There has been much furore recently about the National Security Interests in Personal Property (“NSIPP”) Registry and persons trying to run from or ascribe blame for what is now perceived to be a blunder….. but has there really been a mistake?
Minister Anthony Hylton recently stated in a radio talk show, in essence, that the recent newspaper reports alerted him to the error and that the public search feature was never intended to be available to the general public. I do not however agree with the essence of that statement. The public search feature should be available to any person, whether they be an individual or a business and whether they are involved in the business of lending money or not.
The United Nations Commission on International Trade Law (“UNCITRAL”) recommends in its Legislative Guide on Secured Transactions that “The Law should ensure that… (f) the information provided on the record of the registry is available to the public; (g) [a] search [of the registry] may be made without the need for the searcher to justify the reasons for the search; (h) notices are indexed and can be retrieved by searchers according to the identifier of the grantor; (i) fees for registration and for search, if any, are set at a level no higher than necessary to permit cost recovery; (j) if possible, the registration system is electronic. In particular….. registrants and searchers have immediate access to the registry records by electronic or similar means, including the Internet and electronic data interchange.”
The law itself is certainly consistent with these recommendations and were to that extent praised by the team from the Organization of American States (“OAS”) who were assisting the Government in the review of the legislation.
<p”>The Security Interests in Personal Property (“SIPP”) Act is novel in the sense that it is a secured transaction model based on substance not form and is purely electronic. Secured transactions using personal property, however, are not new to Jamaica and neither is the ability of the general public to carry out a public search in relation to such a secured transaction. Prior to SIPP, most forms of security documents were required to be registered in a public registry, regardless of who was giving the security and those documents were accessible by the general public.
If the security was being given by a company, the Companies Act required particulars of the charge, together with an actual copy of the charge to be filed on the public register. Any person who knew the name of that company could carry out a search on that public register and get a copy, not only of the particulars of the charge: which included the names and addresses of the debtor company and of the secured creditor and the amount of the indebtedness but they could also obtain a copy of the actual security document itself, just with the mere knowledge of the name of the company.
Where the debtor was an individual, the security document would in most cases need to be filed at the Island Records Office. The most common security document then being the Bill of Sale also required the names and addresses of the debtor company and of the secured creditor, the amount of the indebtedness and that a detailed listing of the personal property given as security must be listed in the Bill of Sale, a copy of which must be recorded at the Islands Records Office. Like the Companies Registry, documents filed at the Island Records Office are also available to the general public, who with the knowledge of the name of the person, could request a search and actually obtain a copy of the security document. The Island Records Office, however, for the most part, is still a manual database and so it is often very difficult to find documents of this nature without additional information such as the folio details or the time of the actual registration.
It is, therefore, inaccurate to think that this type of information was not previously accessible publicly. It was. In fact, SIPP requires less information to be made available, not more.