There remains a degree of confusion as to the extent to which invoice financiers are affected by the provisions of the Consumer Credit Act 1974 as now amended by the Financial Services and Markets Act 2000. This is not helped by the fact that some of the statutory provisions are amongst the most opaque anywhere on the statute book, which is largely as a result of the piecemeal way in which the various European directives have been incorporated into UK law over the last 30 years.
There was considerable disappointment amongst invoice financiers who operate factoring facilities when the Court of Appeal rejected the recent attempt to strengthen a funder’s position against a debtor who remained silent about a historical rebate claim which only emerged after the demise of the client.
The New Year will see the publication of the fourth edition of our popular Guide to Invoice Finance Law , which brings the previous third edition published in 2012 right up-to-date with relevant legislative and case law developments, including an Appendix setting out differences between English and Scots law.
The next chapter for your business may involve raising finance from external investment, be that through debt or equity, making your exit for your next project or stepping away from your business as your career reaches its twilight.
Imagine the scene, dear readers, in the Manchester Law Society Messenger Editorial Committee meeting, when some fool looking to fill column inches suggested an article about legal issues relating to an app based around misguided 90s nostalgia. I am that fool.
Despite the end of the agreed term lease, tenants of business premises have the right to remain in occupation of the premises, and the right to apply to the Court (if necessary) for the grant of a new lease.
Since the arrival of the Pension changes on 6 April 2015 many people have overlooked the new Death Benefit Rules and Inheritance Tax (IHT) planning opportunities available for a defined contribution pensions scheme.
Fees were introduced into the Employment Tribunal system on 29 July 2013, with claimants being required to pay a fee to issue their claim and another fee in order to progress their claim to a final hearing before an Employment Judge. In addition, parties are now also required to pay fees for things like reconsideration of judgments or dismissal of claims after they have been withdrawn.
To what extent is a financier’s application for delivery up of leased goods likely to be defeated by a hirer’s invocation of the court’s discretion?
The use of interim applications for delivery up of equipment on finance has been greatly curtailed since the moratorium imposed by the Insolvency Act 1986 has afforded protection to companies in administration, but such applications remain relevant outside the insolvency context.
A recent example with somewhat unusual facts arose in the case of Dawsonrentals Coach & Bus Ltd v Geldards Coaches Ltd [2015] EWHC 2596 (QB). Here the claimant leased 27 vehicles to the hirer which were used for local authority school transport. The hirer was in arrears and resisted an interim application for delivery up on the basis that the schools were unaware of the situation and would be unable to obtain alternative vehicles before the end of term, which was about two weeks away. The hirer therefore sought to delay any order for delivery up for a period of a further two weeks, whilst the claimant insisted on delivery the next working day.
The judge referred to previous authority defining the nature and scope of the court’s discretion in an application for interim delivery up where there is no real legal defence to the claim: –
“The claimant, Dawsonrentals, must have a arguable case, but, as was set out in the decision of sir Robert Megarry as Vice Chancellor, a decision of 14 March 1980, Howard E Perry & Co Ltd v British Railways Board 1 WLR [1980] 1375 , there need not be any urgency or any risk of danger of loss or disruption. At page 1384 of his judgment, these two passages are of relevance. At letter E he says:
“Do these fears of the defendants, either individually or collectively, provide a sufficient ground for the court in its discretion to refuse to make the order for delivery which otherwise ought to be made in favour of the plaintiffs? Ought the court to be persuaded from making an order against a litigant if that litigant has been threatened with unpleasant consequences if he does what the order requires him to do?”
Then he goes on to say at letter G:
“There may be cases in which other respects the scales are only barely tipped in favour of making the order and the damaging effect of the threats are so great that the court may then refrain from making the order. But, apart from cases such as these, I think the court ought not to allow threats to a litigant and the litigant’s fears of those threats to dominate the decision.”
A concern with regard to the reputation of a company or its ongoing ability to trade does not in itself give rise to a reason as to why the order should not be made”.
The court then weighed up the competing contentions and interests of the parties, and ruled that there would be a further grace period of about a week before delivery up of the vehicles would be ordered so that the hirer could inform the school authorities, who would hopefully have time to arrange replacement transport.
Comment
The advent of the insolvency moratorium has led to a dearth of reported cases on interim applications for delivery up, but this case restates established principles that at the end of the day the court always has a discretion before ordering interim delivery of financed assets, and in exceptional circumstances such discretion may take into account the interests of innocent third parties.
The PSC or ‘persons with significant control’ register is a new statutory register which will effect UK Companies and LLPs from 6 April 2016 that will form part of the statutory books of the company. The register will contain details of ultimate beneficial owners and controllers, and details of company’s holding, which will ensure this information is available to the public.
The public availability of the register targets the Government’s objective to achieve transparency in the legal and beneficial ownership of UK companies, aiding the fight against tax evasion, money laundering and terrorist financing. Furthermore, the Government’s ‘transparency’ provisions are hoped to develop a climate of confidence amongst companies and consumers alike.
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