31/7/13
ALPSTREAM AG v PK AIRFINANCE SARL [2013] EWHC 2370 (Comm)
Considers the duties of a mortgagee selling mortgaged property to a connected party. The mortgagee bore the burden of proving the sale was at the best price and had failed to discharge the burden. It knowingly took a risk setting up a minimalist auction. The duty extended to the residual beneficiary of the proceeds of sale. A company associated with the mortgagee was also liable for procuring the breach of duty and both were liable for conspiring to cause economic loss to the mortgagor by unlawful means.
31/7/13
PRICE v NUNN [2013] EWCA Civ 1002
The court summarised the principles of cause of action estoppel, issue estoppel and res judicata [67].
31/7/13
PICKENHAM ROMFORD LTD (IN ADMINISTRATION) v DEVILLE [2013] EWHC 2330 (Ch)
Considers when a material alteration to a deed may cause the deed to be void [21]. On the facts the alteration was not material.
31/7/13
TEAL ASSURANCE CO LTD v WR BERKELEY INSURANCE (EUROPE) LTD [2013] UKSC 57
Considers the order in which claims under a professional liability insurance exhaust layers of insurance. A claim under the policy arose at the moment expenses were incurred by the insured or the liability was ascertained by agreement, court judgment or award. The claim then either exhausted the policy entirely or pro tanto. Although an insured could decide not to notify a claim or to waive/abandon a claim so as not to exhaust the insurance, the insured could not pursue claims but seek to adjust their priority. Priority was to be given to claims in the order the insured incurred ascertained expenses or third party liability up to the policy limit.
31/7/13
BILTA (UK) LTD v NAZIR [2013] EWCA Civ 968, [2013] 3 WLR 1167
In proceedings by a company against a director for breach of duty, the company is to be regarded as the victim so the director cannot rely on his own breach as creating liability on the part of the company as a defence.
30/7/12
HARVEY v DUNBAR ASSETS PLC [2013] EWCA Civ 952
A guarantee was not binding on the appellant because it had been intended to be signed by three others and the signature of one of the others had been forged. On its proper construction it was a single composite document which all four had to sign as a pre-condition to its validity.
29/7/13
CUKUROVA FINANCE INTERNATIONAL LTD v ALFA TELECOM TURKEY LTD [2013] UKPC 25
It is inherent in an order granting a mortgagor relief from forfeiture that the terms can be extended or varied. Time for redemption may be extended if it is just and equitable. On the facts it was appropriate to extend time and suspend the running of interest because the mortgagee had, for its own collateral reasons, been taking steps designed to thwart the mortgagor’s attempts to raise money to redeem.
26/7/13
TCHENGUIZ v DIRECTOR OF THE SERIOUS FRAUD OFFICE [2013] EWHC 2297 (QB)
Considers when documents can be said to have been produced for the dominant purpose of litigation so as to be privileged and waiver of privilege by loss of confidentiality.
25/7/13
R v SALE [2013] EWCA Crim 1306
The corporate veil was lifted when assessing the benefit obtained by a defendant for the purpose of a confiscation order made following his conviction for making corrupt gifts to secure work for a company he controlled.
24/7/13
BINNS v FIRSTPLUS FINANCIAL GROUP PLC [2013] EWHC 2436 (QB), [2014] Bus LR 110
The claimants made a claim regarding mis-sold payment protection insurance under the former Financial Services Authority ADR scheme and received an award. They then brought a county court claim essentially to recover the legal costs they had incurred because the ADR scheme gave no award of costs. The claim was struck out. Redress had already been offered by the ADR route and the pursuit of costs alone was an “illegitimate factor”.
24/7/13
IN THE MATTER OF THE NORTEL COMPANIES [2013] UKSC 52, [2014] AC 209
A contribution notice or financial support direction issued by the Pensions Regulator after a company went into administration ranked as a provable debt, not an administration expense. The applicable statute gave rise to a contingent obligation which was based on a state of affairs which existed before the insolvency event. Similarly a liability for costs arising from a judgment after commencement of insolvency in proceedings brought before the insolvency started, is provable as a contingent debt and cases to the contrary were wrongly decided.
