Westoak Holdings Ltd. v Waltham Forest

An absolute assignment of a debt may be proved on the balance of probabilities by considering the deed, identified schedules, evidence of execution, notice and subsequent conduct. Confusion arising from earlier proceedings does not invalidate an assignment where the assigned debts are identifiable. Any duplication or over-recovery is ordinarily a matter for detailed defence, including restitution or mistake, rather than a basis for dismissing the action in limine. A procedural order joining an assignee to earlier proceedings does not create an issue estoppel on the merits where the judgment was limited to debts within the assignment. An estoppel point omitted from the pleadings and trial cannot ordinarily be raised for the first time on appeal.

Station Estates Ltd assigned debts owed by the London Borough of Waltham Forest to Westoak Holdings Ltd under a deed dated 10 October 2001. Westoak later claimed payment of outstanding invoices. The Mayor's and City of London County Court, before His Honour Judge Simpson, dismissed the claim in limine on 25 May 2004, holding that the assignment had not been proved.

Westoak appealed. The Court of Appeal considered whether the assignment and the invoices within its scope had been proved, and whether the Borough could rely on the form of earlier proceedings, including Westoak's joinder as an assignee, to establish an estoppel.

The Court of Appeal unanimously allowed the appeal. Lord Justice Rix gave the first judgment, with Lady Justice Arden and Lord Justice Thorpe agreeing.

1. Proof of assignment. The assignment was proved on the balance of probabilities. The deed referred to the debt and its schedule, four invoice schedules were before the parties when the deed was executed, and three signatories gave unchallenged evidence of execution by reference to those schedules. Notice of assignment was also established by the correspondence, the pleadings and the Borough's conduct. The judge should have found that the assignment covered the invoices in appendices 1 to 4.
2. Earlier proceedings. Any uncertainty arising from the first proceedings was beside the point. Even if invoices had been claimed twice, or Westoak had at one stage asserted an assignment wider than the deed, those matters could have been addressed by detailed defence, restitution, mistake or another appropriate plea. They did not justify rejecting the assignment as a whole.
3. Estoppel. Westoak's joinder to the first proceedings was a procedural step and created no issue estoppel on the merits. The order and judgments in those proceedings were limited to invoices properly scheduled to the assignment. Hoystead v Commissioner of Taxation [1926] AC 155 concerned estoppel based on a specific judgment addressing specific questions and did not govern these circumstances.
4. Procedural consequence. The estoppel argument had not been pleaded or raised before the trial judge. It was a new point raised for the first time on appeal through a late respondent's notice, and permission was refused. The case was remitted for the trial to continue before another judge, if the parties could not resolve the remaining liability.

The Borough was ordered to pay Westoak's appeal costs on an indemnity basis and the costs of the trial on 24 and 25 May.

1. Court of Appeal (Civil Division). In [2004] EWCA Civ 1738, the court allowed Westoak's appeal, held that the assignment was proved to cover the invoices in appendices 1 and 2, and remitted the case for continuation of the trial.
2. Mayor's and City of London County Court. His Honour Judge Simpson, on 25 May 2004, held that the assignment had not been proved and dismissed the action in limine.