Oisin Fanning v Tenn Capital Limited

A settlement promise not to pursue claims in later proceedings is construed in context and may cover a new cause of action based on facts underlying the settled claim, particularly where the claimant knew of and intended to raise it before settlement. Reasserting those facts to pursue the same end may amount to abuse of process even if the earlier proceedings ended by consent. A lender is not ordinarily liable for a receiver’s undervalue sale where the receiver acts as the borrower’s agent and no basis for lender control or principal status is pleaded. Claims stated only in conclusions without material facts may be struck out; summary judgment is available where there is no realistic prospect of success and no compelling reason for trial.

Tenn lent Fanning £6.3 million secured against his property. After default, receivers sold the property, leaving a substantial shortfall. In an earlier action, Fanning claimed an unfair relationship under the Consumer Credit Act 1974 and misrepresentation. That action was dismissed by consent in October 2023, with an agreement that its claims would not be advanced in other proceedings.

Fanning later brought this action, alleging that the loan was a regulated mortgage contract, repeating misrepresentation claims, alleging conspiracy, claiming that the receivers sold the property at an undervalue, and alleging breach of a duty of good faith. Tenn applied to strike out the claims and for reverse summary judgment. The central issues were the effect of the earlier compromise and whether the new or remaining claims disclosed viable grounds.

The claim was dismissed.

1. Regulated mortgage claims. The claims that the loan was a regulated mortgage contract and unenforceable were struck out as an abuse of process. Read in context, the consent agreement covered more than the causes of action pleaded in the first action. It extended at least to a new cause of action based on the same facts, including Fanning’s asserted residence at the property. He had identified the proposed Financial Services and Markets Act 2000 claim before the compromise. The court held that the statutory character of the claim did not prevent the parties from compromising proceedings about the loan and security. The consent order did not, however, establish residence as an agreed fact. The contractual estoppel discussed in Peekay Intermark Ltd v Australia & New Zealand Banking Group Ltd [2006] EWCA Civ 386 was obiter and concerned an agreed state of affairs; it did not apply in that way. The separate promise not to bring the claims still barred a claim relying on residence. The court also noted that an unfair-relationship claim and a regulated-mortgage claim are mutually exclusive, as confirmed in Breeze v TSB Bank Plc [2026] EWCA Civ 32.
2. Misrepresentation and conspiracy. The repeated misrepresentation claims were barred by the compromise. The conspiracy claim relied on the same residential-use allegations and was also an abuse. Independently, the pleading failed to identify the alleged unlawful act, an intention to injure, or adequately particularised loss; it was struck out for disclosing no reasonable grounds.
3. Undervalue sale. The receivers were agents for the borrower, not the lender, as stated in Standard Chartered Bank v Walker [1982] 1 WLR 1410, and as the charge expressly provided. The pleading and evidence gave no basis for treating Tenn as principal or showing that it controlled or influenced the receivers. The claim was struck out and, alternatively, reverse summary judgment was given because there was no realistic basis for liability and no compelling reason for trial.
4. Good faith. The two-paragraph claim did not explain how the duty arose, what vulnerability was alleged, how Tenn took advantage of it, or what enforcement conduct breached the duty. Bare assertions in the skeleton argument did not cure the pleading. That claim was struck out. All pleaded causes of action having been struck out, the claim was dismissed.

The judgment records earlier proceedings between the parties, which were dismissed by consent on 17 October 2023. The present claim is a separate first-instance action; no appeal history is stated.