The terms of the loan were set out in the letter. [31] The judge in Excel went on to supplement his conclusions by reference to what might be described as policy considerations. The Lord Ordinary reached the conclusion that all of that material had come to CMC from the broker or from the fraudsters themselves. [6] Mr Allison highlighted the sheriffs reasoning in paragraph [8] of his Note. 165. they produced passports and utility bills to the solicitors to support their identity. [25] At the outset of his submissions, junior counsel for the reclaimers informed the court that the principal argument to be advanced arose from and was based on the statement of principle set out in the dictum of Willes J in Collen v Wright 1857 8E B 647 at 657 which is to the following effect: "I am of opinion that a person, who induces another to contract with him as the agent of a third party by an unqualified assertion of his being authorised to act as such agent, is answerable to the person who so contracts for any damages which he may sustain by reason of the assertion of authority being untrue. (2) Every person who purports to act as an agent is deemed by his conduct to represent that he has in fact been duly authorised so to act, except where the purported agent expressly disclaims authority or where the nature and extent of his authority, or the material facts from which its nature and extent may be inferred, are known to the other contracting party". 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. In successfully defending the possession proceedings, the legal charges relating to the unenforceable agreements were ordered to be removed from Mrs Thomas property. The instructions contained in the document issued to Mellicks on 8 November contained inter alia the following: 1. Messrs Mellicks were to be involved in the obtaining of the standard security and were instructed to liaise with the borrowers' solicitor for that purpose. In that state of affairs, it is simply not open to the defenders, on appeal, to mount a challenge directed at the courts assessment regarding the quantum of damages. It concerned the issue of whether, and if so when, an arrears payment had been received.. [20] On 2 November Ms Sinclair responded to Messrs Mellicks letter of 29 September by sending the extract title deeds to them to enable them to prepare the draft standard security. [23] The cross-appeal, in my opinion, falls to be refused in general terms because, in approaching the proof, the defenders did not see fit to place in issue the quantum of the pursuers claim. He had the opportunity to consider the evidence in its totality. In considering whether or to what extent interest should be awarded on the damages figure, I am, at best, doubtful that the court is entitled to consider arrangements which may or may not have been made in regard to the charging of interest on a discrete sum of money which is distinct from the award made by the court. If, therefore, he never had authority to act on behalf of the principal or if his authority has terminated or if he exceeds the scope of his authority, he will be in breach of the implied warranty and will be liable in damages to any person to whom the warranty was given. However, that particular error was not relied upon by the defenders as a defence to the claim for failure to implement the letter. In Blemain Finance Ltd v Goulding, the court had to determine whose interests prevailed, the registered owner of a property or a trustee in bankruptcy who had been unaware of the property and whose alleged interest in it had never been registered. Charles said it was the broker who suggested those words be put down in order to help get the loan through easier. This cookie is set by GDPR Cookie Consent plugin. In July 2008,BlemainFinance issued possession proceedings to take Mrs Thomas home in relation to four of the agreements. The respondents in the action at the instance of Blemain Finance Limited ("BFL") are Balfour & Manson LLP a firm of solicitors who acted in a security transaction with which the action at BFL's instance is concerned. They claimed she owed 52,000. 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. In late 2016 she contacted a lawyer, Paul Tilley, and decided to start the legal process. A .gov website belongs to an official government organization in the United States. On 30 November Mr Cheetham brought an electricity bill and driving licence as proof of identity to Mr Longmuir's office. The client opening form, completed by Mr Longmuir in manuscript on that day, showed the full names of those for whom he thought he was acting, namely Christopher Paul Cheetham and Juliet Cheetham, and it gave their address 34 Danube Street, Edinburgh, EH4 1NT. Mr Longmuir admitted at the proof that there was an error in that letter. That was a person identifying himself by the name of James Charles Whittaker Golding and claiming to be the registered proprietor of the property at 17 Richards Place. Blemain Finance - Consumer Action Group Library Activity More All Activity Home Banks, Loans & Credit Other Institutions Blemain Finance 21 hours ago Sunday at 19:34 Twitter - Include the @company's twitter name in your post title - here's why Are you going to pay your builder or your second-hand car dealer in cash or with a bank transfer? Search by state or ZIP code, Look up contributions from specific individuals, Find and contact your committee's analyst. 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. His, is there any update on this. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. The respondent in the CMC action is the judicial factor appointed to the estates of a firm of solicitors known as Longmuir & Co who acted in the security transaction to which the action at the instance of CMC relates. To control which cookies are set, click Settings. 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. Borrowing from the Willes J's formulation of the warranty in Collen v Wright, the solicitors here in each case did not more than warrant "that the authority which (they professed) to have, did in point of fact exist". 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. [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. [8] Mr Allison criticised the sheriffs approach to interest on two levels. [35] The terms of the letter of obligation are unusual and the period of time covered extraordinary. At the beginning of December Ms Sinclair arranged for the transfer of the net balance to the account of Elmwood Contracts as instructed by Mr and Mrs Morgan. You also have the option to opt-out of these cookies. Official websites use .gov We will take into account the relevant aspects of the decision specific to this case as we work with all parties to progress this matter.. [21] The principle underlying an award of interest on the sum decerned for by way of damages is that of wrongful withholding. 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. Mr Cheetham informed Mr Longmuir that the title deed to the subjects at 34 Danube Street had been mislaid, as a result of which Mr Longmuir had to work from an extract of the title deed which he had obtained from the Land Registry. [22] At all odds, I have given effect to the proposition that the sheriff ought to have awarded interest in favour of the pursuer principally for the reasons set out in her second ground of appeal. In relation to the latter authority, passages at paragraphs [17] and [18] within the opinion of the Extra Division of the Inner House were referred to. 