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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Forbes v Interbay Funding Ltd [2025] EWCA Civ 690 (06 June 2025) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2025/690.html Cite as: [2025] EWCA Civ 690, [2025] WLR(D) 301 |
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ON APPEAL FROM THE COUNTY COURT AT CENTRAL LONDON
HER HONOUR JUDGE EVANS-GORDON
Claim No. K01CR815
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
SIR ANTHONY MANN (sitting in retirement)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE MALES
and
LORD JUSTICE ZACAROLI
____________________
DAVID TERENCE FORBES |
Appellant |
|
- and - |
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INTERBAY FUNDING LIMITED |
Respondent |
|
And Between : |
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DAVID TERENCE FORBES |
Appellant |
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- and - |
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SECULINK LIMITED |
Respondent |
____________________
Joseph England (instructed by Brecher LLP) for Interbay Funding Limited
Martin Westgate KC and Daniel Clarke (instructed by TV Edwards LLP) for the Appellant (in the Seculink appeal)
Tom Morris (instructed by JMW Solicitors LLP) for Seculink Limited
Hearing date: 7 May 2025
____________________
Crown Copyright ©
Lord Justice Zacaroli:
Background: the Interbay debt
Background: the Seculink debt
The Regulations
"(a) protect individuals in debt from the accrual of further interest or charges on their debts during the period specified by the scheme,
(b) protect individuals in debt from enforcement action from their creditors during that period, and
(c) help individuals in debt and their creditors to devise a realistic plan for the repayment of some or all of the debts."
"any sum other than capitalised mortgage arrears payable to a creditor by a debtor which has fallen due and which has not been paid at the date of the application for a moratorium in breach of the agreement between the creditor and the debtor or in breach of the legislation or rules under which the debtor incurred the debt or liability." (emphasis added)
"any arrears in relation to a mortgage that have been added to the outstanding balance to be paid over the duration of the mortgage."
"(a) require a debtor to pay interest that accrues on a moratorium debt during a moratorium period,
(b) require a debtor to pay fees, penalties or charges in relation to a moratorium debt that accrue during a moratorium period,
(c) take any enforcement action in respect of a moratorium debt (whether the right to take such action arises under a contract, by virtue of an enactment or otherwise), or
(d) instruct an agent to take any of the actions mentioned in sub-paragraphs (a) to (c)."
The judgment of HHJ Evans-Gordon (the Interbay appeal)
"If the capital sum becomes "arrears" as a result of being called in, that definition makes no sense at all because there is no longer a non-eligible secured debt, only arrears".
"The objective is to allow debtors time to devise a realistic plan for the discharge of their debts. 'Their debts' in this context means their moratorium debts. The debtor is still obliged to make payments of any future mortgage instalments and other day-to-day living expenses falling due after the date of the application for a moratorium. The scheme is not a blanket release from all future debt It strikes a balance between preserving or freezing the debt level as at the date of the application for a moratorium and suspending its enforcement while ensuring that creditors are paid in relation to post moratorium debt. It does not oblige creditors to continue providing free credit. It is not intended that debtors can live free of cost at their creditors' expense. If Mr Gun Cuninghame's submissions were correct as to the meaning of 'arrears', the Appellant could continue to live in the property indefinitely, receiving most of the rental income without ever having to pay the Respondent anything at all for his occupation."
The judgment of Sir Anthony Mann (the Seculink appeal)
The grounds of appeal
Principles of statutory interpretation
Ground 1 (Interbay appeal) and Ground 3 (Seculink appeal): Is the principal amount of secured debt a non-eligible debt?
" any sum other than any arrears in relation to a mortgage that have been added to the outstanding balance to be paid over the duration of the mortgage payable to a creditor "
"(1) It is a principle of legal policy any interference with established rights and principles recognised by the common law should be expressed in clear terms. This principle forms part of the context against which legislation is enacted and, when interpreting legislation, a court should take it into account.
(2) This gives rise to a more specific presumption that 'fundamental' common law rights cannot be overridden by general words but only by express words or necessary implication."
"It would, in my opinion, be wrong to disregard the fact that, while the 1993 Act may to some extent be regarded as expropriatory of the landlord's interest, nevertheless, it was passed for the benefit of tenants. It is the duty of the court to construe the 1993 Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which Parliament must have intended them to enjoy."
Ground 2 of the Interbay appeal
Ground 3 of the Interbay appeal
Lord Justice Males
Lord Justice Baker