BL-2023-MAN-000072 - [2025] EWHC 2442 (Ch)

It is relevant to consider in some detail the correspondence between the parties leading up to the Deed of Postponement in that it does, I consider, provide insight into the respective parties’ intentions at the relevant time. As I have already noted, Primas did not, on behalf of JAK, directly communicate with Priority, acting on behalf of Together, but rather correspondence passed through the conduit of Mulbury’s Solicitors, Beyond Corporate. However, I am satisfied that all relevant correspondence sent on behalf of JAK or Together to Beyond Corporate was forwarded by the latter to the other party to the Deed of Postponement or its Solicitors.

The relevant sequence begins with an email dated 1 April 2020 from Charlotte Ward of Priority (“Ms Ward”) to Zaeem Habib (“Mr Habib”) of Beyond Corporate, which attached a draft of the Deed of Postponement, described as “v2.20”. It is unclear where and by whom this draft originated or was created. The description of the draft suggests that it was not the first version thereof. In this draft, the provisions of the Deed of Postponement were not numbered, and it simply included what became clauses 1 to 9 unnumbered. This draft was subsequently forwarded by Beyond Corporate to Primas.

By an email dated 16 April 2020, Ms Williamson of Primas sent a revised draft of the Deed of Postponement to Ms Williams at Mulbury. This revised draft added numbering to the provisions within the Deed of Postponement, added the words “(the “Advance”)” to the end of clause 7, and added new clauses 10, 11, 12 and 13. The new clauses 11, 12 and 13 remained in the Deed of Postponement as executed unaltered. However, clause 10 of this draft was in a different form to clause 10 as ultimately contained in the Deed of Postponement as executed. Essentially, it required Together to consult with JAK in the event that Together proposed to take any step in relation to the termination of its loan agreement with Mulbury or the enforcement of its security, including simply serving a demand for payment in relation “to the Advance”, other than a demand for payment on the due date.

This must have been forwarded by Ms Williams to Mr Habib at Beyond Corporate, because he forwarded Ms Williamson’s revised draft to Ms Ward at Priority under cover of an email dated 16 April 2020. The accompanying response to enquiries made by Priority on behalf of Together referred, amongst other things, to the JAK Loan Agreement, to the principal sum due thereunder of 1.2 million pounds, to no interest being payable thereunder, and to clause 7 providing for the loan to be repaid in full.

By an email dated 17 April 2020, Ms Ward replied to Mr Habib with proposed revisions to the revised version of the draft prepared by Ms Williamson of Primas. Ms Ward’s version left in the new clauses 11, 12 and 13 unaltered, but proposed a revision to clause 10, deleting the reference to Together being required to consult with JAK, and substituting the following: “If the First Chargee has become entitled to enforce the First Charge and intends to enforce the First Charge, then the First Chargee shall first serve written notice to that effect on the Second Chargee as soon as practically possible.”

Mr Hodge submits that this latter email is significant and that it supports a case that Ms Ward had, on behalf of Together, appreciated that clause 13 provided for the circumstances in which the priority otherwise provided for by the Deed of Priority would be reversed in JAK’s favour in the circumstances therein referred to of the JAK Loan Agreement terminating first, and by the proposed amendments sought to limit the circumstances in which priority might revert to JAK. This is disputed by Together.

Ms Williams of Mulbury then forwarded the revised draft prepared by Ms Ward to Ms Williamson of Primas, posing the question: “is this agreed now or do you wish to push back further?”

By an email dated 20 April 2020, Mr Habib sent to Ms Ward further responses to enquiries made by Ms Ward on behalf of Together, including in relation to the terms of the JAK Loan Agreement. The response noted that interest was only payable in the event of default, and that clause 8 of the JAK Loan Agreement confirmed how payments became due.

By email dated 17 April 2020 from Ms Williamson to Ms Williams, Ms Williamson forwarded a further revised version of the Deed of Postponement on behalf of JAK, revising clause 10 so as to restore the requirement for Together to consult, but deleting a couple of the circumstances in which Together might have been required to consult. In the body of the email, Ms Williamson said this:

“Attached as amended. I have agreed [Ms Ward’s] amends where possible but the remaining clauses cannot be removed. Particularly as the term of the Together loan could exceed that of JAK’s loan. As you will be aware, the remaining provisions do not heavily burden Together but are incredibly important for JAK.”

