The Co-Operative Bank Plc v Desmond Victor John Phillips [2017] EWHC 1320 (Ch)

Case No A30BS280; appeal 7BS0005C[2017] EWHC 1320 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BRISTOL DISTRICT REGISTRY, Bristol Civil Justice Centre, 2 Redcliff Street, Bristol, BS1 6GRDate 02/06/2017
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
The Co-Operative Bank plcAppellantDesmond Victor John PhillipsRespondent
Lisa Lacob (instructed by TLT LLP) for AppellantPaul French (instructed by Michelmores LLP) for RespondentHearing Hearing date: 17 May 2017
JudgmentHHJ Paul Matthews :Introduction
[1]This is an appeal brought by way of an appellant’s notice, filed on 3 February 2017 by the claimant, against part of an order made on 13 January 2017 (though actually dated by the court 24 February 2017) by District Judge Watkins in the Bristol District Registry of the High Court. The order of the district judge was made after delivering a reserved judgment on an application by notice dated 4 June 2015, in which the claimant sought summary judgment against the defendant in respect of the defendant’s (amended) counterclaim against the claimant. I gave permission to appeal to the claimant on the 28 February 2017. The appeal was heard on 17 May 2017, when Lisa Lacob appeared for the claimant/appellant and Paul French appeared for the defendant/respondent.[2]The district judge gave summary judgment against the defendant in respect of the defendant’s counterclaims “for breach of contract, negligence, negligent misstatement, misrepresentation and breach of statutory duty” (see paragraph 1 of the order). There is no appeal against that part of the order. Paragraph 2 provided:
“Directions be given in relation to the defendant’s contention that the effect of the IVA is that any claims which the claimant has against the defendant are time-barred.”
The reference to an “IVA” is to an individual voluntary arrangement entered into between the defendant and his creditors in early 2010. I deal with it in more detail later on.[3]The appellant’s notice under section 5 said this:
“The claimant wishes to appeal against the decision in paragraphs 79 and 80 of the district judge’s judgment”
. The grounds of appeal at paragraph 1 made the same point.[4]The paragraphs immediately before paragraphs 79 and 80 in his judgment explain why the district judge had decided to give summary judgment to the claimant on the defendant’s counterclaims, as subsequently set out in paragraph 1 of the order, referred to above. Paragraphs 79 and 80 deal with the effect of the IVA referred to above with his creditors on the claimant’s claims against the defendant, arising out of property transactions between the parties. They read as follows:
“79. I turn to the position of Mr Phillips on the effect of the IVA, and the effect that this has had on the banks claims. In my judgment, the position is far less clear. I am not able to say that Mr Phillips has no reasonable prospects of success in this part of his claim, and therefore I declined to grant the bank summary judgment on that part of Mr Phillips case. 80. Directions on how to resolve these remaining issues will be considered when this matter is listed for further directions.”
[5]At the time when the appellant’s notice was filed, the order made on 13 January had not yet been drawn up. So it is understandable that the appellant’s notice referred instead to the judgment. But it is trite law that appeals are brought against decisions (ie orders), and not against judgments (ie reasons): Compagnie Noga d’Importation et d’Exportation SA v Australia and New Zealand Banking Group Ltd [2002] EWCA Civ 1143, [2003] 1 WLR 307; Morina v Secretary of State for Work and Pensions [2007] EWCA Civ 749, [2007] 1 WLR 3033, [6]; Lawson v Aylesford School Governing Body [2014] EWCA Civ 491, [16]. At the hearing of this appeal, it was accepted by Ms Lacob that the appeal should be and was an appeal against paragraph 2 of the order, recited above. I therefore proceed on that basis.

