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Asset Finance: Courts and Lawyers embracing Technology

As we are moving towards the second anniversary of the pandemic it is worth pausing to reflect that, after some initial reluctance, technology has been quite successfully embraced both by lawyers and also by the courts to keep the system running.

Obviously meetings between lawyers and clients have largely been replaced by virtual contact through Microsoft Teams and Zoom, but virtual contact has now taken a firm foothold in relation to the litigation process.

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Asset Finance: Dealing with Broker Commission Refund Claims

In our last Briefing we reported on the Court of Appeal decision on broker commissions in Wood v Commercial First Business Ltd and the rather surprising decision of the NACFB in recommending that “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: Fraud in the Arena

With the industry still reeling from revelations emerging from the demise of a certain Lessee, and taking into account the sensitivities of referring to any of the specific current or forthcoming matters in which we are instructed, we thought it might be worthwhile making some general remarks on steps which Funders may wish to consider to prevent being the victims of serious fraud going forward.

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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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