“74. Redactions to the body of the Deed, however, are more problematical. I have much sympathy with the general thrust of the submission, which I take to be that where the court is called upon to resolve a question of construction of a contractual document, the document must in all normal circumstances be placed before the court as a whole, and it is not for the parties or their solicitors to make a pre-emptive judgment about what parts of the document are irrelevant. Sometimes, as with the details of third party transactions contained in the Schedule to the Deed of Assignment, it may be obvious that they can properly be omitted or blanked out; but even then a clear explanation must in my view be provided of the nature and extent of the omissions, and the reasons for making them. In general, irrelevance alone cannot be a proper ground for redaction of part of a document which the court is asked to construe, and there must be some additional feature (such as protection of privacy or confidentiality, but no doubt there are others too) which can be relied upon to justify the redaction. 75. Considerations of confidentiality, by contrast, give rise to very different considerations. Seldom, if ever, can it be appropriate for one party unilaterally to redact provisions in a contractual document which the court is being asked to construe, merely on grounds of confidentiality. If it is obvious that the provisions in question would on any reasonable view be completely irrelevant to the issue of construction, and if the reasons for taking that view can be clearly and fully articulated by the solicitor acting for the party seeking the redaction, I am inclined to accept that the redaction may be defensible. But the reason why it would be defensible is that the provisions are clearly irrelevant, not that they are confidential. Confidentiality alone cannot be a good reason for redacting an otherwise relevant provision in a contractual document which the court has to construe, and there are other ways in which problems of that nature can be addressed. I have already given the example of a confidentiality ring. Another solution, if the parties all agree, could be for the judge alone to see the document in its unredacted form.”
“77. …This is not a case where Promontoria Chestnut has to prove its title to sue Mr Hancock, and even if it were, Promontoria Chestnut would only need to rely on the Deed of Assignment in order to establish the absolute assignment of the relevant debts to it by the Bank. It is only in that limited sense that a question of construction of the Deed of Assignment arises. Furthermore, since Mr Hancock was not himself a party to the Deed, or to the SPA which preceded it, the question relates to a transaction between third parties rather than to an agreement under which Mr Hancock assumed rights and obligations of his own. 78. Viewed in that context, the redactions to the Deed of Assignment seem to me to fade into relative insignificance. For the reasons which I have already given, the unredacted parts of the Deed are in my judgment sufficient to show that title to Mr Hancock's debts was indeed assigned by the Bank to Promontoria Chestnut. In a case of the present type, it would therefore be wrong to lay down any overriding principle based on the redactions to the Deed. I have little doubt that the redactions were far more extensive than they needed to be, and Mr Cooper's evidence would have been of greater assistance to the court if he had condescended to greater detail about the specific reasons for particular redactions. He could, for example, have explained, without revealing any confidential information, why the second limb of the definition of “Specified Loan Asset” was redacted, and why it had no impact on the generality of the first limb of the definition. Similarly, he could, and in my view should, have provided a general explanation of the contents of clauses 3 to 6 of the Deed, explaining why they were considered confidential, and why they were on any view irrelevant to the question of title to Mr Hancock's loans. Furthermore, Mr Cooper should clearly in my view have disclosed the relevant parts of the SPA which were incorporated by reference. In a different context, these criticisms, and others of a similar nature, might arguably have precluded Promontoria Chestnut from placing reliance on the Deed of Assignment in the redacted form which we have seen. In the present context, however, I am satisfied that the redactions have not caused any injustice to Mr Hancock, and the doubts which he has sought to raise about Promontoria Chestnut's title to demand payment from him are unfounded.”
“89. These submissions have a superficial attraction, but as I have already indicated I can only accept them to a very limited extent. There is in my judgment a clear distinction between the rules which apply when a party is giving disclosure of documents, in the ordinary course of litigation, and the process of construction which a court has to embark upon when considering the meaning or legal effect of a document. Since the process of construction requires the document as a whole to be considered, the starting point must always be that the entire document should be made available to the court, and any redactions to it on grounds of irrelevance should either be forbidden or, if permitted at all, convincingly justified and kept to an absolute minimum. Except in the clearest of cases, the question of relevance to the process of construction is one that the court should be left to decide for itself. Certification by a solicitor provides an important safeguard, but where the question is one of the correct interpretation of a written document, it is not normally appropriate for a solicitor, however experienced, to pre-judge which parts of the document the court may find useful in performing its task, except perhaps in relation to material that on no reasonable view could have any bearing on the exercise. In all normal cases, the entire document should be placed before the court; and if, exceptionally, any redactions are made, they should be fully explained and justified by the party making the redaction, with sufficient particularity for the court to be able to rule on the need for the redaction if it is challenged. 90. I have so far spoken only of redaction for irrelevance. Redaction on the grounds of confidentiality alone is a very different matter, and as at present advised I find it hard to see how it could ever be justified where the confidential material forms a relevant part of the document which the court is asked to construe. As I have already said, there are other ways of dealing with problems of confidentiality, such as the use of confidentiality rings which have become a familiar feature of competition and intellectual property cases. 91. In many contexts, application of the criteria which I have outlined above might well (I say no more) lead to the conclusion that redactions similar to those in the present case were so extensive, and of such a nature, that the court could not safely resolve an issue of construction of the document in question, even if the redactions were accompanied by explanatory evidence and assurances of the kind given by Mr Cooper. In the particular context of the present case, however, I have concluded, for the reasons already given, that the redactions cannot, without more, enable Mr Hancock to make good his challenge to the Statutory Demand. As so often, context is everything, and sweeping generalisations are to be avoided. I will therefore content myself with saying that, in most circumstances, it is unlikely to be helpful to draw an analogy between the established principles which apply in this jurisdiction to the redaction of documents on disclosure in civil proceedings, on the one hand, and the particular problems posed by redaction of a document which the court is being asked to construe, on the other hand.”
