The voluntary code has been tightened so that the public are protected from rogue bailiffs who use unsound, unsafe or unfair methods, while at the same time making sure businesses and authorities can still collect debts fairly.

The national standards provide guidance on a range of issues, including:

1. Creditors’ responsibilities when instructing and dealing with enforcement agents or agencies (e.g. creditors must provide a contact point at appropriate times, to allow the enforcement agent or agency to raise essential queries, particularly where there is cause for concern);

2. Professional conduct requirements for enforcement agents (e.g. the need to present appropriate identification to the debtor and to carry out their duties in a professional, calm and dignified manner);

3. Compliance with statutory or financial requirements (e.g. enforcement agencies must keep a complete record of all financial transactions in whatever capacity undertaken, and must maintain suitable and comprehensive insurance cover);

4. Training and certification. All agents, employees and contractors must be provided with appropriate training to ensure that they are able to always act within the bounds of the relevant legislation;

5. The need to operate complaints and disciplinary procedures with which agents are fully conversant. Enforcement agents/agencies are encouraged to make use of the complaints and disciplinary procedures of professional associations such as The Civil Enforcement Association or the High Court Enforcement Officers Association.

6. Acceptable times and hours for enforcement activity. Enforcement should only be carried out between the hours of 6.00am and 9.00pm or at any time during trading hours. It should not be undertaken on Sundays, on Good Friday or on Christmas Day, unless the court specifically orders otherwise. Enforcement agents should carefully consider the appropriateness of undertaking enforcement on any day of religious or cultural observance or during any major religious or cultural festival.

7. What goods can be taken. Enforcement agents must ensure that goods are handled carefully and that they have insurance in place for goods in transit so that any damage is covered by the policy. Items clearly identifiable as an item belonging to, or for the exclusive use of a child under the age of 16 should not be removed. A receipt for the goods removed should be given to the debtor or left at the premises.

8. Vulnerable situations. Enforcement agents/agencies and creditors must recognise that they each have a role in ensuring that the vulnerable and socially excluded are protected (e.g. the elderly, recently bereaved, single mothers and pregnant women).) Enforcement agents must withdraw without making enquiries if the only persons present are children who appear to be under the age of 12.

A copy of the revised national standards are here.

The Government has also announced that a consultation on proposals to create a new legally binding regulatory regime for bailiffs will follow in spring 2012. These will include:

1. New rules governing the permitted modes and times of entry by enforcement agents to make it clear when and how an enforcement agent may enter a home or a business;

2. Which goods are exempt to make it clear which items an enforcement agent may not take from someone’s home or business premises; and

3. What fees bailiffs can charge for the range of debts that they collect for local government, courts and businesses.

The Government aims to introduce these changes as soon as possible.

On 19 June 2007, Amex issued a Default Notice asserting a breach of the agreement requiring remedial action in accordance with section 87(1) of the Consumer Credit Act 1974 (“the Act”).  Mr Brandon did not make the minimum payment and so on 11 July 2007, Amex sent Mr Brandon a Notice of Cancellation.

Amex then issued proceedings and Amex applied for summary judgment.  For Amex to succeed, Mr Brandon must have no real prospect of successfully defending the claim or issue in accordance with CPR Part 24.2(a)(ii).

Before the District Judge, Mr Brandon argued that the default notice required payment within 14 calendar days from the date of this Default Notice, but no allowance was made for the fact that he would not receive this notice on the same day and so he was given less than 14 days before the agreement was cancelled.  Applying the usual Civil Procedure Rules on service the District Judge gave summary judgment for Amex regarding the default as de minimis (minimal) and something he was prepared to overlook. Subsequently, on appeal, the Judge held that as no enforcement action was taken within the 14 days, the argument was not relevant because Mr Brandon had not suffered “any prejudice at all by virtue of that technical breach…” At the appeal stage, Amex also sought to rely on the contractual agreement which entitled Amex to terminate as an alternative to the Default Notice.  The Judge considered that this argument had not “simply been sprung” on Mr Brandon as it had been flagged previously.

The Court of Appeal noted that Mr Brandon’s stance was devoid of merit, but it could not conclude that there was no real prospect of a successful defence.

• On the first issue of the validity of the Default Notice the court was of the view that Amex was not entitled to summary judgment.  Mr Brandon’s defence could not be dismissed “as being unreal”.
• As a matter of construction, the Court of Appeal could not accept that the 14 day period ran from service of the Default Notice as opposed to the date of the Default Notice. It could not be presumed that the Default Notice would have been served less than two days after being posted.
• As a matter of construction, the Default Notice had not or may not have allowed the minimum statutory period for Mr Brandon to remedy the breach and so the defect could not be overlooked as de minimis.
• As regards the arguments on contractual termination, the Court of Appeal considered whether it could rely on a clause in the agreement and proceed on the basis of non-default termination.  The court was in broad agreement that sections 76 and 98 did not apply to this agreement.  However, there had been no mention of this before the District Judge and the point was only mentioned in the skeleton argument before the Judge.  The Court of Appeal considered that this was too significant a change of case and therefore it would not be fair to permit summary judgment on the basis of contractual determination without proper arguments.

Accordingly, Amex was not entitled to summary judgment and this matter would proceed to trial.  As the Court of Appeal noted “regardless of the outcome of the appeal, Mr Brandon is a bad credit risk; for this conclusion, he has only himself to blame.”

Ian Karl Robert Brandon v American Express Services Europe Ltd [2011] EWCA Civ 1187

The Guidance, which should be referred to by all businesses engaged in the recovery of consumer credit debts (e.g. debt collectors, banks and law firms), sets out the standards that the OFT expects all parties engaging in the recovery of such debts to adhere to.

The Guidance is divided into the following chapters:

1. Introduction. This sets out how the ‘fitness test’ under section 25 of the Consumer Credit Act 1974 applies to debt recovery activities;

2. Overarching principles of fair business practice. This sets out the FSA’s overarching principles of consumer protection and fair business practice that apply to all debt recovery activities. This chapter explains that businesses should treat debtors fairly, be transparent, exercise forbearance and consideration, and act proportionately. They should also establish and implement clear, effective and appropriate policies and procedures (especially for dealing with vulnerable debtors);

3. Unfair or improper business practices. This sets out the behaviours that the OFT considers to be unfair or improper business practices for the purposes of section 25(2A)(2) of the Consumer Credit Act 1974 (e.g. using Facebook or Twitter to contact debtors.) If these are engaged in, they may call into question a person’s fitness to retain, or be granted, a consumer credit licence;

4. Regulatory compliance and enforcement. This outlines the OFT’s approach to securing compliance and provides information on the regulatory options available to the OFT.

The OFT has said that it will shortly update its Irresponsible Lending Guidance to reflect this revised version of Debt Collection Guidance.

