The High Court ordered the lis pendens registered against receiver Ray Jackson vacated, finding that his role as a receiver and agent did not give him an interest in the relevant land. The order did not affect any lis pendens registered against First Active plc, which was not a party to Jackson’s application.
Mr Justice Clarke delivered the judgment on 5 February 2010 in proceedings brought by eight property companies against First Active, Jackson and, by order, Bernard Duffy. Jackson applied to have vacated a lis pendens registered on 10 August 2007 on behalf of the Cunningham Group against him and, it appeared, First Active. First Active made no similar application.
Jackson had been appointed receiver to companies owned and controlled by Brian Cunningham. The judgment records that the parties accepted he could cause those companies to sell properties covered by relevant mortgage debentures. First Active had also taken possession of certain properties as mortgagee and sought to sell them; Jackson acted as its agent in those sales.
Jackson argued that neither role gave him an interest in the land, so the proceedings against him did not support a lis pendens. The Cunningham Group contested that position. The court said the test was whether litigation against the named person concerned the ownership of land or an interest in it. It was not necessary to weigh the personal impact of the registration on Jackson or to defer the application until other linked issues were resolved.
The court reasoned that property remained owned by the company in receivership. A receiver could cause the company to transfer its property, but that did not make the receiver an owner or holder of an interest in the land. If a plaintiff sought to contest ownership, the company was the proper defendant to that aspect of the case. A separate claim for an injunction against a receiver would not itself be a claim concerning an interest in land.
The proceedings against Jackson had been dismissed following a non-suit, but an appeal against the main judgment was pending in the Supreme Court. Clarke J said the litigation remained pending while that appeal awaited determination. He nevertheless concluded that the lis pendens against Jackson was not justified and ordered it vacated. The judgment left any registration against First Active untouched.