Articles by author
Lenders’ duties in the “twilight zone”, after default but before appointment or enforcement
In this article we consider what duties are owed by a lender in the period after default by the borrower, but before any appointment or other enforcement steps are taken. We do so in the context of the question of what duties are owed in relation to restructuring services or actions of the lender having regard, in particular to the recent decision and observations of the Court of Appeal in Morley Estates v Royal Bank of Scotland [2021] EWCA Civ 338. We start by considering the question of why there is a need for protection and then seek to identify the case in favour of lenders’ duties being owed in the context of the decision made in Morley Estates v RBS at first instance and in the Court of Appeal.
1 SEP 2021Reliance revisited: is “conscious awareness” a requirement of reliance/inducement in all misrepresentation cases, or a bridge too far?
This article considers the case law in this area and suggests that the approach in Crossley is to be preferred. The rebuttal to Crossley in Loreley comes close to the right answer, in seeking a satisfactory causative bridge in all cases, but wrongly seeks to retain “conscious awareness” as a requirement in all cases and eschew the notion that this is always distinct from assumption. An analysis of the motivator for that conclusion, the need for a sufficient causative bridge, shows the causative bridge can be satisfied without that requirement in some cases of implied representation, and causes unnecessary difficulty with other juridical concepts.
31 MAR 2024Blu-sky thinking: the Interfoto principle and terms incorporated by reference
In this article the authors consider the implications of Blu-Sky Solutions v Be Caring [2021] EWHC 2619, including in the lending and derivatives contracts context, which suggest that a party provides to its counterparty a greater degree of notice in relation to onerous or unusual clauses which are intended to be incorporated by reference.
1 APR 2022