It was ultimately common ground between the parties that the reference to “remaining provisions” in this latter email was a reference to the remaining provisions of the proposed revised clause 10, and not to other provisions, or proposed revised provisions of the Deed of Postponement.

Significantly, perhaps, Ms Williamson’s email to Ms Williams of 17 April 2020 also attached a copy of the Development Services Agreement.

On 20 April 2020, Mark Lupton (“Mr Lupton”) of Beyond Corporate forwarded a copy of the draft Deed of Postponement as last revised by Ms Williamson on behalf of JAK to Ms Ward at Priority, seeking confirmation that this could now be agreed. Ms Ward responded to this email by an email dated 23 April 2020 in which she said:

“Re Clause 10 - my client is not agreeable to this clause. They feel it would compromise their collection abilities.

Re Clause 12 - my client is not agreeable to this clause. Their legal charge allows them to assign and they may want to in the future so this is not something they want to agree to.”

This response was then passed on to Ms Williamson by an email dated 23 April 2020 from Ms Williams, leading to an important exchange of emails on 24 April 2020.

On 24 April 2020 (11:19), Ms Williamson responded to Ms Williams as follows:

“JAK cannot proceed with the deed as amended by Together’s solicitors. They have now rejected clause 10 and clause 12 (but previously had only rejected clause 10).

Clause 10 as I had amended provided that Mo would be consulted in the event that any enforcement action would be taken by Together. This has been rejected by Together as “they feel it would compromise their collection abilities” however, they would have a first legal charge so this does not make sense. In any event, some protection would need to be given to JAK who would have compromised collection abilities, at very least notification of any of the events listed in clause 10, rather than consultation as originally proposed.”

The email went on to comment further with regard to clause 12, but this is of limited relevance for present purposes.

Ms Williams then forwarded this latter email to Mr Lupton at Beyond Corporate saying that he was free to pass it on to Priority, and commenting: “I agree with Primas comments, Together are being unreasonable.” The relevant email was copied into Mr Bury of Mulbury, who forwarded it to Mr Goodall at Together, commenting: “Could you please help. Kamanis are not being unreasonable her (sic) over what I (sic) pretty much a mute (sic) point.” Mr Goodall then forwarded this latter email to Ms Ward and Diane Moore, copying in Mr Pickering, and saying: “Based on previous comments, do you have any further thoughts?”

Mr Lupton forwarded a copy of Ms Williamson’s email timed at 11:19 to Ms Ward commenting that he tended to agree with JAK’s position on the outstanding points. He further commented that: “On the notification point, this is a reasonable stance to take from JAK’s point of view and a right to be notified is not overly onerous on Together and does not fetter their right to enforce.”

Ms Ward then responded to Mr Goodall’s email, addressing a response to Robert Goodall and Diane Moore. She said as follows:

“Re Clause 10, I understand Elaine discussed with Diane [Moore], who was not happy to include a notification provision. Please feel free to give me a call if you would like to discuss this with me … I have reviewed with Tim and we are of the opinion that this would be a provision you could agree on the basis that the Deed only asks you to notify the second lender rather than consult with them. I understand you had concerns that your system is not built for giving this kind of notice, but if you forgot to give the notice then this would not be the end of the world. We do not believe this clause would prejudice your position nor fetter your right to enforce.

In respect of Clause 12, it is not prohibiting you from assigning but is essentially saying that the company you assigned to will need to enter into a Deed of Covenant to confirm that they agreed to be bound by the DOP. We also think this is okay.”

Further, Ms Ward responded to Mr Lupton’s email by replying to both him and Ms Williamson at Primas. She stated that Together had agreed to the changes “on the basis that we change consult to notify, as discussed.”

This then led to the execution of the Deed of Postponement in its final form on 28 April 2020.

There are a few further points that arise from the correspondence that has been produced: