NATIONAL CRIME AGENCY v TONINO CARMINO PERSICO

For a final charging order, the applicant must prove that the judgment debtor beneficially owns property registered in another person’s name. The ordinary presumption that beneficial ownership follows legal title may be displaced by cogent evidence, including cumulative circumstantial evidence and reasonable inferences. The court should scrutinise evidence carefully where the allegation has serious criminal ramifications, but the civil standard remains the balance of probabilities. The use of companies to conceal the identity of the true owner is analysed under the concealment principle and does not require piercing the corporate veil. The availability of civil recovery proceedings under Part 5 of the Proceeds of Crime Act 2002 does not prevent enforcement of a judgment debt obtained through the agency’s Part 6 revenue functions.

The National Crime Agency sought a final charging order over commercial land at 555 Osmaston Road, Derby. The land was registered in the name of Osmaston Business Park Ltd, but the Agency alleged that the company held it on trust for Tonino Persico, against whom it held a default judgment for unpaid tax, National Insurance contributions and interest exceeding £1.1 million.

An interim charging order had been made and the issue was directed to trial. The interested party disputed the alleged beneficial ownership and relied on the Land Registry entry, corporate personality and evidence from its director. The central questions were whether the Respondent was the true beneficial owner and, if so, whether the interim charging order should be made final.

1. The final charging order was made. The National Crime Agency proved on the balance of probabilities that the Respondent beneficially owned the whole interest in the property and that Osmaston Business Park Ltd held it on trust for him.

2. The burden of proving that the legal title was displaced rested on the Agency. The court had to examine the quality of the evidence carefully because the allegation was serious and direct evidence was largely absent. Cogent circumstantial evidence and cumulative inferences could nevertheless establish the relevant state of affairs.

3. The presumption that beneficial title follows legal title, reflected in Re Norris [2001] UKHL 34 and Stack v Dowden [2007] UKHL 17, was not conclusive. The court applied it but found it displaced by the evidence.

4. The observations in National Guild of Removers and Storers Ltd v Jones (t/a ATR Removals) [2012] EWCA Civ 216 concerning the modern approach to the burden in charging-order applications were strictly obiter and the present dispute was materially different. The burden therefore lay on the Agency where it sought to displace the registered owner’s apparent beneficial title.

5. The case concerned concealment, not piercing the corporate veil. Applying the concealment principle explained by Lord Sumption in Prest v Petrodel Resources Ltd [2013] UKSC 34, the court could look behind interposed companies to identify the real actors where the corporate structure concealed the true owner.

6. The relevant evidence included the Respondent’s original purchase, repeated transfers between companies without consideration, dissolved corporate vehicles, unexplained accounting entries matching the property’s value, links between the Respondent and the individuals involved, rental operations, and the failure of the Respondent or interested party to provide a credible competing explanation. The cumulative effect produced an irresistible inference of beneficial ownership.

7. The fact that the Agency could have pursued civil recovery under Part 5 of the Proceeds of Crime Act 2002 did not make the Part 6 route inappropriate. The tax judgment was a judgment debt and the property could be charged if beneficially owned by the judgment debtor.