Экзамен зачет учебный год 2023 / Sparkes, A New Land Law

2.The charge

[28.39] The basis is that an unsecured judgment debt is charged on land but only after the court has made a charging order. It is available to creditors who do not hold an existing mortgage or security, though a charging order may be allowed if a creditor has a security but its validity is in doubt.188

The first step is a personal action against the debtor and is not registrable. After obtaining judgment for a fixed sum of money189 plus costs190 the creditor can then apply for a charging order if no other means of enforcement is in operation.191 Application is usually made to the court whose judgment is being enforced.192 When the order is made it imposes a proprietary charge193 on “such property of the debtor as may be specified in the order”.194 Land is a particularly appropriate target for the enforcement of a debt since it is immoveable and easily saleable. Charging orders are also used to collect council tax,195 child support,196 and to confiscate the profits of crime.197

3.Procedure

[28.40] Charging order procedure involves two stages.198

Application is made for an interim charging order on a claim form.199 At this stage the procedure is unilateral: the creditor applies and the debtor is not yet able to dispute it. A single claim can be used to seek several charging orders against separate assets.200 Evidence must establish the judgment debt, target specific property owned by the debtor and identify others who are potential objectors. The interim order is an almost automatic response to application documents which are in order and acts to impose a temporary charge on the target land.201

A court hearing is required before it is decided to make a final charging order. All those interested must be given time (at least 21 days) to decide whether to participate in the court hearing at which the judicial discretion is exercised. The debtor is entitled to object, but so too is anyone else who has a proprietary interest or something analogous.202 The application for the interim order must include the names of all known

188Gillespie v. Riddell [1909] AC 130, HL; First National Securities v. Hegerty ([1985] QB 850, CA; J Price [1989] Conv 133.

189COA 1979 s 1(1).

190Holder v. APC Supperstone [2000] 1 All ER 473, Evans-Lombe J.

191Mercantile Credit Co v. Ellis [1987] CLYB 2917 (instalment order).

192COA 1979 s 1(2); CPR 73.3(2).

193COA 1979 s 1(1)–(3).

194S 1(1).

195SI 1992/613, regs 32–36, 50–57, sch 2.

196Child Support Act 1991 ss 36, 40.

197Proceeds of Crime Act 2002.

198The final order can be set aside if made without leave: Clarke v. Coutts & Co [2002] EWCA Civ 943, [2002] 26 EG 140 (CS).

199CPR 73; Claim form N379.

200PD 73.1.3.

201Clark v. Chief Land Registrar [1994] Ch 370, CA; Haly v. Barry (1868) LR 3 Ch App 452; Brereton v.

Edwards (1888) 21 QBD 488, CA.

202Banque National de Paris v. Montman [2000] 1 BCLC 576, Ch D.

creditors,203 and the court may order that other parties should also be served. Unsecured creditors do not have standing to object. The court weighs all circumstances supported by the evidence before it,204 including the personal circumstances of the debtor and possible prejudice to other secured creditors.205 Conditions may be imposed and the interim order may be varied.206 If there is an order allowing a debt to be paid by instalments, this is a factor to be considered when deciding whether or not to confirm a charging order but is not decisive either way.207 A charging order favours the judgment creditor (previously unsecured) over other unsecured creditors on a subsequent insolvency. So the court has a full discretion either to make a final order or to refuse it.208 In practice some positive reason is required to place the judgment creditor at an advantage.209 A final order must be obtained before bankruptcy or the commencement of a winding up,210 but even a threat of insolvency is a reason to refuse a charging order.211

4.Charging legal estates

[28.41] The interest charged is “any property of the debtor . . . specified in the order”,212 but the primary focus of this book is land within the jurisdiction.213 If the judgment debtor is sole legal and beneficial owner the charge binds the legal estate. Any genuine dispute about ownership must be resolved by a full trial,214 but a debtor cannot wriggle out of a charging order by alleging an unproved interest in an outsider.215

Enforcement against the legal estate is also allowed where there is “unity of debt”,216 that is a single debt shared by all beneficial co-owners of the land,217 whether beneficial joint tenants or tenants in common. In Clark v. Chief Land Registrar218 Mr and Mrs Jarvis’s home Spinners Cottage was charged with a debt of £215,000. Although the legal estate was held on the co-ownership trusts, the non-trust

203PD 73.1.2(5).

