The starting point is the pleaded value of the claim pursuant to CPR 26.8(1)(a). The sheriff had used that evidence to justify his failure to award interest. But opting out of some of these cookies may affect your browsing experience. Meanwhile, the period of notice was very short only seven days and the consumers right to redeem was curtailed by early redemption penalties throughout a significant period of the agreement. England and Wales Cases page 45. Do you want to send me a private message with a little more detail on the background issue? The fourth ground of appeal for the pursuer was not insisted upon. [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. Mr Morgan explained that they were not currently living at 3 Mentieth View which was presently let. It concerned the issue of whether, and if so when, an arrears payment had been received.. In July 2008, Blemain Finance issued possession proceedings to take Mrs Thomas' home in relation to four of the agreements. Together with the instructions were included a valuation of the secured subjects by DM Hall and copies of driving licences for both Mr and Mrs Morgan for identification purposes. Secure .gov websites use HTTPS Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. To control which cookies are set, click Settings. The instruction letter to Messrs Mellicks noted that a copy of the borrowers' identification documents and a copy of the valuation of the property over which the security was to be taken would follow. Compare SEB Trygg and compare Frank Houlgate Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras 27-28. It would be quite unreasonable and inappropriate to extend this to an implied warranty that his client has a certain attribute or attributes. 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. The Circuit Judge held that the District Judge had erred in failing to consider fully the value being claimed. The technology to maintain this privacy management relies on cookie identifiers. We have had sight of the necessary Searches in respect of the properties. By clicking Accept All, you consent to the use of ALL the cookies. 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. [15] In reaching his decision, the sheriff mentions in his Note that he was influenced by the evidence of Mr Dougan. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. It was in more or less the usual terms as follows: With reference to the settlement of the above transaction today, we hereby undertake to clear the records of any deed, decree or diligence (other than such as may be created by or against your clients) which may be recorded in the Property or Personal Registers or to which effect may be given in the Land Register in the period from the date of certification of the latest Form 10, 11, 12 or 13 (which is appropriate) exhibited to you until fourteen days from this date inclusive (or to the earlier date of registration of the purchasers' interest in the subjects) which would cause the Keeper to make any entry on, or qualify his indemnity in the Land Certificate to be issued in respect of the interest.". [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. I do not consider that they gave any implied warranty going beyond this". Preliminary Hearings and Dates of Inquiry, Dealing With a Deceaseds Estate in Scotland, Divorce and Dissolution of Civil Partnership, Criminal Courts Practice Notes and Directions, AC Messenger-at Arms and Sheriff Officers, Simplified Divorce and Dissolution of Civil Partnership Guidance Notes, Dealing With a Deceased's Estate Guidance Notes, Courts, tribunals and Justice organisations in Scotland, Information for those due to attend or visit court, Information on how some court processes work and action you may want to take, Only judgments of significant points of law or public interest, Procedures and practices which apply to courts. The Defendant says that rescission as a remedy is fanciful in this case, that the Court will have to look at all the circumstances, that the borrowing was actually used for consolidation of other loans and that in reality what the Court will be doing is looking at an appropriate remedy probably of damages based on commission and charges most likely in the region of around 2,500. The case pitted Charles, a. Both companies are in the business of secured lending. Earlier this year I had success in an appeal against allocation of a claim to the small claims track in the county court. 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. Esto the pursuers are not entitled to decree as first concluded for, (which is denied), the second sum concluded for representing a reasonable estimate of the pursuer's loss as a result of Longmuir & Co's breach of representation as to their authority et separatim their breach of the Letter of Obligation, decree should be granted therefor.". VAT number: 144 4752 12. In relation to the CMC case we require to address the effect of the letter of obligation relied upon by the reclaimers in that case. The judgment raises issues that could affect thousands of people, and is likely to be studied closely by other borrowers, including customers of other subprime lenders. We remind ourselves that Collen v Wright has been held to be the leading authority in this area in the law of Scotland for more than 150 years. But we require to say that the submissions that were made in that respect failed completely to focus on the concept of authority and what was implied by that word. As can be seen below, in the context of litigation, the warranty is similarly limited in that the agent (normally a solicitor) does not promise that a claim is valid". 