PT-2021-000393 - [2025] EWHC 2749 (Ch)

Fecha: 23-Oct-2025

Richard Farnhill (sitting as a Deputy High Court Judge of the Chancery Division)

Richard Farnhill (sitting as a Deputy High Court Judge of the Chancery Division):

This judgment arises out of the earlier judgment I gave on 12 June 2023 following the trial of these proceedings ([2023] EWHC 1428 (Ch), my First Judgment). Aspects of my First Judgment were reversed by the Court of Appeal ([2024] EWCA Civ 721, the Court of Appeal Judgment), necessitating a further hearing to determine certain issues of fact. This is the judgment arising out of that hearing.

I recognise that this hearing was a continuation of the trial, and that rules as to such things as trial witness statements continue to apply. It will be necessary in the course of this judgment to refer back to events as they were at the original trial. Simply for ease of reference I will therefore refer to the original trial as “the trial” and the hearing that gave rise to this judgment as “this hearing”.

This is a somewhat lengthy, and at times unavoidably involved, judgment, and it seems to me most convenient to summarise my findings at the outset:

The express provisions of the Facility Letter (defined below) do not require LCL to accept an offer of repayment that seeks to impose conditions, delays the receipt of funds beyond the defined Repayment Date or in some other way departs from the obligation to repay set out in the Facility Letter.

ii)

Similarly, the Facility Letter does not include an implied term requiring LCL to accept offers of payment on any terms other than those set out in the Facility Letter.

iii)

Equity may have a somewhat broader jurisdiction to intervene but that jurisdiction would not respond on the facts of this case in any event.

iv)

With the exception of the repayment of £1.2 million in May 2021, the Claimants have not made an effective tender of or otherwise repaid any sums due under the terms of the Facility Letter, and in so far as they have made offers, those offers were not offers of payment but were, at most, contractual offers intended to vary the parties’ existing rights and obligations or to create new rights and obligations. In many cases they seemed to me to fall short even of that, not being intended to be capable of immediate acceptance. Accordingly, the balance of the Loan (again, defined below) of a little over £629,000 due on the Repayment Date provided in the Facility Letter remains outstanding and nothing the Claimants have done has stopped interest from accruing.

Non-payment by the contractual repayment date is a default under the terms of the Facility Letter and, again under the terms of the Facility Letter, attracts default interest at a rate of 4% compounded monthly (the Default Rate). The Default Rate is not a penalty and so is enforceable, by LCL, from the contractual Repayment Date.

vi)

In the circumstances, no claim arises for the payment of interest under section 35A of the Senior Courts Act 1981.