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Scheme v. West Bromwich Building Society [1997] UKHL 28; [1998] 1 All ER 98; [1998] 1 WLR 896 (19 June,
1997)
URL: http://www.bailii.org/uk/cases/UKHL/1997/28.html
Cite as: [1998] 1 WLR 896, [1998] WLR 896, [1997] UKHL 28, [1998] 1 All ER 98

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JISCBAILII_CASES_CONTRACT

Investors Compensation Scheme v. West Bromwich Building

Society [1997] UKHL 28; [1998] 1 All ER 98; [1998] 1 WLR
896 (19th June, 1997)
HOUSE OF LORDS
Lord Goff of Chieveley Lord Lloyd of Berwick Lord Hoffmann
Lord Hope of Craighead Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
INVESTORS COMPENSATION SCHEME LIMITED
(APPELLANTS)

v.

WEST BROMWICH BUILDING SOCIETY AND OTHERS

(RESPONDENTS)

ON 19 JUNE 1997

LORD GOFF OF CHIEVELEY

My Lords,

I have had the opportunity of reading in draft the speech of my noble and learned
friend, Lord Hoffmann. I agree with the conclusion which he has reached as to the
construction to be placed upon section 3(b) of the Investors Compensation Scheme
Claim Form and, for the reasons given by him, I would answer the questions directed
by Evans-Lombe J. to be tried as preliminary issues in the manner proposed by my
noble and learned friend. I would therefore allow the appeal.

LORD LLOYD OF BERWICK

My Lords,

Background

This is the second occasion on which the House has had to consider the scheme
for compensating investors set up under section 54 of the Financial Services Act 1986.
On the first occasion I described the Rules made by the Securities and Investment
Board under section 54(6) of the Act as being needlessly confusing and obscure. On
this occasion it is not the Rules that are primarily in issue, but a single clause in the
Claim Form which investors are required to sign when making a claim for
compensation; and the problem arises not from any obscurity of the language (the
meaning is, I think, tolerably clear) but from slovenly drafting.

The general background to the Home Income Plans, and the reasons why so many
investors have come to grief, have already been described in the judgments in the
earlier appeal, and need not be repeated here. The particular background to the present
appeals are proceedings brought by two groups of investors against West Bromwich
Building Society ("W.B.B.S.") for damages for negligence at common law and under
section 2(1) of the Misrepresentation Act 1967. They also claim rescission of their
mortgages on the ground of misrepresentation and undue influence, equitable
compensation, damages in lieu of rescission under section 2(2) of the Act of 1967, and
a variety of other remedies. Some of these remedies overlap.

The Investors Compensation Scheme Ltd. ("I.C.S.") have also commenced

proceedings against W.B.B.S. in which they claim as assignees of the Investors' rights
against W.B.B.S. They assert that all the investors' claims against W.B.B.S. have been
validly assigned to I.C.S., with the exception of the investors' claim for rescission. It
follows that there are competing claims against W.B.B.S. for the same damages, by
the investors on the one hand and I.C.S. on the other. The resolution of the issue
which thus arises indirectly between I.C.S. and the investors depends on the true
construction of the Claim Form, and in particular on the scope of the provisions
relating to the assignment of the investors' rights against third parties.

As between I.C.S. and W.B.B.S. there is a further issue. For W.B.B.S. allege in
the alternative that if the question of construction is resolved in favour of I.C.S., and
the investors have purported to assign their claims for damages against W.B.B.S., then
the assignment is void or unenforceable on grounds of public policy.

In addition to their claim against W.B.B.S., I.C.S. have brought proceedings

against numerous firms of solicitors, in which they claim damages for negligence in
advising their clients in relation to the Home Income Plans. These proceedings are
also brought as assignees under the Claim Form. But there are two important
differences. In the first place, there is no issue as to the meaning or scope of the
assignment in the case of claims against the solicitors. Secondly (and no doubt for the
same reason) none of the investors have brought their own proceedings against the
solicitors. So there is no underlying conflict between I.C.S. and the investors in
relation to the I.C.S. claim against the solicitors. The solicitors' defence is the same as
the alternative argument advanced by W.B.B.S., namely, that the assignment is void
or unenforceable on grounds of public policy.

Before turning to the question of construction, it is convenient to set out the main
provisions of the Claim Form. The form is addressed to the individual investor. In
section 2 it sets out the amount of the compensation to which the recipient is entitled
under the scheme. Section 3(a) sets out the claimants' declaration. It provides (in a
typical case) as follows:

"I/we hereby claim compensation for losses amounting to £20,345 as a result

of the default of Fisher Prew-Smith.
"I/we believe . . . that I/we have a claim against the firm in respect of negligent
acts and/or advice given by Fisher Prew-Smith on or after 28 August 1988.
...

"I/we confirm that I/we have received no compensation of any kind in respect
of amounts owed to me/us at the date of default by Fisher Prew-Smith or any
other person. . . .
 ". . . I/we also confirm that I/we do not expect to receive any such
compensation in the future . . .
"I/we understand that subject to section 3(b) below
1. I/we are not obliged to make a claim under this scheme.
2. Investors' Compensation Scheme Ltd. . . . will take over my/our
rights and claims against Fisher Prew-Smith and other third parties on
the payment of any compensation as described in the Transfer of Rights
at section 4 of this form. . . ."

The claimants' declaration is then signed by the investor.

Section 3(b) on which the present appeal turns, sets out a counter-declaration by
I.C.S. It provides:

"I.C.S. agrees that the following claims shall not be treated as a 'Third Party
Claim' [as defined in section 4 of this form] for the purposes of this agreement
and that the benefits of such claims shall enure to you absolutely:
"Any claim (whether sounding in rescission for undue influence or otherwise)
that you have or may have against the West Bromwich Building Society in
which you claim an abatement of sums which you would otherwise have to
repay to that Society in respect of sums borrowed by you from that Society in
connection with the transaction and dealings giving rise to the claim (including
interest on any such sums)."

Section 4 is headed "Investor's Agreement and Acknowledgment (Rights Against

Participant Firm)." It provides as follows:

"1. I/we agree that my/our rights against the Participant Firm in respect of
the Claim shall pass to Investors Compensation Scheme Ltd. ('I.C.S.') on
payment of compensation pursuant to the Financial Services (Compensation of
Investors) Rules 1990 ('the Rules'). . . .
"3. I/we acknowledge that under the Rules on payment of the amount of
£20,345.15 I/we will not longer have the right to make a claim against the
Participant Firm in respect of the Claim and that any such right will be vested
in I.C.S. pursuant to the Rules, and I/we further acknowledge that any sums
which would otherwise be payable to me/us in respect of the Claim by the
Participant Firm, or by any trustee appointed under the Financial Services Act
1986, shall be paid instead to I.C.S. . . .
 "5. I/we agree that in the event of my/our receiving any moneys or assets in
respect of the Claim from the Participant Firm or from any trustee appointed
under the Financial Services Act 1986 I/we will forthwith pay or transfer them
to I.C.S.
"6. I/we hereby assign absolutely to I.C.S. each and every Third Party Claim
and the benefit thereof.
"12. In this document, 'Third Party Claim' means any right, claim or cause
of action which the claimant has or may have against any person other than the
Participant Firm or against any fund or property in the hands of any person
other than the Participant Firm and arising out of the circumstances giving rise
to the Claim or otherwise relating to the Claim whether such claims shall arise
in debt, breach of contract, tort, breach of trust or in any other manner
whatsoever (and including all sums to which I/we may become entitled under
sections 6 and 61 of the Financial Services Act 1986)."

