Background
In January 2019, Pia Spragg and a co-defendant, Redeeris Hendrik Dirk Oudijk, settled County Court proceedings brought by Malcolm Thompson Pearson by entering into a Tomlin order. Both sides were represented by counsel. The schedule to that order included an agreement under which Spragg and Oudijk undertook to clean and maintain a particular ditch on land they held.
In February 2020, Spragg and Oudijk executed a land transfer in Form TP1 in favour of Pearson. That transfer contained obligations relating to the ditch that went beyond the Tomlin order terms: it included a covenant not to make any disposal of the land without first procuring that the disponee execute a deed of covenant, and it contained an application for a restriction on the register requiring certification of compliance with that clause before any dealing could be registered. Spragg subsequently encountered difficulty obtaining the certificate from Pearson needed to effect a remortgage.
In November 2025, Spragg applied to the First-tier Tribunal (Property Chamber) under s. 108(2) of the Land Registration Act 2002, seeking to cancel or set aside the 2020 transfer on grounds including duress, mistake, lack of informed consent, misrepresentation, bad faith, and concealment. She argued the transfer introduced new and onerous conditions — in particular the restriction — that had not been agreed in the Tomlin order. She did not seek to set aside the Tomlin order itself.
The Court’s Holding
The Upper Tribunal allowed the appeal and set aside the FTT’s strike-out order. His Honour Judge Cadwallader held that the FTT had erred on two independent grounds. First, the FTT’s premise — that the TP1 simply reflected the Tomlin order — was factually incorrect: the Tomlin order contained no provision for the restriction and no covenant against disposal without a deed of covenant, meaning the transfer went materially beyond what had been agreed. The FTT therefore wrongly concluded it could not “go behind” the Tomlin order, since Spragg was not challenging that order at all, only the additional terms introduced by the transfer.
Second, the FTT erred in treating the absence of Oudijk as fatal to the application. The Tribunal noted that Oudijk’s witness statement indicated he did in substance challenge the transfer, and that in any event he could have been joined either as a co-applicant with his consent or as a respondent. His non-participation did not justify striking the application out without a hearing. The FTT also failed to consider whether its jurisdiction under s. 108(2) might extend to a contract embodied in a Tomlin order as a contract to make a qualifying disposition.
Key Takeaways
- A land transfer that introduces obligations or restrictions not found in an underlying Tomlin order is not necessarily “merely giving effect” to that order, and an applicant who challenges only those additional terms is not seeking to go behind the Tomlin order.
- The absence of a co-transferor from proceedings under s. 108(2) LRA 2002 does not automatically justify striking out an application; the co-transferor can be joined as a co-applicant or respondent.
- A tribunal considering strike-out must assess the actual terms of both the settlement agreement and the subsequent transfer rather than treating them as co-extensive without analysis.
- The FTT’s jurisdiction under s. 108(2) LRA 2002 may, in an appropriate case, extend to a contract embodied in a Tomlin order as a contract to make a qualifying disposition of a registered estate — a question the FTT failed to address.
Why It Matters
This decision reinforces that a Tomlin order and any subsequent conveyancing document executed pursuant to it are legally distinct instruments. Landowners who later discover that a transfer contains terms more onerous than those agreed in settlement are not automatically barred from seeking rectification or setting aside of that transfer merely because it was executed in performance of a court-approved settlement. The Upper Tribunal’s ruling preserves access to the statutory jurisdiction under s. 108(2) LRA 2002 in such circumstances.
For conveyancers and litigators, the case also highlights the procedural flexibility available when a co-transferor declines to participate: joinder — whether as applicant or respondent — is a remedy that tribunals must consider before resorting to strike-out. The decision sends a clear signal that strike-out on the papers requires careful factual analysis of the underlying documents, not a broad assumption that settlement instruments and subsequent transfers are interchangeable.