Category Archives: Commercial and Chancery

High Court Appeal in Zambian Adoption Case Withdrawn

Appeal, Commercial and Chancery, Commercial and International Law, Court of Appeal, , , ,

High Court Appeal in Zambian Adoption Case Withdrawn

Arfan Khan appeared for the successful Claimant at trial and the successful Respondent on appeal in a Zambian adoption dispute, instructed by CV Brooks Solicitors.

On 30 July 2025, following a 2.5-day trial, Deputy Master Jefferis entered judgment for the Claimant. The Deputy Master declined to give effect to the Zambian judgment and held that the Claimant had been lawfully adopted by the deceased. He further determined that the Defendant was not entitled to letters of administration, ordered that the Zambian grant should not be resealed in England and Wales, and awarded costs against the Defendant. Repeated requests for adjournment were refused.

The Appellant subsequently instructed counsel and filed a notice of appeal seeking permission to challenge the trial judgment on complex grounds, including alleged errors of law and fact and a proposed challenge to the fairness of the trial. The Appellant applied for a stay of execution, which was refused on the papers by Mr Justice Mellor. A renewed stay application was made, and an extension of time to file the appeal bundle was requested. The extension request was unopposed.

Following submissions by Arfan Khan on both the renewed stay application and the merits of the proposed appeal, the Appellant’s counsel elected not to pursue the stay at the oral hearing. Mr Justice Rajah dismissed the renewed stay application and ordered the Appellant to pay the Respondent’s costs. The Appellant subsequently withdrew the appeal, which Mr Justice Rajah formally dismissed.

Arfan Khan has acted as lead or sole counsel in close to over 70 reported cases, including landmark decisions in the Court of Appeal and the UK Supreme Court, demonstrating the strength of his practice in Chancery, Commercial, and Public Law.

Press coverage and the Master’s judgments can be accessed via the following links:

Note of the Trial Judgment

  • Master’s Interlocutory Decisions:

Adjournment Decision 1

Adjournment decision 2

ARFAN KHAN LEADS IMPORTANT APPEAL CONCERNING WHETHER A BANKRUPTCY ORDER IS A NULLITY

Bankruptcy appeal, Commercial and Chancery, Court of Appeal decision, GUIDANCE APPEAL, , , , , ,

ARFAN KHAN LEADS IMPORTANT APPEAL CONCERNING WHETHER A BANKRUPTCY ORDER IS A NULLITY

Arfan Khan led Mr. Wojciech Nicholas Andrew Zalewski in an appeal, instructed by Ardens Solicitors.

The appeal was heard by Mr. Justice Zacaroli, who considered whether a bankruptcy order was a nullity under the Breathing Space Moratorium and Mental Health Crisis Moratorium England and Wales Regulations 2020 (the Regulations).

Mr. Justice Zacaroli (now Lord Justice Zacaroli) granted permission to appeal on a point of general public importance. However, he dismissed the appeal, holding that a bankruptcy order was not a nullity under the Regulations. In doing so, Mr Justice Zacaroli provided significant guidance on the scope and interpretation of the Regulations and section 282(1) of the Insolvency Act 1986.

The decision has far-reaching implications for debtors who have been presented with a bankruptcy petition but have been granted a statutory moratorium.

The judgment can be accessed through the following link.

Carter v Davies Judgment Zacaroli J

HIGH COURT REVERSES TRIAL JUDGE’S DECISION TO REFUSE ADJOURNMENT ON COVID GROUNDS

Appeal, Commercial and Chancery, ,

HIGH COURT REVERSES TRIAL JUDGE’S DECISION TO REFUSE ADJOURNMENT ON COVID GROUNDS

Arfan Khan appeared successfully in a High Court appeal, which reversed the trial judge’s decision to refuse adjournment of the trial where the Appellant was suffering from Covid symptoms.

