Walker & Anor v National Westminster Bank Plc & Anor

In this claim the claimants, who are the former administrators of Sunnyside Holiday Park Ltd ("the company"), seek an order that the unpaid balance of their remuneration and expenses is by para 99(3) of Sch B1 Insolvency Act 1986 charged on and payable out of a sum of £62,646.06 said to be payable by the first defendant ("the Bank") to the company as redress in respect of potential mis-selling of certain interest rate swaps. Since they say more than that amount is due to them they seek a consequential order that the Bank should pay the whole redress payment direct to them.

The company is now dissolved, so that any remaining assets are vested in the Crown as bona vacantia. The second defendant is joined as the government department responsible for administration of bona vacantia on behalf of the Crown. The claimants originally sought an order in the alternative that the redress payment be made to the second defendant and paid on by the second defendant to them. That claim has recently been abandoned, but the second defendant continues to participate in the claim because, I am told, similar suggestions are made in many cases and it is concerned to establish its position. The position of both defendants is that the company should be restored to the register and wound up so that any redress payment can be made to a liquidator and administered by him.

The company was incorporated in 1992 and ran a holiday park in Newquay. In 2003 it entered into two straightforward (or "vanilla") interest rate swaps with Natwest in support of its borrowing. It appears the swaps were terminated in November 2004, by which time the company had paid net amounts totalling £36,662.86 under them and in addition incurred bank charges of £1,030 as a result of those payments.

In 2007 the company granted a fixed charge and debenture over all its assets to Lancashire Mortgage Corporation ("LMC"). In March 2008 the claimants were appointed as administrators by LMC, who were owed over £3.9m. The claimants attempted to sell the holiday park but were unsuccessful. Their appointment was renewed several times, but eventually expired in 2012, at which time LMC appointed fixed-charge receivers in their place.

At the time they ceased to hold office, the claimants had recorded time costs of some £164,664, plus disbursements. LMC agreed to pay £60,000 towards these costs out of the proceeds of sale of the holiday park. There is a potential issue as to whether this constituted a binding settlement of the claim for remuneration, since a report to creditors informed them that the administrators had agreed this sum in full and final settlement.

The company was dissolved in November 2013 and its interest in the holiday park (and any other assets) would then have vested in the Crown as bona vacantia (Companies Act 2006 s 1012). This did not affect the interest of LMC as mortgagee and the receivers were still able to arrange to sell the property, which it appears they did in February 2014. At that time the agreed amount of £60,000 was paid to the claimants, but after paying their disbursements and approximately £31,700 towards their own remuneration they are left with over £132,000 of unpaid recorded time cost.

At some point after the claimants' appointment as administrators ended but before the company was dissolved, someone on behalf of the company initiated the process of review of the sale of the swaps under the scheme established by the Financial Conduct Authority ("FCA") in 2012. It is not clear from the evidence who exactly started the process, but I am told it was not the claimants themselves. Any person with an interest in the company or its assets may do so, and nothing turns on it for present purposes.

The result was a letter from the bank dated 19 August 2014 (ie after dissolution). The copy in the bundle is addressed to the second claimant as an "interested party" in the company, but there is nothing in it that relates specifically to the position of the former administrators and it may be that similar letters were sent to other such interested parties. That letter:

There then followed correspondence in which, to summarise, solicitors on behalf of the claimants sought to persuade the bank and the Treasury Solicitor that payment should be made direct to them, that it should not be necessary to incur the cost and delay of restoring the company since they were the only persons who would be entitled to benefit from the redress payment, and that the Treasury Solicitor could and should consent to such direct payment. That was not agreed and accordingly this claim was issued in October 2015.

The first difficulty for the claimants seems to me to be that the moneys they seek to claim against are not yet due to the company. They do not therefore (yet) constitute an asset, or even the proceeds of an asset, that may be subject to the statutory charge created by para 99 of Sch B1, which attaches to "the property of which [the former administrator] had custody or control immediately before cessation [of his appointment]".

Standing back, it presumably would be the case that if the swap products were mis-sold to the company in 2003, it may have had a claim against the bank in contract and/or tort. That chose in action would have been an asset of the company, and no doubt could be considered to have been under the control of the administrators while they held office. However, no claim has been issued, or even threatened, on behalf of the company to enforce any such chose in action.

