ON APPEAL FROM THE HIGH COURT
IN THE MATTER OF HOWARD MACPHERSON
AND IN THE MATTER OF THE INSOLVENCY ACT 1986
Strand, London, WC2A 2LL
B e f o r e :
| HOWARD MACPHERSON
|- and -
John Briggs (instructed by Butcher Burns LLP) for the Respondent
Hearing date : 4th April 2011
Crown Copyright ©
Lord Justice Patten :
"the agreement to repay the Creditor from the proceeds of sale from Wells House was not conditional on the Creditor having a second charge or some other form of security. It was simply a case of the Creditor preferring to have a second charge if it were possible".
"On or around 5th March 2010 I recall a conversation with the Creditor during which I advised him that the second charge had been prepared and had been sent to my home by first class post to sign. The post had not yet arrived but the Creditor was keen to get the second charge signed off. He wanted to drive to Lennon & Co's office to get it signed immediately. I agreed and we both went. My solicitor at Lennon & Co was not available but his personal assistant printed off a further copy of the second charge which I executed there and then".
"Ms Williamson challenged that conclusion. She made three points. First, she said that anyone who took the view that Mr†Macpherson's evidence was not credible had to explain why Mr Wise pressed for and eventually took a legal charge which he took to his solicitors. She said that Mr Wise does not answer that challenge. But in my judgment the evidence does meet the challenge. Mr Macpherson and Mr Wise had (it is now common ground) informally and without creating a legal bargain, agreed in January 2010 that Mr Macpherson should be offered a further opportunity to pay the debt. As the email of 3 March which Mr Macpherson sent to Mr Wise makes clear, Mr†Macpherson expected to complete the sale or alternatively obtain other funding to repay the debt by the end of March 2010. The legal charge is readily explicable as supporting a further opportunity for him to pay the debt within that time scale. When he failed to do so, on the very next day, Mr Wise issued his statutory demand. These events seem to me to undermine the criticism that there is no explanation for the legal charge other than a legally binding agreement to postpone repayment indefinitely."
"Mr Wise's instructions to us was that he had negotiated a legally binding agreement with Mr†Macpherson to extend the time for all monies owed by him to be repaid immediately upon the sale of Karina, Wells Lane, Ascot, SL5 7DY ("Karina"). Mr†Wise informed us that Mr†Macpherson was "a mate" (as Mr Wise kept referring to Mr†Macpherson at the time), and if he had repaid Mr Wise by the end of 2009, Mr Wise only required the principal sum of £200,000 to be paid because he was not interested in making any money from Mr†Macpherson and simply wished to help him out. Mr Wise explained that this is the reason that it was an interest free loan for 12 months. But when Mr†Macpherson had still not paid the loan at the beginning of 2010, Mr Wise and Mr†Macpherson agreed that the £60,000 interest penalty had to come into play and would be applicable, and Mr Wise wanted a signed Charge form (as Mr Wise required in the Mr Creed matter) to record the total sum owed by Mr†Macpherson so that there would be no dispute or confusion as to the amount in the future or if Mr†Macpherson was knocked down by a bus. Mr Wise instructed us that Mr†Macpherson agreed to the same, and in return Mr Wise agreed to give him further time to repay him from the proceeds of Karina when it is sold. This was almost an identical agreement which Mr Wise had reached with Mr†Macpherson to that which was agreed between Mr Wise and Mr Creed.
Mr Wise instructed us that he had agreed with Mr†Macpherson that there was no fixed repayment date, that he would accept a lump sum interest payment of £60,000 and the signing of the Charge in exchange for the delayed repayment of the loans from Mr†Macpherson. Both of these mirrored the agreement which Mr Wise had offered to Mr Creed and therefore he clearly knew what he was agreeing with Mr†Macpherson.
Mr Wise specific instructions to us was that he had agreed to extend the time for Mr†Macpherson to pay all monies owed until Karina was sold whenever that may be in consideration for two matters: (1) he would not waive the £60,000 interest penalty as he had previously informed Mr†Macpherson he would do (if payment of the £200,000 had been made by the end of December 2009/early January 2010) and that he would have to pay the same and (2) he required Mr†Macpherson to sign a Charge (CH1 form) thereby recording the amount owed by Mr†Macpherson by way of an agreed debt. It must be pointed out that Mr Wise knew full well that the registration of the Charge was out of any of the parties' control and it was up to the Bank to agree to it. Mr Wise was informed that if the Bank refused to allow the registration of the second charge, there was nothing he could do to force them to agree to it. Mr†Wise was primarily concerned to have an official document setting out the amount which Mr†Macpherson had to pay "in the event he got knocked down by a bus" Ė as Mr Wise put itÖ"
"[O]nce it is established that a case is governed by Lord Ashburton v. Pape  2 Ch. 469 there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the communication, the justice of admitting or excluding it or the like. The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delayÖ
[I]n a case to which Lord Ashburton v. Pape can no longer apply, public policy may nevertheless preclude a party who has acted improperly in the proceedings from invoking the rule of evidence: see I.T.C. Film Distributors Ltd. v. Video Exchange Ltd.  Ch. 431, where the defendant had at an earlier hearing obtained some of the plaintiff's privileged documents by a trick. (see  3 All ER 264 at 271-272,  QB 670 at 684-686)."
"there is nothing in the authorities which would prevent the application of the rule that confidentiality is subject to the public interest. In this context, the emergence of the truth is not of itself a sufficient public interest. The reason why the balancing exercise is not appropriate is because the balance between privilege and truth has already been struck in favour of the former by the establishment of the rules concerning legal professional privilege: see The Aegis Blaze  1 Lloyd's Rep 203, 211; R v. Derby Magistrates Court, ex parte B  AC 487, 508."