This is another chapter in the history of the long-running litigation between the Bank of Scotland (the Bank) and Mr & Mrs Bennett. 26. But the time bar on the recovery of interest does not make the action based on the first judgment an abuse of process. Mr & Mrs Bennett had acquired the House in joint names in May 1986, but it was transferred into the sole name of Mrs Jane Bennett on 5 September 1990, subject to a first legal charge granted in favour of the Halifax Building Society in May 1986. Mr Bennett did not reply to the claim form and did not defend the proceedings. This is an appeal by the Bank of Scotland against a decision of Laddie J dated 23 June 2000. Early History of the Bennett family. Laddie J discharged an interim order made by Lightman J on 16 November 1999, as subsequently varied. ⇒ “It is impossible to define, and difficult even to describe, at what point influence becomes, in the eye of the law, undue.” (Bank of Scotland v. Bennett [1997] 3 F.C.R. ... Case: Bank of Scotland v Bennett & another [1998] PLSCS339. Instead of taking steps to enforce the 1995 Judgment against Mr Bennett, the Bank concentrated on the enforcement of the second charge against the property vested in Mrs Bennett. Worked on developing the Debt Manager system in Collections & Recoveries. Bank of Scotland v Bennett. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue.. The effect of the second judgment will be to deprive him of a limitation defence to the first judgment in circumstances in which the court has no statutory discretion to extend the limitation period. There are conflicting decisions at first instance as to the effect of the six year limitation period in s 24(1) on the right of a judgment creditor to bring insolvency proceedings against the debtor. White v Meade. Similar points objecting to the abusive character of the second action based on the 1995 Judgment were made on (a) the circumvention of the restrictions on the enforcement of judgments in RSC Order 46 r 2(1) (contained in Schedule 1 to the CPR); (b) the possibility of the recovery of compound interest contrary to the Judgments Act 1838; and (c) the risk of successive costs orders in obtaining successive judgments. The transfer took place more than 12 years since the date of the relevant transaction. 20. This is a case in which, in my judgment, there was moral blackmail amounting to coercion and victimisation. By clicking on this tab, you are expressly stating that you were one of the attorneys appearing in this matter. The Bank's claim was for the sum of 124,039.60, which was due under an earlier order of Master Gowers dated 11 May 1995 (the 1995 Judgment), together with just under 60,000 interest. It is using the present proceedings to obtain against him a second judgment for the sole purpose of circumventing the inconvenient fact that, according to Re A Debtor, the enforcement of the 1995 Judgment is statute barred under s 24 of the 1980 Act. 17. Barclays Bank plc v O'Brien [1994] 1 AC 180 (Lord Browne-Wilkinson) Citing, with approval, BCCI v Aboody [1990] 1 QB 923 at 953 No need to prove a relationship of trust or confidence Actual undue influence (influence expressly used for the purpose) must be proved In event of proof, claimant is entitled to set the transaction aside No longer need to prove ‘something about the … No repayment was made. Nottidge v Prince "super powers " brother tried to reclaim money his sister had given her husband. The practical position on all these points is that they can be raised and are properly decided if and when a s 423 application is made. Re A Debtor, a first instance decision by HHJ Paul Baker QC, sitting as a High Court Judge, is authority for the proposition that insolvency proceedings (in that case corporate insolvency) based on a statutory demand for monies due under a previous judgment are an "action on a judgment" within s 24 rather than a method of enforcing or executing the judgment. Scotland: Bennett Coat of Arms / Family Crest. They do not, however, support the contention that it is an abuse of process to bring, within the available relevant limitation period, a second action for the recovery of a judgment debt owed by Mr Bennett. U.S. Bank. The guarantee had been given to support borrowings of the defendant’s company. Mr Bennett has no substantive defence to the claim under the 1995 Judgment. In order to explain the abuse of process point it is necessary to say more about the circumstances and history of the 1995 Judgment. Mr S signed the charge, and flew to the Netherlands to see Mrs W. After consuming a fair amount of alcohol, Mrs S also