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Asset Finance: Frustration of contracts and COVID-19

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 asset financiers.

One likely vehicle of attack by customers arises from the doctrine of frustration of contracts, which may discharge the parties from performance of a contract that has become legally or physically impossible through no fault of the parties. In general terms this doctrine is very difficult to establish, and for example the European Medicine Agency failed in its attempt to use frustration to extract itself from a long lease on its central London premises as a result of the fact that it had to move to Amsterdam following Brexit.

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Asset Finance: Disclosure of Brokers’ Commissions

The Court of Appeal has recently handed down judgment in Wood v Commercial First Business Ltd and Others and Business Mortgage Finance 4 plc v Pengelly [2021] EWCA Civ 471, on the issue of broker “secret commissions”.

These decisions have caused something of a storm in the industry, and somewhat surprisingly in our view the NACFB is recommending “both regulated and unregulated firms, working in all sectors, should be transparent about their commissions and fully disclose the amount of commission received”.

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Asset Finance: Securitisation and the right to sue

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.”

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Bermans #1 in Business Money Professionals Poll 2021

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.

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Bermans Insolvency and Financial Rescue team

L-R Martin March, Phil Farrelly and James Whittaker

L-R Martin March, Phil Farrelly and James Whittaker

As we head into 2021 and the inevitable restructure of the economy as we (hopefully) return to some sort of normality, we thought it would be useful to share details about the depth of experience in our Insolvency team and to share some of their experiences during the lockdown.

Partner and Head of Insolvency, Phil Farrelly, will be known to many of you and has been with Bermans since 2005.  He is a familiar face on the North West legal scene and has extensive experience of acting for insolvency practitioners, ABL and other lenders and directors in all aspects of corporate insolvency.

The team has recently been strengthened with the arrival of two experienced insolvency solicitors.

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Six Promotions at Bermans

Andrew Henderson

Andrew Henderson

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.

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Asset Finance: Brexit impact limited, but an appetite for further reform?

Whilst much uncertainty remains as to the future arrangements for asset financiers doing business across Europe, we can now say that in terms of specific legislative requirements upon the operation of asset financiers within the UK, required changes would appear to be limited to the deletion of references to “standard European consumer credit information” (SECCI) from CCA regulated consumer credit agreements as reported in our last Briefing.

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