The FCA review process is, it seems to me, very different from the enforcement of that chose in action, though inevitably there are areas of overlap. The FCA scheme does not depend on the making of a claim in law, or on the establishment of a cause of action. It is a scheme arrived at by agreement between the FCA (or its predecessor the FSA) and certain regulated institutions. To the extent it is enforceable in law, it would appear to be as a matter either of contract between the regulator and those institutions, or the statutory power of the regulator. This is not a point I have to decide; I have not heard any argument as to whether there might be a direct right of enforcement. But the point is that whatever obligations an institution may have under that scheme arise by virtue of the terms of that scheme and the standards of review and offers of redress it provides for, irrespective of whether the customer does or does not have a valid claim in law. For instance, Ms Loveridge submits, the bank has an obligation to offer redress under the scheme in respect of these products which were sold in 2003 and caused loss almost immediately, though it must be likely that the bank would have a good limitation defence to any legal claim.

Even if the company has, and had at the time the administrators left office, a direct right of some sort to enforce the terms of the FSA scheme, it is not a right that has yet resulted in an entitlement to the amount provisionally assessed as the redress amount. It is plain from the terms of the bank's letter that it is not itself an offer capable of acceptance, and that no such offer will be made until the company is restored. The bank's evidence is that any such offer will have conditions attached to it, not least that it will be made in full and final settlement of any claim the company may have, save to the extent it is able to show that the swaps have caused it to incur additional (ie consequential) losses. Thus, the process envisaged by the letter requires that if and when an offer is made, some person with authority to compromise the company's potential claims to that extent must accept it before any binding obligation to pay the redress amount arises.

The bank is not said to be under any obligation under the terms of the FSA scheme to make an offer of redress to anyone other than the customer. There is thus no such obligation that might be an asset caught by the para 99 charge. Ms Loveridge provided me with a copy of the FCA's guidance to applicants, which provides the in the case of dissolved companies "… the bank will conduct the review and inform the interested parties of any redress offer. The interested parties can then decide whether they wish to restore the company to the Register… If a company is restored to the Register… that was insolvent prior to being struck off… any redress due would be subject to the rules on priority of distribution to creditors set out in insolvency law…". There is nothing in this to suggest that the bank may be obliged to pay anyone other than the company itself after restoration, or its authorised representative such as a liquidator if it is then wound up.

The bank's position as set out by Ms Loveridge is that, if ordered to pay the claimants direct it will comply, provided it can be assured that it will achieve a good discharge as against the company or anyone claiming through it, in the same way as it would if an offer were made and properly accepted. Mr. Passfield seeks to rely on that as an indication that the court can make such an order, as long as it is satisfied that the money would in any event end up in the hands of the claimants.

I do not accept that; if the bank is not under an obligation to pay enforceable in some way by the claimants, the court has no jurisdiction at the claimants' suit to order payment to them. The (understandable) willingness of the bank to submit to an order if made does not create such jurisdiction. It may conceivably be the case that the FCA has the standing as regulator or under its contractual arrangement with participating banks to direct the bank to make a payment outside the existing terms of the redress scheme. That again has not been argued before me. But the court is not the bank's regulator, and could not have any similar standing.

If an offer is made, who might be in a position to accept it? Plainly a liquidator could, if the company were restored and wound up as the bank's letter envisages. But what if the bank were voluntarily to make an offer without a liquidator being in office? The claimants' powers as administrators to deal with the company's assets and act on its behalf came to an end when their appointment expired. Is there any other basis on which they could accept it?

Mr. Passfield sought to persuade me that the effect of the statutory charge in para 99 was that the assets charged were in effect the property of the former administrators and could be dealt with by them accordingly. That submission was based on a passage from the opinion of Lord Hoffman in Buchler v Talbot [2004] 2 AC 298, as follows:

“29 When a floating charge crystallises, it becomes a fixed charge attaching to all the assets of the company which fall within its terms. Thereafter the assets subject to the floating charge form a separate fund in which the debenture holder has a proprietary interest. For the purposes of paying off the secured debt, it is his fund. The company has only an equity of redemption; the right to retransfer of the assets when the debt secured by the floating charge has been paid off. It is this equity of redemption which forms part of the fund held on trust for the company's creditors which arises upon a winding up.