Section 4 is then signed by the investor. There follows an Explanatory Note.

Paragraphs 1, 2 and 3 are all concerned with the assignment of claims against the
Participant Firm, in this case Fisher Prew-Smith. Paragraph 4 is concerned with the
assignment of third party claims. It provides:

"4. You also agree that I.C.S. should be able to use any rights which you
now have against anyone else in relation to the claim. Examples might be
directors of the firm or other persons also responsible for causing the loss for
which you are being compensated. You give up all those rights and transfer
them to I.C.S. (paragraph 6)."

So much for the general shape of the Claim Form. I now return to section 3(b). It
provides for an exception in respect of third party claims assigned under paragraph 6
of section 4. Mr. Vos on behalf of I.C.S. submits that the exception is confined to
claims against W.B.B.S. for rescission. Mr. Oliver on behalf of W.B.B.S. and Mr.
Strauss on behalf of the investors submit that the exception covers all claims against
W.B.B.S. whether for rescission or not, in which the investor claims a reduction in the
amount due under the mortgage loan.

This is not the first time the court has had to consider the meaning of section 3(b).
The same question arose in proceedings brought by I.C.S. against Cheltenham and
Gloucester P.l.c., formerly known as Cheltenham and Gloucester Building Society. In
that case Evans-Lombe J., who has had overall charge of the litigation, ordered, and
subsequently tried, a preliminary issue as to the construction of section 3(b). He held
that the more natural meaning of the words was that for which the investors contend;
in other words that the exception covers all possible claims against Cheltenham and
Gloucester, and is not limited to claims for rescission. However, he went on to reject
what he regarded as the more natural meaning of the words on the ground that it
produced a "ridiculous" result, contrary to the "demonstrable purpose of the parties in
entering into the Claim Forms." He thus upheld I.C.S.'s construction even though it
meant, in his view, doing violence to the language of the Claim Form.

When the present proceedings were before Evans-Lombe J., he repeated his view
that the investors' construction was the more natural meaning of the words, but held
once again that such meaning was displaced by a consideration of the surrounding
circumstances, and in particular by the need for an "efficient system" to enable I.C.S.
to recover its outlay. However, the learned judge went on to hold that the purported
assignment in favour of I.C.S. was invalid, on the grounds that the assignment of
some but not all the remedies available against W.B.B.S. in respect of a single cause
of action is ineffective in law. Since the assignment was invalid, it followed that the
investors were free to pursue their claims for damages against W.B.B.S.

I.C.S. appealed to the Court of Appeal. The Court of Appeal agreed with Evans-
Lombe J. that the investors' construction accords with the natural meaning of the
words. But unlike the judge they did not regard the result as commercially ridiculous.
Leggatt L.J. who gave the leading judgment said: "There is simply no warrant for
limiting the rights retained to claims for or consequent upon rescission." I find myself
in complete agreement with the Court of Appeal.

The question of construction

A useful starting point for ascertaining the meaning of section 3(b) of the Claim
Form is to put oneself in the position of the ordinary investor to whom the Claim
Form is addressed. This was the approach adopted by the House in Porter v. National
Union of Journalists [1980] I.R.L.R. 404. The question in that case concerned the
proper construction of the rules of the N.U.J. Lord Diplock said, at p. 407:

"I turn to the interpretation of the relevant rules, bearing in mind that their
purpose is to inform the members of the N.U.J. of what rights they acquire and
obligations they assume vis-à-vis the union and their fellow members, by
becoming and remaining members of it. The readership to which the rules are
addressed consists of ordinary working journalists, not judges or lawyers
versed in the semantic technicalities of statutory draftsmanship."

The purpose of the Claim Form was to inform the investor in relatively non-
technical language what his rights and liabilities were to be on receipt of
compensation under the scheme. No doubt the investor would start by reading the
Explanatory Note, as he is invited to do before signing section 4. He would notice that
the first three paragraphs of the explanatory note are all dealing with his right to claim
against the defaulting firm, Fisher Prew-Smith. This would not surprise him. For it
was the firm of Fisher Prew-Smith which led him into his disastrous investment. He
would well understand that I.C.S. might wish to recover some or all of its outlay from
that firm: see paragraph 2 of the explanatory note. He might then turn to section 4
itself. He would at once notice that the heading of section 4 refers specifically
to "Rights against Participant Firm". Next he would find that the first five paragraphs
of section 4 are all dealing with the claim against Fisher Prew-Smith. He would infer
that the claim against Fisher Prew-Smith was of primary importance to I.C.S.;
otherwise it would hardly have been given such prominence.

Next he would read paragraph 4 of the Explanatory Note. He would note that he
was to give up his rights against "anyone else" in relation to the claim (i.e. the claim
against Fisher Prew-Smith). The examples given are any rights he might have against
a director of Fisher Prew-Smith "or any persons also responsible" for causing his loss.
He might or might not at that stage envisage a claim against W.B.B.S.; probably not.
Certainly the reference to "other persons" in the context of the directors of Fisher
Prew-Smith does not serve to highlight a possible claim against W.B.B.S. If he were
in doubt, he would turn to paragraph 6 of section 4, note the definition of Third Party
Claim in paragraph 12, and so come to section 3(b).

On a quick reading of section 3(b) our hypothetical reasonable investor would

notice that it excludes from the definition of Third Party Claim any claim which he
might have against W.B.B.S. for an "abatement" of sums due under his mortgage. The
benefit of any such claim was to enure to him absolutely. In other words it was not to
pass to I.C.S. under any circumstances. He would probably not pause over the words
in brackets, recognising that words in brackets do not ordinarily govern the meaning
of the rest of the sentence, especially if the parenthesis starts with the word "whether"
and ends with the words "or otherwise." He might well, in passing, understand the
words in brackets as being the equivalent of "whether or not sounding in rescission for
undue influence." He would then come to "abatement." This would strike him as an
unusual word in the context. So he would turn to his lawyer (who is assumed to be at
his elbow) and ask him whether abatement has some special meaning in law. His
lawyer would reply that abatement has a technical meaning in the law of nuisance,
and in connection with contracts for the sale of goods and the provision of services.
But otherwise it simply means reduction. It has no technical meaning in relation to
rescission. Counsel were unable to point to a single case in which the word had been
used in that connection. So the investor would understand that if he still owed money
on his mortgage, as would almost always be the case, he would retain the right to sue
W.B.B.S. in order to reduce his outstanding debt. Again, this would not surprise him.
For in most cases he would not have recovered full compensation from I.C.S., and in
some cases nothing like full compensation. Certainly he would wish to have all
defences available should W.B.B.S. start proceedings against him for recovery of the
loan.

So the position would be that he, the investor, would retain his right to sue
W.B.B.S. for a reduction of the mortgage debt, but I.C.S. would obtain the right to sue
Fisher Prew-Smith and "Third Parties" other than W.B.B.S., on the understanding that
I.C.S. would re-assign those rights on request, should they not be needed: see
paragraph 5 of the Explanatory Note. This would strike the investor as fair and
reasonable. At this stage our hypothetical investor would feel that he understood his
rights and obligations well enough and would sign section 4.