In this case, Mr and Mrs Harrison took out PPI, the premium of which was £10,200.  Of that 87% was retained by the lender or 677% of the apparent cost of the insurance although, as the Court of Appeal acknowledged, this could be misleading as concealing a cross-subsidy between the cost of the PPI and the annual percentage rate or cost of the loan. The Court of Appeal made the following points:

• First, it is the relationship between the parties which must be determined to be unfair, not the agreement although it is envisaged that the terms of the agreement may themselves give rise to an unfair relationship.
• Although the s140 of the Act came into force from 6 April 2007, they are applicable from 6 April 2008 to a pre-existing agreement unless at that time the agreement was complete.  An agreement is complete if there is no longer any sums payable under the agreement.
• Although Mr and Mrs Harrison’s main appeal relied on s140 of the Act, they attempted to introduce arguments relating to alleged breaches of the ICOB Rules, but these were rejected by the Court of Appeal.
• The main argument was that in the absence of an explanation, the commission was so high that it gave rise to a conflict of interest which it was the lender’s duty to disclose.  Only disclosure could give the borrowers the opportunity to decide whether they wished to purchase a product in circumstances where the lender derived so significant a benefit from the purchase.  The Court of Appeal in rejecting this argument highlighted the following:
  • It is clear that the ICOB regime after due consultation and consideration does not require the disclosure of the receipt of commission.  It would be an anomalous result if the lender was obliged to disclose receipt of a commission in order to escape a finding of unfairness but yet not obliged to disclose it pursuant to the regulatory regime.
  • A seller is not ordinarily obliged to warn his buyer that his product is expensive when compared to other similar products. In any other context the suggestion that the charging of a high price for a product freely and readily available more cheaply elsewhere in the market is indicative of unfairness in the relationship between seller and buyer would be met with incomprehension.
  • There was no suggestion in the FSA publication of March 2007 on PPI, that commission rates similar to this case generated a duty of disclosure which if not discharged would give rise to an unfair relationship.  Again, the FSA policy statement of August 2010 which raised fifteen common failings resulting in detriment and poor outcomes for consumers did not raise non-disclosure of commission as a common failure.

This Court of Appeal case should now prevent similar complaints from being pursued which relate solely to the size of the commission payable in respect of PPI.  Similarly, it should also discourage the use of unfair relationship arguments where the regulatory regime itself does not impose any corresponding duty.

Harrison and Another v Black Horse Limited [2011] EWCA Civ 1128

This case is an interesting example of the type of claims a borrower with PPI can attempt to raise and the court’s approach to these claims. Borrowers are notorious for making numerous claims in relation to PPI, some of which may have substance, but the majority of which are, as the court here pointed out, “unnecessary embellishments”.  

This was an application by the claimants Mr and Mrs Barnes to re-amend their Particulars of Claim.  The claim related to PPI policies sold in relation to three different loans made by the defendant Black Horse Limited (“Black Horse”) to Mr and Mrs Barnes.  The first loan was made on 31 July 2002 for £2,000 with the PPI premium of £563.  This first loan was rolled up and discharged by the second loan made on 27 October 2003 for a further £4,500 and PPI of £2,021.48.  This in turn was then rolled up and discharged by a further written agreement dated 8 June 2004 for a further PPI policy of £2,694.48. Monies were still owing in respect of the third loan. 

Mr and Mrs Barnes wished to amend their Particulars of Claim to claim:

• Breach of Fiduciary Duty;
• Duty of Care;
• Breach of Contract;
• Unenforceability; and
• Unfair Relationship. 

Breach of Fiduciary Duty

As the court noted, it is exceptional for a creditor to have any fiduciary duty to the borrower at all.  The mere giving of advice does not itself import a fiduciary relationship and only exceptionally will the line be crossed from that of mere honesty care and skill and the like to a fiduciary obligation such that the adviser is held to be acting in the other party’s interests in terms of advice, information and so on. 

In order to establish a fiduciary duty, Mr and Mrs Barnes relied on the voluntary private customer code produced by the General Insurance Standards Council (the GISC) as evidence of the fiduciary relationship.  The GISC was abolished in 2004 and was replaced by ICOB, a FSA regulated scheme. 

Judge Waksman explained that the notion that you could infer a fiduciary relationship between the lender and the customer taking out a loan with PPI simply because the lender (or the insurers for whom it acted as agent in offering the policy) was a member of the GISC was absurd.

Mr and Mrs Barnes also relied on the OFT non-status lending guidelines for lenders and brokers.  These were guidelines which were specifically said to be operable where there is secured lending to non-status customers.  Mr and Mrs Barnes were not non-status nor was it secured lending.  Although the guidelines contained guidance in relation to all aspects of their business activity, none of this was sufficient to support a fiduciary obligation. 

Mr and Mrs Barnes also placed considerable reliance on the judicial review proceedings British Bankers Association v FSA, but again that did not assist a breach of fiduciary relationship.  The Judge found as a matter of law that there was no fiduciary relationship and explained that, in any event, he would have found it surprising for there to be a fiduciary relationship as it would have meant that every time a lender sold a single product PPI policy to accompany a loan agreement then without more (assuming the insurer was a member of GISC) fiduciary obligations would arise. 

Duty of care

The whole thrust of the Barnes case was that on the first occasion Black Horse sold the PPI insurance they said that in effect that the purchase of the PPI was mandatory and that this was then implicit on the second and third occasions. However, the court found there was no factual basis for pleading a duty of care.  It was not suggested that Black Horse had assumed a responsibility here to give particular advice on the facts of the case nor was it suggested that Black Horse was either asked to or was expected to or purported to give advice of any kind and therefore there was no arguable case presently pleaded in negligence.

Breach of contract

Mr and Mrs Barnes also claimed that the code produced by the GISC was incorporated into the loan agreement.  They alleged that by reason S75 of the Consumer Credit Act 1974 (“the Act”),  the creditor would be jointly and severally liable for any breach of contract.  However, there was no incorporation of the code and therefore any claim for breach of contract based upon it fell away.

Unenforceability

Mr and Mrs Barnes alleged that when the first PPI was taken out they were told that it was “needed”. If that statement was made, it is arguable that taking the PPI policy was a condition of taking the principal loan and if so, the premiums should have comprised part of the total charge for credit.  As this was not done in the first agreement then it would be improperly executed.

As there were issues of fact and inferences this would be matters for a trial to consider. Full particulars of the factual allegation in relation to what exactly was said on the occasion of the first agreement and what was said and/or understood in relation to the second and third agreements about the necessity or otherwise of the PPI policy must be given and also as to how precisely the claim that there has been a failure to state the credit should be provided. Accordingly this claim could be made.

