England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCER Y DIVISION
BANKRUPTCY COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/09/2017

Registrar Barber:

1. This is Mr Dowling's application to set aside a statutory demand dated 7 September 2016 in the sum of €6,338,675.93 served on him by Promontoria (Arrow) Limited ('Promontoria').

Evidence

2. For the purposes of this application I have considered the following written evidence:

(1) First statement of Thomas Dowling dated 7 October 2016;

(2) First statement of Lisa Burns dated 5 January 2017;

(3) Second statement of Thomas Dowling dated 17 February 2017;

(4) First statement of Jenny Baguley dated 24 April 2017;

(5) First statement of Ravi Dosanjh dated 24 April 2017;

(6) Second statement of Lisa Burns dated 5 May 2017.

I have also considered the other documents contained in bundles agreed for use at the hearing, to which documents reference will be made in this judgment where appropriate. I declined a very late application on behalf of the Respondent, made half way through the hearing, for permission to adduce further written evidence.

The Statutory Demand

3. The statutory demand is based upon a personal guarantee dated 6 December 2006 signed by the Applicant along with three others ('the First Guarantee') in favour of Anglo Irish Bank Corporation Plc ('the Bank'), securing certain borrowings owed to the Bank by Danum Developments Limited ('Danum').
4. The Particulars of Debt set out in the statutory demand provide as follows:

"(1) The debtor owes the creditor €6,338,675.93 plus interest, costs and expenses, in terms of (a) facilities lent by Anglo Irish Bank Corporation Plc (the 'Bank') to Danum Developments Ltd (the 'Borrower') by facility letter dated 19 November 2007 (as amended) (the 'Facilities'). The Bank assigned all of its rights under the Facilities to the creditor by Deed of Assignment dated 11 December 2015; (b) a guarantee dated 6 December 2006 granted jointly and severally by the debtor, Gerry McIntyre, Martin Walsh and Rory Egan in favour of the Bank in respect of the sums due to the Borrower plus interest costs and expenses (the 'Guarantee') in respect of which Guarantee, the Bank assigned all of its rights to the creditor by Deed of Assignment dated 11 December 2015.

(2) In terms of clause 8 of the Facilities, the Borrower was to repay all outstanding sums under the Facilities by 31 March 2008. The Borrower failed to do so and remains indebted to the creditor under the Facilities in the sum of €6,338,675.93 as at 15 June 2016.

(3) In terms of the Guarantee, the creditor may demand payment from the debtor once the Facilities become due. Accordingly, the creditor made demand in writing dated 3 June 2016 to the debtor, which demand remains unpaid.

(4) Interest will continue to accrue from the due date until the date of payment at the rate of interest applicable under the Guarantee."

5. As will be seen from the foregoing, the Respondent claims entitlement to the First Guarantee by way of assignment. The Respondent claims that it took an assignment of various assets once owned by the Bank from the National Asset Loan Management Limited ('NALM'), the Irish state residuary body that took on the Bank's book when it failed.

Background

6. The Applicant was formerly chairman of a private equity investment company based in Dublin called Gallium Limited ('Gallium'). Gallium was an investor in Danum and owned one third of its shares. The Applicant was not a director of or shareholder in Danum himself, but as chairman of Gallium, gave a personal guarantee 'to put skin in the game', as Mr Curl so colourfully put it. Danum purchased a development site in County Offaly, Ireland ('the Property') in 2006 for approximately €5 million. According to Promontoria, the Property was sold on 5 April 2017 for €172,000 (about 3.4% of its purchase price).
7. The Respondent is owned by an American fund called Cerberus. The Applicant was highly critical of Cerberus and maintained that such funds have found it increasingly difficult in recent times to enforce via the courts in Ireland. In this regard I was referred, by way of example, to the judgment of Murphy J in English v Promonotoria (Aran) Limited [2016] IEHC 662.

The First Guarantee

8. The First Guarantee is dated 6 December 2006 and was made between (1) Gerry McIntyre, Martin Walsh, Rory Egan and the Applicant (together described as 'the Guarantors') and (2) the Bank.
9. The recitals to the First Guarantee provide as follows: "WHEREAS:

(A) Pursuant to the Facility Letter the Bank has agreed to make available the facilities to the Principal on the terms and subject to the conditions of the Facility Letter.

