At the beginning she says the interest rate was 13.9%, and the court documents say it went up to 14.9% at one point. Firstly, under reference to paragraph [9] in the sheriffs Note, having explicitly precluded consideration of the shortfall for the purposes of determining the principal sum due to the pursuer, the sheriff then decided that the existence of the shortfall, [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to, [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. [4] In the present proceedings, both sets of reclaimers sue the respondents for loss which they aver they suffered through the respondents' breaches of their warranty of authority. While the Lord Ordinary saw that as a separate basis for rejecting the claim, it may be that it is simply another way of expressing the result of the letter being ancillary to a void obligation. (See paragraph58 in the Letham Grange case). In particular on 17 November, Mr Longmuir wrote to Mellicks enclosing for their examination extracts (i) of the disposition in favour of Mr and Mrs Cheetham recorded in the Register of Sasines on 28 June 1989 and (ii) of the discharge by the building society in favour of Mr and Mrs Cheetham recorded in that Register on 24 April 1995. These cookies track visitors across websites and collect information to provide customized ads. It seems to us that that decision does not assist in relation to the specific issue we have to determine in the present cases. Its the responsibility of the creditor to ensure they comply. He explained that the original title deeds had been lost. [28] The principal argument advanced by the reclaimers, in the present actions, as to the nature and extent of the implied warranty of authority given by a solicitor in acting for clients in the granting of a security over a property in return for a loan being made to them by a professional lender fell to be considered in a recent English case Excel Securities v Masood [2010] Lloyds Rep. P.N. Merely as agent, therefore, the agent does not warrant that his principal is solvent, or will perform the contract (if any). These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. [17] In due course, some time in late September 2004, Balfour and Manson solicitors obtained instructions to act on behalf of Mr and Mrs Morgan. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. The case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. [5] In advancing the appeal for the pursuer, Mr Allison challenged the manner in which the sheriff had arrived at the figure of 160,000. VAT number: 144 4752 12. The facts found, in both actions, reveal a striking resemblance. All times are GMT. Even if the facts and law on liability are relatively straight forward, the application of a remedy may not be. Mrs Thomas quickly fell into arrears with the loan agreements. The reclaimers have been unable to recover the sums advanced. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. These instructions were set out more fully in two letters of 30 November which Mr Cheetham left with Mr Longmuir's secretary in an envelope for passing to Mr Longmuir. Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors. If you continue to use this site we will assume that you are happy with it. Messrs Mellicks, who had been informed that Balfour and Manson were acting for Mr and Mrs Morgan, wrote to Ms Sinclair on 29 September giving details of the proposed loan and requesting details of the title and the short assured tenancy which they understood was in place in relation to it. In the law of Scotland the legal foundation of the liability created is described by Gloag on Contract (2nd edition) at page 155 as: "The rule that the assertion of authority implies a contract that the authority exists is of general application". Please revert this information back to us.". Reference was made to SEB Trygg. The authority which they professed to have was this, that they were instructed by the borrowers who were already known to the lenders to assist in drawing up the loan and security documentation. Upon receipt of that letter Mr Longmuir wrote to Mellicks confirming that he was taking his clients instructions. Beyond that, no further case had been made out. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. Ms Hamilton, for the defenders, argued that the absence of evidence regarding what particular steps ought reasonably to have been taken by the defenders meant that there had been insufficient evidence before the sheriff to enable him to conclude that the defenders were in breach of the statutory provision in section 25 supra. In each case, two individuals stole the identities of innocent . Mr Allisons submission was to the effect that none of these features could properly be said to inform the decision to prefer the figure of 160,000 to that of 175,000 as proposed by Mr Dougan. We have had sight of the necessary Searches in respect of the properties. [15] In this case the borrowers were fraudsters who claimed to be Mr Geoffrey Ellison Morgan and Mrs Margo Clark Morgan. It was held that it was not necessary for the plaintiff in that case a building society who had lent on reliance of the security given, and to whom the representation of authority had not been directly made by the solicitor, to