executed the charge and a certificate that . Bennet v Bennet (1879) 10 Ch. His main point is that the second action against him should be struck out as an abuse of process, as the Bank has already obtained the 1995 Judgment against him under the guarantee. Cited by: Appeal from – Governor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998 The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. MR NICHOLAS YELL (instructed by Trevor Jenkin & Co) for the Appellant, MISS KAREN WALDEN-SMITH (instructed by Wragge & Co) for the Respondent. For the last 10 years the Bank has been trying, so far without much success, to enforce its security in order to recover money lent by it in 1991 to the company (Galloway Seafood Co Limited), through which Mr & Mrs Bennett carried on a business until it failed. Please log in or sign up for a free trial to access this feature. Considered – Midland Bank Plc v Serter and Another CA 8-Mar-1995 Mr S wanted to borrow money, and the bank sought security over the jointly owned house. GILL UCB HOME LOANS CORPORATION LTD. v. MOORE BARCLAYS BANK PLC v. COLEMAN BANK OF SCOTLAND v. BENNETT KENYON-BROWN v. DESMOND BANKS & CO. [2001] UKHL 44 [2002] 1 Lloyd's Rep. 343 HOUSE OF LORDS Before Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Clyde, Lord Hobhouse of Woodborough and Lord … Nicola Bennett Ex Customer Service Officer at Royal Bank of Scotland Offerton, Greater Manchester, United Kingdom 119 connections 9. For example, Mr Yell contended that (a) the Bank has no standing under s 424(1)(c), as "a victim of the transaction", to make the application to set aside the transfer of the House; and (b) an application under s 423 would fail, as it is now statute barred, whether it is brought by the Bank or the trustee. Bank of Scotland v Bennett 1998 Court of Appeal The bank held a guarantee and charge on the Bennett family home securing the debts of a business in which the husband was the director and 47% shareholder. In each, the Court of Appeal dismissed the wife's appeal against the order for possession made by the Court below (see Royal Bank of Scotland Plc v Etridge (No 2) [1998] 4 All ER 705). On 11 April 1994 the Bank began proceedings (Ch 1994 G 2043) against Mr & Mrs Bennett under the guarantee dated 12 August 1991.The guarantee was up to a limit of 150,000. Apart from the abuse of process point, Mr Bennett has no defence to the second action. Wells Fargo Bank, 84 So.3d 1195, 1196 (Fla. 4th DCA 2012) (quoting McLean, 79 So.3d at 173). Mr Bennett argues that the Bank should have enforced the 1995 Judgment within 6 years of obtaining it. D. 474. Until the conclusion of those proceedings in the House of Lords it was not known for certain whether or not the Bank was a secured or unsecured creditor. Before making any decision, you must read the full case report and take professional advice as appropriate. The defendant was the wife of the director and had been . 1. The effect of the second action, if allowed to continue, is that the Bank will have two identical judgments. 11.8% ofthe share capital of the company was allocated to the wife. Equity – Presumption of Advancement – Gift – Bankruptcy – Resulting Trust – Obligation. Bankruptcy proceedings presented a special problem for the Bank, as it claimed to be a secured creditor. The Bank has made no progress with the bankruptcy proceedings, as Patten J set aside, under CPR 13.3, the 2001 Judgment at the same time as he refused to strike out as an abuse the proceedings in which a default judgment had been obtained. Under Rule 6.5 of the Insolvency Rules the Court may grant an application to set aside a statutory demand if, (c) it appears that the creditor holds some security in respect of the debt claimed by the demand, and either rule 6.1(5) is complied with in respect of it, or the court is satisfied that the value of the security equals or exceeds the full amount of the debt.". This appeal is only concerned with the judge's refusal to put an end to the proceedings altogether by striking them out as an abuse of process. . Deutsche Bank relies on this court's opinion in Riggs v. Aurora Loan Services, LLC, 36 So.3d 932 (Fla. 4th DCA 2010), where we held that an endorsement on a note was self-authenticating pursuant to section 90.902(8), Florida Statutes (2008). contains alphabet), England and Wales Court of Appeal (Civil Division). United Kingdom July 9 2019. 