Procedural history

[6]The complex procedural history of this case is unfortunately important. The case began as a claim for possession of Vole Farm and Chestnut Farm, two properties owned by the defendant. It was issued by the claimant against the defendant on 19 April 2013. This claim was based on legal charges granted by the defendant over the two properties to the claimant as part of the claimant’s security for the borrowing of the defendant’s company, Country Capital plc. It is important to notice that, although the defendant had entered into a personal guarantee of the company’s borrowings, as well as having granted legal charges over his properties, the claim by the bank was not one made in respect of any personal liability of the defendant to the claimant. It was simply a claim for possession of the security.[7]On 17 June 2013, the defendant filed a defence and part 20 claim (which was in fact a pure counterclaim against the claimant). On 5 July 2013, the claimant filed a reply and defence to the part 20 claim. On 4 December 2013, the defendant filed an amended defence and part 20 claim. By the defence, the defendant denied the claimant’s claim to possession of the two properties. By the amended part 20 claim, the defendant claimed damages from the claimant, on various legal grounds. In summary, these were that the claimant advised the defendant in 2007 to provide security for loan facilities provided by the claimant to the company, and that the claimant failed to advise the defendant of the risks of this lending. The defendant also claimed damages for breach of statutory duty under section 150 of the Financial Services and Markets Act 2000. Finally (the financial crisis of 2008 having by then supervened), the defendant claimed damages for breach of various duties in having failed to provide further facilities to the defendant after 2008, to support him through his financial difficulties.[8]The original defence and part 20 claim (in June 2013) had included an allegation that the claimant was not entitled to pursue the claims for possession, because of an agreement alleged to have been made in November 2009, and also because of the terms of an IVA dated 19 January 2010 (see paragraph 16). However, in the amended defence and part 20 claim (in December 2013), this was replaced by an allegation that the possession proceedings were in effect an abuse of process (see new paragraphs 16 – 17). So the allegation concerning the legal effect of the IVA on the possession claim disappeared from the proceedings at that stage.[9]However, the allegations that the IVA was proposed and was approved were still pleaded (paragraph 14). Paragraph 61 of and the prayer to the part 20 claim still sought a declaration that, by reason of the IVA, the defendant was discharged from any further obligations to the claimant under the mortgages and the personal guarantee. The claimant filed and served its amended reply and defence to the part 20 claim on 9 May 2014. Amongst other things, it denies paragraph 14 of the amended defence (approval of the IVA), and further denies that the defendant is entitled to any relief under the part 20 claim. No further pleadings have been filed or served since. Accordingly, pleadings were formally closed at that stage, in May 2014.[10]Importantly, the claimant’s claim for possession of the two properties was discontinued on 18 June 2014. It is not clear why. (The defendant says that it was because the claimant had been ordered to give disclosure, and it preferred to give up its claim rather than give that disclosure. But there was no evidence of any of this, and I make no finding on the point.) Thereafter, the only live claims in these proceedings were the defendant’s counterclaims, referred to above. On 4 June 2015, the claimant issued an application for reverse summary judgment against the defendant in respect of the counterclaims, alternatively an order striking them out.[11]However, on 7 October 2015, the defendant made a further application against the claimant for disclosure of documents related to its lending and security decisions. On 30 October 2015 the defendant filed a witness statement alleging for the first time that the claimant by its relationship manager had represented to the defendant that the charges given by the defendant were merely “window dressing” and would not be relied upon by the claimant. Further, it was alleged that the defendant had relied on that representation. In addition, the defendant also alleged that the claimant knew of the impending banking crisis when it provided loan facilities to the company in 2007.

