A – Assignment
14/7/20
HANCOCK v PROMONTORIA (CHESTNUT) LTD [2020] EWCA Civ 907
The fact that an assignee relied on a heavily redacted copy of an assignment did not establish a substantial dispute sufficient to enable the borrower to set aside a statutory demand. The court was entitled to rely on a witness statement from a solicitor exhibiting the redacted copy assignment and confirming that the loans made to the borrower had been assigned to the assignee [52]. A party relying on a contract should provide an explanation of the nature and extent of any redactions and the reasons for making them. In general, irrelevance is insufficient. There must be some additional feature such as privacy or confidentiality [74]. On the facts of the case, any failure to do so had not caused injustice to the borrower [78]. In a different case a court might conclude that it could not safely construe a redacted document [91].
1/6/20
EZAIR v CONN [2020] EWCA Civ 687
Although a purchaser under a contract of sale obtains an equitable interest in the property sold, the rights of the purchaser remain at all times subject to the terms of the contract [47]. Prior to completion of the contract the purchaser does not have an equity in the property which he can transfer to a sub-purchaser so as to be binding as against the vendor [49]. Without an assignment of the purchaser’s rights, the sub-purchaser could not make a claim against the vendor for a transfer of the property.
19/3/20
PROMONTORIA (OAK) LTD v EMANUEL [2020] EWHC 563 (Ch)
Although an assignee had been held not to have been entitled to rely on an assignment to prove its title to sue the debtors, it had brought its claim both as assignee and as proprietor of a legal charge and was entitled to succeed on its claim for a money judgment and for possession under the legal charge. The legal charge contained an obligation to repay the money secured by the charge and a right to possession. The fact that a claim based on the assignment had failed was irrelevant.
30/1/20
PROMONTORIA (OAK) LTD v EMANUEL [2020] EWHC 104 (Ch)
A trial judge had been entitled to find on the evidence before him that a copy deed of assignment which had been heavily redacted had been properly executed. Considers the best evidence rule [40]. The judge had been wrong not to require production of an unredacted copy of the deed of assignment because there were inconsistencies in the evidence as to the identity of the assignee. Also considers principles to be applied in redacting documents on grounds of confidentiality [58]. The judge had wrongly concluded that the redacted passages were irrelevant and had overlooked the relevance of an underlying sale and purchase agreement which had not been disclosed. The judge should have ordered immediate production of the relevant documents.
13/9/19
NICOLL v PROMONTORIA (RAM 2) LTD [2019] EWHC 1410 (Ch)
It was not arguable that the effective date of an assignment had not been reached having regard to a notice from the assignor and the assignee stating that the assignment had taken effect [37]. It was none of the business of the debtor to challenge an assignment whose validity and effectiveness was not being challenged by either of the parties to it [41]. Over-enthusiastic and ill-thought out redactions such as made to the copy of the assignment on which the assignee relied were questionable [65].
3/9/19
PROMONTORIA (HENRICO) LTD v SAMRA [2019] EWHC 2327 (Ch)
In determining whether an effective assignment had taken place, the court is entitled to have regard to the totality of the evidence before it and is not limited to the assignment document. Having regard to the notice of assignment given by the assignor and the assignee and the fact that the authenticity of the copy of the assignment disclosed by the claimant had not been put in issue, the court was satisfied that the debt under a specific facility letter had been assigned. An allegation that the lender had given an assurance that the loan would be extended for a further ten years failed on the facts. The court reviewed the principles for assessing whether there had been an unfair relationship [25] but found that the relationship between the lender and borrower had not been unfair.
26/6/19
PROMONTORIA (HENRICO) LTD v MELTON [2019] EWHC 2243 (Ch)
The court had been entitled to construe a reference to the debtor in a schedule to a deed of assignment as indicating that the deed had assigned a loan made to the debtor and legal charges securing the loan. The court had been entitled to take into account unchallenged evidence given on behalf of the claimant confirming the assignment and a letter from the assignor telling the debtor that the loan was going to be assigned to the claimant. The court had also been entitled to find that the assignment had been executed on behalf of the assignor by persons whose names were printed in the deed, although their signatures had been redacted.
11/7/18
LF2 LTD v SUPPERSTONE [2018] EWHC 1776 (Ch)
Considers principles to be applied by administrators when considering whether to assign a potential cause of action of the company to a third party [65-71].