establish that he had been induced to enter into some form of dealing with the supposed principal in that case the wife. BlemainFinance is appealing the decision. Ms Hamilton, for the defenders, argued that the absence of evidence regarding what particular steps ought reasonably to have been taken by the defenders meant that there had been insufficient evidence before the sheriff to enable him to conclude that the defenders were in breach of the statutory provision in section 25, [16] Mr Allison also founded upon the case of. But its application is not limited to cases where a transaction entered into in reliance on the supposed authority of the agent was with the alleged principal himself. Although the implied warranty of authority in agency, as enunciated in the case of Collen was of English origin it was adopted into the law of Scotland like many of the other instances of judicial legislation in commercial matters just referred to. Registered office: Cornelius House, 178-180 Church Road, Hove, East Sussex BN3 2DJ. The fact of entering into the transaction with the professed agent, as such, is good consideration for the promise.". The sheriff principal, having resumed consideration of the pursuers appeal and the defenders cross-appeal, refuses the latter and in respect of the former allows same in part; varies the sheriffs interlocutor dated 30 April 2014 and that by awarding interest on the sum of Ten Thousand Pounds (10,000) Sterling at the rate of eight per cent per annum from 1 March 2010 until payment; quoad ultra adheres to the sheriffs said interlocutor; finds the defenders liable to the pursuer in the expenses of the appeal; allows an account thereof to be given in and remits same, when lodged, to the auditor of court to tax and to report thereon. In that letter the following appeared: "Once the loan monies are received these are to be paid over to complete our purchase of property in Spain. As we are now under pressure to make settlement of this matter I wonder if you could ask the lenders solicitors to electronically transfer the loan funds to yourself and on receipt of these could you (after deducting your fees) transfer them direct to the seller. Earlier this year I had success in an appeal against allocation of a claim to the small claims track in the county court. Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. [16] The application to BFL for a loan came via their website on 9 August 2004 and was for a loan for 203,000 repayable with interest over a period of 12 months. [12] Under reference to the second ground of appeal for the defenders, Ms Hamilton made much of the significance of comparables in the context of Mr Dougans evidence. posts, articles, as well as the cases you have appeared in, greatly enhances your digital presence on search engines such Google and Bing, resulting in increased client interest. [30] We would simply add this. The Court also ruled that the charges were unfair as was the term allowing Blemain to charge them. [32] Insofar as the reclaimers position was to argue that, under the existing law there could be an implied warranty of authority, in respect of what they called "the identity" of the agent's client, we have already commented on the appropriateness of the use of the word "identity" in this context. The saga began in 2006, when Charles and her husband were looking to buy a house in Epsom, Surrey. In successfully defending the possession proceedings, the legal charges relating to the unenforceable agreements were ordered to be removed from Mrs Thomas property. However, in concluding that the figure of 175,000 was too high, the sheriff articulated his reasons for the selection of a lesser figure. This is not the case of a bare misstatement by a person not bound by any duty to give information. Wigan-based law firm, Stephensons, is marking the tenth anniversary of one of its long-standing members of staff. Blemain Finance Limited is authorised and regulated by the Financial Conduct Authority | Registered in England and Wales - Company Registration Number 01185052. In addition, two of the agreements contained Payment Protection Insurance, known as PPI, costing between 800 and 1,500. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. The case involved a solicitor warranting that he acted for both a husband and wife in the granting of a security over a home jointly owned by them. Privacy Policy | [20] In any event, esto the sheriff was entitled to have regard to the shortfall amount, to eliminate what would otherwise have been an appropriate award of interest particularly where the defenders pleadings were silent on that very issue, was, to my mind, of doubtful legitimacy. What followed thereafter was what would routinely be expected to follow in a secured loan agreement of the sort in question. The clause relating to the recovery of costs, charges and expenses was also judged to be unfair as it was too heavily weighted against the consumer and could mean a borrower having to pay a disproportionate amount in charges. It is sufficient to highlight certain of these matters for the purposes of disposing of these reclaiming motions. I would be interested to know. U.S. District Courts | Finance | 1:22-CV-04958 | 2022-12-16. This is a relevant