September 2014
30/9/14
TITAN EUROPE 2006-3 PLC v COLLIERS INTERNATIONAL UK PLC [2014] EWHC 3106 (Comm)
Loans secured on a property were securitised. The claimant, a purchaser of a tranche of the loans, issued floating rate notes to investors. The claimant claimed that the defendants had negligently over-valued the property. Although note holders suffered the economic loss, the claimant could sue because it was obliged to distribute any sums received to the note holders for the time being. Although the claimant had not been concerned to read the detail of the valuation reports, it was sufficient to establish reliance that it had relied on the valuation figure.
30/9/14
DAY v TIUTA INTERNATIONAL LTD [2014] EWCA Civ 1246
The judge below had been entitled to find that even if the borrower had a claim to rescind a mortgage for fraud, the mortgagee had a claim to be subrogated to an earlier charge which the advance had refinanced. It made no difference that the mortgagee’s charge was only voidable and not void from inception. Either way the mortgagee had been entitled to appoint receivers. It made no difference that the mortgagee had purported to do so under its own charge rather than the charge to which it was entitled to be subrogated. Even if the borrower had claims to set-off unliquidated damages for having been induced to enter into the mortgage by the mortgagee’s fraudulent misrepresentation as to its financial status, that did not provide the borrower with an equitable defence to the mortgagee’s claim based on its rights of subrogation.
29/9/14
CAMPBELL v REDSTONE MORTGAGES LTD [2014] EWHC 3081 (Ch)
A mortgagee in possession was an involuntary bailee of chattels left by the mortgagor but the mortgagee had acted reasonably in removing the chattels and disposing of them. The mortgagor had been given notice of the mortgagee's intention to remove the goods, but had chosen not to collect them.
26/9/14
CRESTSIGN LTD v NATIONAL WESTMINSTER BANK PLC [2014] EWHC 3043 (Ch)
On the facts the bank had given advice, not merely information, to the claimant about interest rate swaps, and that advice had steered the claimant to taking a fixed interest rate swap. The relationship between the parties also satisfied the requirements of Hedley Byrne v Heller for a duty of care to arise. But the bank had successfully disclaimed responsibility for its advice in contract documents drawn to the claimant’s attention before the swap was concluded so the claim failed. The bank’s terms of business contemplated the bank giving advice if this was specifically agreed, but for such an agreement to arise there had to be something more than merely the giving of advice. The clauses on which the bank relied were not exclusion clauses, rather they defined the basis on which the bank was acting. Had they been exclusion clauses they would have been unreasonable contrary to UCTA 1977, especially because expert advice had not been readily available to the claimant. Had the bank not disclaimed responsibility, it would also have been held in breach of duty by recommending an unsuitable product especially because the swap had been for 10 years but the loan had a 5 year term and high break costs were payable to terminate the swap early. A cap should have been considered. Although the bank had a duty to ensure that the explanation it gave was not misleading that duty only required the bank to explain the products it was willing to sell, not other products. The bank had discharged its limited duty in that respect.
24/9/14
CF PARTNERS (UK) LLP v BARCLAYS BANK PLC [2014] EWHC 3049 (Ch)
Considers principles applicable to claims for breach of confidence by misuse of confidential information. On the facts, information provided by the claimant to the bank in connection with a proposed business acquisition had been confidential and the bank had misused it by taking advantage of the information for its own account.
9/9/14
ROBERTSON v SWIFT [2014] UKSC 50
The Court of Appeal had been right to hold that a contract for the removal of goods fell within the Cancellation of Contracts made in Consumer's Home or Place of Work etc Regs 2008 because it had been signed at the consumer's home. It did not matter where the earlier negotiations had taken place or that the trader had first visited the consumer at the consumer's request. But the trader’s failure to give the consumer notice of his right to cancel did not mean the consumer had no such right. The contract was cancellable and the consumer could recover the deposit.
9/9/14
ALTERNATIVE POWER SOLUTION LTD v CENTRAL ELECTRICITY BOARD [2014] UKPC 31, [2015] 1 WLR 697
On an interim application to restrain a bank from paying on a letter of credit on the basis of fraud, the test is whether it is seriously arguable that the only realistic inference is that the beneficiary could not honestly believe in the validity of the demand, and the bank is aware of that fact. This is significantly more stringent than the test of whether there is a good arguable case or serious issue to be tried. On the facts the test was not satisfied.