What is a Proceedings search?
In the Irish Constitution (Under Article 34.3.10) there is an entitlement for legal persons (an individual or company) to issue proceedings in the High Court (for those cases that cannot be dealt with by the lower District or Circuit Courts) to ‘…litigate any issue of law or fact whether criminal or civil….’.
To start such a legal action the suing party(ies) (plaintiffs) generally will prepare an ‘originating summons’, setting out the case being made against the defendant (sued party). In turn, the defendant (respondent) wishing to refute a claim can make themselves party to the case by entering an ‘appearance’ and issuing a defence, and /or counterclaim.
There are various types of potential proceedings that can be initiated depending on the action being brought, e.g., Plenary Summons, Summary Summons, Special Summons, Personal Injury Summons, Petition, Originating Notice of Motion. These initiating proceedings are lodged/ issued in the Central Office and a unique case record number assigned, which is also applied to all ensuing documents (e.g., pleadings, motions, or affidavits) that are filed in the case.
It is against these High Court records that a Proceedings search is made.
Why should purchasing solicitors or conveyancers take into consideration such a search when investigating property titles, rights, or interests?
The primary purpose of conducting a Proceedings search is to identify any High Court actions, or cases referred from lower courts, that could potentially have an impact on property ownership or the boundaries and rights associated with a property intended for sale.
Depending on the proceedings initiated, its outcome could potentially lead to a Lis Pendens being registered. Under section 121 of the Land and Conveyancing Law Reform Act 2009 it states that the following may be registered as a Lis Pendens:
(a) any action in the Circuit Court or the High Court in which a claim is made to an estate or interest in land (including such an estate or interest which a person receives, whether in whole or in part, by an order made in the action) whether by way of claim or counterclaim in the action; and
(b) any proceedings to have a conveyance of an estate or interest in land declared void.” The Summons or Civil Bill need not be served to register a Lis Pendens.
Considering that any party acquiring or showing interest in a property subsequent to the registration of a Lis Pendens is essentially encumbered by it, it is crucial to understand that such a purchase entails potential complications.
These issues could curtail the rights of the new owner, diminish the value of the land or building, and impose restrictions on the property’s use. Therefore, conducting proceedings searches becomes essential to ascertain a clear and unencumbered title before finalising a sale.
Furthermore, the presence of proceedings like a Lis Pendens can hinder the purchaser’s ability to become the registered property owner. Transactions might face rejection by the PRA (Property Registration Authority)/ Land Registry due to these encumbrances. This situation can be particularly challenging for purchasers seeking financial support from lending institutions. The purchaser’s solicitor is obligated to provide evidence of a good and marketable title, and the discovery of a Lis Pendens could adversely affect the approval of a mortgage by the lending institution.
Moreover, some such proceedings could include petitions (whether voluntarily or involuntarily) to wind up a company, which may affect the sellers authority to sell in the first instance as they may have ceded control to a liquidator. As a result, there’s a possibility that the property might only be marketable under the supervision of the liquidator, which at best would cause a certain nuisance value.
How and what should you seek when conducting a Proceedings search?
It is imperative to investigate High Court proceedings within the Central Office for both the plaintiff (the party initiating the lawsuit) and the defendant (the party being sued) in the following manner:
Seller Names: In practical terms, a proceeding search typically focuses on the names of the individual(s) or entity selling the property, interest, or right.
Purchasers Names: Furthermore, when a solicitor undertakes to safeguard the interests of a lender or lending institution in cases where a mortgage is to be granted, it may also be necessary to perform proceedings searches against the names of the individuals or entities acquiring the property, right, or interest.
What information can you expect from the results of a Proceedings search?
Ellis & Ellis standard proceedings searches encompass examinations of records for both plaintiffs and defendants. Matching entries will provide the following details:
- Plaintiff’s Names
- Defendants Names
- Record Number
If requested, for identified cases, we will also return the following: –
- Case Details
- Filings
- Order Details
- Relevant Court Lists
- Judgment Details
Of course, if a Proceedings search is carried out and no corresponding entry is located, we will explicitly indicate this in our findings.
Rely on a Reputable Law Search Provider.
Considering the significant consequences outlined earlier, stemming from either not conducting a search or, worse, conducting an insufficient or inaccurate proceedings search; it is imperative that purchasing solicitors and conveyancers opt for a dependable law search provider like Ellis & Ellis.
With our combination of a user-friendly and swift ordering platform at www.ellis.ie, more than 130 years of professional expertise, and an exemplary after-sales experience, we offer clients a first-class search service.
For added assurance, Ellis & Ellis provides Professional Indemnity Cover of €10 million.
Why not become one of the thousands of users who rely on Ellis & Ellis to provide them with a competitive advantage?