The hearings below

[12]The first hearing of the claimant’s application for summary judgment was on 3 November 2015. After hearing argument, the district judge ordered that the claimant disclose its lending files, but also that any re-amended pleading and evidence in support should be filed and served in draft by 22 January 2016. It is clear that the district judge, faced with an application for summary judgment on the (amended) counterclaim, but where the defendant wished to amend that counterclaim further, did not wish to decide the summary judgment application without first seeing whether the proposed further amended counterclaim was properly arguable. And, going further, he obviously could not decide whether or not to give permission to the defendant to re-amend his statement of case until a draft of that pleading was available to be considered, and submissions were made by the claimant.[13]Disclosure was given by the claimant as ordered. On the other hand, the defendant did not file or serve any evidence or draft re-amended pleading within the time limit directed by the district judge. Instead, the defendant filed a fourth witness statement dated 17 February 2016 (and so out of time), exhibiting a draft re-amended defence and counterclaim. So far as I know, no application has ever been made for permission to rely on this witness statement out of time. But Miss Lacob did not take any point on this.[14]In the draft reamended defence and part 20 claim, the old paragraph 14, pleading the IVA proposal and approval, is still to be found. So too is the claim to a declaration in paragraph (7) of the prayer to the Part 20 claim, though now it is to be refocused on the defendant’s having “no subsisting debt” to the claimant. But the allegations that the possession proceedings were an abuse of process (paragraphs 16-17 of the amended defence and Part 20 claim) would go, consequent on the discontinuance of the possession proceedings.[15]Instead there would be new allegations to support the claim to a declaration of no subsisting debt, based on the outcome of the IVA:
“27. Following the liquidation of UKCC, there were attempts to vary the terms of the IVA. None of those resulted in an agreed variation. Accordingly, the IVA continued until the autumn of 2015 when the supervisors purported to cease to act in reliance upon 5.34(1) of the Insolvency Rules 1986. 28. Rule 5.34(1) is a procedural rule and not the basis for terminating or ending an IVA. 29. The Supervisors did not assert that there were breaches on the part of Mr Phillips in relation to his IVA. The Supervisors did not invoke Part XI and clause 71 of the IVA contract relating to breaches on the part of the debtor. The Supervisors treated the IVA as ceasing by reason of effluxion of time. The Supervisors vacated office accordingly. 30. The creditors in the IVA were bound by the compromise, in accordance with section 260(2A) of the Insolvency Act 1986. On the sixth anniversary of the IVA, which passed on 19 January 2016, the debts compromised by the IVA became time-barred in accordance with the provisions of the Limitation Act 1980. Accordingly, the Bank’s claim against Mr Phillips in relation to the debt referred to in paragraph 14 above has become statute barred.”
The reference to “the debt referred to in paragraph 14 above” is a reference to the liability under his personal guarantee to the claimant bank, in a total sum of £3,241,000.34, together with interest.[16]The second hearing of the claimant’s application notice dated 4 June 2015 took place on 1 September 2016. I was not told why it took so long for the resumed hearing to be relisted, but I expect that this was because of the usual pressure on the district judges’ lists. It is however unsatisfactory to all parties, because it is hard for anyone (not least the judge) to pick up the threads after a long interval. There is a clear danger of injustice to the parties, not simply because of delay and extra cost, but also because it is harder for the judge to reach the right answer if his thought processes have been interrupted for a long time. The hearing ought to have been expedited, and, if there were any difficulty in achieving that, the matter should have been referred to the Chancery Judge. I express the hope that if, in future, this problem were to arise again in a Bristol chancery case, the matter would be referred to me at an early stage.[17]At the hearing on 1 September 2016, there were arguments put forward from both claimant and defendant on the scope of the issues then arising before the district judge. It was clear that, because of the discontinuance on 18 June 2014, the claimant was no longer bringing any claims against the defendant in these proceedings. Accordingly, on the pleadings as they stood, the only issues still live before the district judge were those arising on the defendant’s counterclaim (in respect of which the claimant sought either an order to strike them out or to obtain summary judgment on them). That was the formal position.[18]In fact, late on 30 August 2016, the defendant had served a skeleton argument for the hearing on 1 September 2016, saying that the defendant no longer had “any appetite to take on a full-blown attack on the conduct of the [claimant],” and intended “to limit the scope of the part 20 claim, so as to make it more manageable and cost-effective” (paragraph 2). The claim would therefore be limited to the relief sought in paragraphs (7) to (9) of the prayer. This consisted of declarations that the defendant no longer had any debt to the claimant, that the charges were invalid and ineffective, and that the personal guarantee was no longer subsisting, alternatively that the claimant was estopped from enforcing the charges, and also injunctive relief if necessary, together with “costs and further or other relief”. The factual bases for these claims were stated to be(i) the new “window dressing” misrepresentation claim, and(ii) the expiry of the IVA, both of which were pleaded in the draft re-amended defence and part 20 claim. All the other counterclaims were in effect informally discontinued.[19]The defendant said at the hearing before the district judge that accordingly the IVA limitation defence was still in issue. The claimant’s response was that this existed only in draft form, was not a claim against the claimant, was not the subject of the summary judgment application of 4 June 2015, and was merely a defence to a counterclaim which had not yet been brought. According to the transcript of the hearing, the district judge in response to the submission of Ms Lacob indicated three times that he had the point. That does not, of course, mean that the district judge agreed with the submission, or that, even if he did, he could not change his mind thereafter. It is possible that Ms Lacob misunderstood.[20]Though the hearing was concluded on 1 September 2016, the judge’s judgment was not finally prepared until 29 December 2016 and not handed down until 13 January 2017. As the judge himself says at paragraph 81 of his judgment, this lengthy period was due to the pressure of work on the judge. What I say is not therefore in any way a criticism of him. Again, however, there is a danger of injustice if a judgment is reserved for too long, because it is not possible for the judge to recall in the same detail exactly how the arguments were put, and what his or her initial impression of them was. Transcripts and notes are helpful, but no substitute for thinking and judgment-writing time immediately after the conclusion of the hearing. I hope that in future such thinking and judgment-writing time will be allowed for as a matter of course.[21]The judgment under appeal is lengthy, running to some 81 paragraphs. The first 69 paragraphs set out the background and the issues in the case, and summarise the parties’ submissions. The judge’s analysis and conclusions are only some 10 paragraphs long. There is nothing wrong with concise decision-making. But the appearance it gives here, unfortunately, is that of a judge who has been obliged to remind himself of a great deal of the material before being able to decide, some months later. Earlier and more appropriate listing of these hearings would have gone a long way towards alleviating these problems. Again, I hope that in future any problems in obtaining timely listings in Bristol chancery cases will be referred to me.[22]In his judgment, as already indicated, the district judge not only granted summary judgment on the (informally) abandoned pleaded counterclaims, but expressly refused to contemplate the proposed amendment to plead the new misrepresentation claim (“window-dressing”) because it had no prospect of success (see [76]–[77] of his judgment). On the other hand, the district judge did not include in his summary judgment order any part of the counterclaim that depended on the effect of the expiry of the IVA. As it seems to me, he concluded that there was sufficient proposed to be pleaded to pass the summary judgment threshold, such that he could not simply reject it at this stage.[23]If this had been an ex tempore judgment, with discussion following, he would no doubt then have decided whether to give permission to the defendant to amend to put the IVA part of the counterclaim on a formal footing. The claimant would have been able to make submissions on this question, and, if the district judge had given permission, the claimant would then have had a sufficient opportunity to plead to it. But this was not an ex tempore judgment; it was reserved. And it was handed down without attendance, the parties communicating with the court by email. So in the end the district judge simply made an order that there be a directions hearing to take the matter forward. And it is that order against which the claimant seeks to appeal. There is no cross-appeal by the defendant.

