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Re Spectrum Plus: Difference between revisions
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{{cn}}{{Cite1|Re Spectrum Plus|2005|UKHL|41}} | {{cn}}{{Cite1|Re Spectrum Plus|2005|UKHL|41}}<ref>[https://publications.parliament.uk/pa/ld200506/ldjudgmt/jd050630/nat-1.htm click here for transcript].</ref> is an important case about [[fixed charge]]s and the [[doctrine of precedent]], that [[Golden thread|golden stream]]<ref>Did I say stream? I meant ''thread''</ref> of precedent that warmly nourishes the [[common law]]. | ||
===Issues=== | ===Issues=== | ||
*'''[[Fixed charge|Fixed]] and [[Floating charge|floating]] [[charges]]''': If you call it a [[fixed charge]], you know, ''is it''? | *'''[[Fixed charge|Fixed]] and [[Floating charge|floating]] [[charges]]''': If you call it a [[fixed charge]], you know, ''is it''? | ||
*'''[[Stare decisis]]''': Does a “newly decided”<ref>''Invented'', though by the lights of the conventional jurisprudence of the English [[common law]], the law was always there like energy, from the birth of the universe, in the same way that David was always in that marble block, just waiting for Michaelangelo LJ to uncover it.</ref> strand of [[common law]] apply to contracts pre-dating its development, which were concluded on the assumption of contrary rules? | |||
===In a {{nutshell}}=== | |||
*'''[[Fixed charge|Fixed]] and [[Floating charge|floating]] [[charges]]''': Yes, you can take a {{tag|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. | |||
*'''[[Stare decisis]]''': Yes, newly decided cases which overturn old ones do apply retrospectively. By the jurisprudence of the law, the old one was always wrong, even when the law said it was right. So if you organised your affairs in reliance on a tributary of the golden stream that later turns out to have been piss and wind, well that’s tough. But you therefore you can’t rely on ''this'' statement of the law either, because it might turn out to be wrong later. Which means you ''can'' rely on the old precedent, as it might turn out ''not'' to have been piss and wind after all. But at long as ''this'' ruling isn’t considered to be piss and wind, you can’t. ''O tempora! O mores! O {{t|paradox}}!'' | |||
==[[Stare decisis]] and the possibility of [[prospective overruling]]== | ==[[Stare decisis]] and the possibility of [[prospective overruling]]== | ||
{{casenote1|Re Spectrum Plus}} overruled the earlier decision of {{cite|Siebe Gorman & Co Ltd|Barclays Bank Ltd|1979|2 Lloyd’s Rep|142}}. This meant charges drafted as fixed charges on honest reliance on that principle — that it didn’t matter so much if you didn’t have practical control — were suddenly questionable. Given the “time value” of charge registration — the first-in-time prevails, so if you have to re-take your [[charge]] you are going right to the back of the queue — this potentially invalidated — or at least ''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? | {{casenote1|Re Spectrum Plus}} overruled the earlier decision of {{cite|Siebe Gorman & Co Ltd|Barclays Bank Ltd|1979|2 Lloyd’s Rep|142}}. This meant charges drafted as fixed charges on honest reliance on that principle — that it didn’t matter so much if you didn’t have practical control — were suddenly questionable. Given the “time value” of charge registration — the first-in-time prevails, so if you have to re-take your [[charge]] you are going right to the back of the queue — this potentially invalidated — or at least ''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? | ||