(B) It is a term of the Facility Letter that the Guarantors enter into this Guarantee and Indemnity."

10. By Clause 1 of the First Guarantee, 'Facilities' are defined as 'the facilities in the maximum amount of €4,690,000 made available by the Bank to the Principal pursuant to the Facility Letter'; 'Facility Letter' is defined as 'the facility letter dated 31st October 2006 as entered into between the Principal and the Bank and as may be amended from time to time' (ie in the context of this judgment, the 'First Facility letter'); and 'Principal' is defined as Danum, its successors and assigns. Clause 21.1 provides that the First Guarantee 'shall be construed in accordance with the laws of Ireland…'
11. Clause 2 of the First Guarantee provides as follows:

"In consideration of the Bank making or continuing advances or otherwise giving credit or affording banking facilities, for as long as and to the extent the Bank may think fit, to or with the Principal, the Guarantors hereby, unconditionally and irrevocably and jointly and severally covenant to pay on demand all and any sum or sums of money whether actual or contingent in whatever currency denominated which are now or shall at any time be owing to the Bank anywhere on any account whatsoever from the Principal…… "

12. Clause 5 of the First Guarantee begins as follows: "5. CONTINUIN G SECURITY

This Guarantee and Indemnity shall not be considered as satisfied by any intermediate payment or satisfaction of the whole or any part of any sum or sums of money owing as aforesaid but shall be a continuing security and shall extend to cover any sum or sums of money which shall for the time being constitute the balance due from the Principal to the Bank upon any such account as hereinbefore mentioned…."

For ease of reference, this part of Clause 5 shall be referred to as 'the red passage'.

13. Clause 5 of the First Guarantee goes on to provide:

"The guarantors hereby agree as a separate and independent condition that their liability hereunder shall not be merely as surety and that all moneys not recoverable from the Guarantors on the footing of a guarantee for any reason or circumstance whatsoever whether known to the Bank or not shall nevertheless be recoverable (on a full indemnity basis) from the Guarantors as principal debtor and shall be repaid by the Guarantors on demand."

For ease of reference, this part of Clause 5 shall be referred to as 'the green passage'.

14. The First Facility letter, as referred to in the recitals to and Clause 1 of the First Guarantee, was not in evidence and was not relied upon for the purposes of the Statutory Demand. Instead, Promontoria relied upon a later facility letter, dated 19 November 2007 ('the Second Facility letter').

The Second Facility letter

15. The Second Facility letter was not expressed to be an 'amendment' to the First Facility letter and made no reference to it. During the course of submissions, it was conceded by Counsel for the Respondent that the Second Facility letter gave rise to a 'freestanding facility'.
16. The Second Facility letter provided that:

"The facility is repayable on demand which demand may be served at any time by the Bank at its sole discretion and without stating any reason for such demand. Without prejudice to the demand nature of the facility, the facility shall be repaid on or before the 31st March 2008…."

17. The Second Facility letter also provided that the facility was made available 'on the terms and conditions set out in the General Conditions and this Facility Letter…'. The General Conditions were not in evidence however. It was therefore not possible to ascertain the full terms of the contract partly recorded by the Second Facility letter.

The Second Guarantee

18. At the time of the Second Facility letter, it appears that the Bank attempted, at least, to take a further guarantee from the Applicant and the other co- guarantors named in the First Guarantee. The further guarantee was appended to the Second Facility letter ('the Second Guarantee') and provided as follows:

"GUARANTEE

We have read the Facility Letter 19th November 2007 to Danum Developments Limited and the Bank's General Conditions which form part of the agreement between the Borrower and the Bank (the 'Agreement') and confirm that we fully understand the terms of the Agreement and acknowledge that we are guaranteeing the performance by the Borrower of its obligations under the Agreement to the Bank. We acknowledge that we have been given due opportunity to take independent legal advice on the effect of the Agreement and have taken/waived (delete one) the opportunity to take such legal advice.

Warning: As a guarantor of this loan, you will have to pay off the loan, the interest and all associated charges if t his Borrowe r does not. Before you sign this agreement you should get independent legal advice.

In relation to the warning above, the 'loan' means all amounts owing from the Borrower to the Bank from time to time not only amounts owing under the Agreement."