Is there, then, any reason why the courts should not give section 3(b), and the
Claim Form as a whole, the same meaning as the investor? (I shall refer to this as "the
plain meaning.") The objections fall into two groups. The first group of objections
relate to the language of section 3(b); the second group of objections relate to the legal
and commercial consequences of adopting the plain meaning. I suspect that none of
these objections would occur to anyone other than a lawyer.

The meaning of the language

The objection to the plain meaning is the inclusion of the words "for undue
influence" after "rescission"; for any lawyer would know that there are other grounds
on which the investor might claim rescission, for example, on the ground of
misrepresentation. Why, therefore, should the draftsman have specifically included
one of the grounds on which the investor might claim rescission, but not others?

We do not know the answer to this question. It may be that if one had access to the
preliminary drafts of the Claim Form, or to the mind of the draftsman himself, the
answer would emerge clearly enough. It may be that a claim for rescission on the
ground of undue influence was, for some reason, uppermost in the draftsman's mind;
so he put the words in. But we cannot go into the draftsman's mind. We having
nothing to go on but the words he has used. The inclusion of undue influence is odd,
but not so odd as to obscure the meaning. "Or otherwise" must relate back to "whether
sounding in rescission." Any other construction would leave "whether" hanging in the
air. So "or otherwise" covers claims in contract and tort. It is not limited to other
grounds for claiming rescission. The drafting is slovenly. But I do not have any great
difficulty with the meaning.
 It is said that the plain meaning would make the words in brackets otiose. So
indeed it would. But words in brackets are often otiose, especially brackets in the
format "(whether . . . or otherwise)." They show that the general words which precede
the parenthesis are not limited to any particular kind of claim, but cover all claims so
long as they are claims for reduction of sums due.

What are the alternatives? Mr. Vos submits that section 3(b) means "any claims
sounding in rescission (whether for undue influence or otherwise) in which you claim
an abatement . . ." I agree with Evans-Lombe J. that such a construction does violence
to the language. I know of no principle of construction (whether by reference to what
Lord Wilberforce said in Prenn v. Simmons [1971] 1 W.L.R. 1381, 1384-1386 or
otherwise) which would enable the court to take words from within the brackets,
where they are clearly intended to underline the width of "any claim," and place them
outside the brackets where they have the exact opposite effect. As Leggatt L.J. said in
the Court of Appeal, such a construction is simply not an available meaning of the
words used; and it is, after all, from the words used that one must ascertain what the
parties meant. Purposive interpretation of a contract is a useful tool where the purpose
can be identified with reasonable certainty. But creative interpretation is another thing
altogether. The one must not be allowed to shade into the other.

So with great respect to those taking a different view, I do not regard the present
case as raising any question of ambiguity, or of choosing between two possible
interpretations. The construction advocated by the investors, though it gives rise to the
oddity which I have mentioned, is a permissible construction of the words used. The
I.C.S.'s construction is not.

Nor does the I.C.S. construction avoid one of the main objections which is raised
against the investors' construction. If "whether sounding in rescission for undue
influence or otherwise" is otiose on the investors' construction, so also is "whether for
undue influence or otherwise" on the I.C.S.'s construction. Indeed the objection is all
the greater, since a claim for rescission would necessarily result in an abatement, if by
abatement is meant the financial adjustment which takes place in any event on
rescission of a contract, and which would in this case be limited (if Mr. Vos's
argument is correct) to repayment of W.B.B.S.'s charges and an adjustment in the rate
of interest on the loan. On that view, clause 3(b) would be an elaborate way of saying
very little indeed.

The legal and commercial consequences

If Evans-Lombe J. is right that the investors' construction is the more natural

meaning of section 3(b) and if, a fortiori, the Court of Appeal is right that the I.C.S.'s
construction is not even a possible meaning of the language used, then it would take a
very strong case indeed before I would reject the former meaning in favour of the
latter. As Lord Mustill said in Charter Reinsurance Co. Ltd. v. Fagan [1996] 2 WLR
726, 758-759:

"If . . . the words 'actually paid' can only as a matter of language and context
mean what the syndicates maintain, I would hesitate long before giving them
any other meaning, just because the result would be extraordinary."

What then are the consequences of the investors' construction which are said to be
so extraordinary, or so "very unreasonable" (the expression used by Lord Reid
in Wickman Machine Tool Sales Ltd. v. L. Schuler A.G. [1974] AC 235, 251), and
which Evans-Lombe J. described as producing a ridiculous result? I start with the
commercial consequences. It is said that I.C.S. would have wanted to take over the
investors' claim against W.B.B.S., as well as their claim against Fisher Prew-Smith,
since W.B.B.S. would be worth suing, whereas Fisher Prew-Smith, being insolvent,
would not. Secondly it is said that the investors would have little incentive to sue
W.B.B.S., once they had received compensation from I.C.S. A third objection was
that the investors would not be entitled to claim on their own behalf, once they had
accepted compensation. This third objection is now accepted as being wrong in law,
and is no longer relied on.

By way of answer to the second objection, Mr. Strauss pointed out that since, in
the generality of cases, investors had received only between half and three-quarters of
their losses by way of compensation, they would have every incentive to look
elsewhere for a remedy. Over 500 investors have in fact done so, by bringing claims
against Cheltenham and Gloucester, W.B.B.S. and other building societies. So it does
not look as if the investors have been shy or backward in pursuing their rights.

As to the first objection, the structure and language of the Claim Form, and the
express provisions of section 54(2)(e) of the Act, do not suggest that claims against
participant firms were expected to be valueless. (It is common ground that "person" in
section 54(2)(e) means, and means only, the participant firm.) It is true that Fisher
Prew-Smith are in liquidation. But other participant firms are not. Moreover the
building societies are not the only third parties likely to be worth suing. It must not be
forgotten that I.C.S. has brought proceedings against 197 firms of solvent solicitors. In
any event it is not for the court to speculate on what the parties would have wanted. I
accept, of course, as Mr. Vos observed, that I.C.S. is not a charity. But it is far from
being an ordinary commercial organisation. Its raison d'etre is the compensation of
investors.

Even so, if I.C.S. had undertaken to compensate the investors in full then one
might perhaps have expected I.C.S. to insist on a transfer of all third party rights. But
that is not what has happened. It is common ground that investors have retained rights
of some kind against W.B.B.S. That being so it would seem to me as likely as not,
commercially, that the agreement would provide for the investors to retain the whole
of their rights against W.B.B.S., including the right to claim damages in reduction of
their loans. Such a consequence cannot be regarded as "ridiculous" or "extraordinary"
or "very unreasonable."

Various other so-called anomalies are mentioned in Mr. Vos's written submissions
by way of reply. For example, a conscientious investor who had used his
compensation to pay off his mortgage would lose his rights against W.B.B.S., since
there would then be no sum to be abated, whereas a less conscientious investor who
had spent his compensation on a holiday would retain his rights in full. I agree with
Mr. Vos that there are theoretical anomalies on the investors' construction, though
how likely they would be to arise in practice is another question. Where I disagree
with him is in his evaluation of these anomalies. In my judgment they fall far short of
the sort of absurdity which would justify the rejection of what I have called the plain
meaning of section 3(b). They do not prompt the comment "whatever else the parties
may have had in mind, they cannot have meant that."

