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 the purchasing solicitor/ conveyancer conduct a Proceedings search when investigating title in a property/ right/ interest purchase?
The intention of a Proceeding search is to flag whether there any High Court actions (or referred actions from lesser courts) initiated that could potentially affect the ownership of a property, or impact on the boundaries/ right/ interests of a sale property.
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.
Given that any party who purchases or takes an interest in a property after the Lis Pendens is registered, it also means that the purchasing party takes their interest subject to the Lis Pendens as a burden.
As such, for those acting on behalf of the purchaser, it is important to know that your client is not buying into inherited problems, which might limit their clients’ rights, land or building value, and/ or restrict the use of a property. Hence proceedings searches may be required to show clean title before closing a sale.
Indeed, the existence of proceedings such as a Lis Pendens may affect the purchaser’s ability to become the registered owner of the property, and the dealing may well be rejected by the PRA/ Land Registry. Any purchaser acquiring funding from a lending institution may be in difficulty in that regard as the purchaser’s Solicitor will have an undertaking to furnish good and marketable title. Once a lending institution becomes aware as to the existence of a Lis Pendens it could affect the granting of a mortgage.
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. And with that perhaps the inconvenience of the premises possibly being saleable only under the liquidators supervision.
How and what to search for on the Proceedings search?
It is important to search for High Court proceedings in the Central Office against both the plaintiff (suing party) and the defendant (respondent/ party being sued) as follows:
Seller Names: In practical terms, a proceeding search is typically conducted against the name of the person(s)/ entity selling the property (or an interest or a right).
Purchasers Names: Additionally, when there is an undertaking by the solicitor to protect the interest of a lender/ lending institute where there is a mortgage to be issued, proceedings searches may be also conducted against the name of the person(s)/ entity purchasing the property/ right/ interest.
What will the proceedings search result show me?
As standard Ellis & Ellis proceedings searches will be conducted against both records for the plaintiffs and the defendants and matching entries will return the following:
- 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
Naturally if a proceeding search is conducted and no matching entry is found we will clearly state that in our result.
Use a trusted Law Search provider.
Given the serious ramifications set out above of either not conducting a search at all, or worse, conducting an inadequate or erroneous proceedings search; it is imperative that purchasing solicitors/ conveyancers use a trusted law search provider such as Ellis & Ellis.
With our blend of a quick and easy-to-use ordering platform at www.ellis.ie , over 130 years of professional know-how, and a quality after-sales experience, we provide clients with a superior searching service.
For added peace of mind Ellis & Ellis provide Professional Indemnity Cover of €10 million.
Why not join the 1000’s of users who trust Ellis & Ellis to deliver them a competitive edge?
