S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that property was sold, the bank’s first charge (securing money also recoverable under other charges) left insufficient value to clear the sums payable to the Agency under the agreement. The Agency had obtained orders for the equitable marshalling of the debts in favour of the Bank so as to leave sufficient equity to pay the sum due.
Held: The defendant’s appeal against the order in favour of the Agency succeeded. The peculiar situation here was that the second charge in favour of the agence did not, as in all reported cases, secure a debt as such, but only a contingent liability. The equitable remedy of marshalling was not available (Lord Carnwath and Lord Hughes JJSC dissenting in part).
Lord Neuberger said: ‘I have concluded that as a matter of principle, marshalling is not available to a second mortgagee where, as here, the common property does not secure a debt due from the mortgagor, but is merely available as security for what the second mortgagee can extract from that property . . in such a case, there is simply nothing, in particular no debt due from the mortgagor, from which the right to marshal can arise, once the common property has been sold and the proceeds of sale distributed in accordance with the legal priorities . . where the second mortgage does not secure a debt owing from the mortgagor to the second mortgagee, the right to marshal should not normally exist once the common property is sold by the first mortgagee and the proceeds of sale distributed, because there would be no surviving debt owing from the mortgagor to the second mortgagee. In such a case, equity should proceed on the basis that the second mortgagee normally takes the risk that the first mortgagee will realise his debt through the sale of the common property rather than the sale of the other property.’
Judges:
Lord Neuberger, President, Lord Sumption, Lord Reed, Lord Carnwath, Lord Hughes
Citations:
[2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, UKSC 2011/0196
Links:
Bailii, Bailii Summary, WLRD, SC Summary, SC
Jurisdiction:
England and Wales
Citing:
See Also – Director of the Assets Recovery Agency v Szepietowski and others Admn 29-Sep-2006
The respondent had objected that the appointment of an interim receiver had been based upon information obtained in the course of investigations undertaken in connection with different proceedings and allegations.
Held: The enforcement agency . .
See Also – Szepietowski v Assets Recovery Agency Admn 28-Nov-2006
The first respondent applied for the freezing and receiving orders in relation to two properties and chattels obtained by the first respondent under the 2002 Act to be discharged on the footing that the Agency Director has not shown that she has a . .
See Also – Assets Recovery Agency v Szepietowski and others CA 24-Jul-2007
The defendant had had set aside an interim order for assets recovery. The director appealed against a finding by the court below that he did not have ‘a good arguable case’, justifying an interim recovery order.
Held: The appeal succeeded. On . .
See Also – Serious Organised Crime Agency v Szepietowski and others ChD 27-Feb-2009
Several of the defendants applied for assets to be excluded from an interim receiving order in order to enable them to meet legal expenses. . .
See Also – Assets Recovery Agency v Szepietowski and Others ChD 19-Mar-2009
The applicant defendants sought to have excluded from the effect of restrictions on their dealing with property, property which was held under trusts.
Held: The applications were rejected. There were well established rules allowing trustees . .
See Also – Serious Organised Crime Agency v Szepietowski and Others (No 2) ChD 1-Jul-2009
The Agency asked to have set aside four orders allowing the defendant to have excluded from his assets subject to an interim receiving order to allow payment of his legal expenses.
Held: There was no rule that assets once excluded from an . .
At First Instance – Serious Organised Crime Agency v Szepietowski and Others ChD 15-Oct-2010
The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
Cited – Bank of Credit and Commerce International Sa (In Liquidation) (No 8) CA 2-Oct-1996
Not all debts which were eligible for proof in bankruptcy were also eligible for a set off.
Rose Ljexplained the doctrine of equitable marshallling, saying: ‘The doctrine of marshalling applies where there are two creditors of the same debtor, . .
Appeal from – Szepietowski v The Serious Organised Crime Agency CA 21-Jul-2011
The claimant owned properties subject to charges in favour of a bank. The Agency alleged that the properties represented the proceeds of crime. The agency had settled its claim by taking a second charge over one property. When that was sold, only . .
Cited – Sir Ralph Bovey v Skipwith 1671
Mortgage Priorities
In 1651, Sir Francis Drake made the Plaintiff a Security out of the Manor and Rectory of Waltham upon Thames. Afterwards in 1656, Drake made the Defendant a Security for Money out of the Rectory only (the Defendant having no Notice then of the . .
Cited – Povye’s Case 1680
A was indebted l1500 whereof l500 was secured by mortgage, the residue by bond ; A, before his death makes a lease of all his lands to trustees for payment of his debts, which lease in the whole was worth about l1200 ; the heir of A. after his . .
Cited – Lanoy v The Duke And Dutchess of Athol 13-Nov-1742
There being a borrowing and a lending in the case of a mortgage, the real estate is considered only as a pledge, and the personal liable in the first place ; but this rule has never been carried so far, as to extend it to a provision in a . .
Cited – Aldrich v Cooper, Durham v Lankester, Durham v Armstrong 26-Apr-1803
Lord Eldon LC discussed the equitable principle of marshalling and said: ‘two estates [were] mortgaged to A; and one of them mortgaged to B. He has no claim under the deed upon the other estate. It may be so constructed that he could not affect that . .
Cited – Kendall, Ex Parte 7-May-1811
Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he . .
Cited – Wallis v Woodyear 1855
Wood V-C said that a first mortgagee has the right to have recourse to ‘any of his securities which first come to hand’ and to ‘realise his securities in such manner and order as he thinks fit’. . .
Cited – Manks v Whiteley 1911
. .
Lists of cited by and citing cases may be incomplete.
Equity
Updated: 07 August 2022; Ref: scu.516926