Unfair relationship

Under Section 140A of the Act the court can make an order in relation to the credit agreement if there is an unfair relationship between the creditor and borrower. Black Horse contended that the court had no jurisdiction to entertain a claim for unfair relationship because the relevant statutory provisions exclude the ability to make such a claim where one or both of the borrowers had the opportunity to make that claim in the context of prior proceedings.  The court found that Mr Barnes was not able to mount his own unfair relationship claim because this could have been raised by him in previous proceedings between Black Horse and Mr Barnes, but Mrs Barnes could raise this argument since she was not a party to those prior proceedings.

Black Horse also attempted to argue that the court was excluded from considering the two earlier agreements as they ceased to operate before 6 April 2007 when the relevant statutory provisions came into force.  The Judge disagreed with Black Horse and said that the court was entitled to take into account two earlier completed, but related agreements and therefore the Particulars of Claim could be amended to refer to the first and second agreements.

The court also looked at the factual matters raised to support the claim of unfair relationship. Their complaint was that:

a.  They were sold benefits when they already had such benefit;

b.  The policies were very expensive;

c.  Black Horse did not advise them to shop around for PPI policies;

d.  They were told the policies were compulsory when they were not;

e.  Black Horse did not establish that the policies were in their interests; and

f.  Black Horse failed to follow the terms of certain documents.

The court pointed out that the unfair relationship jurisdiction is very wide and although there may be matters which were not sufficient to found a fiduciary relationship, they may be sufficient for an unfair relationship.  Accordingly the court was not prepared to rule out the claim in respect of point a. above.  The Barnes claimed that the policies were very expensive.  However, they never produced an appendix which they had indicated they would do and so no permission was granted at this stage to include this factual matter although permission may be granted in the future.

The Judge was prepared to allow the amendment in relation to the claim under point d.. As to points c. and f. the Judge stated that that these were not particularly strong allegations, but he allowed these claim to be made because the unfair relationship jurisdiction is quite wide. He also allowed the claim to be made in relation to the documents.

 Conclusion

Despite Mr and Mrs Barnes’ attempts to raise numerous claims, the court concluded that the only viable claim was for an unfair relationship alongside the narrow unenforceability claim.  All the rest were “unnecessary embellishments”.  Even in respect of the claims that has been allowed to go forward, the court pointed out that this should not give the Barnes any particular encouragement in terms of their prospects of success.

Comment

This is a useful decision as it demonstrates that the “kitchen sink” approach of alleging numerous claims in an attempt to attack PPI cannot be sustained.  Where, however, an allegation is made that the borrowers were told that PPI was compulsory, the court will need to look at all the evidence and the circumstances of the case in order to evaluate this allegation.  It is clear that the scope of unfair relationship claims under section 140A of the Act can be wide although as the Judge hinted in this decision, this will not necessarily mean that the borrowers will ultimately succeed.

Shelley Barnes and Darren Barnes v Black Horse Limited [2011] EWHC 1416

Mr Binney asserted that:

• The alleged agreement was a term of the agreement or a condition subsequent.  Mere production of a written agreement does not render inadmissible evidence of other terms not included expressly or by reference in the document.
• The agreement was a collateral warranty so that if a person gives a promise and the other party relies on that promise, it is binding.
• The Bank was estopped from enforcing its strict rights under the guarantee.

The Bank in turn submitted that:

• Where the Court is satisfied that the terms of the parties’ agreement are wholly contained in a written document then oral evidence adding or qualifying to that document is not admissible.
• The Court should be satisfied that the agreement was wholly contained in the written document.  The alleged agreement should not be permitted to override the clear terms of the guarantee.
• Any alleged warranty is unenforceable where it contradicts or is inconsistent with the terms of a written guarantee.
• Estoppel by representation only arises where there is a representation of existing fact.

The Court examined the central issue, which was what was said or represented at the meeting on 17 November 2006 so as to give rise to a binding agreement, collateral warranty or representation as alleged by Mr Binney. The Court decided that there was no agreement, warranty or representation giving rise to any estoppel as Mr Binney alleged.

Accordingly it was unnecessary to consider the legal arguments.  It took into account:

• The burden of proof was on Mr Binney to establish any such agreement. 
• Although the relationship manager, Mr Thomson could not recall what was said in the meeting, the Judge was prepared to accept  that the overwhelming likelihood is that any specific request would have been so unusual that Mr Thomson would have remembered it and it would have necessitated both a review of the Bank’s lending and some authority higher to authorise the review if it had happened.
• Mr Binney was a highly articulate business man.  He had trained as an accountant and qualified as an economist.  A person of Mr Binney’s considerable financial experience would have made sure that he notified the Bank and confirmed what he now says was the position with regard to the guarantee. 
• Mr Binney had a propensity to lie or was willing to deceive or to mislead.  Although a witness may lie or give unsatisfactory evidence in regard to certain matters, this does not mean that their evidence is untruthful with regard to other matters.  However, these were matters that the court was entitled to take into account.
• The events both at the time and subsequent did not support Mr Binney’s assertions.

Accordingly the Bank was able to recover the sum of £100,000 from Mr Binney.

This case serves as a useful reminder of the legal issues involved, but ultimately the case came down to whether the Court believed Mr Binney’s assertions.  Even where a manager cannot recall what happened at a particular meeting, this is not fatal to a claim and the Court can look at a variety of circumstances in determining whether the oral agreement was made. Here, the court considered the burden of proof, whether what was said was unusual, the type of person making the assertion, whether the witness was truthful and the events surrounding the alleged statement.

National Westminster Bank plc v Binney [2011] EWHC 694

Corporate insolvencies across the board were down on the same period last year: compulsory liquidations and creditors’ voluntary liquidations decreased by 11.3% (seasonally adjusted), corporate receiverships by 23.9%, administrations by 24.4% and company voluntary arrangements by 22.4%.

Personal insolvencies followed the same trend, save for debt relief orders. Bankruptcies decreased by 29.2% and individual voluntary arrangements by 5.4%. Debt relief orders increased by 15.4%.

Further analysis of these statistics by the Corporate Recovery and Insolvency Team follows shortly.

The case in question concerned a guarantee that was so fundamentally flawed and unsuitable for the relevant transaction, that the Court did not have the power to step in and rectify the drafting mistakes. A Court only has the  remedial tools of construing a contract and rectifying obvious errors, in order to give the contract business purpose. However, where there is a genuine dispute over the existence of a guarantee or as to the terms of the guarantee itself, a Court cannot piece together the intention of the parties and create a document for them. That is simply beyond the powers available to the Court.

So, what can we learn from this latest decision? Well, in simple terms, that a party seeking to rely upon a guarantee must ensure it is accurately drafted and contains all the required terms.  Do not leave anything to chance, otherwise there is no guarantee of your guarantee standing up to scrutiny before a Court.

The first question the court was asked to determine was whether with reference to section 29 of the Land Registration Act 2002 were any of the interests sufficient to be overriding interests?