As for the legal consequences, the difficulties are all on the other side. Both
Evans-Lombe J. and the Court of Appeal were of the view that the splitting of
mutually inconsistent remedies in respect of a single cause of action against W.B.B.S.
meant that the purported assignment was void for uncertainty, as well as being
contrary to public policy. My noble and learned friend, Lord Hoffmann has found a
way round that difficulty. But the difficulty does not arise at all on the investors'
construction. If the whole of the investors' rights against W.B.B.S. are retained, the
question of splitting remedies, and "dividing the indivisible" simply does not arise.

For the above reasons I would hold that on the true construction of the Claim
Form the investors' claims against W.B.B.S. have been retained by the investors, and
have not been assigned to I.C.S. It follows that the question whether if there had been
an assignment, it would have been valid or invalid does not call for an answer. In the
result, therefore, I would uphold the reasoning of the Court of Appeal and dismiss the
main appeal.

The claim against the solicitors

I can deal with the remaining point quite briefly, since I agree with your Lordships
that the investors' claims against their solicitors have been validly assigned to I.C.S.,
and that this part of the appeal should therefore be allowed. There can be no doubt
that paragraph 6 of section 4 purports to transfer to I.C.S. the investors' rights against
the solicitors. There is no issue as to the meaning of paragraph 6 in that connection.
The only question is whether the assignment is effective in law. Evans-Lombe J. dealt
with the point briefly at the end of his judgment. Having held that it was not possible
in law to assign some but not all remedies in respect of a single cause of action, he
went on to conclude that the same reasoning must also apply, logically, to the claim
against the solicitors, since the solicitors might wish to bring in W.B.B.S. as third
parties.

Mr. Sumption supports the judge's conclusion. He submitted that the purported
assignment is void, because it is legally impossible for the investors to assign their
right to claim against the solicitors while retaining the right to claim against W.B.B.S.
in respect of the same loss. Mr. Sumption was not able to point to any authority in
support of this submission. He relies instead on the traditional antipathy of the courts
to the assignment of bare rights to litigate. Alternatively he submits that if there can be
an assignment at all in such circumstances, it will only be effective in law if the
parties have agreed as to their respective priority. In the absence of agreement, the
court has no means for deciding between competing claimants in regard to the same
loss.

Since the claims against W.B.B.S. and the solicitors give rise to separate causes of
action, the problem of splitting remedies in respect of the same cause of action, which
Evans-Lombe J. and the Court of Appeal regarded as insoluble, does not arise in so
acute a form. I believe it could be solved satisfactorily by sensible case management.
But I need not develop the matter further. For Mr. Sumption concedes that if the main
appeal is allowed, as your Lordships propose, then the appeal in the solicitor's action
must also be allowed.

LORD HOFFMANN

My Lords,

The Investors Compensation Scheme was set up pursuant to section 54 of the

Financial Services Act 1986 to provide a compensation fund for people who have
unsatisfied claims against persons authorised under the Act to carry on investment
business. The Rules under which the Scheme is administered provide that, on paying
compensation, the company managing the Scheme is to take over the applicant's rights
against the authorised person and also, if the management company so determines,
any rights he may have against other persons relating to the subject-matter of his
claim.
 In 1992 the management company, called Investors Compensation Scheme Ltd.
("I.C.S."), began to receive a large number of claims from home owners, mainly
elderly retired people, who had been advised by authorised persons, independent
financial advisers belonging to the Financial Intermediaries, Managers and Brokers
Regulatory Association ("FIMBRA"), to enter into schemes called "Home Income
Plans." These schemes had been marketed by the financial advisers in conjunction
with certain building societies during the late 1980's and involved the owners
mortgaging their homes to secure advances at enhanced rates of interest which they
mainly invested in equity-linked bonds. The subsequent fall in equities and house
prices and the rise in interest rates had caused the owners severe losses. They had
claims against the financial advisers for negligence and breach of their statutory duties
under the Act of 1986 as well as possible claims against the building societies and the
solicitors who had acted in connection with the mortgages.

I.C.S. drafted a Claim Form for the home owner claimants (whom I shall call "the
investors") to sign. We shall have to examine it later in some detail. For the moment it
is enough to say that it contained an assignment to I.C.S. of all the investor's rights
arising out of the transaction against the financial advisers and anyone else, subject to
a reservation of certain rights against the building society. This reservation, in section
3(b) of the form, has given rise to this litigation. Evans-Lombe J., who had to
determine its meaning as a preliminary issue, thought that it was trying to reserve to
the investor a part of his rights against the building society but that an assignment to
I.C.S. of his remaining rights was legally impossible and invalid. An assignment of
the investor's rights in respect of the same losses against the solicitors was also legally
impossible and the whole assignment was therefore a failure. The Court of Appeal
disagreed with the judge about the meaning of section 3(b). They thought it was
intended to reserve to the investor the whole of his rights against the building society.
But they agreed that if it had been intended to assign part, it would have been
ineffective. They also agreed that the assignment of rights against the solicitors was
invalid. The unanimous view of the judge and the Court of Appeal was therefore that
I.C.S. had no title to claim against either the building societies or the solicitors.
Against this decision I.C.S. appeals to your Lordships' House.

My Lords, I must start by setting out the material provisions of section 54 of the
Act of 1986, the Rules under which the Scheme is operated and the Claim Form
which the investors signed. First, the Act:

"54(1) The Secretary of State may by rules establish a scheme for

compensating investors in cases where persons who are or have been
authorised persons are unable, or likely to be unable, to satisfy claims in respect
 of any description of civil liability incurred by them in connection with their
investment business.
(2) Without prejudice to the generality of subsection (1) above, rules under this
section may--(a) provide for the administration of the scheme and, subject to
the Rules, the determination and regulation of any matter relating to its
operation by a body appearing to the Secretary of State to be representative of,
or of any class of, authorised persons; (b) establish a fund out of which
compensation is to be paid; (c) provide for the levying of contributions from, or
from any class of, authorised persons and otherwise for financing the scheme
and for the payment of contributions and other money into the fund; (d) specify
the terms and conditions on which, and to the extent to which, compensation is
to be payable and in any circumstances in which the right to compensation is to
be excluded or modified; (e) provide for treating compensation payable under
the scheme in respect of a claim against any person as extinguishing or
reducing the liability of that person in respect of the claim and for conferring on
the body administering the scheme a right of recovery against that person,
being, in the event of his insolvency, a right not exceeding such right, if any, as
the claimant would have had in that event; and (f) contain incidental and
supplementary provisions."

Next, the rules. They are called the Financial Services (Compensation of
Investors) rules 1990 and were made by the Securities and Investment Board,
exercising the powers under section 54 delegated by the Secretary of State. In these
Rules, I.C.S. is called "the management company" and the financial advisers and other
authorised persons are called "the participant firms." For present purposes it is
necessary to refer only to the following rules:

"2.02 Payment of Compensation

1. The management company is responsible for paying compensation to

investors in accordance with these rules.

2. The management company may pay compensation where it is satisfied,

on the basis of evidence provided by an investor or which is available to it from
other sources, that: (a) an eligible investor has duly applied for compensation;
(b) the investor has a claim against a participant firm in default . . . (c) the
 participant firm is unable or unlikely to be able to meet the claim within a
reasonable period; and (d) the investor has agreed, to the satisfaction of the
management company, that the whole or any part of his rights in the claim and,
if the management company so determines, any rights of his in a claim against
any other person which relate to the subject-matter of the claim, should pass to
it.

