The term lis pendens is the Latin for "litigation pending" and refers to a legal burden registrable against land which is the subject of litigation in the Circuit or High Court. That litigation must involve a claim made or disputed by one of the parties to an interest or estate in the land in question.
Registering a lis pendens will seriously restrict the manner in which the land concerned can be dealt with. As the procedural threshold for registering a lis pendens1 is much lower than that for vacating it, there is also considerable scope for abuse of this mechanism. However a recent Supreme Court decision demonstrates that a plaintiff will not be permitted to manufacture a claim to an interest in land solely to satisfy the criteria necessary to register a lis pendens.
Registration and Effect
The registration of a lis pendens can be easily achieved, without any sanction from the Court, through the lodgement of an application form and the issued summons or civil bill (which does not need to have been served) in the Central Office of the High Court. While registration is generally uncomplicated and incurs minimal costs, the consequences for the affected party can be serious.
The purpose of a lis pendens is to put third parties on notice that there is ongoing litigation over a property which could ultimately diminish its value or affect the interest of the party currently holding or controlling it. Potential purchasers will generally be reluctant to proceed with a sale where they discover that a lis pendens is registered. A lis pendens therefore prevents the person holding the property from dealing with it in the usual course, effectively freezing their rights of disposal. These adverse consequences are exacerbated by the necessity to make a Court application (unless the registrant consents) to vacate the lis pendens.
Potential for Abuse
The imbalance between the administrative process for registering a lis pendens and the Court application required to vacate it means that this device can be abused. In an application to vacate a lis pendens the Court will adjudicate on whether the registration criteria stipulated in the 2009 Act2 is satisfied. Notably no such judicial examination is required prior to the lis pendens being registered.
However, the recent case of Kelly & O'Kelly v. IBRC Limited3, demonstrates that there must be a genuine claim to an interest in a property in order to register a lis pendens against it. The High Court and Supreme...