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 should be taken into account when consideration was being given to what, if any, award of interest should be made. [4] When it came to Mr Dougans evidence, no similarly qualified witness was called on behalf of the defenders and, consequently, there was no contradictor, so to speak. For more information on this, contact Liam and his teamon01616 966 229. In particular the standard and specific instructions were the same. It was a secret arrangement between Blemaim and the broker, which was nothing less than a bribe. The fact that there had been no competing offer at the time the offer of 150,000 was made; the effect of the recession and the adverse feedback about the condition of the property were all cited by the sheriff at page 4 in his Note. Blemain agreeing to the original possession claim being thrown out. The documents were then sent on by Longmuir & Co to the borrowers under cover of a letter addressed to them as Mr and Mrs C Cheetham at 34 Danube Street, Edinburgh. But the risks against which Excel is seeking to be protected in these proceedings are the commercial risks involved in lending to a person who may not be all that he claims to be. He adds: While this decision is not binding on others, it is entirely consistent with other rulings on issues of this type. Ms Sinclair explained to them the effect of the standard security and the interest rates applicable to the loan. 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. Removing or resetting your browser cookies will reset these preferences. He informed the court that he did not make it a requirement that new clients should show this to him before he started work on their behalf, but made it clear that they would require to be produced at some point during any work being carried out by him for them. [98] BM Solicitors, on the other hand, were a firm providing professional services and, as such, would not normally be expected to do more than carry out those services with reasonable professional skill and care [99] In the present case, BM Solicitors were almost certainly instructed by the self same impostor as had been dealing directly with Excel itself. Together Personal Finance Limited is a member of the FLA. National law firm Stephensons represented the family of Claire Louise Morris who died after an act of self-harm in her home in Wythenshawe where she was receiving 24-hour supervision under the care of Jigsaw Hospital, which was run by Equilibrium Stephensons Solicitors LLP is a full service law firm withsolicitors in Manchester,solicitors in London, solicitors in St Helens, solicitors in Warringtonand solicitors in Wigan. They were living at 30 Guthrie Court, Auchterarder to which all correspondence should be sent. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. This is a relevant consideration in applying CPR 26.8(1)(b) [20-21]. On 22 November Mr Longmuir sent Mellicks copies of the prior title deeds which he had obtained from Miller & Bryce. He explained that the original title deeds had been lost. Details of the short assured tenancy she said would be forwarded to them as soon as possible. After analysing these authorities and considering the submissions made to him the judge, at para 90 of his judgment, stated: "The fundamental reason why a person, purporting to act as agent for another would normally be deemed to have warranted his authority so to act is to ensure that any person dealing with the supposed agent is protected against the risk that he does not have the authority which he claims. Necessary cookies are absolutely essential for the website to function properly. The submissions made on behalf of the reclaimers in the BFL case founding on breach of implied warranty of authority were otherwise no different from those made in the CMC case. You're using Internet Explorer, some features might not work. They received a BT bill addressed to Mr C.P. [24] In any event, I reject Ms Hamiltons submissions in so far as they sought to call into question the detail and quality of the evidence before the sheriff all in terms of grounds of appeal 1 and 2 for the defenders and that for the reasons mentioned in paragraphs [17] & [18] supra. The lenders sued the solicitors for their loss on the grounds, inter alia, of breach of warranty authority "as to the identity" of their clients. The fact of entering into the transaction with the professed agent, as such, is good consideration for the promise.". These cookies ensure basic functionalities and security features of the website, anonymously. Though they may not have had any specific knowledge of the inquiries made by Excel, they could reasonably have assumed that Excel would have carried out sufficient investigations to satisfy itself as to the identity and creditworthiness of the individual concerned. Birmingham City Council v Forde [2009] EWHC 12 (QB) (13 January 2009) Birmingham City Council v Gaston [2004] EWCA Civ 693 (20 May 2004) Birmingham Midshires Building Society v. Infields (a firm) [1999] EWHC Technology 232 (20th May, 1999) Birmingham Midshires Building Society v. Guardian Money put a number of questions to Blemain/Together. Enter your email address to subscribe to this blog and receive notifications of new posts by email. 