"2.10 Recoveries

1. Where, in connection with the payment of compensation, an investor

agrees that the whole or any part of his rights in a claim against any person are
to pass to the management company, the payment of compensation
extinguishes the liability of that person to the investor in respect of that claim
or part and confers on the management company a right of recovery against
that person which is otherwise identical to the investor's former rights in the
claim or part thereof."

Finally we must look at the Claim Form. Various editions were produced in 1992
but for present purposes nothing turns on the differences. This case concerns a form
used for claims in respect of a financial adviser called Fisher Prew-Smith Financial
Services Ltd. ("F.P.S.") which had marketed its home income plan in conjunction with
the West Bromwich Building Society ("W.B.B.S."). I shall refer to the one which was
in use in July 1993.

Sections 1 and 2 dealt with the personal details of the claimants and the amount of
compensation payable. Section 3(a) was called "Claimant's Declaration" and
contained the following statements:

". . . I/we confirm that we have received no compensation of any kind in

respect of the amounts owed to us at the date of default by [F.P.S.] or any other
person. I/we also confirm that I/we do not expect to receive any such
compensation in the future. Any such compensation received by me/us, I/we
will pay to [I.C.S.] in accordance with Section 4 attached hereto.
I/we understand that, subject to section 3(b) below:-

2. [I.C.S.] in its capacity as administrator of the Scheme will take over my

rights and claims against [F.P.S.] and other third parties on the payment of any
compensation as described in the Transfer of Rights at Section 4 of this form.
Any amount received will be paid direct to [I.C.S.] and any amounts (less costs
and interest) which exceed the compensation payment will be paid to me/us."

Section 3(b), which has given rise to all the difficulty, read, as follows:

"I.C.S. agrees that the following claims shall not be treated as a 'Third Party
Claim' (as defined in Section 4 of this form) for the purposes of this agreement
and that the benefits of such claim shall enure to you absolutely:

Any claim (whether sounding in rescission for undue influence or otherwise)

that you have or may have against the [W.B.B.S.] in which you claim an
abatement of sums which you would otherwise have to pay to that Society in
respect of sums borrowed by you from that Society in connection with the
transaction and dealings giving rise to the Claim (including interest on any such
sums)"

Finally, section 4 contained a statement that:

"I/we, the Claimant, agree and acknowledge as follows:

1. I/we agree that my/our rights against [F.P.S.] in respect of the Claim shall
pass to [I.C.S.] on payment of compensation . . .

2. I/we agree that we will accept the sum of £ . . . from I.C.S. in satisfaction
of my/our entitlement to compensation under the Rules in respect of the Claim.

3. I/we acknowledge that under the Rules on payment of the amount of £ . . .

I/we will no longer have the right to make a claim against [F.P.S.] in respect of
the Claim and that any such right will be vested in I.C.S. pursuant to the Rules,
and I/we further acknowledge that any sums which would otherwise be payable
to me/us in respect of the Claim by [F.P.S.] . . . shall be paid instead to I.C.S.

4. So far as any rights in respect of the claim would otherwise remain vested
in me/us, I/we agree that I/we assign those rights to I.C.S. to the extent of the
amount of the said compensation and Scheme interest paid.

5. I/we agree that in the event of my/our receiving any moneys or assets in
respect of the Claim from [F.P.S.] . . . I/we will forthwith pay or transfer them
to I.C.S.

6. I/we hereby assign absolutely to I.C.S. each and every Third Party Claim
and the benefit thereof.

7. I.C.S. agrees and acknowledges that in the event that it recovers any
monies in respect of a Third Party Claim, it will pay to you a sum equivalent to
the aggregate of:--(a) the moneys which I.C.S. has recovered in respect of the
Third Party Claim; and (b) any monies which I.C.S. has recovered in respect of
the Claim; and (c) any monies which I.C.S. has recovered pursuant to clause 5
or 6 above;

less

(i) the amount of compensation which I.C.S. had paid to you; (ii) such
amount in respect in respect of interest as I.C.S. considers just; and (iii)
the costs which I.C.S. has incurred in effecting, or in attempting to
effect, any such recovery.

8. I/we agree that I/we will provide all reasonable co-operation and
assistance that I.C.S. asks me/us to give in connection with any pursuit by
I.C.S. of claims corresponding to the Claim and of any Third Party Claim,
including the provision of documents, the provision of statements, the swearing
of affidavits and the attendance at court to give oral evidence.

9. I.C.S. may give a good receipt to any person in respect of any Third Party
Claim the benefit of which is assigned by this document.

10. I.C.S. will conduct all proceedings and settlement negotiations regarding
claims assigned by you reasonably and with due regard to your interests as well
as its own.

11. I.C.S. will re-assign to you at your request any claim which it and, if
relevant its insurers decide at any time not to pursue or to pursue further.
 12. In this document, "Third Party Claim" means any right, claim or cause
of action which the claimant has or may have against any person other than
[F.P.S.] or against any fund or property in the hands of any person other than
[F.P.S.] and arising out of the circumstances giving rise to the Claim or
otherwise relating to the Claim, whether such claims shall arise in debt, breach
of contract, tort, breach of trust or in any other manner whatsoever . . ."

Although the form was obviously trying not to use too much legalese, it could not
have been easy for the ordinary retired home owner to understand. It referred to
technical concepts like "sounding in rescission" and "in debt, breach of contract, tort,
breach of trust or in any other manner whatsoever." I.C.S. therefore also provided an
Explanatory Note which was a model of clarity:

"1. Under this document, once you have received your compensation from
I.C.S., you will not be able to sue the 'Participant Firm' mentioned above in
relation to the claim which led to that compensation. This is because your claim
is being met by I.C.S. instead. (Paragraphs 2 and 3).

2. But I.C.S. in turn may wish to recover some or all of its outlay to you by
suing the firm, and you promise to help I.C.S. if I.C.S. decides to do so
(Paragraph 8).

3. Further, since you are being compensated in relation to this claim, you
should not expect any more money for it from the firm (or liquidator) (second
half of paragraph 3); and any money sent to you because of it (e g by the
liquidator) is really due to I.C.S. instead of to you, so you must pay the money
to I.C.S. (paragraph 5).

4. You also agree that I.C.S. should be able to use any rights which you now
have against anyone else in relation to the claim. Examples might be directors
of the firm or other persons also responsible for causing the loss for which you
are being compensated. You give up all those rights and transfer them to I.C.S.
(paragraph 6)."
Before I turn to the question of construction, I must provide some of the background
to how this litigation has come about. A number of the home owners instructed a firm
of solicitors called Barnett Sampson to negotiate their claims. The rules provided that
claims were to be met "only where the management company considers that it is
essential in order to provide fair compensation to the investor." I.C.S. decided that it
would not pay compensation in respect of various heads of claim: in particular, that it
would not reimburse money which the homeowners had given away or spent on
themselves, or fees paid to lawyers and other professionals, or damages for illness,
anxiety and stress. Barnett Sampson's clients challenged this decision in proceedings
for judicial review but this House decided in Reg. v. Investors Compensation Scheme
Ltd., Ex parte Bowden [1996] A.C. 261 that I.C.S. had acted within its powers.

