Key Facts
- •Alphier Capital LLP (Claimant) claims $2,625,000 from Blyvoor Gold Capital (Pty) Ltd (Defendant) based on an alleged debt assignment.
- •The debt originates from agreements between Blyvoor and Exotix Group LLP (now Alphier Capital Two LLP), concerning investment funding secured from Orion.
- •Blyvoor denies liability, arguing invalid assignment, Exotix's negligible role in securing funding, and misrepresentation.
- •Blyvoor applied to strike out the claim or for summary judgment due to ineffective assignment; Claimant applied to add Exotix and Tellimer as claimants.
- •Clause 17.6 of the Exotix Engagement prohibits assignment without consent; no such consent was given.
Legal Principles
Principles for strike-out and summary judgment applications (realistic prospect of success, no mini-trial, consideration of evidence at trial)
Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch)
Contractual interpretation principles (objective meaning, contract as a whole, commercial context, business common sense)
Wood v Capita Insurance Services Ltd [2017] AC 1173 and Lamesa Investments Ltd v Cynergy Bank Ltd [2020] EWCA Civ 821
Distinction between assignment of rights and assignment of fruits of performance; application of contractual prohibition on assignment
Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1993] 1 A.C. 85, Barbados Trust Co v Bank of Zambia [2007] EWCA Civ 148, Masri v Consolidated Contractors International Co SAL [2007] EWHC 3010 (Comm)
Effect of contractual prohibition on assignment on legal and equitable assignments; distinction between equitable assignment and declaration of trust
First Abu Dhabi Bank PJSC v BP Oil International Limited [2018] EWCA Civ 14, Don King Productions Inc v Warren [2000] Ch 291, Barbados Trust [2007] EWCA Civ 148
Principles for adding parties to proceedings (desirability to resolve all disputes, connected issues)
CPR 19.2(2), Re Pablo Star Ltd [2017] EWCA Civ 1768, Davies v Department of Trade & Industry [2006] EWCA Civ 1360, Cohen v Lorrells LLP [2019] EWHC 32 (QB)
Limitation Act 1980, section 5 (six-year limitation period for simple contract actions)
Limitation Act 1980, section 5
CPR 19.6 (addition or substitution of parties after limitation period)
CPR 19.6
Outcomes
Defendant's strike-out application granted.
The assignment of the debt breached Clause 17.6, prohibiting assignment without consent. The 'fruits of performance' argument was rejected; the court found the assignment transferred all rights and obligations, not just the debt itself. The 'Group' argument also failed as Tellimer and Alphier were not part of the defined Exotix Group.
Claimant's application to add Exotix as a claimant granted.
Adding Exotix is efficient; it avoids a new claim, and Exotix's interest in the proceedings is clear. A limitation defense is addressed via an undertaking to not pursue statute-barred portions of the debt.
Further considerations to be addressed by the court
The court will address issues regarding striking out Alphier, joining Tellimer, amending pleadings, security for costs, and costs of the hearing.