consideration in applying CPR 26.8(1)(b) [20-21]. [23] The Lord Ordinary proceeded to absolve both sets of respondents from the conclusions of the summons in each case. We acknowledge the county courts judgment, which found points in favour for both parties, including the rejection of any unfair relationship or irresponsible lending by Blemain. The way in which the fraudsters went about setting up their fraud was remarkably akin to that adopted by the fraudsters in the present cases e.g. A guide to voluntary termination: Your rights. He also seemed to have placed weight upon the fact that the figure of 160,000 equated to the figure specified in a Market Appraisal dated 13 August 2009 prepared on behalf of Aberdein Considine. Charles has so far paid back a total of almost 60,000 in interest, and there is still an outstanding debt of almost 45,000, even after the deduction. Compare SEB Trygg and compare Frank Houlgate Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras 27-28. My reluctance to interfere with the sheriffs decision when it comes to the pursuers first ground of appeal is fortified by Lord Reeds reference in the case of Liquidator of Letham Grange Development Co Ltd v Foxworth Investments Ltd & Another 2014 SLT 775 to the principles governing the review of findings of fact by appellate courts and to the earlier decision of McGraddie v McGraddie 2013 SLT 1212. The Shermans got into difficulties in repaying both the principal mortgage on the property (which was the subject of a first charge), and the second mortgage from Blemain. The court heard she had written to complain about the high level of interest, and that she said whatever she did, [Blemain] kept adding to her account. And when they applied in February 2009 to Blemain Finance Ltd for a loan, Mr Cordner said that his income was 21,000.that pre-funding was necessary in order to finance the construction of the development, but Mr Clarke added that had Mr Hone told him, Mr Clarke, to ask for the whole of the purchase price up front.within his own resources or proposed to raise it through other sources of finance. Counsel for the reclaimers accepted that if the decision in that case fell to be considered to be good law for Scotland then they would fail on the main point raised by them in both cases, namely the scope of any implied warranty of authority by the respondents. Mrs Thomas said: The stress of this caused me to dread the postman calling.. Please note we wish to take a 1st charge over the property. The case pitted Charles, a 66-year-old from West Sussex, against Blemain Finance, part of a company with several thousand customers and a 4bn loan book. We were advised that commercial lenders, like those involved in the proceedings before us, are not infrequently being made the victims of identity fraud. Mis-Sold Self-Invested Personal Pension (SIPP), Kings Norton family in doomed flat so cold and damp they live in coats and dressing gown, What is black mould and what health problems can it cause, Death of two-year-old from mould in flat a defining moment, says corone, Streetwise: Portsmouth womans heartbreak as foam insulation scam leaves her home virtually worthles. The offer, which was valid for three months, was for a loan for one year of 350,000 plus 4,868 in fees to be added to the loan, and contained details of the repayment schedule. They made an application for a loan on or about 20 October 2004, initially through a broker. At other times however they appeared to be arguing that the letter of obligation founded a separate basis of claim. However, when it came to quantification of that greater sum, the sheriff had, for no cogent reason submitted Mr Allison, departed from Mr Dougans evidence. On 25 November the signed documents were forwarded to Mellicks. [12] On 12 November 2004 Mr Longmuir received a letter from Messrs Mellicks which was dated 11 November. The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. . The stated value is also relevant to the wider issue of proportionality when allocating the claim [16]. It should be noted that that formulation of principle is but an example of what the courts in England and Wales and, during the 19th century, in the context of certain well known mercantile transactions, namely imply terms into them in the absence of their having been expressly excluded by the parties, to render the contract commercially sensible or workable. As already noted the reclaimers also disclaimed, as they had before the Lord Ordinary, any claim which is to any extent dependent on some failure of duty of care said to be owed to them by the respondents. I have been involved in leading consumer credit and data protection cases including Harrison v Link Financial Limited (High Court), Grace v Blackhorse (Court of Appeal) and also Kotecha v Phoenix Recoveries (Court of Appeal) along with a number of other reported cases and often blog about all things consumer law orientated. England and Wales Court of Appeal (Civil Division) 2013. [40] It follows that the reclaiming motion in the action at the instance of CMC for all the foregoing reasons falls to be refused. Ms Hamilton, in particular, adhered to the penultimate sentence of the second ground of appeal for the defenders which suggested that there had been