There appears to be no reported case where, in this sort of scenario, the borrower has succeeded in suing the bank (for examples of failed attempts to do so, see eg Deutsche Bank (Suisse) SA v Khan and Commercial First Business Ltd v Atkins). The posited scenario also contains quite a number of variables: • what kind of borrower? • what kind of lending? • what kind of security? • how was the enforcement challenged (and with what degree of success?)? • what sort of opportunity was lost, and how? This Q&A assumes that the borrower can successfully demonstrate that enforcement of the security was somehow improper and that it caused a loss of opportunity to make money from the asset over which security was held. That could, in principle, give rise to a claim against the lender/bank, on one of the following bases: Breach of contract If

Record management and security Lexis®PSL Practice Compliance Information management and security subtopic contains a range of Practice Notes and Precedents in relation to document retention, document storage and information security. For an outline of this subtopic, see: Information security and management—overview. In common with other Precedent agreements which govern the ongoing provision of services, our Data storage agreement (long form) contains a Recordkeeping provision (clause 31). This clause does not specify minimum standards of record keeping but is subject to the obligation to provide services generally in accordance with 'Good Industry Practice' as defined. In relation to the security of records, the long

Subject to the terms of the existing agreement, the existing contract might be capable of being transferred by way of assignment or novation or if neither of those are options, by way of a sub-sale. Our Practice Note: Sub-sales and assignments explains the three mechanisms as follows: • an assignment is where A contracts with B and B assigns the benefit of the original contract to C • a novation is where A contracts with B and then B novates its obligations and rights under the original contract to C, and • a sub-sale is where A contracts to sell a property to B (original contract) and before completing purchase, B then contract to sell the property to C (sub-contract) creating two back-to-back sale contracts. On completion, there can be one of two transfers (A-B and B-C; or A-C at B’s direction) Novation From the outgoing buyer’s perspective, it may be preferably to novate the agreement rather than assign it, because existing obligations

It is not possible to convert a LLP to a limited company but this can be achieved commercially by the LLP transferring its assets and liabilities to the limited company pursuant to a business transfer agreement. We do not have a specific precedent dealing with the transfer of a business from a LLP to a limited company, but it should be possible to adapt the following precedents which deal with the transfer of a business from a general partnership to a LLP: • Transfer agreement—conversion of general partnership to limited liability partnership (this will be the principal document transferring the LLP’s business, assets and liabilities to the company) • Deed of novation—conversion of general partnership to limited liability partnership (this will deal with the transfer of individual contracts) • Deed of assignment—conversion of general partnership to limited liability partnership

Liability Where an obligation or promise is given by two or more persons, they may be liable: • jointly • severally, or • jointly and severally The applicable liability is a question of construction and depends on the intention of the parties as evidenced by the terms of the relevant document. If an agreement is silent on liability, the proper construction of an agreement will be considered. For example, in Rhinegold Publishing v Apex Business Development statutory demands were served on Rhinegold Ltd, and a related company, Tannhauser Ltd, in the sums of approximately

We refer you to the following Precedents below, located in the Sale and supply of goods subtopic: • Supply of goods agreement—pro-supplier • Supply of goods agreement—pro-customer, and • International supply of goods agreement (business-to-business) In relation to the second part of this Q&A, we assume the company is a private company limited by shares. Proceedings of directors Directors are expected to act collectively as a board. Formal procedural rules do not have to be followed if their decision is unanimous, but in other circumstances the requirements

Practice Note: Family provision claims—practice and procedure explains: 'An application for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975 (I(PFD)A 1975) for deaths before 1 October 2014, that was issued before the grant of representation could be struck out as being premature although if a grant was issued prior to the hearing,

The issue of conclusivity may arise as regards to a conflict between the name and registered number of a company on the face of one or more documents. Such inconsistencies and mistakes may create issues relating to identity, privity and capacity. Problems such as this may arise due to simple typographical errors, or where there are a number of group companies with similar names. Inconsistency within same document On balance, the issue here is perhaps more a question of contractual interpretation than company law. From the point of view of contract law and the intention of the parties, as derived from the line of cases since Investors Compensation Scheme v West Bromwich Building Society (including Chartbrook v Persimmon Homes Limited), contractual provisions will be interpreted in accordance with what the parties are considered to have intended, judged objectively and in the light of the relevant factual background known to both parties. Disputes may naturally arise where parties seek to exploit inconsistencies

Child defendants Although a child is responsible for their negligent actions just like any adult, the standard of care is that which can be reasonably expected of a child of the defendant’s age. As noted in Commentary: Liability for children: Butterworths Personal Injury Litigation Service [81]: ‘the general principle is that a parent or schoolmaster is not liable for the conduct of children under their supervision’. However, where the child is very young, it may be that the responsible adult concerned will be responsible for their negligent actions under a primary liability for a lack of supervision and control. See Practice Note: Breach of the duty of care in personal injury claims Case law The following case law may assist when considering whether a child’s conduct may have amounted to a breach of the duty of care. In Mullin v Richards it was held that although the test of foreseeability in negligence

This Q&A focuses on the rights of a beneficiary of a guarantee to pursue only one of two or more co-guarantors for the same debt. It discusses the ability of the beneficiary to choose which guarantor to proceed against and whether this impacts upon the beneficiary’s rights to pursue the other guarantors in the future. Summary In the absence of express terms in any guarantee agreement requiring the beneficiary to make demand on and pursue all guarantors a beneficiary of a guarantee may choose to pursue only one of two or more co-guarantors. In so doing the beneficiary will not release the other co-guarantors from liability under their guarantees. The beneficiary should, however, be careful not to do anything else which could amount to an express or implied release of one or more of the guarantors. Care may also need to be taken not to allow the relevant limitation period to expire for those guarantors not initially pursued. When might this be an issue? Normally

The effect of limitation periods on counterclaims is governed by section 35 of the Limitation Act 1980 (LA 1980). That provision has been described as ‘one of the most convoluted provisions in the entire law of limitations’: per Lord Collins in Roberts v Gill at [3], citing McGee, Limitation Periods (5th Edn). By LA 1980, s 35, a set-off or counterclaim is treated as a separate claim and is deemed to have been made on the date when the original

General principles of administration charges The starting point is that the landlord’s entitlement is defined by the terms of the lease. If the lease is silent as to the charges even to the extent of not providing for there to be charged other than the rent itself, then it will not be possible to rely on the lease to recover expenditures of any kind, including legal fees but a long lease without any such provision would now be exceptional. Assuming that there is some provision in the lease for charges beyond the ground rent, it is simply a question of contractual construction whether or not the particular expenditure comes within the terms of the lease so that the landlord may recover it through charges. There are no legal presumptions or evidential burdens which affect this exercise of construction, save that genuine ambiguity is likely to be resolved against the landlord as the party relying on the provision.