22. . The Bank has allowed it to become statute barred by its inordinate delays in its perpetual litigation. The bank ought to have disclosed to Mrs Bennett or to the solicitor acting for her, the existence of the ranking agreement, under the general law applicable to suretyship contracts. The Bennett litigation has already been to the House of Lords on an "O'Brien point" as one of the conjoined appeals reported under the name Royal Bank of Scotland v. Etridge (No 2) [2002] 2 AC 773. I shall refer later to the effect, if any, of the shift of ground on the decision under appeal. 24. The second action based upon an existing judgment is permissible and is not itself an abuse. The judge held that the interest included in the default judgment was incorrect, as it was more than six years interest contrary to s 24(2). BENNETT v. BENNETT(1908) No. BANK OF SCOTLAND v BENNETT (1999) The point in this case was not constructive notice, but disclosure. . Until the House of Lords gave their decision on 11 October 2001 the Bank had continued to act on the basis that, as was held by the Court of Appeal (on 21 December 1998) on the Bank's successful appeal from the decision of Munby J ([1999] FCR 641), it had an enforceable charge over the property. In those circumstances it would have been inconsistent of the Bank to seek to make Mr Bennett bankrupt, while it was asserting and seeking to enforce a security right in the possession proceedings contested by Mrs Bennett. This site uses cookies to improve your experience. Apr 1995 - Jan 200711 years 10 months. But I am not persuaded that the second action is pointless and has become an abuse of process. The Bank obtained the 1995 Judgment against Mr Bennett by default, but, for the reasons mentioned later, it did not enforce it within the period of six years from date on which it was issued. That would leave the Bank with whatever rights it has to enforce the 1995 Judgment. Bank of Scotland v A Ltd & Ors. The Bank has not appealed against the setting aside of the 2001 Judgment. 43; “…an extremely worthwhile publication…”—A Grahame, (2000) 68 S. … Barclays Bank v O Brien [1994] 1 AC 180. 2. Get 1 point on adding a valid citation to this judgment. Another 235 words (17 lines of text) covering the years 1066, 1200, 1300, 1300, 1249, 1402, 1459, 1563, 1588, 1527, 1594, 1603, 1604, 1652, 1743, 1822, 1793, 1883, 1797, 1836, 1795, 1872, 1250 and are included under the topic Early Bennett History in all our PDF Extended … Down to the decision of the House of Lords the Bank understandably acted on the basis that it had a charge against the property as security for the company loan and the guarantee. They are barred by s 24 if brought more than six years after the judgment was obtained. Only full case reports are accepted in court. governor and company of the bank of scotland (respondents) v. bennett and another (ap) (appellant) kenyon brown (respondent) v. desmond banks & co (appellants) barclays bank plc (respondents) v. coleman and another (fc) (appellant) on 11 october 2001 [2001] ukhl 44. lord bingham of cornhill. Tel: 0795 457 9992, 01484 380326 or email at david@swarb.co.uk, Dabanli, Regina (on the Application Of) v Immigration Appeal Tribunal: CA 19 Jul 2002, Porter v London Borough of Camden: EAT 22 Jun 2000. (News) 162; “We should as a profession be grateful to Mr Bennett for his efforts.”—A Dunipace (1999) 44 J.L.S.S. In my judgment, the Ridgway decision does not alter the position on abuse of process. Unless or until that has been agreed (and I recognise that Mr Bennett is under no obligation to concede that that is the case) or the Bank has been repaid all that is owed, Mr Bennett has not established that it is an abuse of process for the Bank to keep the second proceedings on foot in order to protect its position on the enforcement of its rights for the recovery of the monies due to it. The guarantee had been given to support borrowings of the defendant’s company. . 27. 11. It was contended by Mr Yell that the decision in Ridgeway put the Bank in a difficult position on the appeal. A similar response is available to Mr Yell's further contention that the second action will, if allowed to continue, enable the Bank to circumvent the restriction on the recovery of interest under s24(2) of the 1980 Act, which becomes statute barred after 6 years. The cases linked on your profile facilitate Casemine's artificial intelligence engine in recommending you to potential clients who might be interested in availing your services for similar matters. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue influence and that, in the circumstances, the bank must be taken to have had constructive notice of that impropriety. Bank of Scotland v Bennett [1998] All ER 790. Mrs Bennett was not, it seems to me, acting as a free and voluntary agent’. Held: The court found in Mrs Bennett’s favour on the undue influence issue: ‘In my judgment the pressure and influence which, as I have found, Mr Bennett exerted on his wife both to procure her signature to the guarantee and to procure her signature to the charge was undue. 