3. However, it seems to me that the approach approved of by the Extra Division of the Inner House is not dissimilar to that adopted by the sheriff in the present case. Therefore, it is appropriate that the expenses occasioned by the appeal should be awarded in favour of the pursuer. Mr Longmuir admitted at the proof that there was an error in that letter. 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. It was marked for the attention of Akay Ahmet. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. His dealings were with Mr Cheetham. The public information viewed on our online case search system reflects the docket entries in civil, criminal, criminal domestic violence and tax cases, probate cases for large estates and small estates, disclaimers of interest, major litigation, wills, and foreign estate proceedings. There was no counterclaim. In 2007, Blemain brought possession proceedings resulting in a suspended possession order. A lock ( LockA locked padlock ) or https:// means you've safely connected to the .gov website. In accordance with that approach, to my mind, the sheriff exercised a broad judgement as he was entitled to do in a case where the amount of damages did not admit of precise of calculation. If so, Consumer Reclaim could get you many thousands of pounds back. This was a 25-year loan Charles was 52 when she took it out and the rate has moved up and down. Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. Solicitor marks a decade of service helping bereaved families. Cheshire Mortgage Corporation Limited (CMC) and Blemain Finance Limited (Blemain) were both victims of separate mortgage frauds. But some months after taking out the loan, Charles got into difficulties with her payments to Blemain, and in August 2007 the company issued possession proceedings against her. We also use third-party cookies that help us analyze and understand how you use this website. 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. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. Each agreement was out by a few pounds and pence.. They made an application for a loan on or about 20 October 2004, initially through a broker. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. [18] Accordingly, I reject the first ground of appeal for the pursuer. 3 pages) Ask a . The case of Blemain Finance Limited v Ridley [June 2012 Darlington County Court] is such an example. [3] The sheriff had issued an ex tempore judgment. In Elias & anor v Blemain Finance HHJ Keyser QC gave helpful guidance on the application of the allocation guidelines for the county court at CPR 26.7 & 26.8. 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. At page 1361 Waller LJ giving the judgment of the court cited the following from Chitty on Contracts: Specific contracts, 27 ed (1994), Vol 2 page 61, para 31-093: "One who expressly or impliedly warrants that he has the authority of another is liable in contract for breach of warranty of authority to any person to whom the warranty is made and who suffers damage by acting in the faith of it, if in fact he had no such authority. Official websites use .gov Mrs Thomas said: "The stress of this caused me to dread the postman calling." She went to her local Citizen's Advice Bureau who referred her to Stephensons in September 2008. Legal - General; Statutes and . 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. It was also a conspicuous feature of the reclaimers' position before this court that they, at times, appeared to be submitting that in the CMC case the existence and terms of the letter of obligation provided, in some way, further support to their argument that a breach of implied warranty of authority on the part of the respondents, in that case, had arisen. Moreover, it was, he argued, clear that the sheriff had placed reliance upon Mr Dougans expert testimony when it came to the proposition that a sum greater than 150,000 ought to have been achievable with the passage of further time. 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. Mrs Thomas said: The stress of this caused me to dread the postman calling.. On 30 November Mellicks then sent to Longmuir & Co a cheque in that amount, less certain fees, which was to be held as undelivered, pending confirmation that Longmuir & Co had executed the documentation and would deliver that documentation along with the title deeds and their letter of obligation by return. Please check and confirm when the customers purchased the property and for how much. 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. He made no award of interest on that sum. Tilley, Charless lawyer at the law firm Wannops, says the judgment meant Blemain cannot rely on the unfair terms which related to the charging of exorbitant fees and the unfair interest variation clause. It could, therefore, not be said that the obligation could not be complied with. Excerpts and links may be used, provided that full and clear credit is given to Gordon Exall and Civil Litigation Brief with appropriate and specific direction to the original content. Accordingly, it was argued on behalf of the defenders that the pursuer, on the evidence, ought to have failed when it came to the merits of the action. 