I.C.S. then commenced proceedings against various building societies for

compensation for breach of statutory duty under the Act of 1986 and damages for
breach of duty at common law, claiming to sue as assignee of the investors. In
proceedings against the Cheltenham and Gloucester PLC (previously the Cheltenham
& Gloucester Building Society) the Society took the point that section 3(b) of the
Claim Form reserved to the investor all claims against the Society and that I.C.S.
therefore had no title to sue. Evans-Lombe J. ordered this question to be tried as a
preliminary issue and on 1 November 1995 gave a judgment in which he held that the
only right reserved by section 3(b) was the right of the mortgagor, on rescission of the
mortgage, to an adjustment of the mortgage debt as part of the mutual restoration of
benefits consequent upon rescission. The assignment of the investor's right to
damages for misrepresentation or breach of duty was unaffected. A year later the same
point came before Evans-Lombe J. in proceedings by I.C.S. against W.B.B.S. By this
time, I.C.S. had also commenced proceedings against a large number of firms of
solicitors who had acted for investors in connection with the Home Income Plans. A
number of investors represented by Barnett Sampson ("the Alford plaintiffs") and
another firm of solicitors ("the Armitage plaintiffs") had also commenced separate
proceedings against W.B.B.S. for rescission of their mortgages and damages. Evans-
Lombe J. therefore directed preliminary issues on the question of who, as between
I.C.S. and the investors, had the title to sue W.B.B.S. for damages. These are the
proceedings which are the subject of this appeal to your Lordships' House.

My Lords, I start with the construction of Section 3(b). Evans-Lombe J. followed

his own decision in the earlier Cheltenham and Gloucester case and I shall first
summarise his reasoning and then that of Leggatt L.J. in the Court of Appeal. Evans-
Lombe J. focused on the words "any claim (whether sounding in rescission for undue
influence or otherwise) that you have . . . against the . . . Society in which you claim
an abatement of sums which you would otherwise have to repay to that Society . . ."
According to ordinary rules of syntax, "any claim" is the antecedent of "that you
have" and the words "or otherwise" in the adjectival parenthesis mean that it does not
limit the breadth of "any claim." It follows that claims of any description are reserved
as long as they amount to claims for an "abatement" of what is owing to the Society.
There are various ways in which the amount owing might be abated but one would be
on account of a set-off against the Society's liability for damages. Thus the syntax of
the words following "any claim" points to a wide meaning of "abatement" which
includes the effect of cross-claims.

Evans-Lombe J. then turned to the background against which the language in the
Claim Form had been used. Two features seemed to him odd. First, the building
society and the solicitors were the only solvent parties against which the investors
were likely to have any claim. As between the building society and the solicitors, the
former would certainly be the prime target. It had profited from the Home Income
Plans by lending money at enhanced rates of interest on safe security (maximum of 50
per cent. of value) at a time when lenders were falling over themselves to lend as
much money as possible. One might expect that I.C.S., having paid compensation to
the investor, would take over his claim against the building society. If not, the investor
might well be over-compensated. Other provisions of the form, like clause 7, seemed
to assume that I.C.S. would do the suing and account to the investor for the net
recovery in excess of the compensation paid. But there was no provision for the
investor having to pay anything back to I.C.S. This pointed to I.C.S. being entitled to
any recoverable damages.

Secondly, the parenthesis seemed very strange against the background of the law.
If it was exhaustive, why was "sounding in rescission for undue influence" singled
out? What about rescission on other grounds, or claims for breach of statutory or
common law duty? It was rather like providing in a lease of a flat that the tenant
should not keep "any pets (whether neutered Persian cats or otherwise)." Something
seemed to have gone wrong.

Considerations of this kind led the judge to conclude in the Cheltenham and
Gloucester case that the wider construction of "any claim" and "abatement" led to a
"ridiculous commercial result which the parties to the Claim Forms were quite
unlikely to have intended" and that it was clear that "the drafting of the second
paragraph of Section 3(b) was mistaken." He therefore concluded that the meaning
intended by the parties was that the investor should retain any claim for an abatement
of his debt which arose out of a claim for rescission, whether for undue influence or
otherwise. This could be fitted easily into the scheme of the law because the old
equitable remedy of rescission included, as part of the restitutio in integrum, an
accounting for benefits and indemnity against liabilities which could result in an
abatement of the mortgage debt. Such a remedy was quite separate from a common
law action for misrepresentation or breach of statutory duty. But the learned judge
seems to have had some misgivings about his interpretation: he said that was doing
violence to the natural meaning of the words and altering the drafting of the paragraph
in a way "more appropriate to rectification than the process of construction." In the
present case, however, the judge adhered to his construction and gave some additional
reasons.

In the Court of Appeal, Leggatt L.J. said, on the authority of Alice Through the
Looking Glass, that the judge's interpretation was "not an available meaning of the
words." "Any claim (whether sounding in rescission for undue influence or
otherwise)" could not mean "Any claim sounding in rescission (whether for undue
influence or otherwise)" and that was that. He was unimpressed by the alleged
commercial nonsense of the alternative construction.

My Lords, I will say at once that I prefer the approach of the learned judge. But I
think I should preface my explanation of my reasons with some general remarks about
the principles by which contractual documents are nowadays construed. I do not think
that the fundamental change which has overtaken this branch of the law, particularly
as a result of the speeches of Lord Wilberforce in Prenn v. Simmonds [1971] 1 W.L.R.
1381, 1384-1386 and Reardon Smith Line Ltd. v. Yngvar Hansen-Tangen [1976] 1
W.L.R. 989, is always sufficiently appreciated. The result has been, subject to one
important exception, to assimilate the way in which such documents are interpreted by
judges to the common sense principles by which any serious utterance would be
interpreted in ordinary life. Almost all the old intellectual baggage of "legal"
interpretation has been discarded. The principles may be summarised as follows:

(1) Interpretation is the ascertainment of the meaning which the document would
convey to a reasonable person having all the background knowledge which would
reasonably have been available to the parties in the situation in which they were at the
time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the "matrix
of fact," but this phrase is, if anything, an understated description of what the
background may include. Subject to the requirement that it should have been
reasonably available to the parties and to the exception to be mentioned next, it
includes absolutely anything which would have affected the way in which the
language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of
the parties and their declarations of subjective intent. They are admissible only in an
action for rectification. The law makes this distinction for reasons of practical policy
and, in this respect only, legal interpretation differs from the way we would interpret
utterances in ordinary life. The boundaries of this exception are in some respects
unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a
reasonable man is not the same thing as the meaning of its words. The meaning of
words is a matter of dictionaries and grammars; the meaning of the document is what
the parties using those words against the relevant background would reasonably have
been understood to mean. The background may not merely enable the reasonable man
to choose between the possible meanings of words which are ambiguous but even (as
occasionally happens in ordinary life) to conclude that the parties must, for whatever
reason, have used the wrong words or syntax. (see Mannai Investments Co. Ltd. v.
Eagle Star Life Assurance Co. Ltd. [1997] 2 WLR 945

(5) The "rule" that words should be given their "natural and ordinary meaning"
reflects the common sense proposition that we do not easily accept that people have
made linguistic mistakes, particularly in formal documents. On the other hand, if one
would nevertheless conclude from the background that something must have gone
wrong with the language, the law does not require judges to attribute to the parties an
intention which they plainly could not have had. Lord Diplock made this point more
vigorously when he said in The Antaios Compania Neviera S.A. v. Salen Rederierna
A.B. 19851 A.C. 191, 201:

". . . if detailed semantic and syntactical analysis of words in a commercial

contract is going to lead to a conclusion that flouts business commonsense, it
must be made to yield to business commonsense."