Below the quoted text are set out what appear to be the signatures of Gerry McIntyre, Martin Walshe, Rory Egan and the Applicant.

19. It will be recalled that, under the terms of the Second Facility letter, the facility fell due for repayment on 31 March 2008 unless demanded before then. Promontoria made demand on Danum by a letter dated 11 April 2016. This was clearly more than 6 years after 31 March 2008. The letter of 11 April 2016 asserted that the debt stood at €6,301,667.64, although no statement of account or workings were provided. Demand was made on the Applicant by letter dated 3 June 2016. By that stage the debt was claimed to be €6,307,507.95. Again, no statement of account or workings were provided. The Applicant maintains that, prior to the demands of 11 April 2016 and 3 June 2016, no demand had been made by the Bank or NALM on either Danum or the Applicant at any time. I was not taken to any document evidencing an earlier demand.
20. Against that backdrop, I turn to consider the legal test to be applied and the main arguments raised on the application.

The Legal Test

21. The application is subject to the Insolvency Rules 1986, having been issued prior to 6 April 2017 (see paragraph 14 of Schedule 2 to the Insolvency Rules 2016).
22. Under rule 6.5(4) of the 1986 Rules, the court may set aside the demand if (inter alia)

'(b) the debt is disputed on grounds which appear to the court to be substantial; or

(d) the court is satisfied, on other grounds, that the demand ought to be set aside.'

23. In Hayes v Hayes [2014] BPIR 1212, Nugee J commented (at para 31) that the task of the court (under r. 6.5(4)(b)) 'is not dissimilar to that that it is faced with on a summary judgment application under Part 24 … although it does not necessarily follow that the test is, in all circumstances, identical.'
24. In considering an application to set aside a statutory demand, it is open to the court to reject written evidence without cross examination in certain circumstances, in accordance with the principles summarised in National Westminster Bank v Daniel [1993] 1 WLR 1453 at pages 1456-7 and Portsmouth v Alldays Franchising Limited and Others [2005] EWHC 1006 at para 12.
25. I am also reminded that the mere fact that a debt claimed in a statutory demand may be overstated does not, without more, justify setting it aside: Re a Debtor (1 of 87) [1989] 1 WLR 271 at 279 and Morley v Inland Revenue Commissioners [1993] BCLC 180.

Grounds of Setting Aside

26. A number of arguments were raised in support of an order setting aside the demand. In the interests of brevity, I do not propose to address them all. Suffice it to state that, on the evidence and submissions which I have read and heard, I am satisfied that the demand should be set aside. I set out my reasons below.

(1) No Full Suite

27. First, the Respondent has failed properly to evidence its status as assignee in respect of the debt forming the subject matter of the statutory demand. This was put in issue both in pre-application correspondence and by the Applicant's first witness statement herein, dated 7 October 2016. The Respondent filed evidence in answer, that evidence comprising the witness statement of Ms Lisa Burns dated 5 January 2017, but failed without adequate explanation to exhibit to Ms Burns' statement (redacted or otherwise) key documents supporting the assignment including (1) the loan sale agreement dated 27 October 2015 between NALM and Promontoria Holdings 176 BV and (2) the Deed of Novation dated 20 November 2015 between NALM, Promontoria Holdings 176 BV and the Respondent.
28. The point was raised again in the Applicant's second statement dated 17 February 2017. At paragraph 4 of that statement he referred specifically to the 'lack of documentation received from Promontoria exhibiting [sic] that the alleged debt has actually been transferred to them' and developed this, inter alia, at paragraphs 34 and 35 of his statement. Ms Burns filed a second statement dated 5 May 2017, but failed to respond on this issue.
29. It will be recalled that Clause 21.1 of the First Guarantee provided that 'This Guarantee and Indemnity shall be construed in accordance with the laws of Ireland.' The Deed of Assignment dated 11 December 2015 between NALM and the Respondent (which formed part but by no means all of the 'suite' of documents required to establish the Respondent's entitlement to inter alia any rights arising under the First Guarantee) also provided by Clause 8.3.1 that 'This Deed and all non- contractual obligations arising from or connected with it shall be construed in accordance with and governed by the laws of Ireland.'
30. Had the Respondent, qua assignee, sought to enforce the First Guarantee against the Applicant by way of ordinary action in Ireland, without producing in evidence the suite of documents required to establish its entitlement to any rights arising under the First Guarantee, it is clear on current Irish authority that (leaving aside all other arguments raised in the context of this application), the Applicant would have a clear and strong defence to judgment being entered against him on the First Guarantee: see by way of example English v Promontoria (Aran) Limited [2016] IEHC 662.
31. Moreover, even applying English law, a creditor claiming title to a debt by way of assignment must prove his title by way of assignment where such title is put in issue.
32. Either way, therefore, whether considered under Irish or English law, the Respondent, having had its title put in issue, has failed properly to evidence its status as assignee in respect of (and therefore its title to) the debt forming the subject matter of the statutory demand. That of itself gives rise to substantial grounds for disputing the debt. I do not, however, base my decision to set aside this demand on this ground alone.

