Case: William Brandt's Sons Co v Dunlop Rubber Co [1905] AC 454
Outcome: followed
sale agreement did not dispose of or deal with any rights of old Boston to sue GE Capital for conduct in contravention of the Act. Whether or not rights to bring proceedings for damages under s 82 of the Act are assignable, in my opinion there is no reasonable prospect of success in new Boston's argument that the sale agreement effected a disposition of whatever rights old Boston had against GE Capital under the Act. Moreover, I do not think that, had the liquidator of old Boston sought to do so, new Boston could have prevented the liquidator enforcing old Boston's claims under the Act against GE Capital. Because of that, it seems to me that there is no reasonable prospect that it could be successfully argued by new Boston that an effective disposition of those rights had occurred. There was no communication from old Boston to GE Capital that assigned or made over whatever rights old Boston had in any respect, whether under the Act or in contract, to new Boston ( William Brandt's Sons Co v Dunlop Rubber Co [1905] AC 454 at 462). And, even though old Boston appears to have become deregistered, if the liquidator or creditors became aware that it had valuable rights against GE Capital, such as new Boston claims the rights it obtained under the sale agreement were, it is quite possible that steps might be taken to reregister old Boston to enable it to begin proceedings. I say all this because it seems to me to demonstrate the lack of efficacy of the basis upon which new Boston claims to assert old Boston's rights. I do not think that on the evidence before me there are reasonable prospects that such an argument could succeed. It may be countered that were old Boston reregistered, new Boston might be able to compel it to assign its rights in consequence of the provisions of the sale agreement. But no provision of the sale agreement offers reasonable prospects of success for new Boston to argue that it could compel the making over of old Boston's rights to sue under the Act. That agreement was silent on both that topic and the rights of old Boston to sue under that Act which were not part of the business the subject of the transfer. The damage which old Boston suffered, if any damage were suffered by the alleged contraventions, was a cause of action which appears, on any reasonably arguable construction of the sale agreement, to have been retained by old Boston. The sale agreement could not effect any assignment of the statutory causes of action to new Boston. It follows that GE Capital is entitled to have the claims against it under the Act dismissed on the basis that they have no reasonable prospect of being successfully prosecuted against it. No particular formality is required for an assignment for value to be valid and effective in equity. As Lord Macnaghten said in William Brandt's Sons Co v Dunlop Rubber Co [1905] AC 454 at 462: 'The language is immaterial if the meaning is plain. All that is necessary is that the debtor should be given to understand that the debt has been made over by the creditor to some third person.' As he continued, the real question is whether what is asserted to be an assignment is notice to the debtor that the assignee is 'interested in the money' ([1905] AC at 462). The letter sent by new, not old, Boston on 1 July 2005 in terms related future invoices to new Boston's ABN. It was silent about the payment of the debts due on any old invoices. But in any event, old Boston did not write the letter and so it gave no instruction to GE Capital. Whatever debt GE Capital may have owed old Boston on 1 July 2005 was never made over to new Boston. GE Capital could not have received a good discharge of any existing obligation to old Boston by paying new Boston, because old Boston never authorized GE Capital to do so.