30 Putting aside any fixed charges, the position is therefore that if a company is in both administrative receivership and liquidation, its former assets are comprised in two quite separate funds. Those which were subject to the floating charge (“the debenture holder's fund”) belong beneficially to the debenture holder. The company has only an equity of redemption. Those which were not subject to the floating charge (“the company's fund”) are held in trust for unsecured creditors. In the usual case in which the whole of the company's assets and undertaking are subject to the floating charge, the company's fund will consist only of the equity of redemption in the debenture holder's fund.”

Buchler v Talbot was concerned with the order of priority of payment of expenses of a liquidator in a case where the company was, before liquidation, in administrative receivership. It resolved the anomaly created by the earlier decision of the Court of Appeal in Re Barleycorn Enterprises Ltd [1970] Ch 465 that the general expenses of liquidation were held to be payable out of the proceeds of assets subject to a crystallised floating charge in priority to the claims of the debenture holder, and therefore in priority to the remuneration and expenses of a previously appointed administrative receiver. The result had been that the later- appointed liquidator could incur costs in dealing with the liquidation which would leapfrog the costs already incurred by the receiver.

In this passage, Lord Hoffman was dealing with the effect of the statutory provisions as to the assets out of which expenses were to be paid. The 'funds' he refers to are notional groupings of the respective equitable interests of the secured creditor and the company (having noted that on entry into liquidation the company ceases to be the beneficial owner of its assets and instead holds them on a special form of trust for the benefit of creditors; see para 28 of his opinion). He is drawing distinctions between the assets and interests to which various classes of creditors may have resort, and not describing in general terms the rights that chargees have over charged property. Insofar as he does refer to the nature of those rights, he says that the chargeholder has "a proprietary interest", which is not the same as ownership, legal or beneficial.

I was not referred to any authority that determines the nature of the charge created by para 99. If it were purely a charge, it would not operate to vest any property in the assets concerned in the chargee, whether in law or equity. The nature of a charge, as distinct from an equitable mortgage, is described thus in Fisher & Lightwood's Law of Mortgage:

“6.1

A charge is a security whereby real or personal property is appropriated for the discharge of a debt or other obligation, but which does not pass either an absolute or a special property in the subject of the security to the creditor, nor any right to possession. In the event of non-payment of the debt, the creditor's right of realisation is by judicial process...

With the exception of a charge by way of legal mortgage, which is for all intents and purposes equivalent to a legal mortgage, and maritime hypothecations, charges are enforceable only in equity.”

Among the various authorities cited in the footnotes to this paragraph are the following:

“In Carreras Rothmans Ltd v Freeman Mathews Treasure Ltd [1985] Ch 207 at 227, [1985] 1 All ER 155, Peter Gibson J said at 169:

''Such a charge is created by an appropriation of specific property to the discharge of some debt or other obligation without there being any change in ownership either at law or in equity, and it confers on the chargee rights to apply to the court for an order for sale or for the appointment of a receiver, but no right to foreclosure (so as to make the property his own) or [to] take possession.''

In Bland v Ingram Estates Ltd [2001] 2 WLR 1638, CA Nourse LJ having just cited the dictum of Peter Gibson J in Carreras Rothmans Ltd v Freeman Matthews Treasure Ltd above, said at para [19]:

''As applied to land, those observations emphasise, correctly in my judgment, that the creation of an equitable charge, unlike an equitable mortgage, does not give the chargee an equitable interest in the land. A fortiori it gives him no right to possession. Nevertheless, his right to protect or realise his security by applying to the court for the appointment of a receiver or an order for sale does give him an interest of a sort. This has been variously described in the authorities, most frequently, it appears, as a proprietary interest. In so far as the appointment of a receiver or an order for sale enables the chargee to appropriate, in the first case the rents and profits of the land and in the second its proceeds of sale, to the discharge of his debt, I do not quarrel with that description. But it is important to bear in mind that the interest, though registrable against the chargor, remains inchoate and ineffectual until an order of the court is made.'' ”