22/5/17
CASEHUB LIMITED v WOLF COLA LIMITED [2017] EWHC 1169 (Ch)
Considers principles to be applied to determine whether an assignment is ineffective on grounds of maintenance or champerty. The claimant took assignments of small consumer claims to recover cancellation fees on grounds that the cancellation provisions were unfair contrary to s 62 Consumer Rights Act 2017. The assignments were effective as the claimant had acquired the right to the sums in question, and the assignment of the claim to recover those sums was incidental to that right, not a bare cause of action. But the cancellation fees formed part of the price payable under the contracts (OFT v Abbey National, 2009) so s 64(1)(b) Consumer Rights Act 2015 prevented the claimant from challenging them under s 62.
3/11/15
TITAN EUROPE 2006-3 PLC v COLLIERS INTERNATIONAL UK PLC [2015] EWCA Civ 1083
The defendant valued security for a lender. The lender securitised the loan and transferred it and the security to the claimant. The claimant administered the loan for the benefit of note holders. In a claim against the defendant for over-valuing the security, the court rejected submissions that the claimant had no title to sue and suffered no loss. The defendant had accepted responsibility to any purchaser or transferee of the loan in its valuation report. Even if the claimant had passed on any risk to noteholders, it had property in the loans and security and could therefore sue. If the price paid for the loans and securities had been too high (because of the over-valuation) the claimant had suffered loss. But on the facts the defendant’s valuation had been within a 15% margin for error so the claim failed.
28/2/14
CO-OPERATIVE GROUP LTD v BIRSE DEVELOPMENTS LTD [2014] EWHC 530 (TCC)
A building contractor's claims in negligence against sub-contractors were time-barred by s 2 Limitation Act 1980 because the cause of action accrued at the latest on practical completion which had occurred 12 years before the proceedings were started. Considers the principles to be applied in determining whether an attempt to assign the benefit of a contractual warranty without the contractually required consent gives rise to a trust in favour of the purported assignee. On the facts no such trust existed in favour of the claimant.
13/1/14
STOPJOIN PROJECTS LTD v BALFOUR BEATTY ENGINEERING SERVICES (HY) LTD [2014] EWHC 589 (TCC)
A sub-contractor had purported to assign its book debts to a factoring company. The sub-contracts prohibited assignment so the claim based on the assignment was struck out. But a claim that the failed assignment gave rise to an implied trust of the book debts in its favour was arguable and would not be struck out.
4/6/13
WILLIAMS v GLOVER [2013] EWHC 1447 (Ch), [2014] 1 WLR 166
A right of appeal against a tax assessment was not property within s 436 Insolvency Act 1986 and could not be assigned by a liquidator.
7/2/13
SANTANDER UK PLC v HARRISON [2013] EWHC 199 (QB)
The capitalisation of mortgage payment arrears did not amount to the provision of “credit in the form of a cash loan” within art 4(1) Consumer Credit Act 2006 (Commencement No. 4 and Transitional Provisions) Order 2008 so the arrangement did not bring the agreement within the scope of CCA regulation. Even if the lender had assigned the loan, it was entitled to bring the claim because notice of the assignment had not been given to the debtor so as to perfect a legal assignment under s 136 LPA 1925 so the lender still had legal title. Notice under s 136 must be express notice in writing. The fact that the lender had provided information to the debtor as a result of a Data Protection Act request was not sufficient.
24/10/12
BEXHILL UK LTD v RAZZAQ [2012] EWCA Civ 1376
A company which had given a bank a debenture containing an assignment to the bank of its receivables, was not entitled to enforce a legal charge securing a debt owed to the company by a third party without joining the bank. On its true construction, the debenture operated as an absolute assignment, not an assignment by way of charge only. Notice of the assignment had not been given to the guarantor, so it only took effect in equity. The bank as equitable assignee had the right to sue and had not authorised the company to sue as its agent. For the proceedings to be continued, the bank would have to be joined as a party.
22/8/12
JONES v LINK FINANCIAL LTD [2012] EWHC 2402 (QB)
A legal assignee of a debt under a regulated consumer credit agreement was a "creditor" within the meaning of the CCA 1974 and was therefore entitled to enforce the debt subject to the performance of statutory duties under the Act.