equitable mortgages,21 debentures and other equitable money charges, estate contracts and options, restrictive covenants,22 equitable easements, and matrimonial home rights.

(2) Litigation rights

The same applies to litigation rights such as pending land actions and writs or orders, creditor’s notices, and charging orders though in some cases a restriction is appropriate.23

(3) Statutory rights.

A number of statues require entry of a notice to protect, for example, manorial incidents, acquisition orders for blocks of flats, access orders to neighbouring land, orders confiscating the proceeds of crime,24 and notices connected with leasehold enfranchisement.25

14LRA 2002 ss 2(1), 3(1), 88; Law Com 254 (1998), [3.13–3.23]. No new manors may be registered and those that are may be deregistered: LRA 2002 s 119; Law Com 271 (2001), EN [521–522].

15LRA 2002 s 27.

16LRA 2002 s 32; DLRR 2003 r 32.

17LRA 2002 s 32(3); Duke v. Robson [1973] 1 WLR 267; Law Com 271 (2001) [6.6]. Previously the same effect was achieved by deemed notice: LRA 1925 s 52(1); Clark v. Chief Land Registrar [1994] Ch 370, 381, Nourse LJ.

18LRA 2002 ss 29–30.

19[1937] Ch 610, Simonds J; H Potter (1937) 53 LQR 467; appeal on different points [1938] Ch 351, CA. Compare Patman v. Harland (1881) 17 Ch D 353 for unregistered titles, above [15.18].

20Kitney v. MEPC [1977] 1 WLR 981, CA.

21Bristol & West BS v. Brandon [1995] Times March 9th, Colman J.

22With the exception of restrictions affecting landlord and tenant affecting land: LRA 2002 s 33(d).

23LRA 2002 s 87; Law Com 271 (2001) [6.61]; see below [20.15].

24Proceeds of Crime Act 2002; Terrorism Act 2000 part II.

25L Ref A 1967 s 5(5); L Ref HUDA 1993 s 97(1).

(4) Off-register transfers etc.

Rights which require substantive registration such as an off-register transfer or an unregistered legal mortgage may be protected, though a notice should only be allowed where for some good reason an application for full registration is not possible.

(5) Residual rights affecting registered title.

Some residual rights are omitted from the list of the classes of land charges but, however much these dog unregistered land law,26 they are no problem when title is registered: protection by notice is allowed to cover the burden of any interest.27 This all-embracing category includes all proprietary interests, without any residual category, including estoppels and other rights now declared to be proprietary.28

(6) There is a category of “excluded interests”29 that are incapable of any form of protection on the register, which are:

overreachable interest;30

leasehold estates for three years or less if not substantively registrable; PPP leases;

restrictive covenants between landlord and tenant so far as affecting the property let;

interests registered under the Commons Registration Act 1965; and coal and mineral rights.

B. AGREED AND UNILATERAL NOTICES

[20.06] The old duality of notice and caution has been replaced with a much improved system of agreed and unilateral notices.31 In fact there are four categories for consideration.

1.Agreed notices

[20.07] Normally a notice will be called for on completion of a registered disposition.32 Most adverse rights are created expressly by the registered proprietor by execution of a deed of grant. An agreed notice should be entered. Application33 is normally made by the registered proprietor or a person entitled to be registered, and otherwise it must include the proprietor’s consent. Entry of an agreed notice is also possible where the registrar is satisfied as to the validity of the claim.34

26See below [21.20].

27LRA 2002 s 32(1); Newman v. Real Estate Debenture Corp [1940] 1 All ER 131.

28LRA 2002 ss 115–116.

29LRA 2002 s 33; Law Com 271 (2001), [6.8–6.16], EN [164–172].

30See below [20.14].

31LRA 2002 ss 32–39; Law Com 271 (2001) part VI, EN [173–183]; entries are made in the charges register. It will be possible to transfer the benefit: DLRR 2003 r 89; LR Form UN1.

32LRA 2002 s 38. Law Com 271 (2001), [6.17ff].

33DLRR 2003 r 81; LR Form AN1; DLRR CD ch 5, [11].

34LRA 2002 s 34(3).

Pre-2002 Act notices35 are preserved, and continue as agreed notices.36

2.Agreed notice entered unilaterally

[20.08] The old practice continues of granting a full (or, in new money, an agreed) notice of a matrimonial home right where application is made by the claimant spouse without the consent of the other spouse as registered proprietor.37 Applications may be lodged electronically.38 In contrast to the old procedure, a warning of the entry will now be given to the spouse affected.