The appeal

[24]Under CPR 52.11(3), “The appeal court will allow an appeal where the decision of the lower court was –(a) wrong; or(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.”[25]In its grounds of appeal, the claimant relies on both limbs of that rule. As to the latter limb, the claimant says the district judge ordered that directions should be given in respect of the limitation defence, despite the fact that the claim to which the defence purported to apply had already been discontinued. However, it says, even if the IVA limitation defence had been included in a pleading, it was wrong to order that directions be given in respect of a freestanding defence. Then, even if the IVA limitation defence had been pleaded as a counterclaim against the claimant, it was wrong to order that directions be given in respect of the claim before the defendant to that claim (in this case the claimant) had had any opportunity to plead to it.[26]Secondly, says the claimant, it was also a serious procedural irregularity for the judge to have declined to grant summary judgment on “this part” of the defendant’s claim. The claimant had not applied for summary judgment on the IVA limitation defence, as that defence had only been raised in draft form some eight months after the summary judgment application had been issued. And, once the claimant’s claims had been discontinued, there would have been no need to strike out any defence anyway.[27]As to the first limb, the claimant says that the defendant’s argument as to the effect of the IVA was not a matter to be determined on this application, and therefore the judge was not at liberty to hold that the bank’s argument had no real prospect of success. But, in any event, the claimant says that where the payment of debts is suspended under an IVA, time will not run against the creditors in relation to their claims, because the IVA will be treated as incorporating an agreement by the debtor to forego the benefit of the statute in respect of those debts as long as the IVA is in place. The claimant referred to Gee, Limitation Periods (seventh edition) para [17 – 059], Muir Hunter on Personal Insolvency, vol 1 para [3 – 143], and the decision of Mr Justice Mann in Tanner v Everitt [2004] EWHC 1130 (Ch), [2004] BPIR 1026, [74] – [75].[28]The two texts referred to found on the decision of Mr Justice Mann. In that case, two debtors (a married couple), each with an IVA, fell out with their supervisor, and they and the supervisor issued cross-claims against each other. One application on behalf of the debtors was for a declaration that the underlying debts were now statute-barred. The judge pointed out that it was difficult to see how the point could usefully arise, but he nevertheless said this:
“73. [The supervisor], through [his counsel] Mr Deacock, took it upon himself to argue the contrary. He argued that the arrangements amounted to acknowledgements, and the contributions to the arrangements were part payments. Furthermore, there was an implied agreement on the part of the debtors not to enforce their debts. 74. To hold that creditors in these circumstances are statute-barred would be a surprising and unattractive conclusion. The creditors have agreed to wait for payment, and are prevented from suing or petitioning, and it is not their fault that they have not been paid. The reason they have not sued is because they entered into an arrangement with the debtors. It offends any sense of justice that, insofar as some right to sue or petition is preserved, they should now be statute-barred so that they cannot effectively maintain claims to their money. However, I do not think that acknowledgement and part payment is what saves them in this case. The arrangements may well have been acknowledgements, but insofar as that is true that merely starts the clock running again, and since each of the arrangements was well over 6 years ago then the clock will have run down some time ago. Similarly part payments merely re-set the clock, so if, which I tend to doubt, contributions to the arrangements could be part payments, they too occurred more than 6 years ago with the result that the clock has run down. The payments to Mr Everitt for his remuneration cannot, in my view, amount to part payments of the debts. 75. The answer, in my view, lies in the third of Mr Deacock's lines of argument. Parties can agree not to rely on the statute — see Halsbury's Laws of England Vol 28 para 843 — and I do not see why such an agreement should not be binding. In O'Brien v Osborne (1852) 10 Hare 92 a debtor conveyed certain property to trustees for his creditors. He then sought to argue that the underlying debt was barred by the Statute of Limitations. Sir John Turner V-C held: “that this objection is removed by the tenor of the deed … precluding any suit against him during his life for payment of the debt otherwise than in the manner provided by the deed. It is according to the terms of the deed that no proceedings for the recovery of the debt, otherwise than out of the appropriated property, shall be taken during the life of Sir John Osborne; and the debtor or his representatives cannot, under such circumstances, afterwards set up this abstinence of suit, in pursuance of the contract, as a bar to the claim of the creditor.”
That has obvious parallels with an IVA. Under section 260(2) of the 1986 Act, the approved arrangement:
“binds every person who in accordance with the rules had notice of, and was entitled to vote at, the meeting … as if he were a party to the arrangement.”
The arrangement is therefore contractually based, with the statute providing the consent or deemed consent of the otherwise dissenting parties. It is of the essence of the arrangement that the former rights of the creditors to sue, or otherwise take action to recover their debts, are replaced by their rights to claim under the arrangement. They are prohibited from bringing an action to recover their debts. There are provisions in the 1992 modifications in this case which almost expressly have that effect. It would be a very strange state of affairs if they were prohibited from suing, and yet time was running against them so as to extinguish the debt in circumstances in which the debt might have to be enforced in the future (which is the hypothesis on which I am proceeding). It is not clear whether the basis of the decision in O'Brien v Osborne was an implied agreement not to rely on the statute, or some other policy reason which prevented time running, but whichever it was the same ought to apply to IVA's in their usual form, and certainly ought to apply to the Tanners'. For my part I prefer the contractual analysis. It is probably implicitly agreed in the IVA that the limitation period should not run so as to bar the debts while the arrangement is in force and preventing a creditor from suing.” “that this objection is removed by the tenor of the deed … precluding any suit against him during his life for payment of the debt otherwise than in the manner provided by the deed. It is according to the terms of the deed that no proceedings for the recovery of the debt, otherwise than out of the appropriated property, shall be taken during the life of Sir John Osborne; and the debtor or his representatives cannot, under such circumstances, afterwards set up this abstinence of suit, in pursuance of the contract, as a bar to the claim of the creditor.” “binds every person who in accordance with the rules had notice of, and was entitled to vote at, the meeting … as if he were a party to the arrangement.”[29]Reliance was placed on this decision by the judge in the subsequent case of Oakrock v Travelodge [2015] EWHC 30 (TCC). But there the point was conceded by counsel in the light of Tanner v Everitt, and so the later decision does not take us any further. It stands or falls with Tanner.[30]The defendant argued that, even in the original defence and part 20 claim, he had sought a declaration of non-liability to the claimant, and the purpose of the proposed re-amended defence and part 20 claim was simply to clarify and amplify that. All that the district judge was deciding by his judgment was whether this claim was one which had no real prospect of success (the summary judgment test) and therefore was one in respect of which permission to amend the statement of case should not be given.[31]On the substance of the matter, the defendant’s arguments were twofold. The first argument was that, to the extent that any debts of the defendant to the claimant were unsecured, those debts were covered by the IVA, and therefore the claimant’s claim to those debts was converted to a claim in the IVA. But, second, and in any event, even if the debts were not so covered, they were now barred by limitation, more than six years having elapsed since they were last acknowledged (the date of the approval of the proposal, 11 January 2010).[32]As to any possible claim in the IVA, that arrangement was brought to an end by its supervisors without having delivered a certificate of completion. If such a certificate had been issued, the defendant’s debts to the claimant would have been discharged. The defendant says he can properly argue that, although no certificate of completion has been delivered, the arrangement having come to an end, his indebtedness is no longer enforceable against him by the claimant.[33]As to the second argument, the defendant accepted in argument that, in the case of Tanner v Everitt [2004] BPIR 1026, to which I have referred, Mr Justice Mann held that, where during the course of an IVA the creditors are prevented from enforcing their debts, there was an implied agreement that limitation should not run. However, the defendant sought to distinguish that case from the present. His first ground of distinction was that this case involved secure lending, whereas Tanner did not. Second, the defendant relied on Re Leyland Printing Co [2010] EWHC 2105 (Ch), [2011] BCC 358. Thirdly, Tanner was sought to be distinguished because here the intended duration of the arrangement was only four years, whereas in that case it was six. It was submitted that where the intended duration was equal to or greater than the limitation period it was easy to imply an agreement that time should not run. But here the intended duration was less. Discussion Procedure