24/7/13
NEUMANS LLP v ANDRONIKOU [2013] EWCA Civ 916
The judgment at first instance was “dead on” and affirmed. Where a company which had been in administration later went into liquidation, the company’s solicitor’s fees of resisting a winding up petition before the company had gone into administration were not expenses of the administration but expenses of the liquidation. The list of administration expenses in r 2.67 of the Insolvency Rules is a complete list and does not include such fees. The fees were not incurred in connection with the performance of the administrator’s functions. The court’s inherent jurisdiction could not be used to produce a result inconsistent with r 2.67, nor could the court do so under s 51 Senior Courts Act 1981 because unpaid fees are not costs within that provision.
24/7/13
HAMMERSMATCH PROPERTIES (WELWYN) LTD v SAINT-GOBAIN CERAMICS & PLASTICS LTD [2013] EWHC 2227 (TCC)
Although the defendant’s Part 36 offer was nearly but not quite sufficient to beat the sum awarded to the claimant, that could not alter the costs consequences. Dicta to the contrary in Multiplex Construction (UK) Ltd v Cleveland Bridge UK Ltd (2008) should not be applied. But if a party unreasonably refused to negotiate, that could be taken into account under CPR r 44.2(4)(a).
23/7/13
R v OYEBOLA [2013] EWCA Crim 1052
Rental income from a criminally-obtained property constitutes a benefit from the crime in the hands of recipient and can therefore fall within the scope of a confiscation order made under POCA.
22/7/13
BANK OF SCOTLAND PLC v HOSKINS (Ch)
The mortgagor claimed the mortgagee had wrongly failed to provide credit facilities to a company and as a result the mortgagor had a cross claim against the mortgagee. The court refused the mortgagee’s application to transfer possession proceedings against the claimant to the county court. Although a counterclaim does not usually affect a right to possession, here the cross claim was inextricably linked with the possession claim and the parties had originally agreed that both claims should be heard in the High Court.
22/7/13
NEWBURY v SUN MICROSYSTEMS [2013] EWHC 2180 (QB)
An offer to settle proceedings and acceptance were binding and not conditional on execution of a formal contract.
19/7/13
CHARLES STANLEY & CO LTD v ADAMS [2013] 2137 (QB)
There is no intrinsic bar to prevent contracting parties from giving a power to one of them to determine something which affects their contractual rights. So a provision in a contract for a broker to be liable for loss incurred by the claimant in connection with a client managed by the broker was enforceable although the contract gave the claimant the right to determine the broker’s liability.
19/7/13
FAIRSTAR HEAVY TRANSPORT NV v ADKINS [2013] EWCA Civ 886
A principal had the right to inspect and copy emails on an agent’s computer which had been sent and received whilst the agent was working for the principal and for the purpose of the principal’s business. The right survived termination of the agency and existed regardless of whether the principal had a proprietary right in the emails.
18/7/13
EVANS v FINANCE-U-LTD [2013] EWCA Civ 869
The defendant was entitled to delivery up of a car on which it had been given a bill of sale as security for a loan to the claimants. Although the claimants had no personal liability because each of them had been made bankrupt and been discharged from bankruptcy, the Insolvency Act 1986 preserved the defendant’s right to enforce its security. That right had not been lost by the defendant proving in the first claimant’s bankruptcy for the full sum owed under the loan agreement because the defendant had disclosed its security in its proof even though it had not attributed any value to it. The loan had been regulated by the Consumer Credit Act 1974 but it was doubtful that service of a default notice under s 87 was appropriate once the claimants had ceased to have any personal liability. Until the term of the loan expired, service of a termination notice under s 76 and/or enforcement notice under s 98 would have been necessary. But once the term had expired no such notice was necessary to entitle the defendant to delivery up.
17/7/13
BENEDETTI v SAWIRIS [2013] UKSC 50
The claimant provided brokerage services which assisted the defendant to acquire a company. The original contract between the parties had been abandoned so could not be relevant to assessment of the value of the claimant’s services and the claim was a restitutionary claim for the defendant’s unjust enrichment. The market value of the services was €36.3m. That was the starting point for quantifying the claim. It was then for the defendant to prove that he in fact received less or no benefit (subjective devaluation). The trial judge had erred in allowing more than market value on the basis of evidence of an offer made by the defendant showing that the defendant regarded the services as worth €75m (subjective revaluation, which is not an appropriate measure). As the claimant had already in fact received a brokerage fee of €67m for the services performed, the claim to any further payment failed.
