Bank Notes

December 2015

21/12/15

WATTS v WATTS [2015] EWCA Civ 1297

A deputy judge had been right to hold that she was not required to recuse herself from hearing a claim merely because she had been leading the claimant’s counsel in long-running unrelated litigation.

21/12/15

CAPITA (BANSTEAD 2011) LTD v RFIB GROUP LTD [2015] EWCA Civ 1310

On 30 April 2004 the defendant transferred shares in a pension management company to the first claimant. The company gave the pension trustees and employer negligent advice before the share transfer date but the advice continued to cause loss after that date. Claims by the trustees and employer were settled. The first claimant claimed to recover from the defendant under an indemnity in the share sale agreement. The court held that the indemnity only covered loss caused by pre-transfer conduct. Failure to correct the negligent advice in the interim did not give rise to a fresh cause of action every day after the mistake had been made, so post-transfer loss continued to be referable to the pre-transfer conduct and fell within the scope of the indemnity. But deliberate misrepresentations in late 2004 did give rise to fresh causes of action which had been concurrent causes of loss and as a result post-2004 loss was not recoverable under the indemnity.

21/12/15

IG INDEX LTD v CLOETE [2015] EWHC 3698 (QB)

The court struck out a claim for a permanent injunction on the basis that it was very difficult to see how the claimant could obtain anything of value from a trial of the action and it would be wholly disproportionate to allow the time of the court to be taken up, and so much expenditure to be incurred, to so little purpose.

21/12/15

RIVERTRADE LTD v EMG FINANCE LTD [2015] EWCA Civ 1295

The trial judge had rightly interpreted an agreement that a loan was to be secured by all the monies payable under a contract between the defendant borrower and a third party, and not merely by 35% of those monies. Applying principles of estoppel by convention (as explained in ING Bank v Ros Roca, 2012) on the facts any company in the same group as the defendant proceeded on a common assumption that the claimant would have effective security on all the moneys payable under the contract with the third party.

21/12/15

ROYAL BANK OF SCOTLAND PLC v MCCARTHY [2015] EWHC 3626 (QB)

The defendant was liable to repay a bank loan. The court reviewed the applicable principles for claims of inducing a breach of contract [71]. The court rejected the defendant’s defence that the bank had induced an LLP of which he had been a member to breach its contract with him by failing to repay his loan with the bank. Although the bank had required the LLP to enter into an undertaking not to repay the capital of any retiring member without the bank’s consent, on the evidence no request had been made for consent and the bank had been justified in acting as it did. Nor was the defendant entitled to enforce a letter of undertaking given by the LLP to the bank. The letter did not contain a term purporting to confer a benefit on the defendant within the meaning of the Contracts (Rights of Third Parties) Act 1999. No term could be implied into the loan agreement that the bank would not prevent a third party (the LLP) from performing any obligations which it owed the defendant, nor was there any relevant collateral contract.

21/12/15

PK AIRFINANCE SARL v ALPSTREAM AG [2015] EWCA Civ 1318

In realising security on aircraft, a mortgagee arranged an auction at which it was the only bidder present and purchased the aircraft through an intermediary trustee. Proceedings claiming various breaches of the mortgagee’s duties were brought by an unsecured creditor which stood to benefit from the realisation of the mortgaged assets under a contractual waterfall structure. The claims failed. The mortgagee had not sold to itself so the sales were not void. Nor was any duty owed to the creditor because the creditor had no interest in the equity of redemption. As a connected purchaser, the mortgagee would have had the burden of proving that the sale was at a proper price. But on the evidence the sale had been at the best price reasonably obtainable. Alternative claims of conspiracy to injure and procuring a breach of contract also failed in the absence of any breach of duty or loss.

18/12/15

BURRELL v HELICAL (BRAMSHOTT PLACE) LTD [2015] EWHC 3727 (Ch)

The defendant developed a retirement village and granted leases to the claimants. The claimants argued that provisions in their leases for payment of a percentage on transfer of the lease amounted to the provision of credit under a regulated consumer credit agreement. The court reviewed the meaning of credit in the CCA 1974 and held that the provisions did not involve the provision of credit because there was no deferred payment obligation.

