As long ago as 2001 in the landmark case of Royal Bank of Scotland Plc v Etridge [2001] UKHL 44 the House of Lords significantly extended the circumstances in which a financier will be put on constructive notice of misrepresentation or undue influence committed against an individual executing a Guarantee or other security, but there remains a great deal of misunderstanding of the relevant principles.
The mischief addressed 20 years ago by the House of Lords arose from wives regularly being misled or unduly pressured by husbands into signing Guarantees or executing Charges in favour of creditors, but the protection afforded by the law extends much further.
In April 2021, Bermans topped the professional poll for choice of legal services for both £100k+ and sub £100k funds out in Business Money’s report of the UK invoice finance sector.
The professionals poll rankings are voted for by asset based lending providers who are asked about their choice of professional when acquiring a lawyer amongst other professional sectors.
We came across an interesting argument concerning the right to sue after securitisation of assets in a recent reported case we ran for an asset finance company, Haydock Finance Limited v Starcruiser Bussing Limited [2021] EWHC 622 (Comm).
The case involved commercial vehicles and acting for the funder we brought a claim against the hirer for return of the vehicles and the guarantor for a substantial sum. There appeared to be no merit whatsoever in the Defence as served, but by the time of the hearing the Defendants turned up with a so-called “Securitisation Analysis Report” prepared by an academic in California who describes himself as an “Expert Analysis on Auto Agreement Backed Securities Data.”
On 1 December 2020 Crown preference in relation to unpaid taxes reappeared on the insolvency landscape for the first time since the abolition of the doctrine in the Enterprise Act 2002.
Debts owed to HMRC are now to rank as secondary preferential debts, ranking after employees’ preferential claims but, importantly, before claims of floating charge holders.
In our spring 2020 Briefing just as the global pandemic was taking hold we analysed some high-level issues likely to affect contractual relationships on the one hand between invoice financiers and their clients, and on the other hand between invoice financiers and debtors.
One of the effects of the pandemic has been to slow down (some might say even further!) the litigation process in the UK courts, and despite one or two high-profile decisions relating primarily to business interruption insurance there have been few reported cases dealing with the effects of the pandemic relevant to invoice financiers.
In our last Briefing we explained certain temporary changes to the insolvency regime arising from the pandemic and set out the relevant dates of those provisions.
On 26 March 2021, the Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2021 (SI 2021/375) extended various temporary provisions in the Corporate Insolvency and Governance Act 2020 (“CIGA 2020”) that had otherwise been due to expire in March and April 2021.
There are somewhat conflicting reports as to the current level of deliberate fraud in the invoice finance industry, but it is worth keeping a watch on some of the cases relating to director qualifications.
In this regard it is noteworthy that three directors were recently banned for a total of 29 years for an invoice finance fraud.
Bermans, commercial law firm in Liverpool and Manchester, is delighted to announce that it has promoted 6 individuals to more senior roles at the firm.
Andrew Henderson (left) joined Bermans in 1985 and has developed an expertise in asset finance litigation. He has been made a Partner and joins Alex Chapman, David Gledhill and Jonathan Berkson as partners in the specialist Asset Based Lending team that is ranked in the Legal 500 London Asset Finance Lending rankings.
He deals with matters such as fraud, freezing orders, title claims, delivery up claims, guarantee/indemnity claims, shortfalls and general debt recovery for a wide range of asset based lenders.
The Corporate Insolvency and Governance Act 2020 (CIGA) came into force on 26 June 2020 and introduced some permanent reforms to corporate insolvency law together with some temporary provisions required as a result of COVID-19.
The reforms have been described as “the most significant change in English insolvency laws for commercial lawyers in a generation”.
We will focus on the impact of the new legislation on invoice financiers both in terms of their relationships with clients and in enforcing debts against clients’ debtors.
We will firstly examine the permanent changes before reviewing the temporary changes and ending with some thoughts on the overall effect of the reforms on the invoice finance sector.
| 