16. Family Court Reports. - Work with community business consisting of developing financial structures for both short- and long-term growth. Nor is it an abuse of process for the Bank to continue the proceedings in order to protect its position. IMPORTANT:This site reports and summarizes cases. THE ROYAL BANK OF SCOTLAND plc Defendant - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Hugh Sims QC and John Virgo (instructed by Cooke Young & Keidan LLP) for the Claimant Paul Sinclair QC and Natasha Bennett (instructed by Addleshaw Goddard LLP) for the Defendant Hearing dates: 28, 30-31 October 2019, 4-15 November 2019 - - - - - - - - - - - - - - - - … Facts. It was not necessary that the couple should be married or cohabit. . Cited – Banco Exterior Internacional v Mann and Others CA 19-Dec-1994 A charge to secure a husband’s borrowings was enforceable where the wife’s signature had been taken before a solicitor who had explained it. The general principles regarding actions on an existing judgment as an abuse of process were stated by Leggatt LJ in ED & F Man (Sugar) v. Haryanto (Court of Appeal Transcript 17 July 1996) and agreed by Morritt and Brooke LJJ: 5. Cited – Barclays Bank Plc v Thompson CA 7-Nov-1996 Knowledge acquired by solicitors whilst tendering independent advice to a signatory did not come to them as agents for the lenders because at that time their professional duty was owed to the signatory alone. In case of any confusion, feel free to reach out to us.Leave your message here. The courts ruled that although a general property description was valid for conveyances and other deeds, standard securities had higher requirements because of Note 1 to Schedule 2. There is no obvious policy argument brought into play merely by the institution of such proceedings. Creating a unique profile web page containing interviews, posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. 15. Mother, Ann Bennet, wanted to help her son who was in some financial difficulty. Interact directly with CaseMine users looking for advocates in your area of specialization. I also agree with Patten J that, looking at the position when the Bank started the second action, there was no abuse of process: according to authority (i.e. The delays involved were not culpable. Held: Undue influence is an equitable protection created to undo the effect of excess influence of . Updated: 20 January 2021; Ref: scu.224828 br>. The Bank was able to take the possession proceedings, as the loan to the company had been secured by a second legal charge over the House on 1 October 1991. The latest development has occurred in the course of the Bank's efforts to enforce a personal guarantee given to the Bank by Mr Bennett in respect of the loan to the company. The essential question on abuse of process was whether there was a legitimate purpose to be served in bringing and pursuing the second set of proceedings. United States Supreme Court. change. It is now 10 years since the Bank first instituted proceedings under the guarantee. During the early 2000s the company borrowed … This web page shows only a small excerpt of our Bennett research. 8. 193 at 216, James Munby QC) ⇒ Excessive influence depends on context (Bank of Scotland v. Bennett [1997] 3 FCR 193) and public policy (Mutual Finance v. Contains public sector information licensed under the Open Government Licence v3.0. After the close of oral argument on this appeal another case was decided, contradicting what was previously common ground. In order to protect its position in case it ultimately lost the possession proceedings, the Bank started the second set of proceedings on 11 May 2001, just 1 day before the expiration of 6 years from the date of the issue of the 1995 Judgment. He ordered the bank to pay the costs of all the defendants. Bank of Scotland (the bank) provided an overdraft facilitysecured by a bond and floating charge (the first charge) over thecompany's assets and a limited guarantee from the husband. The defendant was the wife of the director and had … Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. The second action may turn out to have been unnecessary after all. Get 1 point on providing a valid sentiment to this In my judgment, the correctness of Patten J's judgment is unaffected by the fact that it is no longer common ground between the parties that bankruptcy proceedings based on the 1995 Judgment were unavailable to the Bank after the expiration of six years from the 1995 Judgment. On 8 July 2019 the High Court handed down a judgment in the N v. The Royal Bank of Scotland plc case. 28. 