Elsewhere, the authors note that the authorities have tended to assimilate charges and equitable mortgages, such that an agreement to pay a debt out of specific property may be construed as an agreement to grant a mortgage over that property. Whether such an inference could properly be drawn in construing a charge created by statute may be open to doubt. But even if the assumption is made in favour of the claimants that the para 99 charge is to be regarded as an equitable mortgage, it is still not equivalent to legal ownership. Fisher & Lightwood describes the effect of an equitable mortgage thus:

“1.17

An equitable mortgage is a contract that operates as a security and is enforceable under the equitable jurisdiction of the court. The court carries it into effect either by immediately giving the creditor the appropriate remedies or by compelling the debtor to execute a security in accordance with the contract.”

Thus, even if the claimants were found to be in the position of equitable mortgagees they would not be entitled to deal with the charged assets (for instance by making a claim of the company's behalf, or agreeing a compromise of potential claims) without an order of the court granting them a remedy available to a mortgagee or vesting the charged property in them as mortgagees. There is nothing in the passage relied on by Mr. Passfield that supports any greater right.

As to what rights are given to the holder of the statutory charge created by para 99, Mr. Nersessian points out that in Re MK Airlines Ltd [2012] EWHC 1018 (Ch) Sir Andrew Morritt C said (para 44) that the statutory charge "does not fit the description of a fixed or floating charge". It cannot be assumed therefore that if the holder of a fixed or floating charge would have a particular right, the holder of the statutory charge would necessarily do so. In MK Airlines the company was in liquidation, but had previously been in administration, with two successive sets of administrators. Each set of administrators was entitled to a charge under para 99 on the assets under their control at the date they left office.

An issue arose as to the extent of the liquidators' powers to deal with the assets now that those assets were in their control but subject to the two para 99 charges. It was noted (see para 25 of the judgment) that the statute itself makes no provision as to the effect and consequences of the charge. It was argued that although the liquidators had the powers set out in Sch 4 Insolvency Act 1986 to deal with the assets of the company, this did not enable them to do so without the consent of the chargees. It seems that the argument was put that if the administration came to an end without the company going into liquidation it would return to the control of the directors, in which event the charge would afford little security if the directors could cause the company to dispose of any remaining assets free of the administrators' charge and without their consent.

The Chancellor did not decide whether that was correct or not. The issue was sidestepped at para 26 by stating that the para 99 charge could if necessary be enforced by the appointment of a receiver of the charged assets (NB it was not said that the chargee could deal with the assets directly) and determining to exercise that discretion to confer on the liquidators the same powers that could have been granted to such a receiver. The result would be that the liquidators would be able to realise the charged assets, passing a clear title to any purchaser, but applying the proceeds in satisfaction of the remuneration and expenses secured by the charges in order of priority.

In Re Hotel Company 42 The Calls Ltd [2013] EWHC3926 (Ch) HHJ Purle QC held (para 12) that although it would have been better if Parliament had provided a mechanism for enforcement of the para 99 charge, there was no doubt that the court could do so by, for example, an order for sale or for appointment of a receiver over the charged assets. Further, the statutory charge could be protected in relation to land by an agreed notice entered on the Register; see para 26. In consequence, he refused an application that the administrators be authorised to grant themselves an express charge containing additional provisions and remedies such as a mortgagee might require.

Those cases clearly support the view that the rights of the statutory chargee in relation to the assets are limited to enforcement through the court, and do not extend to enable the chargee to deal with the assets direct as a legal owner could. Accordingly I reject the submission to that effect. The former administrators do not therefore have power to deal with any asset or former asset of the company which they might exercise to accept an offer of redress such that an entitlement to payment of a redress payment arises.

Other potential issues arise as to whether if a redress payment were made the administrators would inevitably be the only persons to benefit from any distribution made from it. I have mentioned the question flagged up by Mr. Nersessian as to whether the administrators have compromised their claim to remuneration by agreement with the debenture holder. I have not heard argument as to the merits of that issue, but Mr. Passfield says it is irrelevant because the only person with an effective interest in arguing that there has been such a compromise is the debenture holder itself and it has stated in writing that it consents to any redress payment being made direct to the administrators. If the true position is that the administrators have in fact given up any claim to further remuneration, the result would be that the redress payment would be made to the company. It is said that the whole amount would be taken by the debenture holder towards the shortfall on its secured debt.

