Richard Sandor Frischmann v Vaxeal Holdings SA & Ors

On a summary-judgment application, the court may decide a short point of law or construction where the evidence is sufficient and there is no realistic prospect that a trial would alter the result. An equitable assignment of an existing chose in action may be effective despite failure to satisfy the statutory formalities for a legal assignment, and consideration is not required. Notice of an equitable assignment need only communicate clearly that the interest has been transferred; the assignment itself need not be supplied. Contractual wording may be corrected where it contains an obvious mistake and the intended meaning is clear. A compromise requiring actual early payment is unenforceable if payment is not made. Contractual information rights may be enforced by mandatory injunction where the relief is proportionate.

The claimant sought summary judgment against the second and third defendants for sums allegedly due under two loan agreements and a personal guarantee assigned to him by his father. He also sought contractual information from the second defendant under information covenants in the loan agreements.

The defendants challenged the assignment, notice, assignment of the guarantee, interest clause, and alleged a compromise and collateral agreement postponing enforcement until successful salvage. They also disputed entitlement to further information. The central issues were whether those defences had a realistic prospect of success and whether the contractual information obligation could be summarily enforced.

1. Summary judgment. The court applied the principles in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), as explained in King v Stiefel [2021] EWHC 1045 (Comm) and Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204. The court could evaluate evidence without conducting a mini-trial, and should decide a suitable legal or construction issue where the evidence was complete and there was no other compelling reason for trial.
2. Assignment. Section 136 of the Law of Property Act 1925 required a legal assignment to be in writing under the hand of the assignor. Execution by the claimant as attorney therefore did not create a statutory assignment. It did, however, create an effective equitable assignment of the existing loan rights and guarantee. Consideration was unnecessary. The defendants, as obligors and strangers to the assignment, could not in any event impugn it.
3. Notice and guarantee. The notice clearly communicated the assignment of the loans and guarantee. No copy of the assignment was required. The operative definition and assignment clause plainly included the guarantee. The mistaken reference in a recital to the borrower as guarantor could be corrected by construction, assisted by the appendix.
4. Interest and compromise. The guarantee’s reference to the individual lender’s base rate meant that the rate was 12%, or, if necessary, the reference to the base rate was deleted as the minimum modification. The March Agreement required actual early payment, not merely a promise to pay. Because no payment was made by the agreed date, it did not become an enforceable compromise.
5. Collateral agreement. The alleged oral agreement postponing enforcement until salvage was inadequately particularised, unsupported by contemporaneous evidence, inconsistent with the written agreements and later conduct, and had no realistic prospect of success.
6. Information. The contractual information requests were compliant, reasonable and relevant to the claimant’s position as creditor. Contractual disclosure was independent of court disclosure, and the court ordered provision of the outstanding information. Judgment was given against IDM for the loan sums and interest, and against Mr Samuelson under the guarantee, crediting the £70,000 payment.