The court had much sympathy for the occupiers. However, based on the previous case of Abbey National v Cann [1991], the court held that the purchaser of land who relies upon a building society or bank loan for completion of his purchase in fact never acquires anything but an equity of redemption, for the land is, from the very inception, charged with the amount of the loan without which it could never have been transferred at all and it was never intended that it should be otherwise. On this basis the mortgagees’ rights under the charges had priority over any equitable rights that the occupiers may have acquired.

The second question the court determined was whether any of the tenancy agreements obtained priority. The leases were of a short duration and were non-registrable and in almost all the cases the registration of the mortgagee’s charge was made within the period of a priority period. The court held that these agreements did not obtain priority. Prior to registration the grant of the leasehold interests was not made out of a registered estate and only takes effect in equity.

Various mortgagors v various mortgagees and various occupiers [2010] EWHC 2991

Problems uncovered by the OFT’s investigation were specific to each business, as set out in the individual requirements.  However, across the sector the problems include:

• A failure to consider the customer’s circumstances or proportionality before asking the court to put a charging order in place;
• Not building adequate checks into the lender’s decision-making process; and
• Applying substantial charges for referring cases to a debt collection agency.

In a minority of cases, lenders sent oppressive and/or misleading correspondence.

The requirements imposed on some of the lenders included:

• providing a case file note seting out in reasonable detail why it was appropriate and reasonable to seek a charging order taking into account:
  • the extent to which a customer had responded to reasonable requests made by the lender;
  • such information about the personal and financial circumstances of the customer as the lender was able to obtain through its reasonable endeavours;
  • the amount of the sum owed;
  • the length of time that the sum has been owed;
  • whether it is reasonable for the lender to take steps other than those proposed.
• a requirement that the lender should consider whether the steps it proposed to take were proportionate having regard to the amount of the sum owed;
• a requirement that the lender should not state that it will seek a court order or judgment where the lender has no intention of seeking a court order or judgment;
• a requirement for new terms to be put in place where the lender wished to impose charges for default or impose charges to recover the costs of third parties and that any proposed new terms should be given to the OFT.

As part of the review of consumer credit and personal insolvency call for evidence, the Coalition is consulting on the impact of a £25,000 threshold before being able to enforce by means of a charging order and an order for sale.

Despite the certificate from the solicitors, the court found that Mr O’Sullivan had not received legal advice on the guarantee.

Mr O’Sullivan claimed that the certificate amounted to a fraudulent misrepresentation.  The court, however, found that this was without value as these representations were relied on by the bank and the bank alone.  The fact that, in consequence of the bank’s reliance, Mr O’Sullivan suffered a loss did not change the position.

Strangely, counsel for the firm of solicitors accepted that although no cause of action or argument had been advanced to this effect, the firm had assumed a duty in tort to Mr O’Sullivan to advise him to the extent required by the bank.  However, this could give rise to no liability as Mr O’Sullivan had suffered no loss. 

The court took the view that there was no legal basis for the existence of such a duty.  In circumstances where the guarantor did not seek advice, was not offered advice and was ignorant of the requirement of the bank that he should be advised, there was no basis for such a duty.  Counsel for the firm of solicitors opportunistically sought to build on this concession and the court found the approach of both counsel unhelpful.

In any event, the advice would have not added to Mr O’Sullivan’s understanding since it was improbable that it would have led Mr O’Sullivan to torpedo the project by refusing the guarantee, which was a condition of the finance from the bank.

This is an interesting judgment as it considered the legal relationship between the guarantor and the solicitor providing a certificate that independent legal advice has been given.  These are common issues raised by guarantors and this judgment clarifies the position. The case confirms that where no advice is given or sought, no duty can exist.  Also useful was the Judge’s comments that even if he had received advice, it would have made no difference as Mr O’Sullivan would not have wanted to jeopardise the project and it was most improbable that he would have refused to sign the guarantee. 

Ben O’Sullivan v Healys (a firm) 14 October 2010

The growth in the letting of property and the effects of the recession have resulted in an increase in the number of evictions of unauthorised tenants. As a consequence, the previous Labour Government introduced the MRPTA 2010, which came fully into force on 1 October 2010, in order to protect residential tenants by ensuring that they are entitled to a reasonable period of notice to leave a property if their landlord is repossessed

In short, the MRPTA 2010:

1. Gives courts the power to postpone a possession order for up to two months (thus allowing tenants the opportunity to find alternative accommodation); and

2. Requires lenders to give notice of the proposed execution of the possession order.

Further comment on the Act is available here.

The Guidance aims to inform lenders, landlords and tenants of their rights and responsibilities under the MRPTA 2010.

The claimants alleged that the APR stated in the agreement should be regarded as the primary figure and the monthly interest rate should be calculated from and should correspond (as closely as possible) to the APR.  They produced an expert report from a mathematician and computer expert who concluded that the APR rates on the monthly cash advance balance rate were incorrectly stated.

A regulated agreement is not properly executed unless the agreement contains all the prescribed terms.  If improperly executed, it is only enforceable by an order of the court.  The court cannot grant such an order in respect of agreements signed before 6 April 2007 and so those agreements which did not contain all of the prescribed terms are irredeemably unenforceable.  The claimants alleged that the APR was misstated and as a consequence the agreements were unenforceable.

The Judge explained that there is a very clear difference between the nature and function of the stated monthly (or annual) rate and the APR. The stated monthly or annual rate is (on its face) a contractual term.  The APR is designed to provide information to consumers and is arrived at by a complex formula designed to include not only interest rates but also other charges.  The APR is not a prescribed term.  Merely because the APR is included does not make it a prescribed term of the agreement.  The APR is not the driver of the figures and in any event,  if it were,  it would be unworkable as the APR figure only needs to be stated at the inception of the agreement.

Accordingly the claims that the agreements were irredeemably unenforceable because of an alleged mismatch between the APR and the stated rate of interest were struck out.

This case involved calculating the interest rates retrospectively, which as the Judge pointed out had “a surreal quality to it”. In the light of the series of cases which have resulted in a positive outcome for lenders, this is yet another nail in the coffin for those who seek to use the courts to bring consumer credit related claims on a very tentative and speculative basis.

Sternlight v Barclays Bank Plc and others [2010] EWHC 1865

Please see the link for guidance.  The regulations come into force on 1 February 2011. 

The existing Consumer Credit Act regime is unchanged in relation to agreements secured on land and consumer hire agreements (although lenders may choose to comply with the new requirements in respect of agreements secured on land).