17/7/13
ENERGY VENTURE PARTNERS LTD v MALABU OIL & GAS LTD [2013] EWHC 2118 (Comm)
Broker held entitled to reasonable fees under an implied agreement or implied term.
17/7/13
THAMESIDE CONSTRUCTION CO LTD v STEVENS [2013] EWHC 2071 (TCC)
Set-off of sums awarded in adjudication considered.
16/7/13
PADDEN v BEVAN ASHFORD [2013] EWCA Civ 824
The claimant’s husband had misappropriated client money. The claimant charged her assets in order to settle a client’s claim, in the hope that this would avoid her husband being prosecuted. The solicitors advising the claimant at the time the transaction was executed were held to have been negligent in failing to advise her that there was little chance of her husband avoiding prosecution. The trial judge had been entitled to find that the claimant would not have signed if such advice had been given, and it was not sufficient that advice to that effect had been given by the firm at an earlier stage when only the outline of the transaction had been discussed.
16/7/13
WATSON v SADIQ [2013] EWCA Civ 822
Considers when a consent order may be set aside for lack of consent or duress [47] and the extent to which pressure from a trial judge to settle may be a ground on which to set a consent order aside for procedural unfairness [53]. On the facts neither ground was made out and the appellant had affirmed the consent order by later conduct.
15/7/13
NATIONAL CRIME AGENCY v SZEPIETOWSKI [2013] UKSC 65
Where a bank with a first charge sold a property which the defendant had agreed to transfer to the agency in settlement of an asset recovery claim, the agency could not rely on the doctrine of marshalling to have the benefit of the bank’s charge on the defendant’s family home.
15/7/13
Published by the Department for Business, Innovation & Skills. Considers proposals to improve corporate transparency and strengthen director disqualification laws, including changes to bank directors’ duties as recommended by the Parliamentary Commission on Banking Standards.
10/7/13
LLOYDS TSB INSURANCE SERVICES LTD v SHANLEY [2013] EWHC 4603 (Ch)
A party who fabricated a written agreement to bolster a genuine claim was sentenced to 3 months imprisonment for contempt taking into account his otherwise good character.
12/7/13
DUNBAR ASSETS PLC v DORCAS HOLDINGS LTD [2013] EWCA Civ 864
A claim that a mortgagee had agreed to refrain from demanding repayment until development works had been undertaken was unlikely to amount to a defence to possession proceedings because it only provided a cross-claim for unliquidated damages. A judge can entertain a submission at the beginning of a trial that the pleadings disclose no defence, even if no strike out application has been made. But the judge must ensure the defendant has had a fair opportunity to respond and must hear submissions from the defendant. The judge’s failure to hear submissions in this case was a serious procedural irregularity justifying an appeal being allowed.
11/7/13
SMITHTON LTD v NAGGAR [2013] EWHC 1961 (Ch)
Considers when an individual may be a de facto or shadow company director [48]. On the facts the evidence did not establish that the defendant had been involved in the company’s management. Nor was the defendant liable under s 190 Companies Act 2006 for entering into a substantial property transaction with the company without members’ approval, because the defendant had not acquired any asset from the company.
11/7/13
PARATUS AMC LTD v FOSUHENE [2013] EWCA Civ 827
The defendant occupied property under a tenancy purportedly granted without the claimant mortgagee’s consent. The court considered the principles to be applied when deciding whether the mortgagee had treated the tenant as its own [27]. Although the defendant had made payments directly to the mortgagee since 2009, the mortgagee was not bound by the tenancy because the defendant had not discharged the burden of proving that the mortgagee knew the payments were coming from the defendant as tenant rather than as payments on behalf of the mortgagor.
11/7/13
SUKHORUCHKIN v VAN BEKESTEIN [2013] EWHC 1993 (Ch)
Considers tests to be applied when granting a proprietary injunction. Decides that the American Cyamid principles should apply. Considers the principle that bars a claim by a shareholder which is merely reflective of a loss suffered by a company. On the facts the claimant did not have a good arguable case because its claims were weak and barred by the no reflective loss principle.
