Re Spectrum Plus

Re Spectrum Plus [2005] UKHL 41^[1] click here for transcript is an important case about fixed charges.

In a Nutshell™

Yes, you can take a fixed charge over book debts, but if you want to it to be enforceable, you must have practical control of the item, and a legal right to stop the chargor walking off with it.

Issues

Stare decisis: Does a newly decided strand of common law apply to contracts pre-dating its development, which were concluded on the assumption of contrary rules?
Fixed and floating charges: If you call it a fixed charge, you know, is it?

Stare decisis and the possibility of prospective overruling

Re Spectrum Plus overruled the earlier decision of Siebe Gorman & Co Ltd v Barclays Bank Ltd [1979] 2 Lloyd’s Rep 142. This meant charges drafted as fixed charges on honest reliance on that principal were suddently questionable. Given the time value of charge registration this potentially invalidated or at the very least severely weakened a whole lot of security documents. so could the court apply “prospective overruling” such that existing charges entered into in good faith in reliance on Siebe Gorman would be upheld?

For one thing, that would be a real bummer from Spectrum Plus’s point of view — fancy winning a landmark House of Lords case but — well, hard lines fellas. But Little old book-debt securitisers make bad law, right?

The traditional approach was stated crisply by Lord Reid in West Midland Baptist (Trust) Association Inc v Birmingham Corporation [1970] AC 874, 898-899, a case concerning compulsory acquisition:

“We cannot say that the law was one thing yesterday but is to be something different tomorrow. If we decide that [the existing rule] is wrong we must decide that it always has been wrong, and that would mean that in many completed transactions owners have received too little compensation. But that often happens when an existing decision is reversed.”

Later on, Lord Nicholls said:

“Whatever its faults the retrospective application of court rulings is straightforward. Prospective overruling creates problems of discrimination. Born out of a laudable wish to mitigate the seeming unfairness of a retrospective change in the law, prospective overruling can beget unfairness of its own.

“This is most marked in criminal cases, where ‘pure’ prospective overruling would leave a successful defendant languishing in prison.”

While the court didn’t rule out the idea of prospective overruling —“‘Never say never’ is a wise judicial precept, in the interests of all citizens of the country” — this present case was “miles away from the exceptional category in which alone prospective overruling would be legitimate”.

So no, fellas. Natwest, you are shit out of luck.^[2]

Fixed and floating charges

Whether a charge over present and future book debts, where:

the chargor cannot dispose of or charge the uncollected book debts but
the charger can deal with debtors and collect the debts and
the chargor must deposit collected debts in a designated account with the charge, but
the chargor can then freely draw on the account as long as it doesn't exceed the overdraft

is capable in law of being a fixed charge.

The facts

Spectrum had an overdraft with the NatWest.
NatWest took a fixed charge over its book debts to secure the overdraft. it required Spectrum to pay the debts into the overdraft account. It did not prevent Spectrum withdrawing them.
The bank never sought to exercise any control over Spectrum’s withdrawals from the account.
Spectrum never exceeded its overdraft. Nor did Spectrum ever go into credit.

You can see where this is going, can’t you.

When Spectrum, inevitably, went bust, it owed NatWest £165,407 on the account. Its uncollected book debts had a face value of £291,293, and a likely collection value of £156,544. You know, like roughly. Other unsecured creditors wanted a piece of the action.

So ...?

Choice snippets

Lord Hope of Craighead:

“An account from which the customer is entitled to withdraw funds whenever it wishes within the agreed limits of any overdraft is not a blocked account. In Agnew v Commissioners of Inland Revenue [2001] 2 AC 710, 722, para 22 Lord Millett said that the critical feature which led the Irish Supreme Court in In re Keenan

Bros Ltd [1986] BCLC 242 to characterise the charge on book debts as a fixed charge was that their proceeds were to be segregated in a blocked account where they would be frozen and unusable by the company without the bank’s written consent^[3]. I respectfully agree.” Did Barclays in Siebe Gorman have a lien over a current account balance? No.

“Lipkin Gorman v Karpnale Ltd [1989] 1 WLR 1340, 1353, the money which a customer deposits with a bank ecomes the bank’s money, but the bank is prima facie bound to meet its debt when called upon to do so by the customer.” [...]

“A banker has a general lien over all bills, notes and negotiable instruments belonging to the customer which his customer may have deposited with him in security of the customer’s indebtedness to the bank. But a lien is a right to retain possession of property that belongs to someone else, and the banker has no lien over funds which, when deposited in its account by the customer, become his own property^[4]. Moreover the relationship is one where, if the account is in credit, the banker is indebted to his customer. So it was a misuse of the word lien to say that the bank could assert a right of that kind over the proceeds” [...]

“This is not to say that it is impossible to conceive of the creation of an equitable charge over the proceeds of book debts paid into an account in the name the chargor. But the ordinary relationship of banker and customer does not permit the banker, without notice, to refuse to allow his customer to operate a current account as and whenever he wishes while it is credit or is within the limits of any agreed overdraft. The debenture in the Siebe Gorman case, which provided for the payment of the proceeds into an account of that kind, lacked any provision which qualified that relationship^[5].” [...]

“In my opinion the company’s continuing contractual right to draw out sums equivalent to the amounts paid in is wholly destructive of the argument that there was a fixed charge over the uncollected proceeds because the account into which the proceeds were to be paid was blocked.”

Lord Scott of Foscote:

“But the intention of the parties that the charge over book debts created and fortified in this way would be a fixed charge has to take account also of Romer LJ’s third characteristic of a floating charge, namely, that until some further step by way of intervention is taken by the chargee the chargor company can use the assets in question for its normal business purposes and, in using them, remove them from the security.”

Ruling

“The correct conclusion, in my opinion, is that the debenture, although expressed to grant the bank a fixed charge over Spectrum's book debts, in law granted only a floating charge.

In other words

“Beware of magic words.”