Discussion

[34]I remind myself at the outset that even the original part 20 claim contained a claim for a declaration that the defendant was not liable personally to the claimant on the guarantee. I do not accept the argument for the claimant that the district judge was wrong to order that directions be given in respect of the IVA limitation point, merely because the statement of case in which it was now to be put forward was still in draft, and permission had not been given for the necessary amendment to the original case. Nor do I accept that it was a procedural irregularity. On the contrary, given that the district judge was being asked to give summary judgment on the entire counterclaim being brought by the defendant, the district judge was entitled to stay his hand pending the attempt to amend the counterclaim in relation to the IVA point, and to test that attempt at a preliminary stage by reference to the summary judgment test. If the proposed amended case had no real prospect of success, there would be no sense in giving permission to amend. If, on the other hand, it had such a prospect, then he would have to go on to decide whether to give permission. And it was the latter view to which the district judge came.[35]Given, then, that he was delivering a reserved judgment, without attendance, plainly there needed to be a discussion as to what to do with the proposed re-amended defence and part 20 claim. The district judge dealt with this by ordering that there should be a directions hearing. At that directions hearing, the claimant would have the opportunity to argue that, notwithstanding that the proposed re-amendment had passed the summary judgment test, the defendant still should not have permission. I see nothing wrong with that. The district judge was in no sense determining on this application whether the defendant’s argument as to the effect of the IVA succeeded or failed, but instead merely that it had a real prospect of success, which would affect the question whether permission should be given for the re-amendment.