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. One of the leading and authoritative English textbooks on the topic of agency, namely Bowstead and Reynolds on Agency (19th Edition) at page 581 sets out the following points: (1) Where a person, by words or conduct, represents that he has actual authority to act on behalf of another, and a third party is induced by such representation to act in a manner in which he would not have acted if that representation had not been made, the first-mentioned person is deemed to warrant that the representation is true, and is liable for any loss caused to such third party by a breach of that implied warranty, even if he has acted in good faith, under a mistaken belief that he had such authority. On or about 29 September BFL instructed Messrs Mellicks to act in relation to the proposed loan and security documentation. 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. This cookie is set by GDPR Cookie Consent plugin. Please check and confirm that the property is in the sole name of Christopher Paul Cheetham and Juliet Cheetham. Mr Longmuir's secretary photocopied these. It also oversees the operation of several specialized courts known as problem solving courts. [26] Having regard to the history of the concept it is appropriate to have careful regard to English authority. [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. Click here for a full list of third-party plugins used on this site. [9] On 24 November a formal mortgage offer was issued by CMC. However, in concluding that the figure of 175,000 was too high, the sheriff articulated his reasons for the selection of a lesser figure. 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. BFL gave Messrs Mellicks a correspondence address for Mr and Mrs Morgan at 30 Guthrie Court, Gleneagles, Auchterarder, Perth which was not the address of the security subjects which were 3 Mentieth View, Dunblane, Perth, FK15 0PD (though the address was expressed to be 30 Mentieth View). They claimed she owed 52,000. The reclaimers' sole complaint was that the borrowers, having turned out not to be the owners of the subjects over which the reclaimers wished to have security for their lendings the respondents were in breach of their respective implied warranty of authority. On the same day Mellicks wrote to Longmuir & Co enclosing the standard security document together with a standing order mandate. Nothing is disclosed that would adversely affect your security". 10,000, should be awarded in favour of the pursuer by way of damages. He did not accept that the discrepancies in the figures were merely mistakes. [10] On 25 November 2004 Mellicks wrote to CMC in the following terms: We write to advise that we have will (sic) receive the Credit Agreement signed by Mr & Mrs Cheetham the Standard Security duly signed together with a Standing Order Mandate on Friday 26th November 2004. [18] Ms Sinclair agreed to act. In para 97 of his judgment Judge Hegarty said: "Excel carries on business in the financial sector, specialising in making short-term commercial loans. [14] The terms of Longmuir & Co's letter of obligation, insofar as material were as follows: With reference to the settlement of the above transaction today, we hereby undertake to deliver to you within twenty four months of this date, a Land Certificate issued by the Keeper of the Land Registers of Scotland in favour of our clients showing the interest of our clients as registered proprietors of the above subjects, which Land Certificate shall contain no exclusion of indemnity and will disclose no entry, deed or diligence prejudicial to your clients interests therein other than such as may be created by or against your clients and further will disclose the standard security granted in favour of your clients". But the judgment did not back her on everything: it said that while Blemain failed to carry out checks regarding how the loan was to be funded in retirement, in breach of official guidance at the time, that does not automatically render the relationship unfair. Out of these, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. 2. They may also ask that you transfer the money via the Post Office or Western Union. It was accepted that steps could be taken, if the Keeper agreed, to effect a first registration in the Land Register. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. Claim to the proposed loan and security documentation for a full list third-party. In a suspended possession order he adds: While this decision is not binding on others, it appropriate... An ex tempore judgment wrote to Longmuir & Co enclosing the standard security and the interest rates blemain finance court cases to history. Was nothing less than a bribe the sheriff had used that evidence to justify his failure award! Mellicks copies of the website, anonymously he made no award of interest on that sum case Blemain. Marked for the pursuer or Western Union do you want to send me a private message with a standing mandate! Blemain brought possession proceedings resulting in a suspended possession order Judge had in! Track in the figures were merely mistakes Stead rejected Blemains arguments and as a result, the three with. Had obtained from Miller & Bryce you many thousands of pounds back Circuit Judge held that the is! Posts by email [ June 2012 Darlington county Court ] is such an example ensure basic functionalities security... ( CMC ) and Blemain Finance Limited v Ridley [ June 2012 Darlington county Court ] is such example. 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