204An objector must file and serve written evidence not less than 7 days before hearing; CPR 73.8(1); the court may transfer the hearing to the home court of opposing debtor PD 73.3.

205COA 1979 s 1(5); Rainbow v. Moorgate Properties [1975] 2 All ER 821, CA (old law); Law Com 74 (1976), [43–44].

206COA 1979 s 3(1), (5)–(7); Perotti v. Watson [2000] 1 CLYB 378, CA.

207Ropaigealach v. Allied Irish Bank [2001] EWCA Civ 1790, [2002] 03 EG 130.

208CPR 73.8(2).

209Roberts Petroleum v. Bernard Kenny [1982] 1 WLR 301, 307E–H, Lord Brightman approved on this point [1983] 2 AC 192, HL.

210IA 1986 ss 183, 346.

211Roberts Petroleum v. Bernard Kenny [1983] 2 AC 192, HL; approving [1982] 1 WLR 301, 307E–H, Lord Brightman in CA; Rainbow v. Moorgate Properties [1975] 2 All ER 821, CA; Harman v. Glencross [1986] Fam 81, 93, Balcombe LJ; Jelle Zwemstra v. Walton [1997] 2 CLYB 3002.

212COA 1979 s 1(1).

213COA 1979 s 8(3); Interpool v. Galani [1988] QB 738, 741–742, Balcombe LJ.

214Rosseel v. Oriental Commercial & Shipping (UK) [1990] 1 WLR 1387, CA.

215Barclays Bank v. Forrester [1987] CLYB 2537; First National Securities v. Hegerty [1985] QB 850, 855E, Bingham J.

216The phrase apparently derives from the notes to the old Supreme Court Practice.

217COA 1979 s 2(1)(b); confirming National Westminster Bank v. Allen [1971] 2 QB 718.

218[1994] Ch 371, CA.

procedure was followed, but the order actually made219 was adequate to effect a charge of the legal estate in the Jarvis’ home.220

A legal estate held by trustees can be charged in three cases.221 If judgment is obtained against the trustees as trustees, the legal estate can be charged. If T holds land under a bare trust on trust for B (the debtor) absolutely the legal estate held by T can be charged with B’s debt.222 If T1 and T2 hold on trust for B1 and B2 as beneficial co-owners, the legal estate can be charged with the debts of B1 and B2.

5.Protection

[28.42] A proprietary claim is established at the time that application is made for a charging order, and this should be registered as a pending action relating to the land.223 An order (interim or final) can be registered as a writ or order affecting land.224 Protective registration is essential if the charge affects a legal title.225 A land registry notice is needed against a registered title.226 Even though a purchaser will be bound by any registration, the court retains a power to discharge the order at the instance of a buyer. This was done in Howell v. Montey227 but it was surely wrong to help a buyer who had allowed his search to lapse.

A charging order creates an equitable charge over the property, the proprietary character of the interest being shown by the rule that the creditor with the benefit of charging order has sufficient status to seek relief from forfeiture of a leasehold title.228

6.Enforcement

[28.43] Enforcement requires a court order for sale.229 Enforcement by sale of the legal estate should be by application to the court on a Part 8 claim form.230 At this stage discretionary factors such as the interests of children should not be considered.231

219At 380–381, Nourse LJ; [1993] Ch 294, 305–308, Ferris J.

220Two separate charging orders did not prevent unity of debt, reversing Irani Finance v. Singh [1971] Ch 59, CA.