Substance

[36]I turn from the procedural to the substantive aspects of the argument. So far as concerns the decision in Tanner v Everitt, I accept that what is in play is the question whether an agreement to suspend the running of time can be implied in fact in the circumstances of the case. It is not a conclusion of law, and hence there must be a degree of fact sensitivity to it. Every case is different to some extent. I deal with Mr French’s points in turn. First, I reject the distinction between Tanner and this case based on secured and unsecured lending. To the extent that the lending here was secured, it is not affected by the IVA anyway. It is only the unsecured part of the lending that is concerned.[37]Second, there is the reliance placed on Re Leyland Printing Co. But that was a case of a company in administration, not even a CVA, let alone an IVA. It is not in point. Nor is it useful even as an analogy here. IVAs are voluntary, and obtain their force from contract. But administration is compulsory and derives its force from a court order. Moreover, corporate and individual insolvency are not the same situations, and the legislative policies and texts reflect their differences. Indeed, in the corporate context, administration is different to liquidation, as the judge himself held. At the end of the day, the fact is that Tanner deals with the position under an IVA, and Leyland Printing does not. I also note that Tanner was not cited to the judge, presumably because no-one thought it was relevant.[38]Thirdly, here the defendant says that the fact that the present case involves an arrangement with an intended duration of four years, rather than six, makes all the difference. I do not see why it should. After all, there is nothing magic about making the duration of the arrangement coterminous with the applicable limitation period. The defendant might have acknowledged the debt again before the arrangement came to an end. Mr French suggested that five year terms are common for IVAs precisely because the limitation period is six years. This therefore gives the creditors a window of opportunity after the arrangement has come to an end. But why one year? How big must the window be before the agreement cannot be implied? Why not give them a month? Why not two days? And, at the time that the proposal is approved, it cannot be known whether an acknowledgement by the defendant debtor will thereafter be given, or if so, when it will be given. Yet the question whether there is an implied agreement that time should not run has to be judged at the time that the arrangement is entered into, rather than subsequently, or from time to time.[39]The passage which I have cited from the judgment of Mr Justice Mann seems to me to be perfectly general, and, if I may respectfully say so, makes good sense. The parties impliedly agree that for the term of the arrangement, time shall not run. So, if time has already partly expired, only the remainder (whatever it is) is available once the term comes to an end. In my judgment the decision in Tanner v Everitt applies also to this case. Accordingly, I reject the argument of the defendant based on limitation, and to that extent I consider that the district judge, through pressure of work and lack of time, fell into error.[40]I turn to the argument based on completion of the IVA without the delivery of a certificate. First of all, I observe that it is not clear to me that paragraphs 27-30 of the draft reamended defence and Part 20 claim are making this argument at all. They seem to me instead to be making the argument based on limitation, dealt with above. Indeed, the claimant says that the defendant has never pleaded that completion of the IVA by effluxion of time operates to release the defendant from personal liability. But it is trite that statements of case do not need to plead law, only the facts from which the court may reach a particular legal conclusion. And it is clear that, even under the draft reamended defence and part 20 claim, the basic allegations as to the proposal and agreement to the IVA remain the same. As a matter of fact, the term of the IVA has now lapsed.[41]When I was preparing my judgment, I came across two cases which appeared at first sight to bear on the questions which I had to deal with in this part of the case. These were Green v Wright [2015] EWHC 993 (Ch) and Franses v Hay 2015 EWHC 3468 (Ch). I therefore invited counsel to make any written submissions on these cases that they wished, with the opportunity to comment on the submissions of the other side. Both counsel took both opportunities. I am very grateful to them. For one thing, they pointed out to me that the decision in the former case had recently been taken to appeal, which I had not been aware of (see [2017] EWCA Civ 111). I take account of counsel’s submissions in what follows.

