I would suggest that there are four key “takeways” from the Court of Appeal judgment delivered yesterday in Promontoria (Gem) DAC – V- Redmond & Others. I set out below a link to the judgment below:

Promontoria (Gem) DAC – V- Redmond

1. If you have a client that wishes to defend a claim, they should never admit liability to the claim. Settlement negotiations should always be held on a Without Prejudice basis.
2. Sometimes the vulture funds do not receive all of the necessary papers from the bank that they purchase the loans from. Such a lack of documents could lead them to pursuing “false” claims.
3. Debtors should always submit a Data Subject Act Request to the original bank seeking copies of all relevant documentation. They may find documents that are useful to them, as happened in this case.
4. Defences based on Statute of Limitations are starting to have more “bite“. The Court of Appeal found that there are conflicting decisions of the High Court as to whether the relevant section governing the running of time where summary judgment is sought in respect of a secured debt is Section 11 or Section 36 of the 1957 Act. In essence, Debtors may have an “arguable” defence if the Demand issued was more than 6 years old by the time proceedings were issued.

Whilst the vulture funds are still intent on issuing proceedings, our experience at the moment is that they are slightly more receptive to settlement proposals given the impact of Covid and recent negative High Court/Court of Appeal/Supreme Court judgments.