The Claimant (Respondent) had brought a claim against the Defendant (Appellant) for a declaration that an agreement dated 27 November 2018 was binding pursuant to which the Appellant was required to pay a sum of money to the Respondent.

The trial was listed to start on 6 December 2021. HHJ Lethem KC refused the Appellant’s application for adjournment and proceeded with the trial. He granted the declaratory relief sought and gave judgment for the Respondent.

At an oral renewed permission to appeal hearing, Mrs Justice Steyn granted the Appellant permission to appeal on three renewed grounds of appeal, namely:

  1. The judge was wrong to hold that the 2018 agreement was binding;
  2. The judge applied the wrong test in refusing to adjourn and/or was wrong not to adjourn for a short period to enable a remote hearing to take place; and
  3. The judge was wrong to proceed on the basis that there was an arbitration agreement or whether it was a matter of semantics whether there was such an agreement.

At the appeal hearing, the judge considered as the first issue whether the refusal to adjourn the trial was wrong. If so, it was common ground that the judgment could not stand.

The Appellant had applied to adjourn for three reasons (i) he required additional time to prepare following a late change in legal representatives; (ii) he suffered from depression and anxiety and (iii) he had symptoms of COVID.

The Appellant disputed the suggestion that his symptoms were not genuine and had referred to an email where it stated that he had booked a PCR test, the results of which would arrive in two days, and was required to self-isolate. He could not leave his home save to post the test kit. His son had described him as suffering from shortness of breath and a lot of coughing.

The trial judge refused the adjournment, not on the basis that he did not have COVID symptoms, but because he thought that the Defendant should have taken the lateral flow test to determine whether he had COVID.

Mr Justice Chamberlain held that, if the application to adjourn had been pursued purely because of the late change of representatives and because of the mental health issues, the judge’s analysis would have been exemplary. However, as to the COVID issue, Mr Justice Chamberlain held that the judge considered the evidence with care, but was wrong in refusing to adjourn the trial and enquire about a remote hearing because:

  1. The government guidance was that those who had symptoms of COVID 19, which included shortness of breath and coughing, should take a PCR test. The lateral flow test was for those who were asymptomatic. On the guidance, the Appellant had to self-isolate.
  2. The judge should have made enquiries to ascertain whether the Appellant required a remote hearing bearing in mind that his son who applied for the adjournment was not a lawyer and had not requested a remote hearing. Whilst the decision to adjourn was a case management decision, the decision to proceed without enquiring about a remote hearing fell outside the range of responses open to the trial judge.

As a result, the Mr Justice Chamberlain ordered a retrial.

It was not necessary to reach a conclusion on Grounds 1 and 3 which raised matters for the retrial.

ARFAN KHAN acted for the Appellant at the appeal hearing, and at the renewed oral permission to appeal hearing instructed by gunnercooke LLP.

The judgment can be accessed here: Miah v Ahmed [2023] EWHC 1742 (KB) (11 July 2023) (bailii.org)

ahmed v miah_final

Arfan Khan leads against HMRC in a first time tax appeal

Appeal, Chancery Division, Chancery Litigation, Commercial and Chancery, Commercial and Chancery litigation, Commercial and International Law, Court of Appeal, Leading Chancery Barrister, Leading Counsel, Tax and Chancery Chamber,

Arfan Khan led Mr Joseph Howard in the Court of Appeal on a first time tax appeal of general public importance.

The Appellant is an Italian company. It provides containers and logistics services across Europe. The Appellant arranged the transport of goods for a customer, a Romanian company, GBT. This included a quantity of wine, which was seized by UK Border Force on the basis that excise duty had not been paid.

On 12 May 2015, HMRC issued an assessment to excise duty in respect to the seized wine to GBT. On 17 December 2015, HMRC issued the appellant with a reduced penalty assessment calculated on the basis that the Appellant’s conduct was not deliberate.