221COA 1979 s 2(1)(b).

222S 2(1)(a)(ii); Stevens v. Hince (1914) 110 LT 935 (old law).

223LCA 1972 s 5; a caution if title is registered.

224COA 1979 s 3(2); LCA 1972 s 6. Companies registration is not required: Companies Act 1985 s 395(1); Re Overseas Aviation Engineering (GB) [1963] Ch 24, CA, on earlier legislation.

225LCA 1972 ss 5(7), 6(4); LRA 1925 s 59(6) (good faith).

226LRA 2002 s 87; formerly a caution. Sch 13 repeals COA 1979 ss 3(3), 7(4).

227(1990) 61 P & CR 18, CA.

228Croydon (Unique) v. Wright [2001] Ch 318, CA.

229COA 1979 s 3(4); CPR 73.10; Tennant v. Trenchard (1869) LR 4 Ch App 537. Appointment of a receiver is no longer required.

230CPR 73.10(3); PD 73; an estimate of the likely sale price is required.

231Wells v. Pickering [2002] 2 FLR 798, Ch D.

J.CHARGING ORDERS ON BENEFICIAL INTERESTS

1.Charging orders

[28.44] Under a trust of land, the debt of a beneficiary can be charged on the equitable interest under the trust of land232 though not on the legal estate.233 The trustees and all beneficiaries are brought into court.234 The legal estate cannot be charged. The judgment creditor does not have direct access to the legal estate, unless there is no unity of debt.235 A charge of the equitable interest can only be enforced by an application for sale as a beneficial co-owner.

A spouse is severely prejudiced by a charging order against the other beneficial interest in the family home, both because of the threat of sale and the reduction in assets for adjustment on divorce. Capacity to challenge a charging order is given to “any person interested in the property to which the order relates.”236 This does not include a wife as such237 nor a cohabitee, but does include a beneficial co-owner and a spouse who has commenced divorce proceedings.238

How property adjustment interrelates with the power to confirm a charging order was considered by Balcombe LJ in First National Securities v. Hegerty.239 A charging order made before a divorce application must be made absolute, leaving the spouse to challenge the later decision to order sale.240 This is likely to be little comfort, since the wife is likely to lose under the general rule favouring creditors over family members.241 If an application has been made for property adjustment on divorce at the time of a later application for a charging order nisi, the court has a full discretion. Creditors prevail over family members unless there is a very clear reason to reverse the normal position. One exceptional case was Harman v. Glencross242 where there was unanimous support for postponing the charging order to the wife’s application for ancillary relief. This is best explained as a case where the creditor put in no evidence, leaving the court to focus on the wife’s desire to preserve her family home.243

2.Charges of beneficial interest not registrable

[28.45] If a beneficial interest under a trust of land can be overreached, then so too can a mortgage or charging order affecting it. It follows that to allow registration of

232A beneficial interest under a trust for sale could be charged despite conversion theory: COA 1979 s 2(1)(a)(ii); Law Com 74 (1976), [59–66]; this reversed the older law.

233TLATA 1996 s 3.

234Harman v. Glencross [1986] Fam 81, 89E, Balcombe LJ. Procedural irregularities may be overlooked:

Clark v. Chief Land Registrar [1994] Ch 370, CA.

235See above [28.41].

236COA 1979 s 3(5); Harman v. Glencross [1986] Fam 81, 89C–E.

237Whittingham v. Whittingham [1979] Fam 9, 21H, Balcombe LJ.

238Harman v. Glencross [1986] Fam 81, 89–91, Balcombe LJ, 100–101, Fox LJ.

239[1985] QB 850, 99–100. First National had an equitable mortgage anyway.

240Austin-Fell v. Austin-Fell [1990] Fam 172, Waite J.

241Barclays Bank v. Hendricks [1996] 1 FLR 258; NS Price [1997] Conv 464. Query the decision in Austin-Fell to postpone sale until the younger child attained 18.

