Get your priorities right — Black Ant Co Ltd (in administration) [2014] EWHC 1161

Priority of security is important where a borrower becomes insolvent and its assets are insufficient to discharge all its liabilities. Many funders will require a priority deed or intercreditor agreement to be entered into where there are two or more secured creditors — this will set out the order of repayment and entitlement to proceeds following enforcement of the security. In the absence of such a document, the general rule is that registered charges rank by the order in which they are entered on the register.

A lender who is first in time will want its security to keep its priority in respect of all advances, whether made at the outset or subsequently. ‘Tacking’ is the ability of a funder to secure (tack) further advances under its security so that they rank ahead of sums advanced by (and secured in favour of) another funder. However, the priority given by the general rule is limited to further advances, which the funder is obliged to make at the time of the charge.

In a recent High Court decision — Black Ant Co Ltd (in administration) [2014] EWHC 1161 — the main focus was on what was meant by ‘further advances’. X and Y held a first and a second legal charge respectively over properties owned by two companies. After Y’s charge had been registered, the borrower signed new facility letters with X in respect of the existing loans — no new money was lent and there was no loan repayment. The companies went into administration…

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