The Appellant appealed to the FTT on the basis that Article 37 of Directive 2008/118/EC (“the Excise Duties Directive”) meant that as the wine had been lawfully seized and destroyed, no excise duty point ever arose, the appellant was an innocent agent, and the penalty assessment was out of time. The FTT dismissed the appeal.

The Appellant appealed to the Upper Tribunal. The Upper Tribunal granted permission to appeal. However, it dismissed the appeal holding that Article 37 did not apply. The Appellant applied directly to the Upper Tribunal for permission to appeal to the Court of Appeal. Arfan Khan was then instructed and led a written skeleton argument for permission to appeal to the Court of Appeal.

The Upper Tribunal exceptionally granted permission to appeal against its own decision on the Article 37 ground. It held that the appeal raised a point of general public importance in respect of which there were real prospect of success.

The Respondent filed a Respondent’s notice seeking to uphold the Upper Tribunal on the basis that excise duty was chargeable by reason of a deemed duty point following the reasoning in Jones v HMRC, and that Article 37 did not as a result apply.

The Respondent’s notice proceeded contrary to what was alleged to be written concessions made by the Respondent. It was alleged that the Respondent had conceded before the Upper Tribunal that the basis of seizure did not necessarily require duty points to arise where the goods had been lawfully seized, and there was no challenge to the legality of the seizure.

Following the grant of permission, the Appellant filed supplemental submissions in response to the Respondent’s notice. These included a novel submission, not considered in Jones v HMRC, namely that, if the statutory deeming provisions apply to bar jurisdiction, they should be set aside in order to give effect to Article 37 of the EC Directive and Article 47 of the EU Charter and/or declared incompatible with Article 6 of the ECHR. The supplemental submissions distinguished the decision in Jones.

The Court of Appeal (Lord Justice Patten, Lord Justice Baker, and Mr Justice Mann) dismissed the appeal holding:

“50. As Mr Khan and Mr Howard on behalf of the appellant accepted in the course of the hearing before us, unless Article 37 subsequently disapplied its effect, there can be no doubt that the provisions of Article 33 were satisfied. The wine in the fifth container had been “released for consumption” in Italy. At the point of arrival at Purfleet, it was being “held for commercial purposes … in order to be delivered here”. Accordingly, it was subject to excise duty here and excise duty became chargeable here. At that point, under regulations 5 and 6 of the HMDP Regulations, an “excise duty point” arose and the appellant, being a person “concerned in carrying … the goods”, became liable to a penalty under paragraph 4 of schedule 41 to the Finance Act 2008.

51. Did Article 37 apply so as to prevent excise duty being chargeable on the wine? In my judgment, it did not, for the reasons identified by the UT at paragraphs 61 to 71 of its decision. …

52. In the context of this appeal, the construction of Article 37 turns on two phrases: (1) “during their transport in a Member State” and (2) “as a consequence of authorisation by the competent authorities of that Member State”.

53. I agree with the UT that “transport” should be given its ordinary meaning. For my part, I derive no assistance by comparing and contrasting the use of the word “movement” in Article 38. The wine in the appellant’s container was being transported from the ship to its ultimate destination in the UK. Had it continued on its journey, it would have been “transported” until it reached its destination. But it did not continue on its journey. It was seized by Border Force and held by that agency until it was destroyed following forfeiture. At the time of its destruction, it was not being “transported”.

54. As for the second phrase, I do not accept the submission that the ultimate destruction of the wine by or on behalf of Border Force following forfeiture falls within the scope of the phrase “as a consequence of authorisation by the competent authorities”. The destruction of the wine following forfeiture took place on the orders of Border Force. The word “authorisation” means the granting of official permission. The plain and obvious purpose of including that phrase in Article 37 is to cover the destruction of goods which are partially, but not totally, destroyed in transit. Article 7(4) provides that, for the purpose of this Directive, goods shall be considered totally destroyed or irretrievably lost when they are rendered unusable as excise goods. But there will be other cases where the goods are substantially damaged while being transported but have not become totally unusable (for example, where a proportion of a consignment of wine bottles are broken but the remainder are intact). Article 37 allows for circumstances where the competent authorities may formally agree to the destruction of the remainder so as to remove them from the scope of the duty”.