In summary, the regulations make amendments to the following:

•  The right to withdraw from the credit agreement and the requirement to provide adequate explanations.  Creditors are required to assess the borrower’s creditworthiness before granting credit or significantly increasing the amount of credit.  The borrower can withdraw from an agreement within 14 days following conclusion of the agreement or (if later) once the borrower has received a copy of the executed agreement or notification of the credit limit on a credit card.
• How to set out and calculate the total charge for credit and the annual percentage rate of charge (APR) in advertising and consumer information.
• What information to provide consumers before they enter into a credit agreement and the way in which that information must be provided. They largely replace regulations on the disclosure of pre-contractual information. The information must be clear and easily legible, and the borrower must be able to take it away to consider and to shop around if he wishes.
• What information must be included in a credit agreement and how it must be presented and the requirements on the signing of a credit agreement.
• What information must be included in advertisements for consumer credit agreements and how that information must be presented.  If an advertisement includes an interest rate or any amount relating to the cost of credit, it must also include a representative example.
• The borrower is entitled to seek redress from the creditor in certain circumstances if he is unable to obtain satisfaction from the supplier of goods or services.  This applies where s75 of the Consumer Credit Act is not applicable.

• How consumers enter into credit commitments, including the way in which credit is sold and the extent to which consumers understand what they are committing to;
• What issues arise during the lifetime of a loan from both the consumer and the lender perspectives; and
• What happens if things go wrong: are the current insolvency solutions fit for purpose?

A consultation on specific proposals is anticipated later this year or early 2011.

Mr Cowey and Ms Cowlam charged their property in favour of the claimant, Annulment Funding Company Ltd.  The claimant provided funds to bankrupts to obtain, as their name suggests, an annulment of their bankruptcy.  Following annulment, the intention was that the former bankrupt would obtain a mortgage from another lender to pay off any prior charges on the property.  The funds advanced by the claimant were short term at a level of interest to reflect the fact that the borrower was bankrupt and not in a position to borrow elsewhere. 

In August 2007, Mr Cowey and Ms Cowlam signed a mortgage deed in favour of the claimant over their house in order to obtain an annulment of Mr Cowey’s bankruptcy.  The annulment was obtained.  Efforts were made to find a mortgage lender to repay the claimant, but those efforts were unsuccessful.  As a result, the loan from claimant, which was meant to be short term was not repaid and claimant called in the loan.

At first instance, the court decided that Ms Cowlam entered into the charge as a result of the actual undue influence of Mr Cowey and the claimant was bound by that.   Mr Cowey had taken advantage of Ms Cowlam and caused her to enter into a transaction which was very much against her interests. They had both misunderstood the position and had not realised that they had agreed to enter into a charge over their house.

 The claimant appealed on the basis that the original defence had relied upon an inference of undue influence or presumed undue influence and it was not open to the judge to make a finding of actual undue influence.  Somewhat unsurprisingly this appeal did not succeed.  Secondly, the claimant argued that there was insufficient evidence to have made a finding of actual undue influence, but again the Court of Appeal rejected this ground of appeal. 

In addition, the claimant asserted that although the charge could be set aside, the loan should be allowed to stand as Ms Cowlam had understood that she was entering into a loan.  However, a finding that Ms Cowlam was liable to repay the loan and a judgment against her would mean that it would be open to the claimant to obtain a charging order. Although the claimant argued that it was possible to sever the part of the transaction which is not affected by the undue influence, the court held that both the loan and the charge were disadvantageous and both were affected by undue influence.  Accordingly no question arose of severing a part of this transaction. 

 Annulment Funding Company Limited v Cowey and Cowlam [2010] EWCA Civ 711

An OFT investigation into Creation Consumer Finance demonstrated that a firm of solicitors acting on behalf of the company was issuing proceedings against Scottish debtors in English courts.

The OFT regards this practice as unfair because the unfamiliar law and procedure involved in a court claim in a different jurisdiction, and any associated travel costs, may deter consumers from defending such action.

The OFT is warning all consumer credit licence holders that taking action or threatening to take action against consumers in a court outside their home jurisdiction is a breach of the OFT’s Debt Collection Guidance. Where there is evidence that businesses are engaging in such behaviour, the OFT will take action to ensure compliance with its guidance so that there is no repetition of the practice.

The requirements imposed on Creation Consumer Finance also stated that the law of the consumer’s domicile shall govern any agreements.

Lenders will need to take this guidance on board when dealing with non-English based consumers.

Please see link to the OFT website .

http://www.oft.gov.uk/news-and-updates/press/2010/65-10

A law firm committed a fraud by collecting in 27 mortgage advances totalling £5,779,1666 from lenders none of which was applied in completion of transactions for which the advance had been made.  The Law Society intervened in the law firm’s practice and ascertained that £450,150 was paid out of its client account to a company, Habitable Concepts Ltd (“Habitable”) whose sole shareholder and director was Mr Onuiri.   

As the law firm paid out of its client account in breach of trust, the Law Society had the right to recover this money.  The Law Society made various claims against Habitable and Mr Onuiri for the return of this money. Although Habitable and Mr Onuiri served a defence, they did not appear at a trial, but it was still for the Law Society to prove its case.

The Law Society claimed for knowing receipt.  In order to establish a claim for knowing receipt, the Law Society had to prove: 

• that the receipt by Habitable was beneficial; and
• that Habitable received the payment with the requisite knowledge.

 As no direct evidence of these matters was available, the court had to assess what inferences might be properly drawn from the proved facts.

The court held that the inherently implausible nature of Habitable’s pleaded case was such to cry out for testing by cross-examination and in the absence of this, the Judge was prepared to accept the Law Society’s case.  Accordingly, Habitable knowingly received money by the law firm in breach of trust and must account as constructive trustee for the money received and the Law Society could trace into the proceeds of the payment.

Although the Law Society submitted that it could pierce the corporate veil, the court disagreed.  It needed to be proved that receipt by Habitable was a façade or device to facilitate or conceal receipt by Mr Onuiri.  Although the whole arrangement seemed deeply suspect, suspicion is not a substitute for proof. 

The court, however, held that although Mr Onuiri did not receive property in breach of trust, he nonetheless dishonestly assisted in a breach of trust.  It had to be established that Mr Onuiri’s knowledge about the payment by the law firm had to be such as to render his participation contrary to normal and acceptable standards of honest conduct.  This involved looking at his state of knowledge and then measuring his conduct in the light of that knowledge by reference to the objective standards of honest conduct. The court noted that:

•  Mr Onuiri had provided Habitable’s banking details to the law firm.
• He knew that the money was not at the free disposal of the law firm.
• He knew there was no commercial relationship between the law firm and Habitable.
• He received no explanation as to the reason for the payment.
• He made no enquiry as to the reason for the payment.
• He chose to deal with the payment for the benefit of Habitable.

The proper inference was that he was assisting the law firm to dispose of money which did not belong to it in an unauthorised manner.

This case is interesting as it confirms that where a defence has been filed, but the defendant does not appear at trial, it is still for the claimant to prove its case.  It also highlights the requirements necessary to establish a claim for knowing receipt, when it is possible to pierce the corporate veil and the necessary ingredients to establish a claim for dishonestly assisting in a breach of trust.