3. 6. It may well be that it is no longer good law. 12. It could have done so by charging order, garnishee proceedings, or attachment of earnings. • The father then agreed to make an equitable mortgage to the bank in The father then agreed to make an equitable mortgage to the bank in India Business News: IndusInd Bank has struck a deal with Royal Bank of Scotland N V to acquire its diamond and jewellery financing business in India and related deposit p Flangan v Ray-Ger ltd 1983. terminally ill with cancer We do not provide advice. Mr Yell raised the spectre of a host of future objections and difficulties (such as costs, delays and limitation problems) that the Bank would encounter in any kind of proceedings contemplated against Mr Bennett, quite apart from the assertion that he has no money. Appeal from – Governor and Company of Bank of Scotland v Bennett and Another CA 21-Dec-1998 The bank appealed an order setting aside a deed of guarantee and mortgage and denying the possession order sought. They were the result of the time taken to conclude the possession proceedings against Mrs Bennett. 98 Argued: Decided: February 24, 1908 The question in this case is whether, in a suit for divorce, the defendant being in default for not answering within the time allowed by statute, a court may make it a condition of permission to answer that he comply with the order of the court directing him to pay temporary alimony … For the last 10 years the Bank has been trying, so far without much success, to enforce its security in order to recover money lent by it in 1991 to the company (Galloway Seafood Co Limited), through which Mr & Mrs Bennett carried on a business until it … Mr Yell says that this would not be the case, as the trustee would effectively be bringing the application on behalf of the Bank and that would be an abuse of process, if it was done in order to avoid the bar on an application by the Bank itself as a victim creditor of Mr Bennett. was properly obtained.’ As to the bank’s position having instructed solicitors: ‘A bank is in no worse position merely because, to its knowledge, the solicitor is acting both for the prospective surety and for the debtor.’ and ‘Unless a bank is put on notice by other matters within its knowledge that the solicitors have not performed their duty to give independent advice to the surety it is as much entitled [where the solicitor is acting also for the creditor] as in any other case to assume that the solicitors have been acting properly.’ Munby QC [1997] 1 FLR 801 England and Wales Citing: Considered – Massey v Midland Bank Plc CA 1995 Where a woman executes a mortgage charging her property in favour of the bank to secure her partner’s debts, the bank is fixed with notice of the possibility of undue influence. .Approved – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001 Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence. ‘Personal Injury Damages in Scotland’ First edition, 1999 (“The book will be essential for those who do some work without the benefit of an encyclopaedic text.”—W J Stewart, 1999 S.L.T. Mr Bennett's case is that the Bank's purpose is futile. In Ridgeway Motors (Isleworth) Ltd v. Altis LTL 21 May 2004 HHJ Rich QC, sitting as a High Court Judge, held that, in the light of the House of Lords' ruling in Lowsley v. Forbes [1999] AC 329 that s 24(1) only applies to the bringing of a fresh action and does not include proceedings by way of execution of a judgment in the same action, Re A Debtor was wrongly decided. This is another chapter in the history of the long-running litigation between the Bank of Scotland (the Bank) and Mr & Mrs Bennett. Re Ng (A Bankrupt) [1997] BPIR 267 was cited. As it now finds itself with no enforceable charge against the property, the Bank wishes to enforce its personal claims against Mr Bennett, including, if possible, bringing bankruptcy proceedings. Citation. Royal Bank of Scotland. Indeed the Bank accepts that it should not claim more than 6 years interest and that, if it does, Mr Bennett would have a limitation defence to that part of the claim under s 24(2) of the 1980 Act. On 27 October 1993 the Bank made a written demand under the guarantee. As he pointed out (in paragraph 38), by s 24(1) Parliament has permitted a party with the benefit of an earlier judgment to commence proceedings on that judgment any time within