“136. Legal assignments of things in action. (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice— (a) the legal right to such debt or thing in action; (b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same without the concurrence of the assignor: Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice— (a) that the assignment is disputed by the assignor or any person claiming under him; or (b) of any other opposing or conflicting claims to such debt or thing in action; he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925.”
“After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that it is valid, and that the assignee can give him a good discharge.”
“… we have sold your facility/facilities (together with all related rights and benefits, including, without limitation, guarantees and security) to Promontoria Holding 170 B. V. an affiliate of Cerberus Global Investors and we will be transferring our rights to Promontoria Holding 170 B. V. in due course. We are expecting the transfer to take place on16/09/2016 and we will write to you again at the point of transfer to confirm this.”
“This letter constitutes notice to you of the Transfer and that, from the Transfer Date, all payments, amounts and obligations owing by you or that may become due or owing in respect of the Loan Assets will be owed to Promontoria. Please note that, in respect of the Loan Assets, the balance transferred to Promontoria will include the rights to all outstanding amounts… … A letter will be sent to you shortly from Engage Commercial, which is a trading name of Pepper UK Limited. Engage Commercial will be servicing the Loan Assets on behalf of Promontoria and will confirm to you how to make loan payments.”
“The sections of the Deed of Assignment that have been redacted contain commercially sensitive material that have no bearing upon the existence or effectiveness of the Deed of Assignment and/or any rights or obligations arising thereunder and the Claimant has a legitimate expectation that the confidentiality of such parts of the Deed of Assignment shall be protected in these – and other – proceedings where such information is irrelevant to [the] claim and where such material in no way prevents the just disposal of proceedings.”
“In this case an explanation has been provided, at first instance in the pleadings and then in Mr Breen’s evidence before me… Whilst I think it likely that the Claimant has given little thought to this issue before Counsel became involved at trial, it could (and in my view should) have served a statement from its solicitor dedicated to this topic to avoid any potential evidential pitfalls. Nonetheless I am satisfied that on the available evidence a satisfactory explanation of commercial confidentiality for the redactions has been provided. I will therefore permit the Claimant to rely on the copy redacted Assignment Deed which in my judgment is both a valid and enforceable agreement between the Bank and the Claimant.”
“All of these issues raised by counsel for the plaintiff would be properly and validly raised if the plaintiff were a party to the deeds with an entitlement to challenge their efficacy, but he is not a party to the deeds. He is a third party whose only entitlement is to be shown that the stranger knocking on his door claiming possession has in fact acquired the interests of [the bank]…”
“In a careful and thoughtful judgment, the judge set out the reasoning which led him to that conclusion… I would, however, draw attention to a striking feature of the judge's process of reasoning. He began by considering grounds 2 and 3 together, and rejected them on the basis that the judge had clearly been entitled, on the evidence adduced before him, to reach the conclusion which he did: see the judgment at [33] to [36]. That, one might have thought, would have been the end of the matter, but the judge nevertheless concluded that the appeal should succeed on ground 1, having regard to the evidence that could have been, but was not, adduced at the trial by Promontoria Oak, including in particular the unredacted [Oak] Assignment. In this connection, the judge considered that the recorder's decision to permit Promontoria Oak to rely on the redacted deed "was so flawed that it must be set aside": see [52], and the reasons for that conclusion set out at [54] to [75].”
“It is the function of a judge to decide the facts of a case on the basis of the admissible evidence before him or her. A judge cannot abdicate that responsibility by declining to decide an issue of fact because, for example, the evidence is incomplete or less than perfect. Most trials are conducted and determined on the basis of less than perfect – often substantially incomplete – evidence.”
“The substance of Grounds 2 and 3 involves the question whether, in light of the evidence that was adduced before him, and ignoring the fact that further evidence might have been adduced, the Judge was entitled to conclude, as he did, that the Bank's rights against the Emanuels had been assigned to Promontoria Oak. That was a question to be decided on the balance of probabilities, the burden resting on Promontoria Oak as the party asserting the right.” (Original emphasis). This statement is in our view more problematical, because of its emphasis on further evidence that “might have been adduced”
“In this case, although I have three criticisms of the [Recorder’s] approach (which, for completeness I describe in paragraph 35 below), they are altogether insufficient for me to conclude that [he] erred in his conclusion that – on the basis of the evidence before him – Promontoria Oak had shown good title. It seems to me that the [Recorder] having regard to the evidence before him, and disregarding the evidence that might have been before him (which I consider to be the substance of Ground 1), was quite entitled to reach the conclusion that he did. He had regard to the evidence of the Bank, Promontoria and (indeed) the Emanuels themselves that the assignment appeared to be accepted by all to be binding and effective. He carefully considered the terms of the assignment, and he considered the documentary context in which the assignment occurred. In my judgment, [he] was entitled to reach the conclusion he did, on the evidence that was before him.”
