November 2015
27/11/15
THORNBRIDGE LTD v BARCLAYS BANK PLC [2015] EWHC 3430 (QB)
A claim for damages for mis-selling an interest rate hedge was dismissed. Considers when a bank assumes an advisory relationship [25]. On the facts the bank had given information not advice. A letter stating that the bank may from time to time provide advice did not amount to notification that it was advising. Even if advice was given, the bank assumed no advisory duty. The fact that the bank’s representative was said to be a Corporate Risk Adviser was not of significance. Disclaimers in the bank’s documentation prevented any advisory duty arising, were not exclusion clauses and were in any event not unreasonable contrary to UCTA. Any other duty was limited to ensuring that information given was not misleading [118]. Reference in the bank’s terms of business to the agreement being subject to FSA Rules did not incorporate those rules into the terms. Nor on the facts could the bank be criticised for failing to give more information about break costs. The swap did what it was supposed to do and had not been unsuitable. The court was not satisfied that a cap would have been taken even if it had been offered so the case also failed for lack of causation.
20/11/15
PROPERTY ALLIANCE GROUP LTD v THE ROYAL BANK OF SCOTLAND PLC [2015] EWHC 3341 (Ch)
The claimant made secret recordings of meetings with representatives of the bank to gather evidence for its claim. The existence of the recordings was mentioned in an email sent by a consultant to the claimant’s solicitors which had been disclosed by mistake. The claimant’s claim that he recordings were covered by litigation privilege was rejected. The bank had been misled to believe that the purpose of the meetings was for business. The dominant purpose of the meetings had not been the litigation. The email had been privileged and should not have been used by the bank without the court’s permission under CPR r 31.20 because it had been disclosed by mistake. It made no difference that it showed that there had been serious non-disclosure by the claimant of relevant documents.
20/11/15
RE HUME CAPITAL SECURITIES LTD [2015] EWHC B25 (Ch)
The court approved a scheme for re-distribution of client assets to clients by a company in special administration.
18/11/15
RE ARMSTRONG BRANDS LTD [2015] EWHC 3303 (Ch)
A company debenture was validly executed as a deed for the purpose of s 44 Companies Act 2006. It was signed by the company’s secretary and another person. That other person was not a director at the date of the debenture but the evidence showed that he had signed it at a date when he was a director. It did not matter that the transaction completed later when the director signatory was no longer a director. An administrator had therefore been validly appointed under the debenture.
12/11/15
SHARP v BLANK [2015] EWHC 3219 (Ch)
The defendant applied for summary judgment to dismiss a claim by shareholders for breach of fiduciary and tortious duties by directors of Lloyds Bank in the acquisition of HBOS by failing to disclose that HBOS had been manipulating LIBOR submissions. As disclosure had not yet taken place, the court could not say with confidence that the claimant's case was without substance.
11/11/15
GOLDSMITH WILLIAMS SOLICITORS v E-SURV LTD [2015] EWCA Civ 1147
A solicitor had been in breach of the duties which it owed to a mortgage lender in failing to report non-confidential information as to a recent purchase price recorded at the Land Registry which cast doubt on a valuation. Duties of solicitors acting for lender and borrower discussed [32]. But a claim by the valuer for a contribution from the solicitor failed as the valuer failed to prove that provision of the information by the solicitor to the lender would have made any difference, so causation was not established.
10/11/15
Claims of passing off and trade mark infringement were made out. The second defendant, who owned and controlled the defendant company was jointly liable with it [37].
6/11/15
COLICOLOR LTD v CAMTREX LTD [2015] EWHC 3202 (Ch)
Application to restrain presentation of winding-up petition granted. Principles reviewed [31].
5/11/15
PROPERTY ALLIANCE GROUP LTD v THE ROYAL BANK OF SCOTLAND PLC [2015] EWHC 3187 (Ch)
Documents recording discussions of a bank sub-committee set up to oversee regulatory investigations into LIBOR manipulation, were privileged because they were prepared by the bank’s solicitors, who attended the meetings to give legal advice when appropriate. The documents formed part of a continuum of communications between lawyer and client, even if they did not expressly refer to legal advice.
5/11/15
PUREWAL v COUNTRYWIDE RESIDENTIAL LETTINGS LTD [2015] EWCA Civ 1122
A bankrupt mortgagor could not sue receivers for breach of duty because any cause of action vested in his trustee in bankruptcy as the person entitled to the equity of redemption. Even if the receivers had been at fault in failing to make a claim on an insurance policy for water damage to the mortgaged property, there was no evidence that the mortgagee would have allowed the insurance money to be used to repair the property rather than applying it in reduction of the mortgage debt.
4/11/15
CAVENDISH SQUARE HOLDING BV v EL MAKDESSI; PARKINGEYE LTD v BEAVIS [2015] UKSC 67
Reviews the rule against penalties. The rule should neither be abolished nor extended [36-40]. It only applies to contractual remedies (including clauses requiring payment or transfers/forfeiture of assets) for breach of primary obligations [13-18]. The test is whether the clause is a secondary obligation which imposes a detriment out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation [32]. In Makdessi the price adjustment provision in issue was a primary not a secondary obligation so the penalty rule was not engaged. In Parkingeye the £85 parking charge was payable for breach so the penalty rule was engaged. But the charge was not a penalty because the owners had a legitimate interest in charging over-staying motorists for the purpose of efficient management of customer parking. For the same reason the charge was not unfair under the Unfair Terms etc Regs 1999.
4/11/15
MENELAOU v BANK OF CYPRUS UK LTD [2015] UKSC 66
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.
3/11/15
RAWLINGS v CHAPMAN [2015] EWHC 3160 (Ch)
The claimant’s claim to an interest by proprietary estoppel failed. Although the claimant had paid money to assist the deceased to renovate a house, the deceased had made no promise to leave the house to her and had said nothing to lead her to believe that such a promise had been made.
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.
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