The full judgement of Lord Denning et al

Hi folks, I was doing an internet rummage as you do and came across this which may be of interest and/or help to the bods on this forum.

I was surprised that this still exists on the old site.

The link is ..... https://www.getoutofdebtfree.org/forum/viewtopic.php?f=10&t=82254


The full judgement of Lord Denning et al
by Kidpolton8 » Fri Feb 06, 2015 4:18 pm

This is the full judgement in the Van Lynn case.

I have access to JustCite for a trial period of 3 days if anyone wants other cases up on here ?

[1968] EWCA Civ J1009-1
In The Supreme Court of Judicature
Court of Appeal
Between
Van Lynn Developments Limited - Plaintiffs Respondents
and
Pelias Construction Company Limited (formerly Jason Construction Company Limited) - Defendants Appellants
Royal Courts of Justice
Wednesday, 9th October 1968
Before

The Master of the Rolls (Lord Denning)
Lord Justice Davies and
Lord Justice Widgery

(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C.2.)

Mr, A. B. HIDDEN and Mr. I. M. TENNANT (Instructed by Messrs. Booth & Blackwell) appeared on behalf of the Plaintiffs, Respondents.

Mr. PETER SOLOMON (instructed by Messrs. Timothy Hardacre) appeared on behalf of the Defendants, Appellants.

THE MASTER OF THE ROLLS: The plaintiff Company, Van Lynn Developments Ltd., is a company controlled by a young man, Mr. Colin Vandervell, who Is a member of a distinguished family. The defendant company was called Jason Construction Co. Ltd., but has changed Its name to Pellas Construction Company. It is controlled by another young man, Mr. Apponyi. In May of this year the Jason Construction Company Ltd. entered into a contract to build a house at Kingston Hill for a sum of nearly £15,000. It needed finance in order to be able to buy the materials and employ the labour. It got the finance through the good offices of Mr. Colin Vandervell. On his personal request, the bank allowed the Jason Construction Company to overdraw quite considerably; but Mr, Vandervell told the bank that the progress payments (to he made as the house progressed) would be paid into the bank when they were received.
After some little time there was a dispute between Mr. Apponyi and Mr. Colin Vandervell-a dispute which I think it is unnecessary to go Into this morning - but In the result Mr. Apponyi Indicated that the progress payments would not be paid into the bank so as to reduce the overdraft. Thereupon Mr. Vandervell went himself to the bank. The Bank Manager saw both Mr. Apponyi and Mr. Vandervell. The Bank manager told Mr. Apponyi that the progress payments ought to be paid into the bank so as to meet the overdraft which was accruing. Mr. Apponyi said that he did not propose to pay them into the bank. Where upon the bank manager said he would have to call in the overdraft. He did so by a let tar of 15 th June of this year. The bank wrote to the Jason Construction Company and gave notice that they required payment of the amount of £5,385 18a 3d. The bank wrote another letter on 21st June saying that unless payment was made they would have to take their legal remedies.

As Mr. Vandervell had asked the bank for the overdraft, he felt under an obligation to them. So he himself gave a guarantee to the bank for the amount of the overdraft. He followed it up by paying off himself the amount of the overdraft and he took an assignment from the bank.
The actual assignment has been produced to the Court. It is dated 26th June, 1968, It is between the National Provincial Bank and Van Lynn Developments Limited (which is controlled by Mr, Tandervell). It says that in consideration of the sum of £5,296 19s 53. paid by Van Lynn Developments Ltd. to the bank, the assigner (the bank) "here by assigns unto the assignee (Tan Lynn Developments Ltd.) all that the interest of the assigner in a debt of £5,296 19. £d. owed to the assigner by Jason Construction Co. Ltd." That was a perfectly valid assignment. The next day the solicitor for Tan Lynn Developments Ltd, wrote the following letter on which the point arises: Was it a valid notice of the assignment?

The letter is dated 27th June, 1968, by solicitors on behalf of Van Lynn Developments Ltd. to Jason Construction co. Ltd.; "Dear Sirs, We have been instructed by our above named clients.— that is Tan Lynn Developments Ltd. "to apply to you for the payment of a sum of £5,296 19s 6d. outstanding to them following the assignment of the debt to them by National Provincial Bank Limited. Notice of this Assignment has already been gives. to you. Unless we receive payment for the full amount of this debt at this office by the first post on Monday, 1st July, we have instructions that proceedings will be taken against you without further notice".
There was one sentence in that letter which was in accurate, It is the sentence, "Notice of this assignment has already been given to you". That was wrong. No notice of assignment had been given. But the question is whether, in spite of that wrong statement, the letter Itself is a notice of assignment such as to satisfy the statute. That is a pure question of law. It Is a point which we can decide today. It is an arguable point, no doubt, but I do not think we should give leave to defend simply to have It argued again. This Court le In as good a position as it ever will be to decide the matter. So I think we should decide It, even under Order XIV.