17/12/15

BIBBY FACTORS NORTHWEST LTD v HFD LTD [2015] EWCA Civ 1908

The claimant factoring company sued to recover debts which it claimed had been owed to its customer (a supplier of goods) and assigned to it under a factoring agreement. On cross-applications for summary judgment, the court held that the defendants debtors were entitled to rely on equitable set-off in respect of rebates to which they claimed to be entitled from the supplier and on the facts they were not estopped from doing so.

17/12/15

GHISING v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2015] EWHC 3706 (QB)

Appeal allowed against a Master’s refusal to allow the claimant to recover any success fee for either solicitor or counsel for work done prior to the date of a conditional fee agreement.

11/12/15

RE PREMIER MOTOR AUCTIONS LEEDS (IN LIQUIDATION) [2015] EWHC 3568 (Ch)

An application by liquidators under r 4.218A-E of the Insolvency Rules 1986 for litigation expenses to be paid out of floating charge assets was adjourned to be heard with the holder of the floating charge present. The circumstances were not so exceptional as to justify a hearing in private without the bank present and represented.

10/12/15

LBG CAPITAL NO.1 PLC v BNY MELLON CORPORATE TRUSTEE SERVICES LTD [2015] EWCA Civ 1257

On their proper construction, certain securities known as Enhanced Capital Notes, had become redeemable because a Capital Disqualification Event (as defined) had occurred. The court was satisfied that something had gone wrong with the language used in drafting the documentation. There was no difficulty ascertaining what the correction by interpretation should have been to the erroneous drafting, even if there might be slightly different views as to the precise wording of any potential replacement text [90]. A reasonable person with the appropriate background knowledge would have understood the documents to have that meaning. The judgment includes a useful summary of regulatory requirements for capital raising by banks following the financial crisis in 2008 [6].

10/12/15

LONDON BOROUGH OF BROMLEY v HECKEL [2015] EWHC 3606 (TCC)

The court dismissed an application for disclosure by a defendant of contract documents which the defendant and his solicitors claimed did not exist and were not in the defendant’s possession. There was no reason for the court to go behind that denial. The court also refused an application by the claimant to extend time for service of the particulars of claim.

7/12/15

PERSIMMON HOMES LTD v OVE ARUP & PARTNERS LTD [2015] EWHC 3753 (TCC)

Limitation and exclusion clauses protected an engineering consultant from liability to a developer for professional negligence in relation to claims relating to asbestos but did not extend to claims under earlier appointments.

8/12/15

THE COMMISSIONER OF POLICE OF THE METROPOLIS v ABDULLE [2015] EWCA Civ 1260

On an appeal from a case management decision refusing to strike out a claim for failure to comply with procedural rules (CPR r 3.4(2)) the court of appeal will not lightly interfere with the first instance judge’s exercise of discretion, especially if the decision whether or not to strike out is finely balanced.

4/12/15

COUNTY LEASING ASSET MANAGEMENT LTD v HAWKES [2015] EWCA Civ 1251

Considers when it may be appropriate to making a direction suspending the effect of the Limitation Act 1980 in connection with an application restoring a company to the register under s 1032 Companies Act 2006. The court needs to be satisfied that if the company had not been dissolved it would have pursued the claim. On the facts the court was not satisfied as to this.

2/12/15

MARKS AND SPENCER PLC v BNP PARIBAS SECURITIES SERVICES TRUST COMPANY (JERSEY) LTD [2015] UKSC 72

For a term to be implied it must be necessary for business efficacy or be so obvious as to go without saying. The suggestion that Attorney General of Belize v Belize Telecom Ltd [2009] UKPC 10 supports a wider test that a term may be implied if it is reasonable, is wrong. The law is as stated in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) as extended in Philips Electronique Grand Public SA v British Sky Broadcasting Limited (1995). Business efficacy and the officious bystander test are alternatives.