But, as Mr. Nersessian pointed out, that is not necessarily so. Most likely, any redress payment would fall into the floating charge in the debenture, rather than any fixed charge. As a result, unsecured creditors would prima facie be entitled to a distribution from the "prescribed part" under Insolvency Act 1986 s 176. There is therefore a potential contrary interest to be asserted, and the question whether it should be or not ought to be decided by someone in a position to do so on behalf of the creditors potentially affected.

There is also a potential issue as to whether any redress payment agreed in future is in fact caught by the para 99 charge as being an asset under the control of the administrators at the time they left office. Plainly, the redress payment itself was not in existence at that date, so it is not directly within the terms of that charge. In MK Airlines the Chancellor held that a payment subsequently negotiated by the liquidator in consideration of exclusivity in negotiations for sale of the company's assets (which were caught by the charge) derived from those assets and so was itself within the charge (judgment, para 20). On the other hand, it was not possible to determine whether payments made by way of refund of rates for periods prior to the administrators leaving office were so charged. At para 23 the Chancellor said that the relevant test was whether at that date there was a "legal entitlement to the refunds regardless of what of any steps have been taken to recover them". Further information was required, presumably as to whether, for instance, any claim for a refund had been made by that date, or whether it might be said that the entitlement existed at the relevant date only arose as a result of some later matter, such as a revaluation.

I have not heard argument as to how this test might be applied to the circumstances of a redress payment, and whether, for instance, there might be a difference between a payment as a result of a legal claim asserted and an amount voluntarily offered under the FCA scheme where there might or might not have been a legal claim. In the circumstances of this claim, it may be in the interests of unsecured creditors to argue that the para 99 charge does not attach, even if LMC as debenture holder does not apparently wish to do so.

A liquidator would be in a position to consider whether to take these points. The Treasury Solicitor is not; in administering bona vacantia on behalf of the Crown the Treasury Solicitor's department represents the Crown's interest and does not act as an alternative form of insolvency procedure to realise and distribute to creditors the remaining assets of a dissolved company, deciding between potentially competing claims.

It is true that in certain cases the Treasury Solicitor will agree to make direct grants to persons who are in a position to make claims against the assets of a company without requiring that the company first be restored. But its published guidance (Footnote: ¹) makes clear that this is entirely a matter of discretion and only done when either the company cannot be restored or the costs of doing so would be disproportionate. Hence, if the company could be restored, no such grant would be made exceeding £3000. The court would have no jurisdiction, short of judicial review, to direct the Treasury Solicitor in the exercise of that discretionary procedure, still less to go beyond the published terms of it.

Nor should the court seek to take these decisions itself. It is not the function of the court to provide a procedure for distribution of assets in parallel to or substitution for the statutory regimes. It is true that if a liquidator were in office he might ask the court for directions in a case of difficulty. But in such circumstances it would be for him to explore and set out the competing considerations and interests, which he would be in a position to do as office holder with (in principle at least) access to the company's records and information. The court is not in an equivalent position, and it would be very dangerous to act on the application of one interested party (in this case the former administrator as secured creditor) on his inevitably self serving assertion that there can be no interest contrary to his own.

Drawing these threads together, it seems to me the position is this:

Finally it is appropriate to say that it must have become apparent long ago that this application would never achieve the stated object of distributing the redress payment more quickly or cheaply than restoration of the company. It could not, even if successful, have resulted in establishing a quick and efficient procedure for such distribution in future cases, such as might have justified the one-off expenditure in this case. That is because the administrators acknowledge that in any such future case it would always have been necessary to have an application to the court in which the court would have to be provided with all the information necessary to determine what the company itself was entitled to and what potential competing claims there might be to the funds if they had gone through the company. Potential interested parties such as creditors would probably have to be given notice. In these circumstances, it is surprising that it has been pursued as far as it has.

For these reasons, the application is dismissed. The appropriate course to follow is, in my view and as the defendants suggested, that an application be made for the company to be restored and wound up so that a liquidator may pursue the redress payment and make a distribution having considered all the associated issues. Given the potential for conflict, it would seem unlikely to be appropriate that the administrators themselves should act as liquidators.