The Law Society of England and Wales v Habitable Concepts Limited and Mr Onuiri [2010] EWCH 1449

The Competition Commission initially announced its plans in October 2009, after its investigation found that banks and building societies faced “little or no” competition when selling PPI to their credit customers. However, the proposed ban was challenged by Barclays, supported by Lloyds Banking Group and Shop Direct Group Financial Services, who argued that a point-of-sale ban was unjustified and that it would inconvenience customers. 

Consequently, the Competition Appeal Tribunal ruled that further investigation was needed, but, after further analysis, the Competition Commission concluded that a ban would bring greater competition, more choice and lower prices – benefits that would outweigh any inconveniences for customers.

A total of 35,682 people became insolvent between January and March 2010 – the fifth consecutive quarter that the number of insolvencies has hit a record level.

The main statistics are as follows:

• Individual bankruptcies rose by 7 per cent over the quarter, but fell by 10.7 per cent on the same quarter in 2009;
• Individual voluntary arrangements (IVAs) rose by 20.1 per cent on the same quarter in 2009;
• Debt relief orders (introduced in April 2009) rose by 6 per cent over the quarter;
• Compulsory corporate liquidations fell by 1.3 per cent over the quarter and by 14.8 per cent on the same quarter in 2009;
• Voluntary corporate liquidations fell by 11.4 per cent over the quarter and by 19.1 per cent on the same quarter in 2009.

The key changes are as follows. 

• Adequate explanations.  A duty for lenders to provide adequate explanations to consumers about the credit on offer to enable them to decide whether it is suited to their needs and circumstances.  (Regulation 3 and 4 of the Directive).
• Assessment of creditworthiness.  An obligation for lenders to assess the creditworthiness of consumers before concluding a credit agreement or increasing the amount of credit available under an existing agreement.  Lenders can decide how to assess creditworthiness, but are required to base their assessment on information obtained from the consumer, where appropriate and from a credit reference agency, where this is necessary. (Regulation 5 of the Directive).
• Refusal of credit.  If an application is refused on the basis of information from a credit reference agency, the lender must inform the creditor of this when it declines the credit.  (Regulation 40 of the Directive).
• Right to withdraw.  The consumer has the right to withdraw from a credit agreement within 14 days without giving any reason.  This replaces the current more limited right to cancel some types of agreements in certain circumstances.  (Regulation 13 of the Directive).
• Assignments of debts.  If a debt is assigned, the consumer must be informed of this by either the lender who buys the debt or the lender who sold the debt.  (Regulation 36 of the Directive).
• Credit intermediary links.  Credit intermediaries must disclose their links to lenders and disclose and agree fees for their services with the consumer. (Regulation 41 of the Directive).
• Right to repay early.  The consumer has the right to repay an agreement early in part and to receive a reduction in the total cost of the agreement as a result.  The existing legal framework for full early repayment has been retained and extended to cover partial early repayment.  (Regulation 29-34, 59-62 and 77-84 of the Directive).
• Right to terminate.  The consumer has the right to terminate an open-end credit agreement at any time unless the parties have agreed that a period of notice not exceeding one month should be given.  The lender can also terminate subject to given the consumer at least two months’ written notice.  The lender can also terminate or suspend the consumer’s right to draw down an open-end credit agreement provided they give objectively justified reasons for doing so. (Regulation 37-38 of the Directive).

The Directive also amends or extends existing requirements:

• Advertisements.  Advertisements that contain specific information about the cost of the credit need to provide a representative example of a credit offer.  The Consumer Credit (Advertisement) Regulations 2010 will dispense with the typical APR approach.
• Pre-contractual information. Consumers must be given pre-contractual information in writing according to a specific format set out in the Directive. This information is set out in the Consumer Credit (Disclosure of Information) Regulations 2010.
• Contractual information.  Other contractual information required is set out in the Consumer Credit (Agreements) Regulation 2010.
• Unsecured overdrafts.  Non-business unsecured overdrafts will be subject to the requirements for both pre-contractual and contractual information although an overdraft can be arranged urgently without prior written information.  Where a current account allows the account holder to overdraw without a pre-arranged overdraft, information about the charges must be included in the agreement. (Regulation 19 of the Directive).
• Obligation of the creditor in respect of goods.  Where a credit agreement is used to purchase goods, the consumer can pursue the creditor for a remedy. The value of the goods must be at least £30,000, the credit agreement must be for £60,260 or less and the consumer must have tried to obtain satisfaction from the supplier first.  This supplements s75 of the Consumer Credit Act where the cash price of goods is not less than £100 and not more than £30,000. (Regulation 25 of the Directive).
• The total charge for credit and the APR.  The total charge for credit and the APR must be calculated in accordance with a specified formula.  The formula is different to the one which already applies in the UK , but the result it produces is the same and the assumptions are broadly similar.  (Total Charge for Credit Regulations 2010).
• Variation of interest rate.  Where an agreement allows for variation of an interest rate,  notice of variation must be provided to the consumer before the change takes effect.  This is similar to the current requirements. 

Consumer Credit Litigation Solicitors (“CCLS”) were the solicitors for all the claimants. CCLS was the trading name for the sole practice of Mr Burley.  The claims management company was Cartel Client Review Limited (“CCR”).  Following on from the judgment, permission was given to  join Mr Burley trading as CCLS and CCR in respect of an application for a non-party costs order against them.  In addition, Mr Wright who was the sole shareholder and managing director of CCR was also joined to the application for a non-party costs order.

CCR conceded that it should be jointly and severally liable with the claimants for the costs.  The court decided that a costs order was justified against CCLS.  The solicitors failed to obtain after the event insurance (“ATE”) for its clients.  Not only did it fail to obtain ATE, but it failed to tell the clients and was effectively acting without instructions.  The overwhelming likelihood was that if CCLS had acted as it should have done these cases would not have been issued or progressed and the costs incurred by the lenders would not have been sustained. 

As for Mr Wright, the court decided not to make a non-party costs order against him. CCR was not itself the relevant claimant or defendant.  Although CCR as a claims management company would benefit in the event of success, there was nothing improper in that.  The claimants were genuine claimants who decided to make these claims.  CCR was not itself the relevant claimant or defendant.  The real causative factor on the issue of costs was the failure to obtain ATE, which was CCLS’s fault not CCR or Mr Wright.

Mohammed Adris and others v The Royal Bank of Scotland plc and (1) Cartel Client Review Limited (2) Richard Burley trading as Consumer Credit Litigation Solicitors (3) Mr Carl Wright [2010] EWHC 941

Both parties to the litigation were innocent parties duped by a third party, but which party was going to miss out; either the claimant who suffered from Korsakoff’s Psychosis, a severe medical condition which affected her understanding, memory, insight, cognitive faculties and judgment or the defendant, a lending institution.  