The IVA

[42]In the present case, it is common ground that the defendant in writing dated 15 December 2009 proposed an IVA to his creditors, and that it was accepted by them at a meeting held on 10 January 2010. The proposal as accepted included the following provisions:
“1.4. This proposal is intended to be by way of a composition in satisfaction of my debts and nothing herein contained implies anything to the contrary. [ … ] 4.5. It is proposed that the voluntary arrangement should last for no more than four years of the date of the creditors meeting. In that period of time it is anticipated that the supervisor will have been able to realise all assets, agree all claims and make a final distribution. [ … ] 4.17. This proposal incorporates the Standard Conditions annexed hereto as Appendix 4.”
[43]The Standard Conditions referred to in paragraph 4.17 include the following provisions:
“2 The Conditions The Conditions are an integral part of the Arrangement. In the event of any ambiguity or conflict between the Conditions and the Proposal and any modifications to it, the Proposal as modified shall prevail. [ … ] 4(1) [Nature of Arrangement] The Arrangement is a proposal under Part 8 of the Act for a scheme of arrangement of the Debtor’s affairs or a composition in full and final satisfaction of the Debtor’s Debts. [ … ] (3) [Restriction on Creditors’ Rights] After the commencement of the Arrangement, no Creditor shall, in respect of any Debt which is subject to the Arrangement: (a) have any remedy against the property or person of the Debtor; (b) commence or continue any action or other legal proceedings against the Debtor. (4) [Saving for certain rights] Nothing in this Paragraph or elsewhere in the Conditions shall be construed as affecting the following rights: (a) the right of any Secured Creditor to enforce his Security except with the Secured Creditor’s consent… [ … ] 9 Completion of Arrangement 9(1) [The Completion Certificate] Upon the expiration of the Arrangement, the Supervisor shall, if the Debtor has complied with his obligations under the Arrangement, issue a certificate (“the Completion Certificate”) stating that the Proposal has been fully implemented. 9(2) [Effect of Completion Certificate] Save to the extent provided in Paragraph 4 (4), upon the issue by the Supervisor of a Completion Certificate, the Debtor shall be released from all Debts which are subject to the Arrangement. 9(3) [Notification of the issue of Completion Certificate] Copies of the Completion Certificate issued under this Paragraph shall be sent by the Supervisor to the Debtor, the Creditors, the Secretary of State for Trade and Industry and the Court together with the Supervisor’s report under Rule 5.34 (completion or termination of Arrangement).”
[44]In the decision of the Court of Appeal in Green v Wright [2017] EWCA Civ 111, [5]-[6], [8]-[10], Lord Justice David Richards (with whom Lord Justice Irwin agreed) explained the basic structure of an IVA as follows: “5. An IVA is a means by which an insolvent individual can make an arrangement with his creditors, binding on both debtor and creditors, and thereby avoid the formal process of bankruptcy, often to the advantage of all parties. The statutory framework is contained in Part VIII of the Insolvency Act 1986. Section 253(1) defines an IVA as ‘a proposal to [the debtor’s] creditors for a composition in satisfaction of his debts or a scheme of arrangement of his affairs.’ By section 256A, a debtor wishing to propose an IVA must submit his proposal to a qualified person who, under the proposal, will act ‘either as trustee or otherwise for the purpose of supervising its implementation’ (section 253(2)) (the nominee), together with a statement of his affairs containing prescribed particulars of his creditors, debts and other liabilities and assets. The nominee reports on the proposal to the creditors and, under section 257 as it was in force in 2007, summons a meeting of creditors to consider the proposal. For these purposes, the creditors are those persons who would be creditors in a bankruptcy commencing on the date on which notice of the meeting is given. Under section 258, the meeting may approve the proposal, subject to such modifications as the debtor may agree. The effect of approval is to bind every creditor who was entitled to vote at the meeting, whether or not present or represented at it. Provision is made to challenge the approval by application to the court under section 262. 6. Further provision is made by Part 5 of the Insolvency Rules 1986. Rule 5.23(2) provides that a proposal or a modification is approved if a majority of three quarters or more (in value) of those present and voting in person or by proxy have voted in favour of it. Rule 5.34(1) requires the supervisor, within 28 days after the final completion or termination of the IVA, to send to all creditors who are bound by it, and to the debtor, ‘a notice that the arrangement has been fully implemented or (as the case may be) terminated’. Termination occurs where the IVA has not been implemented in accordance with the proposal as approved by the creditors: rule 5.34(2). [ … ] 8. If implemented, the IVA would be a full and final satisfaction of the debts and liabilities of the debtors: para 4(1) [of the Standard Conditions]. Unless the IVA was terminated, no creditor had any remedy against the property or person of the debtor or could commence or continue any action or other legal proceeding against the debtor: para 4(3). Unless extended, the duration of the IVA was five years or, if later, until unsecured creditors had received 33 pence in the £: para 8(1) and the proposal put to creditors. Upon the expiration of the IVA's duration, and if the debtor had complied with his obligations under the IVA, the supervisor would issue the certification of completion required by Insolvency Rule 5.34: para 9(1). Upon issue of the certificate "the Debtor shall be released from all Debts which are subject to the Arrangement": para 9(2). 9. Completion of the IVA is to be contrasted with its termination. Condition 11(1) provided: ‘[Termination in certain circumstances] The Arrangement shall terminate upon:(a) the Supervisor issuing a Certificate of Termination under Paragraph 71;(b) the making of a bankruptcy order against the Debtor;(c) the Debtor’s death.’ 10. Without going into details, a certificate of termination would be issued under paragraph 71 in the event of an un-remedied breach by the debtor of his obligations under the IVA.” ‘[Termination in certain circumstances] The Arrangement shall terminate upon: (a) the Supervisor issuing a Certificate of Termination under Paragraph 71; (b) the making of a bankruptcy order against the Debtor; (c) the Debtor’s death.’

Completion and termination

[45]It will be seen that Lord Justice David Richards drew a distinction between the completion of an IVA, and the termination of an IVA. It is clear that the issue of the completion certificate is an event that marks an important step in the IVA, ie that debtor has complied fully with its terms. Under Standard Condition 9(2), it (rather than compliance itself) is the event upon which the debtor is released from the debts within the IVA. This mechanism avoids uncertainty (especially in relation to third parties) as to whether or not full compliance by the debtor has occurred.[46]A certificate of termination, on the other hand, is one of the ways in which the IVA comes to an end otherwise than by completion. In the present case it appears that the IVA’s original term of four years was extended (I am not told how), and as so extended expired on 18 October 2014. I have seen a copy of a document in which the joint supervisor gave what he called a “Notice of Termination” of the IVA bearing the date 24 October 2014, and stating that the joint supervisors considered that “the IVA has not been implemented in accordance with its terms within the period of the IVA”. There is an issue between the parties as to whether the joint supervisors have or have not terminated the IVA. The claimant says they have; the defendant says it simply ran out of time, and that the notice of termination is not a notice (or certificate) of termination within the meaning of the Standard Conditions. But either way the IVA has come to an end.