3.Unilateral notice

[20.09] A unilateral notice39 will be used to protect disputed rights. It will perform much of the work previously done by a caution against dealings.40 One common use would be where B says he has contracted to buy from the registered proprietor (A) who disputes the existence of the contract.41 A unilateral notice will indicate it is unilateral and will identify the person with the benefit of the notice, but details of the interest claimed will be withheld in the interests of commercial confidentiality, for example to maintain the secrecy of a disputed corporate liquidation.42

Notice of the application for the notice will be given to the proprietor and to others interested.43

It will be possible to challenge a unilateral notice by a “warning off” procedure.44 If an application is made for registration of a dealing, notice of the dealing will be served on the person entitled to the benefit of the unilateral notice who will have an (extendible) period of 21 days to object. If he does so the objection has to be resolved with any dispute referred for adjudication.45

A unilateral notice has one vital distinction from a pre-Act caution against dealings, which is that the notice now provides priority for the claim noted. If it is challenged and the interest claimed stands up to scrutiny, then the interest will bind a purchaser by virtue of the notice.

35A notice was only entered (leases apart) if the land certificate was sent with the application (or was available in the registry). Land certificates will play a much smaller part in future and consent is now crucial.

36LRA 2002 sch 12 paras 1–2; Law Com 271 (2001), EN [791–794]; including applications pending when the legislation comes into force: sch 12 paras 5–6.

37Law Com 271 (2001), EN [177].

38LRR 2001, SI 2001/619; DLRR 2003 rr 80–82; DLRR CD ch 5, [1–9]; P Booth & H Brayne [2001] NLJ 715.

39LRA 2002 s 35; DLRR 2003 rr 83–84; LR Form UN1; DLRR CD ch 5, [11].

40See below [20.10].

41Not a claim to a beneficial interest by contribution – which requires a restriction; see below [20.14].

42Law Com 271 (2001), EN [179–180].

43LRA 2002 s 73; Law Com 271 (2001), EN [327–334].

44LRA 2002 s 36; DLRR 2003 r 86. DLRR CD ch 3, [19–22]; LR Form UN4.

45LRA 2002 s 77(1)(b).

4.Transitional continuation of cautions against dealings

[20.10] For the future, land registry use of the word “caution” is reserved for entries restricting first registrations but before the 2002 Act there was a category of cautions against dealings,46 used for the protection of disputed rights. Existing cautions will continue in force,47 the entry appearing on the proprietorship register.48

A caution gives no priority49 but merely an entitlement to notification of a later transaction and the right to an opportunity to assert the validity of the interest before the registration of any dealing. In theory this should have been more than enough to protect burdens adequately, but the machinery was defective because the need to warn off cautions was often overlooked by the registry, so the priority bearing unilateral notice is a much better solution.

Protection by caution is temporary, until warning off.50 Unless he consents to a dealing being entered the cautioner51 will challenge the registration of any later dealing, whereupon the interest will either fall or will be converted into a permanent protective notice.52 A warning notice is served by the registry giving the cautioner a fixed time (typically 14 days) to apply to preserve his entry53 by establishing that he has a valid proprietary interest in the land with priority.54 Disputes will in future be resolved by the adjudicator.55

5.Action to prevent or remove a unilateral notice or caution (vacation)

[20.11] Entry of a caution or unilateral notice does not give rise to any right of action against the registry.56 An injunction can be issued to prohibit entry of a notice or a caution to protect an interest which has been rejected by the court,57 and vexatious cautioners or noticers can be required to obtain leave from the court before applying for a caution.58

There is a duty to act reasonably when entering a notice or caution, so damages can be awarded for any loss. 59

46LRA 2002 sch 12 para 17, continuing LRA 1925 s 53.

47LRA 1925 ss 55–56; LRA 2002 sch 12 para 2(4); DLRR 2003 rr 216–219.

48Beware a contract to sell subject to entries in the charges register, which does not catch cautions.

49LRA 1925 s 56(2); Clark v. Chief Land Registrar [1994] Ch 370, CA.

50DLRR 2003 r 219; LR Form CCD.

51The benefit of a caution can pass to personal representatives; but after sale the buyer needs to enter his own caution – the benefit does not transfer.

52Or, in the case of a beneficial interest, into a restriction.

53A proprietor (a husband) has no right to stop a bank making a loan from informing the cautioner (H’s trustee in bankruptcy) of an application to warn off the caution: Christofi v. Barclays Bank [1999] 4 All ER 437, CA.

54LRA 1925 ss 54(1), 55(1); DLRR 2003 r 218; Parkash v. Irani Finance [1970] Ch 101, 110H Plowman J; Chancery v. Ketteringham [1994] 1 Ch 370, CA; Clark v. Chief Land Registrar [1993] Ch 294, 310D–E, Ferris J; on appeal [1994] Ch 370, CA. Cautions can be supported on grounds not in the statutory declaration: Atombrook v. Heather Weston [1988].

55LRA 2002 ss 73(7), 108.

56Subject to the possibility of judicial review: Nationwide Anglia BS v. Ahmed [1995] 2 EGLR 127, CA.

57McLean Homes v. Dace [1997] EGCS 120, Blackburne J.

58Wren v. Meacock [1997] CLYB 4226, CA.

59LRA 2002 s 77; Law Com 271 (2001), EN [347–349]; LRA 1925 s 56(3) (caution); Willies-Williams v. National Trust (1993) 65 P & CR 359, CA.