Section 29 of the 2023 Act recognises the snapshot nature of the RoA by providing that the RoA will be inaccurate only in strictly limited circumstances.
As with others of the Keeper’s registers, the court can determine that there is an inaccuracy in the RoA and can direct the Keeper to correct the register, for instance to remove the entry for a reduced fraudulent assignation.
If you have a court order directing the Keeper to correct an RoA inaccuracy, this can be brought to the Keeper’s attention. Such a correction does not attract a fee.
Otherwise, there are only three instances where the RoA will be inaccurate:
(a) where the information included in a record entry is inaccurate or incomplete (for instance, where there is a typo or an omission);
(b) where a record does not include a copy of the assignation document or the copy included is invalid; or
(c) a record entry has been incorrectly removed.
If you think that there may be an inaccuracy in the RoA, you should read the following sections of this guidance before bringing the inaccuracy to the Keeper’s attention.
Correction of the RoA
The Keeper has a duty, under section 29(2) of the 2023 Act, to correct the RoA where:
- they become aware of a manifest inaccuracy of the type detailed above; and
- the correction action they must take is also manifest.
‘Manifest’ means perfectly clear and not reasonably disputable.
Both the inaccuracy and the correction action need to meet this manifest standard.
The manifest tests
The inaccuracy 'manifest' test means that the Keeper's duty to correct the RoA is engaged when they become aware of a manifest inaccuracy in an Assignations Record entry. In order to be manifest, the perceived inaccuracy must be perfectly clear and not reasonably disputable.
For those seeking to demonstrate that a manifest inaccuracy exists, there is a high evidential standard.
For the avoidance of doubt, the Keeper will not arbitrate in disputes. In any instance where there is disagreement between the assignor and assignee as to an alleged inaccuracy, the Keeper would likely require a judicial determination before being able to correct the register.
By way of illustration, a manifest inaccuracy would exist where:
- an incorrect assignation document has been submitted
- A and B are named as assignors but only A has assigned
- the name of the assignor/assignee has been mis-spelt
- the Keeper has incorrectly deleted a record entry
- it is identified that a frivolous or vexatious assignation document has been registered.
A manifest inaccuracy would not, however, exist where:
- an off-register event results in an Assignations Record entry incorrectly disclosing an assignor’s name
- a registered assignation has been re-assigned to the original assignor (retrocession).
As well as meeting the manifest test in relation to the existence of an inaccuracy, it must also be manifest how the Keeper can correct it.
In certain situations, whilst it may be clear that an inaccuracy exists, it may not be clear how to fix it. For example, where an incorrect assignation document has been submitted and the original cannot now be found, it is obvious that an inaccuracy exists but the Keeper will not know how to fix it.
The Keeper cannot correct in such situations. Instead, the Keeper will enter a note identifying the inaccuracy in the entry in the Assignations Record, in terms of section 29(2)(b) of the 2023 Act.
If you think that there may be such an inaccuracy in an Assignations Record entry, you must fully investigate the matter to confirm that an inaccuracy exists before contacting the Keeper.
For the avoidance of doubt, you should not alert the Keeper to any change considered to be required as a result of a supervening event, such as a name change or retrocession, having occurred - such events do not result in the RoA becoming inaccurate.
Any errors not captured by one of the three categories of inaccuracy provided for by section 29(3) of the 2023 Act will not comprise an inaccuracy that the Keeper has the power to correct.
If your investigations do establish that an inaccuracy exists, you should submit, and clearly refer to, all the information that you have considered when you contact the Keeper. An inaccuracy in the RoA can be brought to the Keeper’s attention. The correction of such an inaccuracy does not attract a fee.
Where the Keeper corrects the RoA, they will notify this to a number of different parties.
In so far as it is reasonable and practicable to do so, the Keeper will notify the fact of correction having taken place, by email where an address is held and by post, if not, to:
(a) the assignor (including purported assignor)
(b) the assignee
(c) the party who brings the manifest inaccuracy in the RoA to the attention of the Keeper
(d) any other party where drawn to the Keeper’s attention by the party bringing the manifest inaccuracy to the Keeper’s attention
(e) any other person who the Keeper thinks is materially affected by the correction.
Notification may, as will be the case for the majority of applications, be to the respective agents of these parties.
The Keeper’s default approach, however, will be to notify the fact of correction having taken place to all email addresses held by the Keeper in relation to the corrected Assignations Record entry.
RoA Correction Notifications will contain a link to a web page or "landing page", which will contain details of the correction to which the Correction Notification relates, including a pdf version of the full record entry. The PDF will be a snapshot of the Assignations Record entry position as at that date, and, although it does not have the evidential status of an extract requested under section 35 of the 2023 Act, it fully reflects the Assignations Record entry after completion of the correction to which the Correction Notification relates.
All parties notified by email will receive the same Correction Notification, and all parties will be able to access the respective PDF. The parties notified will be free to forward on the link to the landing page as they see fit and it will be possible to print or to save the PDF's locally to their own systems. The link to the landing page will be available for a 30-day period, which should allow the parties adequate time to access it following the correction of the record entry.
Where a Correction Notification is sent by post, this will contain details of the correction to which the Correction Notification relates and a paper version of the PDF document referred to above.
As stated, for those seeking to demonstrate that a manifest inaccuracy in the RoA exists, there is a high evidential standard.
The Keeper will consider all evidence submitted before making a determination as to whether a manifest inaccuracy does indeed exist.
That said, the possibility of incorrect evidence being submitted, accidentally or otherwise, by someone when bringing a perceived RoA inaccuracy to the Keeper’s attention always exists.
Before bringing such a perceived inaccuracy to the Keeper’s attention, the person intending to do so should therefore be mindful that the effect of section 37(3) of the 2023 Act is that the Keeper is entitled to reasonably believe all information, including all documentation, submitted by someone bringing an alleged inaccuracy to their attention.
As such, if the Keeper introduces inaccuracy into the RoA as a result of reflecting on the register wrong information supplied to her by someone bringing a perceived manifest inaccuracy to her attention, then this will not be an inaccuracy for which they are liable.
Rather, the person who brings the perceived inaccuracy to the Keeper’s attention may be liable under section 38(1) of the 2023 Act for any loss suffered as a result of the Assignations Record becoming inaccurate as a consequence.