Valuer’s liability in respect of its valuation of the rental income
Is a valuer liable for any losses incurred in respect of its rental valuation as well as its valuation of the capital value of a property? In March, this year the court held that a valuer had breached...
View ArticleThe ability to marshall
Where one debtor owes different debts to two or more creditors, but one of the creditors can enforce its claim against more than one security and the other can only resort to one, the equitable...
View ArticleThe impact of settling a case in a multi-party situation
What happens if you reach a settlement with one party, but not others? In this case, Chelsea Building Society had repossessed and then sold a property, but then wished to pursue the mortgagors for the...
View ArticleOverriding interests
This recent case considered whether a person who had an overriding interest can be taken to have authorised a charge and so be bound by it. Mrs Qutb had suffered from Alzheimer’s disease for a number...
View ArticleCharging orders
The OFT has announced that it has uncovered problems about the use of charging order by some lenders. Problems uncovered by the OFT’s investigation were specific to each business, as set out in the...
View ArticleIs a guarantee liability a liquidated sum?
Is a creditor entitled to bring bankruptcy proceedings in respect of a guarantee and indemnity? In this case , the question the court asked was whether a guarantee liability, is a liability for a...
View ArticleCharging orders
A creditor obtained a charging order over a property based on a judgment in which a company had been ordered to pay £11,500 in costs. In addition, the company had been ordered to pay into court the sum...
View ArticleClaim of privilege failed
A lender requested copies of the complete file from a defendant firm of solicitors who acted for both the lender and the borrower on a conveyancing transaction. The defendant solicitors claimed that...
View ArticleSale and leaseback schemes
The court was asked here to determine preliminary issues in 9 test cases concerning the controversial sale and lease back schemes. These schemes enabled the occupiers of property to sell their property...
View ArticleUndue influence – again?
This case dealt with very familiar arguments which a wife may raise when a bank seeks to enforce a guarantee and legal charge against her. In September 2001, Mrs Chandra gave a guarantee in favour of...
View ArticleWhat duty of disclosure does a lender owe a guarantor?
The Court of Appeal considered the question of how much information a lender is obliged to give a guarantor? Although the case did not involve a retail bank, the principles highlighted are of wider...
View ArticleBribery Act – will come into force 1 July
The Bribery Act will now come into force on 1 July. The Government has published guidance which softens some of the previous criticisms which had been levelled at the Act. The Act creates a new offence...
View ArticleWhat happens when a claimant discontinues his claim – who is liable to pay...
In 2009, banks were facing a flood of claims pursuant to section 78 of the Consumer Credit Act 1974 (“the Act”). The Act provides that a creditor under a regulated agreement for running account credit...
View ArticleThe Directive on credit agreements relating to residential property
The European Commission has published proposal for a directive on credit agreements relating to residential property. Please see link....
View ArticlePPI decision
The BBA has decided not to appeal the High Court decision for judicial review of the FSA published Policy Statement 10/12 “The assessment and redress of Payment Protection Insurance Complaints”. This...
View ArticleWhat happens if a legal mortgage over a residential property is taken in...
Where the underlying main loan secured on land is to be used in connection with a dwelling by the borrower, then it will be a regulated mortgage contract. Section 23 (1) of the Financial Services and...
View ArticleCan a written guarantee be subject to an oral agreement?
The guarantor, Mr Binney, claimed that although he had signed a written guarantee in favour of National Westminster Bank plc (“the Bank”), it was subject to an oral agreement that the guarantee limited...
View ArticleCan you serve proceedings out of the jurisdiction by alternative means?
The Claimant applied for permission to serve the Claim Form out of the jurisdiction by alternative means. The First Defendant operates the website www.wordpress.com, the Second Defendant runs the...
View ArticlePPI claims – “unnecessary embellishments”
PPI claims – “unnecessary embellishments” This case is an interesting example of the type of claims a borrower with PPI can attempt to raise and the court’s approach to these claims. Borrowers are...
View ArticlePart 36 – certainty at last
There has been some uncertainty surrounding Part 36 of the Civil Procedure Rules, but there have been two recent developments, which should ease any ambiguity. The first development is the recent Court...
View ArticleDuty of care – valuers and the buy-to-let market
Last October we reported on a case where a valuer was held to owe a duty of care to a purchaser on a buy-to-let property in respect of a valuation provided to the lender not the purchaser. The...
View ArticleThe impact of security given by the principal debtor on a guarantor
The question in this case was whether the existence of the security given by the principal debtor, St George’s Property Services (London) Limited (SGPS) affected the creditor’s, Davenham Trust Limited...
View ArticleMoney laundering – do you need to disclose bank employee details?
Last year, the Court of Appeal decided that a claimant was entitled to require a bank to prove its case that it was obliged to make a number of authorised disclosures to the Serious Organised Crime...
View ArticleEnforcing a suspended possession order following subsequent default
Where a borrower makes an arrangement with a lender following a possession order for arrears to be added to the loan, but then the borrower subsequently falls into arrears again, is the lender entitled...
View ArticleDisclosing names of bank officials who report suspicions of money laundering
This Court of Appeal decision raised the important question whether a bank’s obligation to make standard disclosure requires it to reveal the names of the bank employees who report suspicions of money...
View ArticleCharging orders and competing creditors
This case considered whether to decline to make an interim charging order final if the effect would be to give one creditor priority in enforcing its judgment against other defendants. Unusually there...