242[1986] Fam 81, CA doubting First National Securities v. Hegerty [1985] QB 850, 856, Stephenson LJ.

243At 104C.

624 28. MORTGAGES AND MONEY CHARGES

such a charging order244 would “cut right across the system of conveyancing.” Priorities are based on first in time.

K. BANKRUPTCY

1.Loss of all beneficial property

[28.46] Creditors who are not secured, that is who have no property earmarked for the payment of their debt, have to rely on a claim against the general assets of the bankrupt along with everyone else who is owed money. If a bankrupt has debts of £100,000, but his unmortgaged property245 is worth £50,000, each creditor will receive only half what he is owed. All the bankrupt’s property is taken from him to meet these liabilities, and passes for the benefit of his creditors.246 A trustee in bankruptcy is appointed to look after the interests of creditors.247 All property will be vested in the trustee, that is all beneficial or valuable assets of the bankrupt including his land, all freehold and leasehold248 land, other interests in land, future interests, contracts, powers, and beneficial interests under trusts.249 Property previously given away by the bankrupt may also be recovered for the benefit of the estate.250 Onerous property can be disclaimed by the trustee in bankruptcy, an act which may cause the bankrupt’s interest in the property to end and hence an escheat.251 It is possible to create a “protective” trust which gives a life interest determinable on bankruptcy, and protects a beneficiary from the consequences of his own profligacy.252 Legal estates held by trustees do not pass, though bankruptcy is an event which is likely to lead to removal from office as a trustee.

2.Statutory demand

[28.47] Insolvency arises from the inability of the bankrupt to pay his debts, proved when a demand is made for payment of a debt which he is unable to pay in time. A creditor instigates the procedure by serving a statutory demand on the debtor,253 in a prescribed form. Three weeks are allowed from the time of service on the debtor for payment to be made. This demand cannot be protected by registration. No blot appears on the title at this first stage of bankruptcy procedure and statutory demands cannot be protected by registration.

244Perry v. Phoenix Assurance [1988] 1 WLR 940, 945B, Browne-Wilkinson V-C; JE Martin [1988] Conv 286; TLATA 1996 sch 3 para 12.

245Secured creditors are largely unaffected by the borrower’s bankruptcy, since they can enforce their mortgage by sale; the trustee in bankruptcy takes subject to existing security interests.

246Wright v. Fairfield (1831) 2 B & Ad 727, 732, 109 ER 307, Lord Tenterden.

247Contrast the administration or liquidation of a company when title remains in the company though the directors can no longer act, a land registry restriction is required, and the administrator or liquidator has a power of sale: IA 1986 s 163; DLRR 2003 r 184.

248See above [27.03].

249St Thomas’ Hospital v. Richardson [1910] 1 KB 271; but see Re Solicitor [1952] Ch 328.

250See above [24.22].

251See above [3.45].

252TA 1925 s 33; there are many cases.

253IA 1986 s 268(1)(a).

3.Bankruptcy petition

[28.48] It is usually a creditor who makes a bankruptcy petition to the bankruptcy court, the usual ground being that the debtor appears to be unable to pay his debts.254 This marks the onset of bankruptcy, since a bankruptcy is no longer related back to the act of bankruptcy which preceded it,255 and removes the bankrupt’s powers to dispose of his property.256 The blot on the title needs to be brought to the attention of potential purchasers. At least 14 days must elapse after service of the petition on the debtor before it is considered by the court.

4.Bankruptcy orders

[28.49] Petitions are dismissed if the debt has been paid or if it would be unfair to make an order, but in the normal course the court will make a bankruptcy order. 257 The bankrupt loses title to his assets and can no longer dispose of them. Control passes first to the Official Receiver and afterwards to a trustee in bankruptcy. The creditors need to alert purchasers to the fact that the debtor has lost control of his property, as described below.