“Generally speaking, the issue of a party’s failure to produce an original ought to be raised and resolved well before trial”
“Whilst I accept, of course, that the rules on disclosure are there to be followed, and that Promontoria Oak can be criticised for not following these rules, I do not accept that the Emanuels are not to be criticised also. They had, at their disposal, tools for resolving the issue of Promontoria Oak's defective disclosure and they (culpably) failed to avail themselves of those tools.”
“Assignation agreement dated5 June 2015 between National Australia Bank Limited and Clydesdale Bank Plc (the “Assignors”) and Promontoria (Henrico) Limited (the “Assignee”) (the “Assignment Agreement”)”
“1.1 In accordance with the terms of the Overdraft Agreement and pursuant to the terms of the Assignment Agreement, the Assignor transferred all its rights under the Overdraft Agreement and certain additional finance documents (including associated guarantee and security documentation) to the Assignee.”
“it does not seem to me that this would create any particular difficulty; no doubt the assignment would only operate in law on the date it was executed, but the “with effect from” provisions would mean that the parties to the assignment would be obliged to treat it as between themselves as having taken effect on the earlier date, and account to each other for payments and receipts accordingly.”
“The Transferors have received from the Transferee for the property the consideration more particularly set out in the sale and purchase agreement dated15 December 2014 between National Australia Bank Limited (1), Clydesdale Bank PLC (2) and Promontoria Holding 93 B.V. (3) relating to a portfolio of loans referred to as the “Project Henrico” portfolio (which has been novated to the Transferee under a Deed of Novation dated21 April 2015 between National Australia Bank Limited (1), Clydesdale Bank PLC (2), Promontoria Holding 93 B.V. (3) and Promontoria (Henrico) Limited (4).)”
“I ask the Court to note that [Bibby] has failed to produce an unredacted copy of the factoring agreement on which it relies purportedly assigning WER’s debt to [Bibby]… In the absence of transparency on what is plainly a critical issue – especially in circumstances where there is a “competing” factoring agreement between WER (assignor) and Bibby Factors Northwest Ltd. and Bibby Financial Services Ltd. (assignees) – neither the [Thompson companies] nor the Court can be confident that (i) the Court is being given the full picture (ii) the terms [Bibby] has redacted are not relevant to the unredacted terms in the factoring agreement on which [Bibby] relies.”
“The redactions to the Factoring Agreement…are entirely appropriate in my judgment. This is a case in which [Bibby] and WER are in agreement as to the purpose and effect of the Factoring Agreement and the Court requires no further document to find that a valid assignment of the debts has taken place and that notice of assignment dated31 August 2018 has been provided…in appropriate form.”
“41. In the present case, District Judge Phillips needed to decide whether, on the evidence, it had been proved that the debts which arose under the supplier’s invoice had been assigned to [Bibby]. In the light of Hancock, the redacted agreement supported by the solicitor’s confirmation that this document has the effect of assigning the claimed debts was sufficient proof that it did and he was accordingly, entitled to come to that conclusion. 42. In addition, he added the evidence of Mr Stuart Smith from the supplier who said that the right to claim under the invoices had been assigned to [Bibby]. Mr Tinnion suggests that the judge had delegated the task of construing the agreement to [Bibby] and WER. He did nothing of the sort. He merely pointed out that both assignor and assignee agreed that the assignment had taken place. 43. From the point of view of the debtor, the importance of knowing whether the assignment is valid is that it must not be at risk of facing claims from both supplier and [Bibby]. i.e. put at risk of paying one and then finding the other claimant has title to the debt. In referring to [Bibby] and WER being in agreement, all the judge was pointing out was that, as between the two of them, there was no dispute but that [Bibby] was entitled to the debt. In those circumstances, the validity of the assignment was not in dispute as between the parties thereto and the risk of the [Thompson companies] facing claims from both did not arise. In fact, evidence from the assignor that the debt was assigned to the assignee is further relevant extrinsic evidence that the Factoring Agreement has that effect. 44. There is some support for this proposition in Hancock. Henderson LJ considered, at paragraph 68, that the fact that the bank had never disputed the validity of the [assignment] and Mr Hancock had never asked the bank to confirm if it had any valid claims [against him] gave his assertion that the debt was disputed [on substantial grounds] a hollow ring to it Words in square brackets have been changed or added to reflect more accurately what was said in paragraph 68 of Hancock. . 45. As there was sufficient evidence upon which the district judge could conclude that the debt has been assigned, and as there is no principle that the debtor is entitled to a copy of the unredacted assignment on an application for summary judgment and the evidence does point to the assignment being valid, Ground 1 of the appeal must fail.”