(2) The Second Facility is not within the purvie w of the First Guarantee

33. A further ground for setting aside the demand is that the Applicant has raised a strongly arguable case that the Second Facility is not within the purview of the First Guarantee. The doctrine of purview is helpfully summarised in Rowlatt on Principal and Surety, 6th edition, paragraph 4-82, as follows:

"A surety is not discharged by a variation to which he assents afterwards, even though there may be no fresh consideration for the assent. However, it is apprehended that assent, whether previous or subsequent to the variation, only renders the surety liable for the contract as varied, where it remains a contract within the general purview of the original guarantee, and the assent can operate as the waiver of something in the nature of a condition, or of an equitable claim to the cancellation of a security whose express terms cover the contract as varied. If a new contract is to be secured, there must be a new guarantee."

34. The doctrine of purview is distinct from the rule in Holme v Brunskill. According to the rule in Holme v Brunskill, a guarantor is discharged unless he consents to any modification to the principal contract that may affect his position. The doctrine of purview, however, goes further. Even where the subsequent agreement has the guarantor's assent, it must still be within the 'general purview' of the original guarantee if the guarantor is to remain liable. If a new contract is to be made, then it requires a new guarantee: Triodos Bank NV v Dobbs [2005] EWCA Civ 630; CIMC Raffles O ffshore (Singapore) Ltd v Schanhin Holding SA [2013] 2 All ER (Comm) 760 (in particular at paragraphs 22, 39 41 and 46).
35. Mr McWilliams, on behalf of the Respondent, relied upon the breadth of wording contained in the First Guarantee, contending that it was sufficiently wide to embrace the Second Facility. On behalf of the Applicant, however, Mr Curl submitted that 'you can't change purview by use of the Holme v Brunskill type clause'; echoing, (in more contemporary language perhaps), Sir Bernard Rix' comment in CIMC (at page 773) that 'it is the judicial basis of the doctrine [of purview] that even very wide words in a guarantee's anti-avoidance clause may not cover something that goes beyond the parties' reasonable contemplation.'
36. Mr Curl maintained that the 'general purview' of the First Guarantee was clear from recitals A and B to that guarantee, as quoted at paragraph 9 above, together with the definition of 'Facility Letter' appearing in clause 1. He further argued that the Second Facility letter did not 'amend' the First Facility letter. It provided a completely new facility. As previously noted, this latter point was not in issue. The Respondent rightly conceded that the Second Facility was a new, 'freestanding' facility, rather than an amendment to the First.
37. On behalf of the Respondent, Mr McWilliams took me to passages in Andrews & Millet, submitting that English law has no conceptual or practical difficulty with guarantees which extend prospectively to liabilities which may be incurred by the principal after the date of the guarantee, or which cover any and all liabilities due from the principal rather than sums due under a specific and specified agreement (Andrews & Millet, 4th ed, paras 4-016 to 4-017). A close reading of the paragraphs referred to, however, is something of a double edged sword for Mr McWilliams. They only serve to emphasise the subtleties of this area of caselaw, highlighting, by way of example, that '[t]here is no hard and fast rule which is used to determine whether a guarantee is specific or continuing, and the construction of one does not necessarily assist in the construction of another given in different circumstances. Further, the cases are somewhat difficult to reconcile.' The passages in question further flag that, in cases of ambiguity, the court will lean in favour of construing the guarantee as a specific rather than a continuing guarantee, applying the contra proferentum canon of construction.
38. Given the dramatic changes in the economic climate in Ireland between the dates of the First Facility letter and the Second Facility letter, as reflected in the evidence before this court, I cannot proceed on an assumption that the terms of the First and Second facilities were identical or were not materially dissimilar. The First Facility letter is not in evidence (I am told that any rights remaining under the First Facility letter were not assigned to the Respondent). The Bank's General Conditions as at the respective dates of the two facility letters are not in evidence either. The fact that the same level of funding was envisaged in both is only a small part of the picture. By way of example, I note that the Second Facility letter contains a detailed passage that anticipates changes to the capital adequacy rules affecting the Bank (paragraph 7). Given its timing, it is highly unlikely that the First Facility letter contained such a provision.
39. Moreover, even the Bank appears to have proceeded on the basis that it needed to take a fresh guarantee in respect of the Second Facility Letter. Mr McWilliams sought to argue that the Second Guarantee was merely an 'acknowledgement' or 'confirmation' of the First Guarantee, but this is simply unsustainable in the light of (a) the clear words of warning set out in the Second Guarantee itself, which would be entirely otiose if the guarantors were already considered bound (b) the present tense wording used in the Second Guarantee ('…we are guaranteeing' rather than 'we have guaranteed') (c) the lack of any express reference to the First Guarantee and (d) the nature of the obligation created by the Second Guarantee (a 'see to it' obligation; see by way of analogy Octagon Assets v Remblance [2010] Bus LR 119 at 122), which is entirely different to the obligations created by the First Guarantee. I am told that the Second Guarantee was not assigned to the Respondent.
40. For all of these reasons, in my judgment the Applicant has raised a strongly arguable case that the Second Facility was not within the purview of the First Guarantee. That of itself is a free standing ground for setting aside the demand.
41. I do not, however, base my decision to set aside this demand on these two grounds alone.

