Emanuel v Promontoria (Oak)
4th July 2018 Emanuel v Promontoria (Oak) judgement 4 July 18.pdf
Victory against Promontoria (Oak)
30th Jan 2020 Commentary - Cormac Butler 30 Jan 20.pdf
17th Feb 2020 The Times
"Small businesses whose loans were sold to Cerberus could be given a reprieve in disputes over millions of pounds of unpaid debt after a businessman won a legal case against the American firm’s failure to disclose documents properly.
Nick Emanuel, who had a property business, won an appeal against the private equity house after a long case over the ownership of his assets. Campaigners for dozens of other British companies fighting Cerberus over its attempts to force repayment of loans believe that the judgment could aid their cases, potentially freeing them from debts.
Mr Emanuel had been a customer of Clydesdale Bank, which was owned by National Australia Bank. His loans were part of a parcel of debt sold by NAB to Cerberus in 2016.
Mr Emanuel began to struggle after the financial crisis and the cost of his debt increased. His was among the small businesses that were sold tailored business loans by Clydesdale that have been criticised as unfair and opaque.
After Cerberus bought Mr Emanuel’s debt, it pursued him in court for repayment, claiming that it had the right to do so under its deal with NAB. Mr Emanuel fought the case, saying that Cerberus, through Promontoria, the division of Cerberus that took on the loans from NAB, did not have clear documentary evidence that it had such a right.
Cerberus won the case initially, but a judge ruled on appeal in the High Court last month that a sale and purchase agreement and a full copy of the deed of assignment, which spells out the ownership rights over property, should have been produced by Promontoria. Instead, it was found that the Cerberus subsidiary produced a redacted deed of assignment.
The judge rejected Promontoria’s argument that the documents were confidential. “It seems to me that where material is confidential but relevant, it is prima facie disclosable and it is for the disclosing party to come to the court to seek an order protecting confidence whilst ensuring the document is disclosed,” he said. Cerberus would not comment on the case.
NAB said that it was not a party in the legal action. The Australian bank is now run by Ross McEwan, former chief executive of Royal Bank of Scotland. Small businesses fighting against the terms of their Clydesdale loans have sought to involve Mr McEwan in the wrangle, so far unsuccessfully.
Clydesdale, now branded Virgin Money, sold about 8,400 fixed-rate tailored business loans to about 6,500 small and medium-sized business customers. RGL Management, a legal services firm, has said that it was building a case against the bank over the loans. Last year Clydesdale denied that it had not fully investigated the cases and said: “These allegations are not accepted by the bank and will be defended in the strongest terms possible.”
The CYBG/NAB Remediation Support Group says that 30 of its members are in dispute with Promontoria on similar terms to those of Mr Emanuel. Ian Lightbody, chairman of the group, said: “We believe that our group alone is due compensation of £50 million to £70 million.”