If one applies these principles, it seems to me that the judge must be right and, as
we are dealing with one badly drafted clause which is happily no longer in use, there
is little advantage in my repeating his reasons at greater length. The only remark of his
which I would respectfully question is when he said that he was "doing violence" to
the natural meaning of the words. This is an over-energetic way to describe the
process of interpretation. Many people, including politicians, celebrities and Mrs.
Malaprop, mangle meanings and syntax but nevertheless communicate tolerably
clearly what they are using the words to mean. If anyone is doing violence to natural
meanings, it is they rather than their listeners.
 I shall, however, make four points supplemental to those of the learned judge.
First, the Claim Form was obviously intended to be read by lawyers and the
explanatory note by laymen. It is the terms of the Claim Form which govern the legal
relationship between the parties. But in construing the form, I think that one should
start with the assumption that a layman who read the explanatory note and did not
venture into the Claim Form itself was being given an accurate account of the effect
of the transaction. It is therefore significant that paragraph 4 of the note says
categorically and without qualification that the investor gives up all his rights against
anyone else and transfers them to I.C.S. If the effect of the Claim Form was that the
investor retained his claim against the Building Society, paragraph 4 of the note was
very misleading. Secondly, this leads to the conclusion that Section 3(b) was intended
only to deal with the possibility that a lawyer might argue that some right was a
"claim" when it would not be regarded as a claim by a layman. This is a fair
description of the possibility of a reduction of the mortgage debt as part of the
equitable taking of accounts upon rescission, which would not result in the investor
receiving any money but merely having to pay less to W.B.B.S. Thirdly, any lawyer
would think it extremely odd for I.C.S. to take an assignment of the investor's claim
for damages against the solicitors and leave the investor with a claim for the same
damages against W.B.B.S. He would be likely to wonder whether this was
conceptually possible and, as I shall explain, I think that his doubts would be well
founded. The investor and I.C.S. could not between them recover more than the loss
which the investor had actually suffered. As a matter of common sense, one would
therefore expect that I.C.S. either had a right to the damages or it did not. It would
seem eccentric to leave this question to be decided (if such a thing were possible) by a
race to judgment. Fourthly, no lawyer in his right mind who intended simply to say
that all claims against the W.B.B.S. were reserved to the investor would have used the
parenthesis. Nor, unless he intended to limit the reservation to the amount, if any,
which happened to be outstanding on the mortgage, would he have described them as
claims "in which you claim an abatement of the sums which you would otherwise
have to repay." And it is difficult to think of any reason for such an arbitrary
limitation.

Finally, on this part of the case, I must make some comments upon the judgment
of the Court of Appeal. Leggatt L.J. said that his construction was "the natural and
ordinary meaning of the words used." I do not think that the concept of natural and
ordinary meaning is very helpful when, on any view, the words have not been used in
a natural and ordinary way. In a case like this, the court is inevitably engaged in
chosing between competing unnatural meanings. Secondly, Leggatt L.J. said that the
judge's construction was not an "available meaning" of the words. If this means that
judges cannot, short of rectification, decide that the parties must have made mistakes
of meaning or syntax, I respectfully think he was wrong. The proposition is not, I
would suggest, borne out by his citation from Alice Through the Looking Glass. Alice
and Humpty Dumpty were agreed that the word "glory" did not mean "a nice knock-
down argument." Anyone with a dictionary could see that. Humpty Dumpty's point
was that "a nice knock-down argument" was what he meant by using the word
"glory." He very fairly acknowledged that Alice, as a reasonable young woman, could
not have realised this until he told her, but once he had told her, or if, without being
expressly told, she could have inferred it from the background, she would have had no
difficulty in understanding what he meant.

The next question is whether, given the reservation of rights in section 3(b), the
assignment of claims to compensation and damages against W.B.B.S. was valid. As
we have seen, the judge and the Court of Appeal thought that they were not. Evans-
Lombe J. said that the "fundamental problem" was that one could assign a chose in
action but not a particular remedy by which that chose in action was enforced. He
said:

"However what was here sought to be assigned was not the chose in action but
part of the remedies which the original holder of the chose in action, the
Investor, held prior to the purported assignment. It follows . . . that what was
purportedly assigned was not a chose in action and accordingly any attempted
assignment is void."

In the Court of Appeal Leggatt L.J. accepted the submission of Mr. Oliver Q.C.
that:

". . . the assignment for which the I.C.S. contends attempts to divide the
indivisible. Whatever else can be assigned, one remedy cannot be assigned
whilst retaining a potentially alternative remedy. Since the purpose of Section
3(b) is to procure a reduction in sums payable in respect of a mortgage, it is
capable of constituting an alternative to rescission."

(I should say that, as a matter of construction of the judgment, I think that by using
the word "rescission" the learned Lord Justice meant "damages.")

My Lords, I agree that a chose in action is property, something capable of being

turned into money. Snell's Equity 29th ed. (1990), p. 71 defines choses in action as
"all personal rights of property which can only be claimed or enforced by action, and
not by taking physical possession." At common law, for reasons into which it is
unnecessary to discuss, choses in action could not be assigned. In equity, they could.
Assignment of a "debt or other legal thing in action" was made possible at law by
section 136 of the Law of Property Act 1925. In each case, however, what is
assignable is the debt or other personal right of property. It is recoverable by action,
but what is assigned is the chose, the thing, the debt or damages to which the assignor
is entitled. The existence of a remedy or remedies is an essential condition for the
existence of the chose in action but that does not mean that the remedies are property
in themselves, capable of assignment separately from the chose. So, for example,
there may be joint and several liability; a remedy for the recovery of a debt or
damages may be available against more than one person. But this does not mean that
there is more than one chose in action. The assignee either acquires the right to the
money (or part of the money) or he does not. If he does, he necessarily acquires
whatever remedies are available to recover the money or the part which has been
assigned to him. So far, therefore, I am in complete agreement with the learned judge
and the Court of Appeal.

It is in applying these principles to the agreement constituted by the Claim Form

that I respectfully differ. Let us consider what rights the investor might have had when
he signed the form. He may have had a claim for damages in respect of the loss which
he had suffered on account of entering into the transaction. This may have included
money which he had lost on the ill-advised investment in an equity-linked bond, fees
which he paid to advisers to extricate himself from his predicament, high rates of
interest paid to the building society, possibly even money spent under the impression
that he could afford to do so. The persons liable for this loss might have been the
financial adviser, the building society and his solicitor. The building society, for
example, might have been liable for participating in misrepresentations made by the
financial adviser in the course of a joint scheme for marketing Home Improvement
Plans, or in breach of its duties under the Act of 1986. I am not suggesting that any
building society was actually liable on this basis, but only that the Claim Form
contemplates this as a possibility. This right of damages would have been a chose in
action, a right to recover money, which was capable of assignment in equity and under
section 136 of the Law of Property Act 1925.