The relevant section is 136 of the Law of Property Act, 1925, which says that, "Any absolute assignment by writing under the hand of the assignor … of any debt or other legal thing in action, of which express notice in writing has been given to the debtor … is effectual in law …. to pass and transform the date of such notice, (a) the legal right to such debt or thing in action) (b) all legal and other remedies for the same; and (c) the power to give a good discharge for the same without the concurrence of the assignor.

What Is a sufficient notice of assignment? There are only two or three oases on the subject. There is the case of Stanley v. English Fibres Industries Ltd , ( (1899) 68 Law Journal, Q.B., N.S. 839 ) which was accepted and applied by this Court in W. F. Harrison & Co. Ltd v. Burke ( 1956 2 A.E.R, 169 ), Those cases show that, if a notice of assignment purports to identify the assignment by giving the date of the assignment - and that date Is a wrong date. then the notice Is bad. The short ground of those decisions was that the notice with a wrong date was a notice of a non-existing document. Assuming those cases to be correct, they leave open the question whether it is necessary to give the date of the assignment. Test it this way: Suppose the mistaken sentence were omitted in this latter so that it ran: We have been Instructed by our above-named clients to apply to you for the payment of a sum of £5,296 19 6d. outstanding to them following the assignment of the debt to them by The National Provincial Bank. Limited", would that be a good notice, even though it gives no date for the assignment? I think it would. I think the correct Interpretation of this statute was given by Mr, Justice Atkin in the case of Penney. Gaequet. and Metcalfe T, Conklin (1913 3 £.B. 177), It is quite plain from his judgment that no formal requirements are required for a notice of assignment, It is sufficient if it "brings to the notice of the debtor with reasonable certainty the fact that the desi does assign the debt due from the debtor so as to bind the debt in his hands and prevent him from paying the debt to the original creditor". It seems to me to be unnecessary that it should give the date of the assignment so long as it makes it plain that there has in fact been an assignment so that the debtor knows to whom he has to pay the debt in the future. After receiving the notice, the debtor will be entitled, of course, to require a sight of the assignment so as to be satisfied that It is valid, and that the assigns can give him a good discharge. But the notice itself is good, even though it gives no date,

This notice does, however, go on to make an In accurate statement. It says that, "Notice of this assignment has already been given to you". But, as Lord Justice Davies said In the course of the argument, that is merely an in accurate surplusage. It can be ignored.

In my opinion, therefore, the notice of the assignment was good. The provisions of the Statute are satisfied, Van Lynn Developments Limited had a good cause of action on the date when they Issued the writ in this action, namely, on 1st July, 1968.

Mr, Solomon argued that there were other matters to be investigated. It appears that, when asked for the assignment, the plaintiff's solicitors at first handed over an inaccurate copy of the assignment. It was a draft which contained the figure of £5,239 instead of the figure of £5,396 19s. 5d, But the plaintiff's solicitor afterwards handed over an accurate copy which gave the correct figure of £5,296 19s. 5d. The explanation has been given to us. I do not think there is any need for any further investigation.

I ought to add that in his affidavit Mr. Apponyl went so far as to seek to suggest fraud or conspiracy between Mr. Vanderve and others. All I would say about that is that I think there le not the slightest shadow of basis for that suggestion, and it le a pity it was ever made.
It comes back to this: Here is a sum of money, over £5,000, owed by the Jason Construction Co. Ltd., which they have not paid. They ought to have paid the progress payments into the bank, and they did not. Naturally enough, Mr. Vandervell paid off the bank and took an assignment. The assignment is properly sued upon here. I do not see that there is any defence of any substance in the case whatsoever.


Something was said about the new wording of Order XIV, Rule 3. I do not think it makes any alteration from the previous wording. It only states in simple words the principles on which we have acted for many years under Order XIV.

The Judge gave leave to defend conditional on the full amount being paid Into Court. The defence was so shadows' that the condition was rightly imposed. I agree with Mr. Justice Fisher, and I would dismiss this appeal.