The Court of Appeal held that the Respondent’s notice had become academic by reason of the Appellant’s concession on appeal as follows:

“63. I would be reluctant to embark on a lengthy analysis of HMRC’s alternative argument raised in its respondent’s notice based on its interpretation of the decision in Jones. I take that view for three reasons. First, as I have just concluded, I consider the UT’s decision as to the construction of Article 37 was correct. On behalf of the appellant, Mr Khan in effect accepted at the outset of the hearing before us that, subject to its being subsequently removed by Article 37, an excise duty point arose under Article 33, and it must have persisted. The two factors which HMRC are seeking to have “deemed” from the failure of the appellant to contest the condemnation of the wine – that excise duty was chargeable and an excise duty point had arisen – are therefore conceded by the appellant. The “deemed duty” point is therefore of academic interest only in this appeal..”.

As a result, and amongst other reasons, the Court of Appeal refused to offer any expansive dicta on the Respondent’s notice. However, it concluded that the Upper Tribunal’s comments on the interpretation and application of the decision in Jones (based on the Respondent’s concession below) should not be regarded as authoritative. The Court of Appeal did not permit the Respondent to resile from what the Upper Tribunal described as a concession. It left open the possibility of argument in future cases.

Arfan Khan has a specialist appellate practice in Chancery, Commercial and Public law. He also has a substantial litigation practice in Chancery, Commercial and Public law. He is an experienced pleader, as evident from his numerous reported cases at appellate level, as well as in the High Court both as a leader and sole counsel.

The Court of Appeal judgment can be access here:

https://www.bailii.org/ew/cases/EWCA/Civ/2020/405.html

General Transport v HMRC

 

Arfan Khan successfully leads novel appeal in the Court of Appeal

Commercial and Chancery, Court of Appeal, Court of Appeal Barrister, Public Law - Court of Appeal

Court of Appeal – Second appeal

Fowler v Secretary of State for Work & Pensions (2019) EWCA (Court of Appeal)

This was a second appeal to the Court of Appeal against a decision of the Upper Tribunal. The appeal raised an important point of law regarding the nature and scope of the First Tier Tribunal’s jurisdiction to reduce Industrial Injuries Disability Benefit (IIDB) on appeal under s.12 of the Social Security Act 1998.

The First Tier Tribunal reduced the Appellant’s industrial injuries benefit to 5% when, based on medical evidence, the Respondent confirmed that the degree of the Appellant’s disablement was 36%. The Respondent stood by that assessment in its mandatory reconsideration decision. Nevertheless, the FTT reduced the IIDB exercising its inquisitorial jurisdiction. Based on authority, it was said that the FTT possessed jurisdiction under s.12 8 (a) of the Social Security Act 1998.

The Upper Tribunal Judge Hemingway upheld the FTT. He concluded that the issue for appeal was the correctness or otherwise of the assessment generally, rather than whether or not either the 36% percentage was correct, or too low.

The Appellant appealed to the Court of Appeal. Lord Justice Newey granted permission to appeal on the basis that there was point of general public importance regarding the jurisdiction of the FTT in respect to which the Appellant had real prospects of success.

The matter came before the Court of Appeal who adjourned the appeal for the Appellant to be represented by Counsel. Arfan Khan was then instructed to lead the appeal, and produced a Replacement Skeleton. This identified a novel statutory scheme, not applied or considered in any of the cases in this area. It contended that the issue of jurisdiction fell to be determined through the statutory scheme by looking at the substance of the appeal, and that the inquisitorial jurisdiction of the tribunal did not extend to looking at issues which are not raised through this jurisdictional gateway. The authorities relied upon by the Respondent were not on point. But could be read consistently with the statutory scheme.