10/7/13
PATEL v MIRZA [2013] EWHC 1892 (Ch)
Money paid to a foreign exchange broker for spread betting on movements in listed share prices was not recoverable. The spread betting company was a professional intermediary which acquired a security by entering into a contract for differences in the form of the spread bet. The customer had relied on the company, the broker had used insider information so an offence had been committed under s 52 Criminal Justice Act 1993, and the arrangement amounted to a criminal conspiracy. Although the bet was not in fact placed, the illegality prevented recovery on grounds of unjust enrichment, as money held on trust, or as money for which an agent was liable to account. Money can be recovered if the payer resiles from the transaction voluntarily before an illegal purpose is performed, but here the transaction did not proceed because the bet was never placed by the broker so the claimant could not be said to have withdrawn voluntarily.
10/7/13
GLOBAL TORCH LTD v APEX GLOBAL MANAGEMENT LTD [2013] EWCA Civ 819
It was not appropriate to order interim hearings in unfair prejudice proceedings to be heard in private. Open justice required the case to be heard in public. The court summarised the applicable principles [13].
9/7/13
CUKOROVA FINANCE INTERNATIONAL LTD v ALFA TELECOM TURKEY LTD [2013] UKPC 20
The claimant defaulted on a loan secured on shares. The defendant exercised its right to appropriate the shares. The claimant had been held entitled to relief from forfeiture in respect of the shares. When considering the terms on which the right was to be exercised, it was held by a majority that the claimant was only required to pay interest at the standard contract rate, not the higher default rate, because the circumstances were exceptional. The claimant had tendered full repayment within a month of the default, the defendant was to be regarded as having refused to accept payment, and the claimant had paid the money into an interest bearing escrow account pending acceptance.
9/7/13
PRIME SIGHT LIMITED v LAVARELLO [2013] UKPC 22, [2014] 2 WLR 84
A trustee in bankruptcy was estopped by the terms of a deed containing a contract of sale, from claiming that the purchase price had not been paid.
8/7/13
IN THE MATTER OF PROPERTY PROFESSIONALS + LTD [2013] EWHC 1903 (Ch)
Although a form 2.34B to move from administration to CVL had been rejected by the Companies Registry for not showing an address, it had been served in time and the administration impliedly extended to the date when the form had been accepted. The liquidators had therefore been validly appointed and an application to replace them could also properly be made.
ODL SECURITIES LTD v MCGRATH [2013] EWHC 1865 (Comm)
An employee who acted beyond the scope of his authority in making loans from his employer to third parties was liable for breach of the terms of his employment contract requiring him to act with skill, care and in good faith. The employee had also acted in breach of the fiduciary duty requiring him to act in his employer’s best interests and to disclose matters which his employer should have known, including his own misconduct. The employer was entitled to damages or equitable compensation.
5/7/13
CONCEPT OIL SERVICES LTD v EN-GIN GROUP LLP [2013] EWHC 1897 (Comm)
Considers principles of deceit [34], joint liability in tort [44] and conspiracy [49] in a case where false assurances were given that the company with which the claimant dealt would remain English registered.
5/7/13
WOOD v GORBUNOVA [2013] EWHC 1935 (Ch)
Considers the status of court appointed receivers as officers of the court [25], when they may be personally liable for costs [26] and their right to an indemnity [37]. On an application by court appointed receivers for delivery up of documents by a deceased’s former solicitors, the solicitors had acted properly and were entitled to be paid their costs by the receivers. The receivers were refused an indemnity for one third of those costs and 15% of their own costs to reflect inappropriate conduct of the application. .
3/7/13
VIRGIN ATLANTIC AIRWAYS LTD v ZODIAC SEATS UK LTD [2013] UKSC 46, [2014] AC 160
Considers the inter-action between the principles of res judicata, issue estoppel and abuse of process [17]. On the facts there was no issue estoppel preventing the appellant from relaying on the invalidity of a patent in proceedings for the assessment of damages.
2/7/13
MENELAOU v BANK OF CYPRUS UK LTD [2013] EWCA Civ 1960
A bank agreed to release charges on a property owned by the claimant’s parents if provided with a new charge on a property to be purchased in the name of the claimant. The new property was in fact purchased but a charge was never signed by the claimant. The claimant had been unjustly enriched because discharge of the bank’s charges on the old property had released the funds for the claimant to purchase the new one. That was sufficient to entitle the bank to an equitable charge on the new property by subrogation to the unpaid vendor’s lien.
JUNE/JULY 2013
Contains recent FOS case studies involving negligent investment advice.