The claimant had been swindled into parting with her property and the lender had granted a charge over the property.  The inspection of the property by the lender was a “drive-by” inspection by a surveyor, who noted signs of occupation. 

As the Court of Appeal noted, some of the facts pointed to Ms Bustard’s continuing actual occupation:  it was her furnished home and the only place to which she genuinely wanted to return; she continued to visit the property because she still considered it her home; those who had taken responsibility for her finances regularly paid the bills.  On the other hand when the lender’s charge was taken she had been in a residential home for over a year; she was incapable of living safely in the property and her visits to the property were brief and supervised.

The court decided that the first instance decision that Ms Bustard was a person in actual occupation should not be disturbed.  It was not a mere fleeting presence.  There was a sufficient degree of continuity and permanence of occupation, of involuntary residence elsewhere, and of a persistent intention to return home when possible, as manifested by her regular visits to the property.

The case provides further meaning to the expression “in actual occupation” although obviously the facts of this case were unusual and such a situation is likely to be rare in practice. 

Link Lending Limited v Ms Susan Bustard[2010] EWCA Civ 424

By comparison, usually with a buy-to-let mortgage, the tenancy will be binding on the lender.  If the lender wants vacant possession, it has to comply with the provisions for termination under the tenancy agreement and usually the tenant will have two months’ notice.

 The Act is intended to make sure that unauthorised tenants are not given very limited notice that their home is about to be repossessed.  The Act provides that: 

• The unauthorised tenant will have a right of audience at the possession hearing.  In practice, if the tenant attended the possession hearing, a district judge would usually let them be heard, but this now ensures that they have a formal right to do so.   
• On application by the unauthorised tenant, the court has the ability to postpone the date for delivery of possession for a period not exceeding two months.
• Once a possession order is made, the court has the power to stay or suspend the enforcement of the possession, for a period not exceeding two months, if the court did not make an order at the initial possession hearing.  The unauthorised tenant can only do so if they have asked the lender to give an undertaking in writing not to enforce the order for two months and the lender has not given this undertaking. 
• Once the lender obtains a possession order, the order may only be enforced if the lender has given notice of any prescribed step and only after the end of a prescribed period.  At present this prescribed step and prescribed period has not yet been defined, but it is likely to consist of the service of a notice and it is believed that the prescribed period will be 14 days, which will run concurrently with the possession order.

 When deciding whether to exercise its powers, the court must have regard to the circumstances of the unauthorised tenant and whether the tenant has breached any of the terms of the unauthorised tenancy, the nature of the breach and whether the tenant might reasonably be expected to have avoided breaching that term or remedied the breach.

 In addition, the court may make any postponement or stay conditional on the payment to the lender in respect of the occupation of the property during that period of the postponement or stay.  The Act states that any such payment will not be regarded as creating or providing evidence of any tenancy or right to occupy the property.

 As yet, there is no date for when this Act will come into force.  Overall the impact of this Act will give unauthorised tenants more time if faced with eviction, but equally it is likely to lead to further delay for lenders.  In order to avoid any delay, it may be sensible for a lender to check whether anyone is living at the property prior to seeking enforcement.

When the claimants issued proceedings, the court had not ruled on Carey or McGuffick.  Nevertheless the court held that as with any claimant, they took the risk that the legal issues might be determined against them and as such this was no reason why the other party should pay their costs.  Accordingly all claims for a different costs order under CPR 38.6 were dismissed.

Anton Teasdale v HSBC Bank Plc and other related cases [2010] EWHC 612

S20 of the Limitation Act 1980 provides a time limit of 12 years on actions to recover mortgage loans. This starts from the date on which the right to receive the money accrues. 

The issue the Court of Appeal had to decide, however, was not when the starting date accrued because by whatever calculation Bradford & Bingley were out of time, but the meaning of s29(5), which provides that time starts running again from the date, if any, on which the debtor “acknowledges the claim or makes any payment in respect of it”.  By s30 an effective acknowledgment is required to be in writing and signed by the debtor.

In a short judgment, the Court of Appeal held the there had been both acknowledgment and part payment The defendant had in the previous 12 years been paying £10 per month albeit it would have taken until 2402 to discharge the debt in full. Proof of part payment would have been sufficient within the previous 12 years to start time running again for limitation purposes. Accordingly the proceedings were not statute barred.

 There are two questions in the consultation:

The defendant had applied for the case to be reallocated to the fast or multi-track, but without success.  The judgment notes that the case remained as a small claim despite the amount of the counterclaim and its obvious complexity.  The defendant relied on the fact that there was a contractual provision entitling the defendant to cost.  The claimant drew the court’s attention to the Consumer Contracts Regulation 1999, in an attempt to hold the term as an unfair term.  Although the term was not individually negotiated, the Judge held that the terms did not restrict the claimant’s ability to take legal action or exercise any other legal remedy.  As such there was no good reason why the defendant should be deprived of their costs.  The Judge therefore awarded the defendant their costs from the county court hearing and the high court.

This brief judgment demonstrates that it still may be possible to recover costs where the contract provides for costs even though a claim is allocated to the small claims.

 Robert Shaw v Nine Regions Limited [2009] EWHC 3553

The draft guidance consists of a document setting out the technical legal issues for businesses and consumer advisers, and a simpler version for consumers.

The consultation is open until 21 April 2010.  The technical legal advice makes the following points:

•  Consumers have been given an exaggerated expectation of what the creditor or owner must do in order to comply with an information request as a result of misleading claims by claims management companies and inaccurate information on the internet.
• A number of creditors, appear not to understand their obligations under these sections.
• The purpose of these sections is to provide information to the consumer, not to provide a method for consumers to avoid paying their debts.
• The OFT considers that the creditor in sections 77 and 78 and the owner in section 79 includes a person who has merely bought the debts under the agreement. 
• As well as assignees ensuring that they are able to obtain from the assignor copies of the agreements and documents and historical information on the account, the original creditor should ensure that if necessary and appropriate, it is able to readily obtain from assignees any necessary information on the most recent state of the account.
• The creditor should satisfy itself that the writer of the request has the proper authority to obtain the information.  If there is no authority with the request the creditor is entitled to reply by asking to see the authority.
• If the request comes from only one debtor where there are two or more debtors, it must be complied with and the response given to both or all debtors.
• The creditor is not entitled to charge more than £1.
• The creditor can send the documents by ordinary second class post to the address given in the request.
• It is wise to retain some record of posting.
• If a claims management company does not hold a license then the OFT would expect the creditor to inform the debtor/hirer  why the information is being sent direct to him and to notify the OFT and Ministry of Justice.
• The request should be complied within 12 working days after the receipt is received.  The day the request is received is not included, but it will include the day the information is sent.
• A true copy as confirmed in the recent case of Carey v HSBC Bank plc does not mean an exact copy.
• There is no obligation to provide a signed copy.  The creditor may be able to provide evidence that its practice was always to require a signature to its agreements.
• The creditor can reconstitute a copy of the agreement.  The name and address at the time of execution must be included, but this can be taken from any source available.
• If the reason why no copy of the agreement is given to a request under these sections is that there never was an executed agreement, the creditor should acknowledge this in its response.
• Where there has been a variation, the duty is to provide the original agreement, but a copy of the latest variation or a clear statement of the terms of the agreement as varied.
• Any copy must be easily legible.
• The consultation provides details of the documents to be provided.
• The consultation also provides details of the statements of account that should be provided.
• The duty does not apply if the agreement has been paid off or terminated.
• It does not apply where judgment has been obtained unless there is an interest-after judgment clause in the agreement which the creditor or owner has not expressly waived.
• If the creditor fails to comply with the duty, it is not entitled, while the failure to comply continues, to enforce the agreement.
• If sections cannot be complied with, the debt does not disappear and it is perfectly acceptable for a creditor to seek to pursue the debt and to register any arrears or default with a credit reference agency.
• If a creditor were to threaten court action, knowing that such action is not possible, this would be misleading and oppressive.
• Where an agreement is unenforceable because of non-compliance with the sections:
• The OFT would expect the creditor to take steps to check that there was an agreement and that there are monies outstanding.
• No communications or requests should threaten court action or other enforcement of the debt where the creditor is aware that it cannot or will not be entitled to enforce the agreement.
• The creditor should make it clear in communications that the debt is unenforceable.  Failure to do so would unfairly mislead the debtor.
• Where a creditor has satisfied itself that a debt does exist and is correctly described, it is acting fairly in registering a default with credit reference agencies and informing the debtor or hirer that it intends to do so. 

 Judge David Waksman held that the banks could satisfy its duty sunder s78 by providing a reconstituted version of the executed agreement which may be from sources other than the actual signed agreement itself.

It is estimated that claims management companies have been looking at  thousands of cases in an attempt to exploit s78 of the Act.  S78 imposes an obligation on the bank to provide a copy of the executed agreement under a regulated agreement for running-account credit within 12 days after receiving a request in writing from the debtor and a payment of a fee of £1.

Sometimes the banks were unable to provide an exact copy of the agreement and these claims management companies sought to claim that the debts were not enforceable.  The Judge disagreed although held that the s78 copy must contain the name address of the debtor as it was at the time of the execution of the agreement.  The creditor can provide the name and address from whatever source it has of those details.  It does not have to take them from the executed agreement itself.  If an agreement has been varied by the creditor under a unilateral power of variation, the creditor must still provide a copy of the original agreement, as well as the varied terms.

The Judge also decided that a breach of s78 this does not of itself give rise to an unfair relationship within the meaning of section 140A of the Act thus defeating a significant number of claims.

 This decision is truly a triumph of common sense.  When introduced, the aim of the Act was to release the credit industry from outdated restrictions and allow it to develop a framework to encourage competition whilst at the same time providing consistent and adequate protection for consumers across the whole spectrum of credit transactions.  The attempts by the claims management companies to exploit the provisions of the Act achieved none of these goals.

 This decision is certainly good news for the banks and what with the failure of the OFT in the Supreme Court to challenge bank charges, 2010 will have a more optimistic start.

At the times the loans were made, they made good business sense for the defendant and so were legally binding agreements.  There was an imbalance in their relationship as the defendant looked up to the claimant because of his greater education and achievements.  To charge an interest rate almost three times greater than the base rate was completely out of line with the terms of the original loans and in the circumstances exorbitant.  

The court has a very wide discretion under section 140B of the Consumer Credit Act 1974 and so reduced the sum payable by the defendant. 

This case provides a good example of when a court will intervene under the Consumer Credit Act 1974  to ensure that the terms of a loan agreement are fair.

Patel v Patel [2009] EWHC 3264 10 December 2009

This is a useful decision for banks as it sets out the bank’s responsibilities in the light of  its own clearly worded facility letters.  This case should also limit claims which attempt to use the bank’s advertisements as a way of unreasonably extending a bank’s duty of care.

Hall v Royal Bank of Scotland PLC [2009] EWHC B36

As the Judge acknowledged,  the risk of the tenancy being a forgery was remote, but if no inquiries are made of those in occupation then the bank “misses out because of it.”

HSBC Bank PLC v Amanda-Jane Margaret Dyche Alfonso Collelldevall  [2009] EWHC 2954 18 November 2009

The Office of Fair Trading wanted to bring a test case to see if banks’ current account charges were fair. In particular, it was concerned on behalf of consumer bodies that overdraft charges were excessive. Several banks co-operated and they fought a test case that eventually went to the Supreme Court (previously known as the House of Lords). Rather than fight the entire battle as to the issue of fairness of the actual terms, the initial skirmish looked to resolve whether the overdraft charges were excluded from an assessment of fairness. The issue was whether the charges were part of the price or remuneration and so should not be considered.

The High Court and Court of Appeal ruled that the terms were in plain, intelligible English, but  sided with the OFT on the fairness point. Now, in one of its first judgments since being formed, the Supreme Court has given its landmark judgment that affects millions of people. It has gone the other way and sided totally with the banks on this issue.

The Supreme Court said that the banks were correct in saying that the charges were part of the payment in exchange for a global package of services. The Court of Appeal had no basis for having said that some bits of the goods or services or price were ‘essential’ items and more important than others. Any monetary price or remuneration or goods or services provided would fall within the exemption. Banking services were part of a package of services and the price paid by consumers included the charges for going overdrawn. It is irrelevant that the charges are contingent or not incurred by the majority of customers. Even if some goods or services are ancillary to the overall banking service, if the charges for them are under the same contract then they are all part of the price for the purposes of the exemption.

The Supreme Court added that the OFT was wrong to argue that the admin charges were default charges – consumers were not in breach of contract by going overdrawn, but it was expected that they may go into overdraft from time to time and they would have to pay a charge for using that part of the service. Those charges were an important part of the banks’ revenue streams and were not intended to be seen as consumers defaulting on the contract.

As Lady Hale from the Supreme Court said, consumer law aims to give consumers informed choices rather than to protect them from making choices that may be unwise for them. Paul Gershlick, editor of www.Upload-IT.com and a Partner at Matthew Arnold & Baldwin LLP, says: ‘This is a great result for the banking sector and most banking customers – banks would otherwise have had to charge for their other services in other ways and a different result could have spelt the end of free retail banking. The judgment is also good, because there has been a lot of uncertainty in the business world about charging extra ‘admin’ costs. This ruling shows that as long as the charges are presented in a clear way with the contract terms, if they form part of the same overall contract for the goods or services, their amount cannot be challenged. The aim of the 1999 Regulations is to protect consumers from terms which they may not be aware of in the small print, but consumers should be taken to have given enough attention to what they have bought and what they are paying for that.’