The Respondent filed a Supplemental Skeleton argument on 15/11/2019 (Friday), which was met by a Reply skeleton from the Appellant on 16/11/2019 (Saturday). The Respondent proceeded to compromise the appeal by signing a consent order on the morning of the appeal hearing. It did so by agreeing, amongst other matters, to pay the Appellant’s IIDB for the relevant period at 36%, and the Appellant’s costs to be assessed if not agreed.

Lady Justice Rafferty, Lady Justice King and Lord Justice Richards approved the consent order at an oral hearing. As a result, the appeal was withdrawn. But in response from some probing questions from the Court of Appeal bench, the Respondent agreed to place a notice on its website to the effect that, the decision of M R Hemingway Judge of the Upper Tribunal in Fowler v Secretary of State for Work & Pensions, is not to be relied upon as persuasive authority in future cases.  

Chancery Division rules on the test for setting aside summary judgment and copyright infringement

Appeal, Chancery Division, copyright infringement, copyright infringement, High Court, Phonographic Performance, Phonographic Performance Judgment, summary judgment set aside test, Uncategorized, , , , , , ,
Phonographic Performance Ltd v Ambibola Balgun t/a Mama Africa [2018] EWHC 1327 (Ch)
Copyright infringement – Summary Judgment set aside test

The Claimant claimed that the Defendant had played sound recordings, which infringed copyright in relation to two songs, contrary to s.16 of the Copyright & Patents Act 1988 (“the CPDA”). The Claimant obtained summary judgment on its claim in the absence of the Defendant who was acting as a litigant in person. Following enforcement, the Defendant applied to set aside summary judgment. The Master refused to set it aside using CPR 39.3 (5) as a guide.

The Defendant appealed contending that

1. The Master’s approach to the principles applicable to setting aside an order for summary judgment obtained in the absence of a party was wrong, in that he had applied the test for setting aside judgment after a trial, which was not the right approach. The defence had real prospects of success because the defendant had authorised the playing of music in the restaurant, but he had not authorised the infringement of copyright.

2. He had no control over whether independent DJ’s played music infringing the copyright;

3. There were other reasons why this matter ought to go to trial, including the fact that it was inappropriate to conduct a mini trial at the summary judgment. (§ para 9 of the Judgment).

Miss Penelope Reed QC sitting as a Judge of the High Court Chancery Division held:

1. There was some force in the first argument, and it ought to be easier to set aside summary judgment orders in appropriate circumstances (§ para 13).

2. The Court should take into account other rules of the CPR which provide that judgments can be set aside such as judgments in default under CPR r 13 (§ para 14).

3. It was not inappropriate to take into account considerations set out in CPR r 39.3 (5). However, the Judge held that those considerations ought not to be too rigidly applied in circumstances where there has been no trial (§ para 14). There may be other relevant considerations, including whether there are other reasons why the matter ought to be tried (§ para 15).

4. The Master had used CPR r 39.3 (5) as a guide. Whilst another Judge may have taken a different view on the issue of whether the Appellant acted promptly, the Master could not be criticised for finding that the application had been made late. The Master had not erred (§ para 18).It is the authorisation of the playing of music in public which is relevant within the meaning of s.16 of the CPD 1988, and not the authorisation of specific songs which infringe copyright (§ para 28).

5. Amstrad could be distinguished on the basis that there was no control over use to which their equipment was put, whereas the Appellant had complete control over the playing of music in his premises (§ para 28).

6. DJ’s did not exceed the nature of the authority conferred upon them. Therefore, the Master’s decision was not at odds with the law of agency (§ 29).

7. There were no real prospect of success at trial and permission ought to be refused (§ para 30).

The Judgment can be accessed here:

http://www.bailii.org/ew/cases/EWHC/Ch/2018/1327.html

Judgment: Phonographic Performance Ltd

Arfan Khan argued the case on behalf of the Defendant, instructed by DCK Solicitors. He did not appear below.

