Asset Tracing in England and Wales: Legal Tools and Public Resources
What is asset tracing?
The term ”asset tracing” describes various techniques used to identify, locate and recover assets that may be subject to legal proceedings or enforcement actions. This is a key process in legal contexts such as litigation, fraud investigations or insolvency proceedings.
Understanding an individual or entity’s asset position is crucial for several reasons. It may help to:
- reveal potential recovery prospects;
- prevent dissipation of assets and funds; and
- inform consideration of enforcement methods.
While it is common practice to invoke the assistance of specialist investigators, there are various tools and resources available to conduct this process directly, either as an individual or as a legal practitioner. Such tools range from accessible public databases to specific court orders.
Using Public Databases to Trace Assets in the UK
There are several public databases and records that can be utilised for asset tracing in England and Wales, each applicable to specific asset types.
Real Estate
Information regarding an individual or corporate entity’s real estate in England and Wales is available from HM Land Registry (HMLR).
If you have the details of the property and are looking to determine the registered proprietor, you can conduct a simple search of HMLR and download the registered title to identify its ownership. The title will also show any charges or encumbrances, which is useful to understand whether someone else may have a beneficial entitlement to that property.
If you want to find out what properties are owned by an entity, a PN1 application form can be sent to HMLR, to search the index of proprietors’ names. This could reveal any properties owned by an entity. It is more difficult to search the index of proprietors’ names in the case of individuals, as it is regarded as personal data and protected by the Data Protection Act 2018. Nonetheless, any person may apply to search this index in respect of their own name, the name of a registered company, the name of some other person in whose property they can satisfy the registrar that they have an interest generally i.e. a trustee in bankruptcy or personal representative or finally, because it is required by a court order.
Transportation
Information about road vehicles can be obtained from the Driver and Vehicle Licensing Agency (DVLA), which provides details on vehicle registration, make, model, and owner. You can make a request for information about a third party relating to the vehicle using a V888 form, but you must demonstrate a ‘reasonable cause’, for example, for tracing people suspected of insurance fraud.
For ships, the UK Ship Register offers information about a ship’s registration, including details such as the ship’s name, port of registry and official numbers. However, the UK Ship Register lacks a search function to determine ownership by a specific entity or owner’s name.
Aircraft details can be accessed through the Civil Aviation Authority, which allows searches by registered owner and other specifications.
For each of these assets, if you require detailed personal information, you will likely need to contact the relevant authority and demonstrate a legitimate reason for requesting the additional details, such as legal proceedings or regulatory compliance.
Intellectual Property Rights
The UK Intellectual Property Office offers online search engines for trademarks, patents, and registered designs. The core information that can be obtained from these searches includes the registered proprietor, country, number, next renewal date, status (pending or granted) and any charges or licences granted by the proprietor.
Company Information
Asset tracers can also conduct a search regarding a limited company or limited liability partnership using Companies House, the official register of companies. This is a UK public government register that provides basic information about a company and shows their latest filed accounts. These accounts can be used to understand a company’s financial health and asset position, by considering their balance sheet, profit and loss account and cashflow statement, at a certain point in time.
The register also shows the company officers and persons with significant control, and the nature of their control for example, the percentage range of their shareholding. Accounts filed can show specific shareholder information as well as a list of shareholders contained in the company’s incorporation documents. All registered companies must report any changes to their shareholdings in each subsequent confirmation statement.
There is a delay between a change in a company’s shareholding and this information being made available on the public record so, these documents should not be fully relied upon as being up to date. You will need to know the name of the company or officer before searching, as the search function does not allow for searching directly by shareholder name.
Insolvency Information
If the asset tracing involves investigations regarding an insolvent, or potentially insolvent, entity or individual, there are various public insolvency resources. You can search the Individual Insolvency Register by individual names. It will show bankruptcy orders, debt relief orders and individual voluntary arrangements. If any orders have been made, the register will also be updated to reflect whether the judgment has been satisfied, which allows tracers to understand the flow of money and assets. You can also check the status of a company on Companies House to see whether it has entered into a formal insolvency process. Due to the delay in notice being given to Companies House, it is also sometime prudent to check with the central registry at the High Court to ascertain whether a company has a winding up petition or an administration application outstanding against it. The London Gazette also publishes notices relating to insolvency petitions such as winding-up petitions against companies.
Insolvency and company searches are key to do early on in an asset tracing investigation, to ascertain whether there are any realisable assets that will be worth pursuing through litigation.
Court Orders for Asset Tracing in England and Wales
Bank account information is more difficult to obtain. There is no central record of bank accounts held in England and Wales. Anyone seeking to get account locations and ownership information, will need the assistance of the court. There is, however, a strong legal framework comprising both common law and statutory provisions to facilitate this process. The type of order required will depend on the type of asset, its location, the involvement of third parties and relevant jurisdictions.
Disclosure before proceedings start
Rule 31.16 of the Civil Procedure Rules 1998 (CPR) applies where an application is made to court for disclosure before proceedings have started. The court may make an order under this rule where (1) the respondent and applicant are likely to be a party to subsequent proceedings; (2) the desired class of documents would fall within the respondent’s disclosure duty should proceedings have started; and (3) early disclosure is desirable in order to dispose fairly of the anticipated proceedings, assist with its resolution, or save costs.