5.Protection where title is unregistered

[28.50] A petition should be registered as a pending land action. When this is followed by a bankruptcy order, a fresh registration is required as a writ or order affecting land, whether or not the bankrupt’s estate is known to include land.258 The consequences of failure to register are considered elsewhere.259 There is a separate register of deeds of arrangement.260

6.Bankruptcy of a proprietor of registered land

[28.51] A new simpler scheme is introduced.261 A petition in bankruptcy should first be entered as a land charge. As soon as practicable afterwards the registrar should enter a notice against any registered title that appears to be affected.262 This stage of the process is fraught with error: it is all too likely that some land owned by the bankrupt will be missed or that innocent landowners will find themselves wrongly recorded as being in debt. The notice will continue in force until superseded by a restriction or the registration of the trustee in bankruptcy as proprietor.263 It will prevent the debtor

254Ss 267–268.

255Bankruptcy Act 1914 s 37(1).

256IA 1986 s 278, subject to court approval of dealings: ss 283–291.

257S 282.

258LCA 1972 s 6(1), (5), (6).

259See above [21.33ff].

260S 7; Deeds of Arrangement Act 1914; voluntary arrangements under IA 1986 ss 252–263 often appear in class C(iii); SI 1999/359; IA 2000 ss 1–3, schs 1–3.

261LRA 2002 s 86; Law Com 271 (2001) [6.61]; Law Com 271 (2001) EN [376ff]; DLRR 2003 rr 166–174.

262LRA 2002 s 86(2); DLRR 2003 r 166 (enter in proprietorship register if it affects the proprietor of an estate as opposed to a mortgage); notice must be given to the proprietor affected.

263LRA 2002 s 86(3). Formerly a creditor’s notice.

disposing of his land while the court decides whether or not to make him bankrupt, thus preserving the value of the land for his creditors.

If the decision is to make a bankruptcy order, this should first be registered as a pending action in the land charges register. As soon as practicable afterwards the registrar must find any registered titles affected and enter a restriction reflecting the limitation on the powers of the proprietor. Any attempt at disposition is void unless it has the consent of the trustee in bankruptcy or is ratified by the court.264 Registration is backdated to the date of the disposition.265 This blanket ban used to be imposed by an inhibition,266 but the same result is now achieved by a particularly stringent form of restriction. If a restriction is not entered on the register, the title of the trustee in bankruptcy will be void as against a protected purchaser claiming under a registered disposition for value, but the purchaser must act in good faith and cannot alone rely on the register.267 Honesty is confined to this narrow situation and is, of course, contrary to the general rule of the registration scheme.

A purchaser of registered land is not required to make a land charges search.268

7.Bankruptcy only land charges searches

[28.52] The unregistered system of protection against names is far more efficient at picking up bankruptcy entries than the registered system in which it is common for errors of matching to occur, that is for an innocent proprietor to have a bankruptcy recorded against him or for the land of a genuine bankrupt not to have a bankruptcy entry made against it.269 A monetary indemnity is available where mismatching occurs. However, despite the irrelevance of a land charges search once title is registered, many lenders do insist on a “bankruptcy only” search in order to ascertain whether the borrower is, or ever has been, bankrupt before committing themselves to lending money against a registered title. The proper means of protection are described below.

8.Registration of and sale by trustee in bankruptcy

[28.53] The Official Receiver takes temporary control of the bankrupt’s estate, until he calls a first meeting of creditors, which appoints a trustee in bankruptcy.270 Title of a trustee in bankruptcy derives from the insolvency legislation without conveyancing formalities.271 However the register should be corrected to show the trustee in bankruptcy as proprietor on production of evidence of the appointment.272

264LRA 2002 s 86(4); IA 1986 s 284; DLRR 2003 r 167; notice must be given to the proprietor.

265LRA 2002 s 86(6).

266LRA 1925 s 61(3)–(4); Law Com 271 (2001), [11.41].

267LRA 2002 s 86(5).