State Immunity
Court of Appeal

Diana Loson appeals to the Supreme Court

Bankruptcy, Bankruptcy appeal, Chancery Litigation, Commercial and Chancery, Court of Appeal, CPR, Diana Loson, Judgment debt variation, Supreme Court, , , , ,

Diana Loson appeals Court of Appeal judgment to the United Kingdom Supreme Court

Loson v Brett Stack & Anor [2018] EWCA Civ 803; Times, April 26, 2018  

On 26/8/2016, the Court of Appeal granted Mrs Diana Loson permission to appeal on a second appeal.

On 17/4/2018, the Court of Appeal determined the appeal. It provided guidance on the correct test to vary a judgment debt under CPR r 40.9A.

The Court of Appeal rejected the contention that the test to vary a judgment debt under CPR r 40.9A is one of exceptional circumstances.

The Court of Appeal, however, provided further guidance to the Courts on the circumstances in which a creditor can enforce a judgment debt, and a debtor is entitled to payments by instalments.

On the basis of this guidance, the Court of Appeal set aside the order made by the learned District Judge.

On 2 May 2018, Mrs Diana Loson filed a petition with the United Kingdom Supreme Court, seeking leave to appeal against the Court of Appeal’s guidance. A decision is now pending.

Arfan Khan was instructed throughout the Court of Appeal proceedings, and is now instructed on appeal to the Supreme Court. He did not appear in the proceedings below.

The decision of the Court of Appeal can be accessed here:

http://www.bailii.org/ew/cases/EWCA/Civ/2018/803.html

State Immunity
Court of Appeal

 

 

 

 

 

Court of appeal grants permission to appeal in second appeal

Bankruptcy, Commercial and Chancery, Commercial and Chancery litigation, Insolvency, , , ,

Insolvency – Bankruptcy- defrayment of judgment debt – nature of legal test – second appeal – stay of execution

Arfan Khan successfully represented the appellant after taking over the case on appeal in the Court of Appeal.

The appellant applied to vary a judgment debt to pay by way of affordable instalments. That application was heard in the County Court at Central London under CPR r 40.9A. The District Judge allowed the application, ordering the debt to be defrayed at an affordable rate, on the basis that it was reasonable and proportionate to do so.

The respondent appealed to the Circuit Judge, contending, amongst other points, that the District judge applied the wrong test, and the test was whether exceptional circumstances were present. The respondent relied on the case of Ameslam [2008] EWHC 3226 (TCC), contending that the creditors right to present a bankruptcy petition was prejudiced as a result of the decision to defray. The Circuit Judge allowed the appeal.

The appellant appealed to the Court of Appeal and sought a stay of execution pending the outcome of appeal. Prior to the receipt of the appellant’s skeleton argument, the respondent, through written submissions from Counsel, objected to the grant of permission to appeal on the ground that the second appeal test was not met.

The appellant’s skeleton argument argued that the test for the grant of a second appeal was met. There was a point of general public importance arising on this appeal: what is the applicable test to determine a debtor’s application to vary payment of a judgment debt under CPR r 40.9A? Alternatively, for a number of reasons, there was some other compelling reason why the appeal ought to be heard.

It was argued that the case of Ameslam, relied upon by the respondent, was not on point. It concerned CPR r 40.11 and not CPR r 40.9A. Amaslem was in any event distinguishable. The appellant contended that CPR r 40.9A contains a broad discretion. That discretion was aimed at avoiding bankruptcy in appropriate cases where the judgement debt can be paid by way of instalments.

It was argued in the appellant’s skeleton that this was consistent with the policy rationale behind bankruptcy legislation, which is to release individuals from debt, so as to permit a fresh start by increasing the circumstances in which any remaining debt (actual or contingent) is provable in the bankruptcy. The appellant relied on the decision of Richards J (as his Lordship then was) in Re T & N [2006] 1 WLR 1728.