no evidence before the sheriff to support the conclusion that advertising the property in a different way or for a longer period of time or amending the price of the property in a different way would have achieved a higher price. Gordon Exall, Civil Litigation Brief, 2013-2023. Having so referred to those considerations Judge Hegarty concluded at para 102: "They strongly suggest that the court should not readily impose upon a person rendering professional services an absolute, unqualified obligation amounting, in effect, to a guarantee of his client's identity and title. The transaction in this case followed closely the path of what happened in the CMC case. He did not accept that the discrepancies in the figures were merely mistakes. We were referred to a modern English consideration of the topic in the case of Penn v Bristol and West Building Society and others [1997] 1 WLR 1356. December . The risk that the law has sought to address by the implication of a warranty of authority is that the agent may not have the authority which he claims; and the justification for such an allocation of risk is that the agent is in much the better position to know or ascertain whether he has the requisite authority. Please check and confirm that there is nothing that would adversely affect our security on any of the searches. The Penn case was not concerned with an issue as between the third party and an agent contending that he had authority to act for a principal. Its parent company, Together Financial Services, describes itself as one of the UKs leading specialist mortgage and secured loan providers. The sheriff records therein that, to some extent, he was influenced by the evidence given by John Dougan, chartered surveyor. As regards the last mentioned case, without in any respect criticising the decision given in it, Judge Hegarty at para 67 of his judgment said: "It does not follow that, in every case, an agent must be regarded as warranting the identity of his client and not merely the fact that he has authority to act on the client's behalf.". In connection with the pursuers first ground of appeal, Mr Allison made reference to the cases of, [8] Mr Allison criticised the sheriffs approach to interest on two levels. Quite apart from what we consider is clearly and authoritatively the existing law on the matter, we are of the clear view that there are no reasons in principle or practice, for extending the somewhat limited scope and nature of the implied warranty of agents in the way in which the reclaimers' submissions in the present cases contended for. In some cases these terms were, in due course, given statutory force in, for example, the Sale of Goods Act, the Bills of Exchange Act etc. He never in fact met Mrs Cheetham. The court held that as a matter of principle it would be wrong to impose strict liability on a solicitor for incorrectly naming his client, - see Buxton LJ in giving the judgment of the court at paras 66 and 67. The amount of loan being sought by them was 350,000. On 26 November Messrs Mellicks confirmed receipt of the documents including the standard security and confirmed that the funds had been transferred to Balfour and Manson. TORONTO, January 18, 2023--SPOT COFFEE (CANADA) LTD. (TSXV:SPP) ("SPoT Coffee" or the "Company") hereby refers to its news release dated October 12, 2021 whereby SPoT Coffee announced that its . The reclaimers in each case advanced the loans in the belief that the borrowers owned the subjects in respect of which the standard securities had been granted. The details of the tenancy were in fact provided by Mr Morgan and sent to Mellicks under cover of a letter dated 4 November. MrAllison cited section 1(1) of the Interest on Damages (Scotland) Act 1958, as amended, and made further reference to the case of Wilson supra. Title was recorded in the Register of Sasines not in the Land Registry. Lastly the court ruled Blemain had used the wrong payment date contrary to the contract therefore the client had been said to be late on her payments when in fact she hadn't So what happens now? Each agreement was out by a few pounds and pence.. [18] Accordingly, I reject the first ground of appeal for the pursuer. She took out the loans for home improvements, debt consolidation and to purchase a car, with the amounts borrowed each time ranging from 5,000 to 10,000. The following year a suspended possession order was made but the arrears on her account were paid, so it wasnt activated. Just because a party is legally represented does not mean that a case that has a moderate degree of complexity should be sent to the small claims track [22-23 & 29]. At a county court hearing in November, Charles said that, on reflection, the loan was unaffordable, and her agreement did not give any details of what charges could be applied if she failed to make a payment. The extent and effect of that warranty was, in the absence of something specifically addressed to the question of the fraudsters' attributes in particular as to their ownership of the subjects in question, as we have just defined it. The accident had caused her lung to become trapped in her ribcage and she was left with reduced capacity in her lungs and is in constant pain. 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