View ArticleUnfair relationships – Payment Protection Insurance
This Court of Appeal decision focused on the narrow issue of the size of the commission, relating to the cost of payment protection insurance (“PPI”), which the borrowers alleged gave rise to an unfair...
View ArticleOFT publishes revised Debt Collection Guidance
Last month, following a consultation between 10 March and 2 June 2011, the Office of Fair Trading (OFT) published a revised version of its Debt Collection Guidance. It was last revised in December...
View ArticleCan a lender petition for bankruptcy based on a guarantee?
Last December, I reviewed the case of McGuinness v Norwich and Peterborough Building Society [2010] EWHC 2989, which considered whether a guarantee liability is a liability for a liquidated sum within...
View ArticleResolving costs payable in respect of a mortgage
Where a bank takes steps to enforce a mortgage against the borrower, a bank is usually entitled to recover all of its costs including solicitor’s costs from the borrower on a full indemnity basis. If...
View ArticleAt the discretion of the lender
This dispute centred on the meaning of a loan agreement and is an example of how a court will approach the question of construction of a loan agreement. The purpose of the loan was to provide the...
View ArticleDefault Notices
This is a Court of Appeal judgment involving a debt of £5,000 owed by Mr Brandon in respect of his credit card with Amex. On 19 June 2007, Amex issued a Default Notice asserting a breach of the...
View ArticleThe perils of Part 36
This is yet a further case on Part 36 and the perils of not complying strictly with its provisions. On 6 April 2007, Part 36 was completely rewritten. In this case when the claimant put forward their...
View ArticlePurchase and leaseback schemes – are they binding on a lender?
This appeal concerned nine test cases involving purchase and leaseback schemes whereby owners of properties (“the Vendors”) had sold their homes to purchasers (“the Purchasers”), who had promised that...
View ArticleA question of loss
One of the questions that the courts have been vexed with is how much loss a claimant is entitled to recover in relation to a breach of trust claim against its solicitors. In this case, solicitors...
View ArticleCourt of Appeal compulsory mediation scheme
A new pilot scheme managed by CEDR (Centre for Dispute Resolution) for certain Court of Appeal cases has been launched. The pilot applies to all personal injury and contract claims up to the value of...
View ArticleRequests to adjourn a trial
When a party makes a request to adjourn a trial on medical grounds it can be difficult to determine whether it is genuine or simply a delaying tactic. This case gives clear guidance on the principles...
View ArticleWhen is it reasonable to refuse mediation?
The decision whether to agree to mediation can be a difficult one. If a party considers that it has a water-tight case it may not wish to incur the unnecessary expense of attending a mediation since...
View ArticleWhen is a side letter enforceable?
Even where parties intend to create legal relations, it does not necessarily follow that a legally enforceable agreement is created. This Court of Appeal case demonstrates that where a side letter...
View ArticleShould an application for permission to appeal be heard separately from an...
When a party wishes to appeal a decision, it will usually need permission to appeal before the appeal court can hear the appeal in accordance with the Civil Procedure Rules (“CPR”) Part 52.3. Despite...
View ArticleWhat happens where a matter is settled, but the question of costs remains...
This case concerned a dispute relating to the composition of the so-called board of management of the unincorporated association known as Shree Swaminarayan Satsang (“the Organisation”) which centres...
View ArticleCosts budgets – beware
Costs budgeting is certainly all the rage. Jackson LJ has drafted rules and practice directions which will introduce costs management in all but heavy Commercial Court cases in April 2013. So this...
View ArticleCharging orders and priority
Where a judgment creditor obtains a charging order, which is then registered at the Land Registry by way of notice, it is often assumed that this will give the judgment creditor priority over other...
View ArticleMistake as to the terms of a charge
By section 101 of the Law of Property Act 1925 (“the Act”), a mortgagee has certain powers by implication of law, which do not need to be set out in the mortgage deed itself. One of the powers includes...
View ArticleNew research shows that UK brokers are overwhelmingly using asset finance to...
New research from United Trust Bank has revealed that three-quarters of UK brokers had signed asset finance agreements to help businesses release capital by lending on assets that were unrelated to the...
View ArticleThe Government has rejected calls to regulate asset-based lenders…for now
The Government has indicated that it will not seek to regulate the asset-based finance industry, despite accusations that some providers are exploiting small and medium-sized (SME) businesses. Despite...
View ArticleHigh Court clarifies meaning of “financial condition” in material adverse...
Grupo Hotelero Urvasco SA v Carey Value Added SL, High Court The High Court has decided that discussions regarding “rescheduling” of a company’s indebtedness was an event of default under a loan...
View ArticleA Beginner’s Guide to Tax Havens : Part Three
Proposals to regulate the offshore system In previous blogs, I looked at what the perceived problems are with the existence of low-tax offshore jurisdictions. The areas of concern can generally be...
View ArticleCrowdfunding: the new economy with the old risks
Crowdfunding has undoubtedly changed the way that businesses think about raising capital and funding expansion. There are a range of alternative finance options available to start-ups which have...
View ArticleReversal of unjust enrichment where a lender does not advance funds but...
Can a lender be subrogated to reverse the effect of unjust enrichment where the lender did not advance funds, but released security instead? Previously there had been no authority on this question, but...
View Article