six years of the judgment being obtained. Appeal from – Governor and Company of Bank of Scotland v Bennett and Another ChD 1997 Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. Mar 2018 - Present3 years. During that time I have been involved in many projects enhancing the Bank's use of the system including redesigning the Collections processes, the NatWest integration project and Ulster migration. The House of Lords upheld the findings of the trial judge (Mr J Munby QC) [1997] 1 FLR 801- 7 February 1997) that (a) Mr Bennett had exercised actual undue influence over his wife in respect of the giving of the guarantee and (b) the Bank had constructive notice of his impropriety. These lists may be incomplete. O'Flanagan v Ray-Ger Ltd. A ill with cancer, B aware shares pass to surviving partner upon death. Both the guarantee and the legal charge were manifestly disadvantageous to Mrs Bennett and that the relationship between her and her husband was one of sufficient trust and confidence to raise a presumption of undue influence in relation to both transactions. On the facts of the case, the bank had been put on enquiry as to the circumstances in which Mrs Bennett had agreed to sign the guarantee and the legal charge and had failed to take reasonable steps ‘to satisfy itself that Mrs Bennett’s agreement . [ Simon Brown LJ said: ‘The starting . Second action not an abuse Bank of Scotland v Bennett CA TLR 4 August; SJ 6 August It is not an abuse of process for a bank as a judgment creditor of a defendant under an existing, but possibly unenforceable judgment, to pursue a second action based on the first judgment in order to obtain and enforce a second judgment against the defendant by proceedings of a different … . The position might have been otherwise if Mr Bennett had conceded that it was not too late for the Bank to enforce the 1995 Judgment by bankruptcy proceedings. I agree with the judge's ruling ( in paragraph 37) that it cannot be an abuse of process per se to commence a second action with the object of preserving one's rights to take bankruptcy proceedings, absent some other factors which, in the particular circumstances of the case, render that unjustifiable. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG. If the Bank is entitled to bring a second action in these circumstances, what is there to stop it bringing successive actions on judgments, thereby indefinitely prolonging the limitation period? Look below, pick your products, then just place your order and we'll be happy to get started. Used insulting language towards wife for mortgage over family house. 1. Obviously not in A's best interests. As Re A Debtor was wrongly decided, the second action served no purpose at all. for life.” After further discussion as to the son’s financial liability the bank’s solicitor said that they could only look to the father. Get 2 points on providing a valid reason for the above If it had done so, the second action against him would have been unnecessary. 14. Mrs Jane Bennett, the wife of the appellant, succeeded in the House of Lords in defending possession proceedings by the Bank to enforce a second charge taken over the Bennetts' matrimonial home 15 Elthiron Road, Fulham SW6 (the House) to secure their guarantee liability. Section 24 of the Limitation Act 1980 is relevant: 4. The wife also held shares (11%). The Bank had a legitimate purpose for bringing the second action: in case the possession proceedings failed, it wished to keep alive the possibility of bankruptcy proceedings against Mr Bennett so that the trustee in bankruptcy could make an application under s 423 of the Insolvency Act 1986 (the 1986 Act) to set aside the transfer of the House to Mrs Bennett as a transaction defrauding creditors. It has thrown up an unusual procedural point: is it an abuse of process for the Bank, as a judgment creditor of Mr Bennett under an existing, but possibly unenforceable, judgment, to pursue a second action based on the first judgment in order to obtain and enforce a second judgment against Mr Bennett by, for example, bankruptcy proceedings? A default judgment was obtained by the Bank on 26 September 2001 in the sum of 187,753.30 (the 2001 Judgment). We have received from the parties further written submissions, from which it appears that the law on the s24 point is no longer common ground. Bannerman v White (1861) 10 CBNS 844. It is accepted by Mr Yell, appearing for Mr Bennett, that bringing bankruptcy proceedings within the period of six years from the 1995 Judgment would have been pointless.

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