(3) Limitation

42. On the evidence before me, the Bank's cause of action against Danum accrued on 31 March 2008, when Danum failed to repay on the due date. I note that this is also how it is put in the statutory demand itself. The relevant law in Ireland is the same as in the UK on this issue; a simple contract becomes statute barred six years after the cause of action accrued. There is no persuasive evidence before me to suggest that any of the exceptions to the usual six year rule, whether under Irish or English law, apply here. The Respondent sought to suggest that a letter from NALM to the Applicant dated 27 May 2014 was evidence of ongoing negotiations, but it clearly was not. Indeed the letter itself was sent more than six years after the cause of action accrued. It would appear, therefore, that the Bank's cause of action against Danum in respect of the Second Facility is now statute barred.
43. It was common ground that Clause 2 of the First Guarantee gave rise to a 'conditional payment obligation', that is to say, adopting the language of Patten LJ in McGuinness v Norwich and Peterborough Building Society [2012] 2 All ER (Comm) 265 (at p270), a promise by the guarantor to pay the instalments of principal and interest which fall due if the principal debtor should fail to make those payments.
44. On behalf of the Applicant, Mr Curl submitted that for there to be any sum due under the conditional payment obligation appearing at Clause 2 of the First Guarantee, Danum would first have to owe the Bank (or by assignment, the Respondent) some money in excess of the bankruptcy minimum. He further submitted that the Applicant can rely on all the defences available to Danum as principal obligor where his obligation is a secondary one. It follows, he argued, that any obligation which the Applicant may have had under Clause 2 of the First Guarantee has fallen away.
45. On behalf of the Respondent, Mr McWilliams sought to argue that the Applicant's obligations under Clause 2 have survived.
46. Clearly, the mere fact (if such it be) that the First Guarantee was executed as a deed would not of itself ensure the survival of obligations under Clause 2. The Applicant disputes the contention that the First Guarantee was executed as a deed, but even assuming, for the purposes of this application only, that it was so executed, any obligation arising under Clause 2 is a secondary obligation. As Mr Curl rightly submits, the Applicant can rely on all the defences available to Danum as principal obligor where his obligation is a secondary one – including limitation. Once the primary obligation falls away, the secondary obligation falls with it. The branch falls with the tree.
47. Mr McWilliams sought to argue that as the Applicant's obligation under Clause 2 of the First Guarantee was expressed as an obligation to 'pay on demand', for limitation purposes, time only ran from the date of demand (2016) and not the date on which the Bank's cause of action accrued against Danum (31 March 2008). I do not accept this submission: see generally TS & S Global v Fithian-Franks [2008] 1 BCLC 277. In my judgment, time ran from 31 March 2008.
48. Similar reasoning applies to the part of Clause 5 quoted at paragraph 12 of this judgment and referred to as 'the red passage.' Again, the red passage gives rise to a 'conditional payment obligation', adopting the language of Patten LJ in McGuinness v Norwich and Peterborough Building Society [2012] 2 All ER (Comm) 265 (at p270).
49. For the reasons indicated, any rights which the Respondent may otherwise have had to enforce the Applicant's obligations under Clause 2 of the First Guarantee and under the red passage (quoted at para 12 above) of Clause 5 of the First Guarantee, appear now to be statute barred. Moreover, even if I am wrong in that conclusion, for the purposes of this application, it suffices for me to state that the Applicant has demonstrated a strongly arguable case to that effect.