The appellant contended that this analysis was consistent with the provenance of Rule 40.9A, which confirmed the correctness of the District Judge’s judgment. The right to present a bankruptcy petition was not prejudiced because the respondent could apply to vary the District Judge’s order at any time under CPR r 40.9A (15). In any event, that right was not absolute because a bankruptcy order itself could be rescinded or varied.

In the alternative, it was argued in the appellant’s skeleton that, even if the test was of exceptional circumstances, that test was met on the facts. The Circuit Judge erred in holding otherwise.

Lady Justice Arden granted permission to appeal on the papers on the basis that “Compliance with conditions for second appeal and requirement for arguability” was “shown by the appellant’s skeleton argument”. Her Ladyship also granted a stay of execution.

image001

 

 

 

Bank’s High Court claim for £9.5 million settles out of Court

Banking and Finance, Chancery Litigation, Commercial and Chancery litigation

Bank’s High Court claim for £9.5 plus interest settles out of Court

Contract of guarantee – limitation periods – demands

Arfan Khan successfully defended complex claims in the High Court Chancery Division. The claims were pursued by a bank against the Defendants for £9.5 million plus interest, including possession of land. A legal charge was procured by the bank to secure the alleged indebtedness.

The bank issued a demand for the monies in 2003. In 2014, the bank issued claims for both a money judgment and possession orders in relation to three separate plots of land. By 2015, the alleged debt was claimed to stand at £9.5 million plus interest.

The bank through Counsel, and its legal team, contended that, whilst the claim had been issued in 2014, time started to run from the date of the demand in 2003 because the relevant documents expressed the liability to be repayable on demand. The bank contended that a limitation period of 12 years applied and, therefore, the bank’s claim for the money judgment and possession were in time.

The guarantees and the charge, however, contained a primary debtor clause, which guaranteed the alleged indebtedness as a primary debtor, rather than as a surety only. The Defendants contended that there was a distinction between an ordinary contract of surety in relation to which a demand was necessary before the indebtedness could be claimed, and a contract containing a primary debtor clause. The Defendants contended that, where there is a primary debtor clause in a guarantee, rendering the surety also a primary debtor, there is no need for a demand, even where the indebtedness is expressed to be repayable on demand: MS Fashions Ltd v Bank of Credit and Commerce International SA [1993] Ch 425; TS & S Global Ltd v John Fithian Franks [2007] EWHC 1401.

The reasoning behind this appears to be that the character of the agreement to pay is no longer a collateral one, but an agreement to pay a present debt for which a demand is not a condition precedent: TS & S Global Ltd v John Fithian Franks [2007] EWHC 1401 at para [18].

Accordingly, the Defendants argued that a demand was not necessary. It was argued, therefore, that time started to run from the date of the breach in 2001 rather than from the date of the demand in 2003. That being so, the Defendants contended that the 2014 claims for a money judgment and possession of land were time barred.

In any event, the Defendants contended that the bank’s claim for continuously accruing interest in excess of £5 million attracted a six-year limitation period and was time barred. The bank could only claim continuous interest limited to the last years rather than from the date of the demand.

In respect of the possession claim, it was contended that the limitation period of 12 years started to run from the date of the breach in 2001. This was so irrespective of whether or not the bank unequivocally demanded possession at that date or forbore from doing so. The Defendants relied on Ash v National Westminster Bank [2007] 2 P & C.R. 27.

The Defendants also argued that the bank could not, in any event, seek possession of the land because there were agricultural tenancies in place within the meaning of s.1 and 2 of the Agricultural Holdings Act 1986.

The Defendants issued applications for strike out and summary judgment which were listed to be heard on the morning of a four-day trial.

The bank subsequently abandoned its interest claim falling outside the six-year limitation period, and on the morning of the trial, after the exchange of skeleton arguments, settled.