The investor might in addition have had a right against the building society to
rescission of his mortgage. Or he might have such a right without having any claim
for damages. For example, he might have been able to show that the building society
had actual or constructive knowledge of undue influence exercised by the financial
adviser: compare Barclays Bank Plc v. O'Brien [1994] 1 AC 180. This would entitle
him to rescission but not damages. By itself, the right to rescission would have done
little to solve the investor's problems because it would have been a condition of
rescission that the investor should restore the benefits which he had received in return
for the mortgage: the building society's advance and a reasonable rate of interest for
having the use of the money. His real complaint was not merely that his house was
mortgaged but that he no longer had the money to pay back to the building society.
Until he had obtained compensation or damages, he would usually be unable to do so.
Nevertheless, one can imagine reasons why it would be more advantageous to the
investor, even after obtaining his compensation, to claim rescission of the mortgage
rather than simply paying it off. For example, the reasonable rate of interest which a
court might fix as a condition of rescission might be less than the higher rate due
under the contract (some of which he had already paid) and so, on the taking of
accounts for the purposes of rescission, there might be an abatement of what he would
otherwise have to repay.

Now it is important to notice that a claim to rescission is a right of action but can
in no way be described as a chose in action or part of a chose in action. It is a claim to
be relieved of a mortgage, and such a claim can be made only by the owner of the
mortgaged property. The owner cannot assign a right to rescission separately from his
property because it would make no sense to acquire a right to have someone else's
property relieved of a mortgage. Likewise, the possibility of an abatement of the debt
as part of the process of rescission is not a chose in action which can be assigned. It is
simply part of the process of rescission, which is a right attached to the ownership of
the house itself.

It can therefore be seen that in reserving to the investor any claim to an abatement
of the mortgage debt consequent upon rescission, Section 3(b) was not cutting down
the scope of the chose in action which was assigned to I.C.S. The possibility of an
abatement could never have formed part of that chose in action and could never have
been assigned separately from the house itself. One might therefore ask: what was the
point of Section 3(b)? The answer, I would suggest, is lawyerly caution. The
draftsman wanted to make it clear that if, for example, the investor brought an action
for rescission, any abatement of the debt which he secured was not something for
which he would be accountable to the I.C.S. In my view, it was a mistake. The
draftsman muddled up two separate questions. One is the extent of the assignment to
I.C.S. and the other is the extent to which the investor is accountable to I.C.S. for any
benefit he may receive. The two are not necessarily the same.

As this case shows, a right of action such as a claim for rescission of a mortgage
may be unassignable as a chose in action, but there is no reason why the parties
cannot agree that the investor is to be accountable to I.C.S. for all or part of the
improvement in his financial position as a result of exercising his right to rescission.
The words "the benefits of such claim shall enure to you absolutely" in section 3(b)
show that the draftsman's concern was with accountability for benefits. He wanted to
make it clear that the investor would not be accountable for benefits derived from a
claim for rescission. But the language he used referred to the extent of the assignment,
for which purpose the exception in section 3(b) was unnecessary. Hence all the
litigation: if you say something which is unnecessary, people suspect that you must
mean something else. However, there was one thing which section 3(b) was not and
could not be, and that was a reservation of a remedy which would ordinarily form part
of the chose in action assigned by I.C.S.

It is of course true that there are other links between the claim for damages and the
claim for rescission. The facts giving rise to liability would have a great deal in
common, so that if both claims were being made, by I.C.S. in the one case and the
investor in the other, it would be sensible to try both cases together. But this can often
happen when the same facts give rise to claims by different people and there are
procedural means for dealing with the possibility of duplicated evidence and
conflicting decisions. For example, in Wilson v. United Counties Bank Ltd. [1920]
A.C. 102 the breach by a bank of its contract to supervise Major Wilson's business
while he was fighting in France gave rise to a claim for financial loss to the business
and to general damages for injury to his credit and reputation. The House of Lords
held that upon his bankruptcy the former claim was statutorily assigned to his trustee
while the latter remained vested in him. He and the trustee joined as plaintiffs in the
action and, if they had not done so, the bank would have been entitled to have their
actions consolidated.

In addition, the damages recoverable by I.C.S. as assignee may be affected by

whether or not the mortgage has been rescinded. If there has been no rescission, the
damages may be calculated on the basis that the transaction has involved the investor
in liability to pay a high rate of interest. If there has been rescission, the damages will
be on the footing that the investor has only had to pay a reasonable rate. If the
building society is to pay on the former basis, it is entitled to require that the investor
affirm the mortgage and if I.C.S. cannot procure this, it may be necessary to assess
damages on the footing that rescission will take place. If there is a dispute over the
matter, the investor may have to be joined as a plaintiff, to avoid a situation in which
the building society both resists a claim to rescission and has damages assessed on the
basis that rescission has taken place. But these again are problems capable of solution
by procedural means.

The fact that the exercise by the investor of a right to rescission may affect the
quantum of the damages recoverable by virtue of the assignment to I.C.S. does not,
however, mean that the investor has attempted to assign different remedies in respect
of the same chose in action. What was assigned was the right to damages, whatever
the quantum might be. It is not unusual for the quantum of damages to be affected by
other proceedings which the person injured may bring, whether against a person liable
for damages or someone else. For example, if one assumes that the financial adviser
was solvent and that the investor had no cause of action whatever against the building
society for damages but the possibility of rescission of the mortgage on the basis of
constructive notice, the quantum of damages recoverable from the financial adviser by
the investor, or by I.C.S. as his assignee, would be affected by whether or not the
investor took successful proceedings for rescission. No one would think this an odd
state of affairs and in principle I do not see that it makes any difference that the claim
for damages and the claim for rescission are both against the building society.

My Lords, I think that if the rights of the investor are properly analysed, it will
become clear that clause 6 of Section 4 of the Claim Form is a complete and effectual
assignment of the whole of the investor's claim to compensation and damages to
I.C.S. Section 3(b) may well have been unnecessary, but this conclusion seems to me
preferable to attributing to the parties an intention, as, in their different ways, the
judge and the Court of Appeal have done, to do six impossible things before breakfast
and then regretfully saying that they could not be done. I would therefore allow the
appeal. The first two questions which the judge directed to be tried as preliminary
issues and the answers I suggest your Lordships should give are as follows:

Question 1: (a) Whether, upon the true construction of the express and (if any)
implied terms of the I.C.S. Claim Form, any (and if so which and to what extent) of
the claims which the Alford and Armitage investors advance in the actions numbered
Ch. 1995--A--2266 and 3129 have been assigned to the I.C.S. and (b) if so, whether
such assignment is valid and effective and what consequences (if any) does it have as
to the ability of those investors to maintain the actions.

Answer: Upon the true construction of the I.C.S. Claim Form, all claims for damages
and compensation have been validly assigned to I.C.S. and such claims cannot be
maintained by the investors in their actions. The investors retain the right to claim
rescission of their mortgages upon such terms as the court may consider just.

Question 2: (a) Whether, upon the true construction of the express and (if any)
implied terms of the I.C.S. Claim Form and in the light of the answer to issue 1, any
(and if so which and which parts thereof) of the claims which the I.C.S. advances in
the actions numbered CH 1995--I--7087 and 8106 have been assigned to the I.C.S.
and (b) if so, is such assignment valid and effective and does it enable I.C.S. to
maintain the actions.

Answer: (a) All (b) Yes.

The remaining questions do not arise.

LORD HOPE OF CRAIGHEAD

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and
learned friend, Lord Hoffmann. For the reasons he gives I also would allow the appeal
and would answer the questions which the judge directed to be tried as preliminary
issues in the way he has suggested.

LORD CLYDE

My Lords,

I have had the advantage of reading a draft of the speech of my noble and learned
friend, Lord Hoffmann. For the reasons he has given, I too would allow the appeal.

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