(4) Liquidated Sum

50. I turn next to a further argument raised by the Applicant in relation to the remaining passage of Clause 5 of the First Guarantee, quoted at paragraph 13 of this judgment ('the green passage'). On behalf of the Applicant, Mr Curl submits that the green passage gives rise to an 'indemnity' obligation, adopting the language of Patten LJ in McGuinness v Norwich and Peterborough Building Society [2012] 2 All ER (Comm) 265 (at p270).
51. As confirmed by Patten LJ in McGuinness (at p270), 'it is well established that an indemnity is enforceable by way of action for unliquidated damages….'. Absent agreed machinery for reducing any liability arising from an indemnity to a liquidated sum (and none exists in this case), an indemnity obligation does not ordinarily give rise to a liquidated debt capable of grounding a bankruptcy petition. If the debt claimed by a statutory demand cannot support a petition, Mr Curl submits, the statutory demand should be set aside.
52. On behalf of the Respondent, Mr McWilliams submitted that the green passage gave rise not to an indemnity obligation, but rather, a 'concurrent liability' with the principal debtor for what was due under the contract of loan, again adopting the language of McGuinness.
53. Whilst it is entirely understandable that the Respondent should wish to argue for a concurrent liability, it is in my judgment clear from the terms of the First Guarantee that the green passage gives rise, not to a concurrent liability, but rather an indemnity obligation. Indeed, the First Guarantee, a professionally drawn document, is even headed 'Personal Guarantee and Indemnity' and the same phrase is used in numerous clauses throughout the document. Whilst such headers and descriptors are not themselves decisive, the use of the phrase 'on a full indemnity basis' in the green passage is in my judgment significant. As Mr Curl rightly submitted, the use of the word 'indemnity' implies a loss; if there is no loss, there is nothing in respect of which the lender can be indemnified. If a concurrent liability was intended, one could simply make the party under the guarantee a joint obligor in the facility letter. The concept of 'indemnifying' is antithetical to concurrent liability.
54. The inclusion of the phrase 'as principal debtor' does not detract from that analysis. As Mr Curl observed, 'All indemnities are principal obligations. But not all principal obligations are indemnities.'
55. Overall, I am satisfied that the green passage gives rise to an indemnity obligation. Absent agreed machinery for reducing any liability arising from that obligation to a liquidated sum (and none exists in this case), it does not give rise to a liquidated debt capable of grounding a bankruptcy petition. This (taken together with the limitation issues affecting Clause 2 and the red passage of Clause 5 addressed in paragraphs 42 to 49 of this judgment) is a further ground for setting aside the demand.

Additional Arguments

56. In the light of my earlier conclusions, it is strictly unnecessary for me to address all of the other arguments run at the hearing. In the interests of brevity, therefore, I shall confine myself to noting the lack of any proper quantum evidence of the sum claimed to be due from Danum, the lack of any contractual certification of the alleged debt, and the Respondent's failure readily and timeously to disclose much of the relevant contractual material without adequate explanation. These, in my judgment, are further aggravating factors in a case which was plainly unsuitable for a summary bankruptcy procedure.

Conclusions

57. For all of these reasons, I shall set aside the demand.

Registrar Barber

11 September 2017