268LRA 2002 s 86(7).

269In practice it is very common to make a bankruptcy only search. LR Annual Report 2001–2002, 49, reveals 1 m land charges searches and 4 m bankruptcy only searches; also: PH Kenny [1999] Conv 279; SI 1999/359.

270IA 1986 ss 287(1), 292, 293–300.

271S 306.

272DLRR 2003 r 169. Evidence required is an office copy of the bankruptcy order or a certificate from a conveyancer that he has it. R 171 provides for the insertion in the register of a reference to the fact that

Sale is the inevitable end of successful bankruptcy proceedings, since all assets of the bankrupt will need to be applied towards his debts. The trustee in bankruptcy has the basic function of getting in, realising and distributing the bankrupt’s estate. His powers include sale,273 barring an entail,274 making contracts, executing deeds, and giving receipts. Creditors have little control and purchasers are protected against procedural defects. Special problems arise with leasehold property.275

9.End of bankruptcy

[28.54] A bankruptcy may end before sale of all the assets where a petition or order is cancelled or annulled, usually because all debts have been paid. A bankrupt can apply for a discharge by making a statement of affairs to the bankruptcy court. Any registration must be cancelled or vacated276 to free the land from the bankruptcy.

10. Special cases

[28.55] Regulations deal with insolvent estates277 and partnerships.278

the proprietor is a trustee in bankruptcy and the name of the bankrupt. R 170 applies when a trustee in bankruptcy vacates office.

273IA 1986 s 314.

274Sch 5 part II para 14.

275See above [27.07].

276LRA 1925 s 61(9); DLRR 2003 r 168.

277SI 1986/1999; DLRR 2003 r 169.

278SI 1994/2421.

29

MORTGAGE DEBT AND DEFAULT

Debt: principal, interest and costs. Overdraft mortgages. Terms fettering redemption. Commercial repossession. Sale: express powers; judicial sale; proceeds and shortfall. Defective sale. Redemption: discharge, disputed redemption.

A. PRINCIPAL, INTEREST AND COSTS

1.Principal

[29.01] Mortgages provide for repayment on a fixed day called the contractual redemption date. Convention dictates that it is six months after the date of the mortgage, and neither lender1 nor borrower2 can insist on earlier repayment. The lender should ensure that interest is payable during the mortgage’s initial phase.3 Repayment is not really anticipated on the stated day, the main function of which is to determine when sale may occur.4

Common lawyers were literalists, a trait which led their common law courts to mete out very harsh treatment to borrowers. If the borrower missed the day set for repayment the lender became absolutely entitled to the mortgaged property since the mortgage was in those circumstances no longer redeemable. Shakespeare railed against this attitude in The Merchant of Venice. Antonio waits in vain for his ships to arrive bringing their cargoes and the means to repay his borrowings; once the contractual opportunity to redeem has gone, Shylock enforces his bond and demands his rights under the letter of his contract, that is his “pound of flesh”. Borrowers suffered this same literal interpretation at common law. If a legal charge provides for payment of the debt on one fixed day, and it is read literally, there is no means of discharging that burden at any later time.5

As is unconscionable for a lender to enforce his strict legal rights, equity righted the balance. Lord Eldon LC said in Seton v. Slade6 that:

1Bolton v. Buckenham [1891] 1 QB 278, CA.

2Brown v. Cole (1845) 14 Sim 427, 60 ER 424; unless the lender enforces: Bovill v. Endle [1896] 1 Ch 684; Ex p Wickens [1898] 1 QB 543, CA.

3Re King (1881) 17 Ch D 191; Mellersh v. Brown (1890) 45 Ch D 225.

4Smith v. Smith [1891] 3 Ch 550.

5Legal charges are better drafted to set a date on which the debt is due (and hence when sale is possible), but so as to allow discharge of the charge at any future date. After 1925 the demise in a true mortgage is removed by cesser on redemption if repayment occurs on the one fixed day, but otherwise a freehold lender is entitled to an apparently irredeemable 3000 year term and relies on equitable protection.

