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Mortgages Explained - Lloyds TSB Advice and Guidance

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Court of Appeal Gives Guidance on Anti-set off provisions in security documentation

Here is likely to carry weight given that the comments were made by a Court of Appeal judge whose express and sole intention was to clarify the law in this area - the judgment of Leggatt LJ (concurring with the leading judgment given by Longmore LJ) was entirely devoted to clarifying the law in this area. Further, the court did not technically make any new finding of law, but rather consolidated previous decisions of the High Court and Court of Appeal.

It should be noted that one important limitation in relation to anti-set off provisions, is that parties are not permitted to contract out of the mandatory rules of insolvency set-off. Notwithstanding the anti-set off provisions in this case, the insolvency set-off rules would have applied if the claimants in these proceedings (who were individuals) had been declared bankrupt.

In addition to its findings on the anti-set off provisions, the Court of Appeal confirmed the position in relation to extending a time-barred claim where a declaration, rather than damages, is sought. In such cases, the court will look at the basis on which the declaration is sought and consider whether that base action is time-barred. As such, a claimant cannot seek a declaration, instead of damages, to improve its position if it would otherwise be time barred from bringing the cause of action.

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