Upper Tribunal Tax and Chancery Chamber

UT (Tax & Chancery) UT/2023/000103 - [2025] UKUT 00102 (TCC)

Fecha: 22-Ene-2025

Edwards v Bairstow challenge

Edwards v Bairstow challenge

158.

Mr Simpson’s submission that the Second Loan topped up the First Loan was a challenge to the FTT’s finding of fact that the First Loan was no longer extant at the time the Second Loan was made.

159.

Ms Poots summarised the evidence which supported the FTT’s finding, as follows

(1)

The Loan Agreement refers to the Loan being for £48,956.24; she said that had it just been a top up or further loan, the Loan would have been for £24,000.

(2)

On 27 September 2012, Mr Dowding emailed Mr Carwithen saying “have we got a redemption declaration for the existing loan to confirm that it has been paid off. If not, we can get one as part of the tidy up”. Mr Carwithen replied the same day, saying “yes, the Trustee declaration has been signed in advance and on file”.

(3)

The deal sheet for the Second Loan describes the “deal shape” as “Second Loan to the Principal Employer, plus full repayment of L001 [the First Loan]”.

(4)

The same document has a check list of requirements, including “secured by way of first charge”, being a reference to Sch 30 para 1 which sets out the condition that a charge must “take priority over any other charge over the assets”. In response to that question, the response on the checklist was “Fine - Pension Scheme will hold the first charge over the Trademark. Trademark was released for L001 and the Release stands for future loan transactions”.

160.

MLT has not only failed to show that none of the exceptions set out in Edwards v Bairstow apply such that the FTT’s finding was an error of law, but, as Ms Poots said, the FTT’s finding was plainly soundly based on the evidence.

161.

We add that the Loan Agreement also included a supersession clause, which stated that the agreement “superseded any previous agreement whether written oral or implied between the Borrower and the Lender in relation to the Loan Amount”, and this too supports the FTT’s finding that the First Loan was no longer extant.