Lender’s right to withhold consent to disposals
The High Court has considered whether a bank was subject to an implied term in a facility agreement to act in good faith when exercising discretion as to whether to consent to disposals of hotels over which it had security. The borrower argued that had the bank agreed to such disposals it could have avoided a subsequent sale of the assets at a time when hotel values were historically low.
The facility agreement permitted disposals made with the prior written approval of the bank. The borrower argued that the bank’s discretion to permit disposals was subject to an implied term which was necessary to give business efficacy to the contract and/ or fell to be implied as a matter of law, that the bank would: (i) act in good faith and not arbitrarily or capriciously in exercising that discretion, including exercising its discretion consistently with its contractual purpose (a Braganza duty); (ii) would take into account all relevant considerations and not take into account any irrelevant considerations; and (iii) would not use the discretion for an improper purpose.
The judge said that:
- As a matter of construction, the facility agreement did not confer on the bank an absolute right to refuse its consent, and therefore a Braganza-type term would not contradict the express terms of the agreement. No reasonable person with all the background knowledge of the parties could have thought that the bank was entitled simply to refuse to consider a request from the borrower to make a disposal or refuse it for reasons unconnected with its commercial best interests. Had that been the parties’ intention then there would have been no purpose in inserting the provision concerning permission, because it is always open to a party to a contract to request a variation to it.
- It was necessary to imply such a term in the facility agreement. The parties had expressly agreed that the bank could agree a change in the security, and that implied that the borrower was entitled to seek such a change. In considering such a request, the bank was free to act in what it perceived to be its own best interests and was not obliged to balance its interests against those of the borrower, or do anything other than exercise its own judgement, in arriving at a conclusion. However, neither party could have intended that the bank would be entitled to refuse consent for a reason or reasons unconnected with what it perceived to be its own commercial best interests or to refuse consent when no reasonable entity in the position of the bank could have refused consent.
- If lenders were concerned about the implication of such a term, they could take steps to ensure that their lending agreements were drafted so as to avoid this, for example, omitting to permit disposals with the prior written approval of the lender and leaving it to the borrower to seek a contractual waiver or variation.
The bank also argued that the claim in respect of one of the hotels should fail because it was outside the six-year limitation period applicable to simple contracts. The borrower argued that this was wrong because the facility agreement had been executed by it as a deed and should therefore be subject to a 12-year limitation period, even though the bank did not execute the agreement as a deed.
The judge took the view that section 1(2) of the Law of Property (Miscellaneous Provisions) Act 1989 (LPMPA) requires that an instrument makes it clear on its face that it is intended to be a deed by all the parties to it, not just those parties entering into it as a deed. The testimonium clause (the wording preceding the execution blocks) stated that the agreement was “entered into on the date stated at the beginning of this [Agreement] and executed as a deed by the Parent, the Original Borrowers and the Original Guarantors and is intended to be and is delivered by them as a deed on the date specified above.” It did not state that the bank (in its various capacities) intended to execute the document as a deed. The judge said that the document did not make clear on its face that it was intended to be a deed by all the parties to it, and therefore did not take effect as a deed.
Although these comments did not form part of the judge’s decision and are therefore not binding for the purposes of future decisions, they are contrary to other views, including those expressed by the Law Commission and academic commentary (as noted in the case), and may cause some concern.
What are the key takeaway points?
- Lenders should bear in mind that where an action is permitted in finance documents “with the prior written approval of” the lender (or similar), following this case it would appear that the addition of such wording means that they may not have an unqualified right to refuse such approval, and instead may only refuse to consent for reasons connected with their commercial best interests. As a result, lenders may choose to omit such wording in the future.
- Where a document is intended to take effect as a deed but will not be executed as a deed by all parties, lenders may want to include wording making clear that all parties intend the document to be a deed notwithstanding that not all parties execute it as a deed, and to ensure that the wording in the testimonium clause does not cut across such a general interpretative provision.
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Execution of legal assignments by attorneys
The Financial Law Committee (FLC) of the City of London Law Society (CLLS) has published a note on the execution of a legal assignment under section 136 Law of Property Act 1925 (LPA 1925) by attorneys on behalf of English and overseas companies and English LLPs.
The note provides some helpful clarification following the decision in Frischmann v Vaxeal Holdings SA [2023] EWHC 2698 (Ch), where it was held that an assignment signed by the assignor's attorney did not satisfy the requirements of section 136.
Section 136 requires, amongst other things, that a legal assignment must be “by writing under the hand of the assignor”. In Frischmann, it was held that the execution of an assignment of loans and a guarantee by an attorney on behalf of an individual could not be “under the hand of” the individual. Therefore, the assignment took effect as an equitable, rather than legal assignment. Section 7(1) of the Powers of Attorney Act 1971 (PoAA 1971) provides for the execution of a document by an attorney to be as effective as if it had been duly executed by the donor personally; however, the judge said that the PoAA 1971 should not be treated as rewriting the LPA 1925 in the absence of any express reference to the earlier statute.
The Frischmann decision raised concerns from a lender perspective that if the same reasoning from that case was applied to the execution of assignments by companies, assignments by way of security executed by attorneys on behalf of companies that had been thought to be legal assignments might instead be found to be equitable. A legal assignment is a more secure and comprehensive form of security for a lender than an equitable assignment. For example, a legal assignment of debts allows the lender to sue the debtor in its own right without involving the borrower.
In the note, the FLC:
- notes that Frischmann concerned assignment by individuals and there is no case law considering the execution of legal assignments by legal entities; and
- considers that the execution by an English company or LLP acting by its attorney will meet the section 136 requirement for a legal assignment to be in writing under the hand of the assignor.
In support of that opinion, the FLC identifies several factors:
- unlike an individual, a company cannot write its own name and has an implied power to act by agents. This is reflected in the execution provisions of the Companies Act 2006, and the case of Re Diptford Parish Lands [1934] Ch 151, in which the judge did not consider it correct that a requirement under section 11 of the Charitable Trusts Act 1869 for a petition to appeal to be under the hand of the appellant meant that a Parochial Parish Council could not sign by its agent and queried how such a body could sign under its own hand;
- the LPA 1925 contains specific provisions for execution by corporations, providing generally in sections 74(3) and (4) for an attorney of a corporate donor to execute instruments including assignments;
- under section 47(2) Companies Act 2006, a document executed by a company's attorney appointed under section 47(1) has effect as if executed by the company. While section 47(2) performs the same function for companies as section 7(1) of the PoAA 1971 for individuals, the background to section 47(2), and the history of how a company could sign a document, are distinct; and
- the Financial Collateral Arrangements (No 2) Regulations 2003 recognise that a legal assignment may be executed on behalf of a company.
The FLC also considers that an attorney of an overseas company could sign a legal assignment if that mode of execution is permitted by the laws of the territory in which that company is incorporated.
What are the key takeaway points?
- The FLC note supports the view that English companies and LLPs can validly execute a legal assignment acting by an attorney.
- Lenders should be aware that following Frischmann, it would appear that an individual cannot validly execute a legal assignment acting by an attorney.
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