LORD JUSTICE DAVIES: I agree, and would only add some observations about the case of Denny. Gasquet. and Matoalfe v. Conklin to which my Lord has already referred. In the first place, it is to my mind clear that the document relied upon there as a notice of assignment and held by Mr. Justice Atkln to be a good notice of assignment was very much less precise than the document of the 27th June which falls to be considered In the present case. In the document In Penney's case no mention of an assignment was made at all; it referred to a deed of arrangement, though it la true it did give the date of that deed of arrangement. Secondly, there was no mention of the amount that lfad been assigned and was claimed by the assignees; it was merely a request for an account showing all dealings as between the debtor and the assignor. Thirdly, it is very interesting to notice, as was pointed out by my Lord during the argument, what was the unsuccessful argument by Mr. Groom Johnson for the defendants. According to the report, he submitted that "In order to be valid the notice must expressly state (l) that there has been assignment; (2) the names and addresses of the assignees so that the debtor may be in a position to seek out the new creditors created by the assignment for the purpose of paying the debt; arid (3) what has been assigned". The present document does show all that. It sets out the amount of the debt assigned by the bank to Van Lynn Developments Ltd. and claims that that should be paid forthwith. It seems tome that, leaving out of consideration the last sentence of the first paragraph of that letter, that Is a perfectly satisfactory notice of assignment in every respect, and that its validity cannot be destroyed by the inaccurate statement in the second sentence of that paragraph.
I agree, for the reasons which my Lord has given, that this appeal should be dismissed.
LORD JUSTICE WIDGERY: I agree and would point out that the only formality required by the section is that express notice in writing be given to the debtor. The section does not speak of "a notice" it speaks of "notice". Accordingly, It is wrong to suppose that a separate document purposely prepared as a notice, and described as such is necessary in order to satisfy the statute. The statute only requires that information relative to the assignment shall be conveyed to the debtor, and that it shall be conveyed in writing. That fact Is fully demonstrated by the Judgment of Mr. Justice Atkin to which reference has already been made. Once it is appreciated that the section requires no more, it becomes obvious that the objection to the notice in this case, that it was not intended as a notice but merely to record the fact that notice had already been given, must fail. The letter of the 27th June in my Judgment undoubtedly contains the necessary particulars and it matters not in the slightest that the writer did not think when he wrote the letter that he was performing the function of giving notice under the section. So far as the argument based on failure to give the date of the assignment is concerned, It seems to me it would be very undesirable to attach, to this procedure, technicalities which are not mentioned In the statute and which are not necessary to give effect to it. The notice is a notice given by the assignee for his own protection, It is given by the assignee In order to prevent the debtor continuing to deal with the assignor. It is clearly necessary that the debtor should be given information which tells him that an assignment has been made, which identifies the debt, and which sufficiently identifies the assignee. I see no reason at all why other and Irrelevant Information should be required as a feature of the notice. It is said that in some instances the debtor would want to know the date of the assignment. For my part I find it very difficult to visualise a case in which the date would have any relevance at all so far as the debtor was concerned, and I would certainly regard it as a retrograde step to require, as a general rule, that the notice should specify the date of the assignment, I would therefore dismiss this appeal.

Appeal dismissed with costs in any event, such costs to Include the costs of the hearing before Mr, Justice Crichton.

Van Lynn Developments Ltd v Pelias Construction Co. Ltd (formerly Jason Construction Co. Ltd) 1968

Summary
Contract - Parties - Assignment
Key Subsequent TreatmentsSee all
• Distinguished in Cooperatieve Centrale Raiffeisen-Boerenleenbank BA v Motorola Electronics Pte Ltd [2010] 3 SLR 48
• Considered in Santander Uk Plc (Claimant/Respondent) v Keith Harrison & Susan Patricia Harrison (Defendants/Appellants) [2013] Bus LR 501
• Followed in Sena Land Development Sdn Bhd; Sungei Way Leasing Sdn Bhd [1989] 3 MLJ 37
Key Cases ConsideredSee all
• Applied Denney, Gasquet and Metcalfe v Conklin [1913] 3 KB 177
• Distinguished Harrison (W F) & Co Ltd v Burke [1956] 1 WLR 419
• Distinguished Stanley v English Fibres Industries (1899) 68 LJQB 839
Legislation ConsideredSee all
• Law of Property Act 1925 s. 136 (1925 c. 20 s. 136)

I will try later to find the full judgement ,unless i missed it ,the one above does not show anything from
Lord Denning.

Thanks daveiron, I did think it was a bit lacking when I found it but there were no other pages so I just posted it as is.

Fair bit of info here:
https://books.google.co.uk/books?id=B1136tkoujEC&pg=RA2-PA21&lpg=RA2-PA21&dq=Court+of+Appeal+Van+Lynn+Developments+Limited+v+pelias+construction+full+judgement&source=bl&ots=lM4FbUYxvf&sig=XwewiB3WdWEZBUdJmyXuDAubxm4&hl=en&sa=X&ved=2ahUKEwig7d66nP3eAhVHPsAKHR1TDhwQ6AEwBXoECAAQAQ#v=onepage&q=Court%20of%20Appeal%20Van%20Lynn%20Developments%20Limited%20v%20pelias%20construction%20full%20judgement&f=false

Thanks kestrel ,i will take a look later.
I thought I had the full transcript downloaded ,by can't find it.

The original post seems to be devoid of the section from Lord Denning ,which is the very part that we
quote in the 3 letters. I suspect it may originally have been taken from the website of a solicitor or DCA.

Of course no criticism of barnwebb who posted with the best of intentions.

That link I put up if you scroll to the first page & go through it all there's quite a lot on assignment & I'm sure I've got the full transcript of the 'Denning ruling' somewhere, maybe a week or so before I can get time to look.