Bank of Scotland Plc v Waugh & Ors [2014] EWHC 2117 (Ch) (21 July 2014)

Bank of Scotland Plc v Waugh & Ors [2014] EWHC 2117 (Ch) (21 July 2014)

The Bank is entitled to summary judgment for the sums due under the facility letter as there is no realistic defence. The Trustees are not estopped from relying on the invalidity of the legal charge due to lack of attestation, as the defect is apparent on the face of the document and estoppel does not apply in such circumstances. However, the legal charge is effective as an equitable mortgage, having been signed by the parties and containing all agreed terms.

Citation
[2014] EWHC 2117 (Ch)
Parties
Claimant: Bank of Scotland plc; Defendant: John Thomas Waugh; Defendant: Kathleen Waugh; Defendant: Timothy Rohan Gray; Defendant: Iain Ernest Williams
Jurisdiction
England and Wales
Judgment Date
21 July 2014
Procedural Posture
Civil / Summary Judgment Application
Outcome
Summary judgment granted in part; declaration granted; further relief to be determined.
Legal Topics
Legal Charge Validity, Equitable Mortgage, Estoppel, Summary Judgment, Facility Agreement Enforcement
Property Law Banking Law Trusts Legal Charge Validity Equitable Mortgage Estoppel Summary Judgment Facility Agreement Enforcement

Case Brief

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Parties

Bank of Scotland plc

Claimant

John Thomas Waugh

Defendant

Kathleen Waugh

Defendant

Timothy Rohan Gray

Defendant

Iain Ernest Williams

Defendant

Procedural Posture

Civil / Summary Judgment Application

Legal Issues

  1. 1 Whether the Bank is entitled to summary judgment for sums due under the facility letter
  2. 2 Whether the Trustees are estopped from denying the validity of the legal charge over Asquorn House
  3. 3 Whether the legal charge, though invalid as a deed, is effective as an equitable mortgage

Ratio Decidendi

The Bank is entitled to summary judgment for the sums due under the facility letter as there is no realistic defence. The Trustees are not estopped from relying on the invalidity of the legal charge due to lack of attestation, as the defect is apparent on the face of the document and estoppel does not apply in such circumstances. However, the legal charge is effective as an equitable mortgage, having been signed by the parties and containing all agreed terms.

Court Disposition

Summary judgment granted in part; declaration granted; further relief to be determined.

Orders

  • Summary judgment for the Bank for sums due under the facility letter (£1,970,791.66 as at 9 April 2014)
  • Declaration that Trustees are not estopped from relying on defects in execution of the legal charge