Disclosure Orders
A disclosure order may require a party to provide detailed information about their assets. Such an order is crucial in cases where asset ownership is obscured by complex corporate structures or offshore arrangements. Disclosure orders might be needed in conjunction with a freezing order, which is an order preventing the disposal of assets by a defendant. It is not unusual for defendants to attempt to dissipate assets despite the freezing order and keep them hidden. The disclosure order will help ensure transparency and that the assets remain available for the judgment enforcement.
Bankers Trust Order
This is a type of disclosure order derived from the case of Bankers Trust Co v Shapira [1980] 1 WLR 1274 CA. It requires a bank to provide details relating to bank accounts, where they would otherwise be protected by confidentiality duties. In the Bankers case, the order was granted on the grounds that without such disclosure it would have been impossible to trace the assets.
Subsequent case law has indicated that the relevant requirements for a successful Bankers Trust application include (1) compelling evidence of fraud, meaning the applicant has been fraudulently deprived of the assets held in their account; (2) the need for urgent action, meaning the assets might otherwise be dissipated before trial; (3) focused disclosure, i.e., relating to specific bank accounts, for a specific date range and individual or company in question; and (4) notice, so that the bank has the opportunity to object to the application. In practical terms, this type of order is relatively rarely granted and tends to require blatant instances of fraud.
A Norwich Pharmacal Order (NPO)
This is also a form of disclosure order and is used to obtain information or disclosure of documents from third parties who have become involved in wrongdoing, whether innocently or not. This is distinguished from a Bankers Trust Order because, rather than needing to know the identity of the wrongdoer, this order is typically applied where a party knows a wrongdoing has taken place and they can identify a third party with the relevant information, without knowing who the wrongdoer is. Frequent recipients of NPOs include banks, internet service providers, social media platforms, payment processors and website operators.
As with Bankers Trust Orders, it appears the court tends to make NPOs in very specific circumstances and remains alive to the need to prevent mere “fishing expeditions”.
The requirements for obtaining a NPO are as follows:
- The applicant has to demonstrate a good arguable case that a form of legally recognised wrong has been committed against them by an ultimate wrongdoer;
- The respondent to the application must be mixed up in it, so as to have been involved in the wrongdoing;
- The order is necessary to take action against the ultimate wrongdoer and is therefore a proportionate response and in the interests of justice; and
- The respondent is likely to have the relevant documents or information to enable.
How Courts Assess Disclosure Applications in Asset Tracing
The specific factors can vary depending on the type of order being sought. However, there are some factors that tend to be relevant across all applications. For example, the court will always assess whether the disclosure will materially aid the resolution of the dispute, be it by preserving or just simply locating the relevant assets. They will also balance the need for disclosure against privacy rights to ensure that the orders are not overly intrusive, applying proportionality principles against the request. In cases involving fraud, there must be strong evidence of such fraud, usually accompanied by a risk that the assets will be dissipated if the order is not granted promptly. The applicant may also be required to provide undertakings to pay reasonable expenses incurred by the bank in retrieving and disclosing the information, and in damages, to cover any losses incurred by the respondent due to the disclosure, although these requirements are case specific.
Practical Guidance for Lawyers and Investigators Tracing Assets
Engaging with Experts
Collaborating with legal, forensic and investigative experts can help navigate the complexities of asset tracing. In addition to the routes to trace assets set out above, experts can obtain intelligence through human source enquiries, social media investigations and a network of contacts. They can be especially helpful where the target holds assets through complex ownership structures and the assets may need to be traced through layers of subsidiaries, trusts and offshore entities to identify the ultimate beneficial owner. Details for asset recovery experts can be found through free-to-use industry directories.
Privacy and Legal Constraints
Practitioners must balance effective asset tracing with respect for legal rights and privacy, ensuring compliance with data protection laws. This includes understanding the limits of what can be legally obtained and ensuring that they do not sanction law breaking with a view to obtaining evidence, whether tacitly or otherwise, directly or indirectly.
Maintaining Discretion During Asset Tracing
It is for individuals, practitioners and experts alike to always maintain discretion but particularly during pre-action stages. It is common for targets to start to ‘hide’ or disguise assets, such as by transferring ownership to proxies or moving assets to other jurisdictions, when they realise that they are being traced. Discretion is key to avoid ‘tipping off’ the subjects.
By leveraging public databases, court orders and expert guidance, there are plenty of avenues available to effectively trace and recover assets in the UK.
Our expertise
With offices in many of the world’s major financial centres including London, Paris, Geneva, Zurich, Milan, Dubai, Hong Kong and Singapore, we are ideally placed to work with you to prepare for or assist with asset tracing issues as they arise, whatever the law, language, rules, industry sector, or subject matter of that raid may be.
Please contact Caroline Greenwell, Ellie Yusuf-Osman or Jana Billington or your usual Charles Russell Speechlys LLP contact if you would like to get in touch.
