In the recent case of Barfoot Farms Ltd v Revuckas [2021] EWHC 2423 (QB), the High Court granted a series measures to protect against the possible dissipation of assets by defendants and to assist with asset tracing. This included the continuance of a freezing order, the disclosure of defendant bank statements and a search of the index of proprietors' names. The case is a useful reminder of the potential availability of such a search, which can assist asset tracing and recovery efforts, and the test that will be applied by the Court in deciding whether to allow it.
What is a proprietor's index search?
Under rule 11 of the Land Registration Rules 2003 the registrar is required to keep an index of proprietors’ names. For each individual register this shows the proprietor of the registered estate and the proprietor of any registered charge together with the title number.
A search the index of proprietors’ names, will provide a list of titles that are owned by, or mortgaged to, the individual or business name that you have searched against.
Who can apply?
Generally speaking, you can apply to the Land Registry to search the index of proprietors’ names in respect of:
- your own name;
- the name of a corporate body; or
- the name of a person in whose property you can satisfy the registrar that you are properly interested. This would include, for example, a trustee in bankruptcy searching against the name of the bankrupt or a personal representative searching against the name of the deceased.
However, the Court has the power to order that a search be carried out in other circumstances.
How can a search be helpful?
The search can provide assistance to asset tracing and enforcement, particularly in conjunction with other orders. In the case in question, it was intended that the measures sought would assist in identifying recipients of money said to have been dishonestly acquired and in tracing money paid to unknown third parties.
Simple Land Registry searches will provide details where you already have some information about properties you believe to be owned by a party, but you may not have that information, or you may suspect there are additional assets.
When may a search not help?
The search may provide details of properties owned by other individuals of the same name and it may be difficult to differentiate between them.
The individual or business may own property which is not registered and which will not therefore show in the search results.
What has the Court said?
The Court will need to establish whether or not the application has been made to assist a party to enforce its legal rights in proceedings, or whether it was an application to obtain access to the register for other reasons.
In reaching its decision in Barfoot Farms Ltd v Revuckas, the Court applied a three-stage test:
- Did the applicant have a reasonable prospect of success in the claim?
- Were the respondents unlikely to be able to satisfy a judgment from the disclosed or known assets?
- Were there any competing reasons to refuse access to the proprietors' index?
The Court also considered whether it was necessary for a judgment to have been obtained in order for such an order to be made, but decided that this was a not a prerequisite.
Contact our Commercial Disputes team for more information in this area.
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