Termination by effluxion of time

[47]In my judgment, the arrangement has not been terminated by any notice, but it has simply expired. The notice relied on by the claimant as a notice of termination is not a certificate of termination within standard condition 71. It does not say it is such a certificate, it does not purport to terminate the IVA by reason of the debtor’s breach, and it was not issued following a meeting of creditors resolving to do so. It is a notice under rule 5.34 of the Insolvency Rules 1986 (now repealed) that the IVA has terminated without being implemented in accordance with its terms. Accordingly, this is not a case of termination by certificate under condition 71. Instead it is one of termination by effluxion of time. The question is, What is the effect of that on the creditors’ claims? This is a short point of law which can and should be determined by the court in the context of a summary judgment application: cf ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, [12], per Moore-Bick LJ (with whom Ward and Buxton LJJ agreed).[48]The defendant accepts that he has not been discharged from personal indebtedness as a result of any Completion Certificate. Instead, he says that an IVA is a composition between a debtor and his creditors, and points not only to Standard Condition 4(1) (present in every case incorporating those conditions), but also to paragraph 1.4 of the original proposal (specific to this case). The creditors give up their original claims in return for their new rights under the IVA. Those rights have now, with the effluxion of time, come to an end. But the creditors’ rights do not then revive. The claimant denies that this is the effect.[49]Mr French relies on the decision of Mr Justice Park in Strongmaster Ltd v Kaye [2002] EWHC 444 (Ch). An IVA was proposed and approved by creditors with an initial duration of 3 months, but the supervisor had power to extend it by up to 4 months. After that only the creditors could extend it further. Some months after the 7 months had run out, the creditors purported to extend it further. The judge held that the IVA had come to an end at the expiry of the 7 months, and that the creditors had had no power thereafter to extend the IVA. But that does not mean that the rights of the parties, and in particular those of the creditors, all come to an end. That is a different question. Indeed, in that case the judge held that the effect of the coming to an end of the arrangement was that the moratorium on presenting a bankruptcy petition contained in the IVA fell away, and the creditor, still being owed its debt, was now entitled to present that petition. It is therefore necessary to consider what effect the entering into the arrangement, and the coming to an end of the arrangement by effluxion of time, have on the debts of the debtor owed to the creditors.[50]In my judgment, in the ordinary case an IVA is not an unconditional composition by creditors with their debtor. The creditors are willing to make a composition with their debtor, on the basis that their debtor will perform the obligations under the IVA. If those obligations are performed, and a certificate of completion is given by the supervisor, the debtor is released from his debts falling within the IVA. If on the other hand, there is no compliance, and no certificate of completion, but instead the supervisor issues a certificate of termination before the effluxion of the IVA by time, it is clear that the creditors are no longer bound by the moratorium contained in condition 4(3) of the standard conditions, and (subject only to ordinary defences, such as limitation) they can thereafter take action against the debtor in the usual way.[51]If the supervisor wrongly refuses to give a certificate of completion, the debtor’s remedy is a claim under section 262 of the Insolvency Act 1986 for an order that the supervisor issue a certificate. Does it make any difference if the termination occurs because the term of the IVA simply expires? In my judgment it does not. The completion certificate has not been issued, and therefore the event upon which the debtor is released from his debts in the arrangement has not occurred. Accordingly, in the ordinary case, there is no release.

The effect of clause 1.4

[52]But, as I have already said, Mr French for the defendant points to the provision in clause 1.4 of the proposal, set out above. This, he says, makes the case different from the ordinary arrangement entered into. It overrides the Standard Conditions to the extent that they conflict (see condition 2). Mr French suggests that, whereas in the ordinary case composition is dependent upon performance by the debtor of his obligations, in the present case the creditors were willing to take the risk of non-performance or that the defendant’s assets were worthless. That, he says, is the meaning and effect of clause 1.4. This is a question of construction of the clause in the context of the arrangements as a whole. No one has suggested that there is significant evidence which needs to be adduced before that question of construction can be resolved. Indeed, in his submissions, Mr French for the defendant urges his construction of clause 1.4 upon the court as obviously the right one.[53]In my judgment it is not the right construction. Of course it is possible for creditors to approve an arrangement under which they expressly give up irrevocably their claims against the debtor in return for obligations undertaken by the debtor which, if not performed (and if no notice of termination is served by the supervisor), fall away and are not subject to any enforcement procedure. But it makes no commercial sense for them to do so. So it is inherently unlikely that, in agreeing to these words in clause 1.4, the creditors meant to go any further than the conditional composition inherent in the ordinary arrangement, as provided for in the Standard Conditions. In my judgment, when clause 1.4 refers to “a composition in satisfaction of [the defendant’s] debts”, it is plainly referring to the composition in Standard Condition 4(1), which is, of course, conditional on completion as certified by the supervisor. The point of doing so in clause 1.4 is that condition 4.3 contains an alternative, ie a scheme of arrangement or a composition. Clause 1.4 makes clear which is being put forward here.[54]Accordingly, I consider that the argument of the defendant based on the terms of clause 1.4 of the proposal, leading to an unconditional composition of the creditors’ claims against the debtor, is wrong in law. The proposed re-amended defence and part 20 claim does not pass the summary judgment threshold, and therefore there is no point in considering whether to give permission to re-amend. That means that there is no reason to except from the summary judgment given by the district judge the claim based on the effect of the IVA. To that extent again he went wrong.

Conclusion

[55]I have had the benefit of a much clearer and more detailed argument about the effect of the IVA than did the district judge. I am sure that I have also had more thinking and judgment-writing time than he did. In all the circumstances, I allow the appeal by the claimant, and strike out paragraph 2 from the order of the district judge. There will therefore be a complete judgment for the claimant on the defendant’s counterclaim.

Cited in 1 later judgment