6(1802) 7 Ves 265, 32 ER 108.

“The contract is in [Chancery] considered a mere loan of money, secured by a pledge of the estate. . . . [T]his court acts against what is the prima facie import of the terms of the agreement itself . . . [O]nce a mortgage always a mortgage.”

So late repayment was forced on the lender who was sufficiently compensated for any delay by payments of interest. This equitable counterbalance of the harshness of the common law ensures that mortgages operate a fair balance.

The equity of redemption is the borrower’s interest in the land subject to the mortgage. Early forms transferred legal title to the lender, a problem corrected by the ancient invention7 of an equitable interest in the borrower. In substance a modern legal charge is the same, but since it leaves legal title in the borrower, the “equity” of redemption now includes the legal estate mortgaged,8 though its most valuable component remains the equitable right to redeem the loan and so free the land of its burden. The borrower is owner of the property subject to the charge,9 and can dispose of his interest subject to it.10

Most domestic mortgages provide for payment by instalments.11

2.Interest

[29.02] Mortgages invariably require regular payments of interest,12 on whatever balance is outstanding. Interest is a percentage of the capital sum calculated over a set period of time, weekly, monthly, or yearly.13 Although the right is implied14 it is invariably also expressed, since the rate set by equity is well below commercial levels. Interest rates fluctuate over time guided by the Monetary Policy Committee of the Bank of England.15 Building societies, banks, and local authorities16 commonly reserve the right to vary the rate of interest by notice, a practice which is unobjectionable provided that interest is certain at the moment that payment is due.17 A term may be implied to prevent variation of interest rates for an improper purpose, or to prevent a variation that is dishonest, capricious, arbitrary, beyond what any reasonable lender would have wanted.18 Fixed rate mortgages provide a measure of protection since the

7Elizabethan (ie 1558–1603)?; Pawlett v. Att-Gen (1667) Hardres 465, 469, 145 ER 550, Hale CB; Statute 7 Geo 2 c 20 (1734) required common law courts to give effect to it; G & C Kreglinger v. New Patagonia Meat & Cold Storage Co [1914] AC 25, 50 (Nottingham LC had used the analogy of legal estates).

8In the case of a mortgage by demise, it is the freehold estate subject to the mortgage demise (or leasehold estate subject to the mortgage sub-demise). Equitable mortgages are modelled on legal ones: Tarn v. Turner (1888) 39 Ch D 456; Kreglinger [1914] AC 25, 52, Lord Parker.

9Heath v. Pugh (1881) 6 QBD 345, 359, Selborne LC; English Sewing Cotton Co v. IRC [1947] 1 All ER 679, 680, Greene MR.

10Tarn v. Turner (1888) 39 Ch D 456, 460, Kekewich J; Re Webb [1933] Ch 29, 46, 52; Chelsea & Waltham Green BS v. Armstrong [1951] Ch 853 (liability of buyer on covenant to lender).

11See below [30.14ff].

12Separate debt: Dickenson v. Harrison (1817) 4 Price 282, 146 ER 456. As to statute-barred interest, see above [10.33ff].

13Comparison is aided by taking an annual percentage rate (APR).

14Re King ex p Furber (1881) 17 Ch D 191, 196, Bacon V-C; Re Drax [1903] 1 Ch 781; Stoker v. Elwell [1942] Ch 243 (charging orders); Al-Wazir v. Islamic Press Agency [2001] EWCA Civ 1276, [2002] 2 P & CR 12 at 157.

15Current rates can be found in the financial pages of the newspapers or monthly in the LSG.

16HA 1985 ss 435–459, sch 16.

17First National Bank v. Syed [1991] 2 All ER 250, 252, Dillon LJ.

18Paragon Finance v. Nash [2001] EWCA Civ 1466, [2002] 1 WLR 685.