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. The Court should be slow to allocate to a track normally associated with a lower value. Even if the facts and law on liability are relatively straight forward, the application of a remedy may not be. Together Personal Finance Limited is a member of the FLA. VAT number: 144 4752 12. Its parent company, Together Financial Services, describes itself as one of the UKs leading specialist mortgage and secured loan providers. It was in the following terms: Loan to Christopher Paul Cheetham and Juliet Cheetham, 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. 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 indicated Scots and English law reach the same result in such questions albeit, perhaps, on occasions using different terminology or concepts. Mrs Thomas quickly fell into arrears with the loan agreements. Reference was made to SEB Trygg. He had held that any entitlement to interest flowing from the wrongful withholding of 10,000 as from the date of sale, viz. Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. These documents, the Lord Ordinary held, must have come to BFL in the first place from Mr and Mrs Morgan. ), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions. [3] In the CMC case Messrs Longmuir & Co were instructed by the borrowers to prepare the appropriate standard security in favour of CMC in return for CMC lending money to them. Please note we wish to take a 1st charge over the property. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. 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. The Lord Ordinary at para 16 of his opinion states: "It is clear that the CMC were provided with a number of documents purporting to confirm the identity and address of the borrowers. The proposed security subjects were free of any other mortgage or standard security. The frauds perpetrated upon them as a result of fraudsters, each of the reclaimers involved two different pairs of individuals applying for a loan, pretending to be husband and wife who were owners of heritable property which was to institute the security for the loans. The payment protection she had taken on two of the agreements only covered her for the first 12 months she was out of work and in total she received only 2,311.32 in repayments from the payment protection insurer, despite paying much more in premiums and interest. The Criminal Division is administratively divided into four branches: Case Management, Special Proceedings, Quality Assurance, and Courtroom Support. FEC cases are listed alphabetically with links to summaries and (for some cases) court opinions and other documents. I did not understand his argument to the effect that the sheriffs discretion in this matter was not to be taken as entirely unfettered to be the subject of any challenge. Court cases. [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. There are various funding options open to people, including legal aid and conditional fee arrangements, also known as no-win, no-fee. There is no detail as to the date upon which interest had been frozen or as to the rate of interest involved. Liam Waine, a consumer partner atStephensons, said: It became apparent that the last three agreements were not executed correctly and were therefore unenforceable because the amount of credit on them was incorrectly stated. Since no such land certificate had been delivered, the defender was in breach of that obligation and bound to compensate the pursuers for their resultant loss. [7] The second ground of appeal for the pursuer concerned the sheriffs approach to interest. Privacy Policy | We also use third-party cookies that help us analyze and understand how you use this website. England and Wales Court of Appeal (Civil Division) 2013. [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". The first letter was accompanied with certain documents signed by Mr and Mrs Cheetham. The judgment said the wording about when it would be invoked was very broad, referring simply to market conditions, and broadened out further by the words actual or expected. The fact of entering into the transaction with the professed agent, as such, is good consideration for the promise.". [29] In the Excel Securities case Judge Hegarty QC, sitting in the Queen's Bench Division of the High Court of Justice, Manchester District Registry Mercantile Court reviewed this area of law in a comprehensive and careful decision. It was accepted that steps could be taken, if the Keeper agreed, to effect a first registration in the Land Register. If your clients wish to proceed please could you let us have the title deeds as a matter of urgency. Telefon: + 43 664 4167380 Email: office@herdz.at . The cookies is used to store the user consent for the cookies in the category "Necessary". [6] In the CMC case the fraudsters presented themselves as Christopher Paul Cheetham and Mrs Juliet Cheetham of 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. 1050 First Street, NE Therefore, it is appropriate that the expenses occasioned by the appeal should be awarded in favour of the pursuer. 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. Stephensons Solicitors LLP is a limited liability partnership. Latest cases represented by Lawyer BLACKMORE , JONATHAN LEE . Insofar as it was referred to to bolster the argument based on the implied warranty of authority, we do not consider that it had any such effect. An official website of the United States government. 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. Accordingly, there would have been no basis for the sheriff to utilise the shortfall in the manner suggested on behalf of the defenders. . Secure .gov websites use HTTPS I do not consider that they gave any implied warranty going beyond this". 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; [6] Mr Allison highlighted the sheriffs reasoning in paragraph [8] of his Note. Registration is recorded at: https://register.fca.org.uk. On the next day, 3 December, they forwarded to Messrs Mellicks the letter of obligation dated 2 December together with extracts of a disposition and discharge "in our clients favour" these being the title deeds already shown to Mellicks under cover of their letter of 17 November. JUDGE WAS WRONG TO ALLOCATE ACTION TO SMALL CLAIMS TRACK: CLAIMANT SUCCEEDS IN APPEAL AND CASE ALLOCATED TO THE FAST TRACK, Click to share on Facebook (Opens in new window), Click to share on Twitter (Opens in new window), Click to share on LinkedIn (Opens in new window), JUDGE WAS CORRECT TO ORDER DEFENDANT TO FACE NORMAL CONSEQUENCES WHEN CLAIMANT BEAT THEIR OWN PART 36 OFFER: HIGH COURT DECISION, RUDE CORRESPONDENCE: A RECAP: JUST REMEMBER WHAT YOU WRITE COULD END UP ON A BLOG SOME DAY (FOR THE WHOLE WORLD TO SEE), PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS, COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM, COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF METAPHORICAL WARFARE, COST BITES 47: PROVING (OR DISPROVING) THAT THERE WAS A VALID RETAINER: APPORTIONING RECOVERABLE COSTS BETWEEN TWO DEFENDANTS, A CAUTIONARY TALE FOR LITIGANTS: CLAIMANT ORDERED TO PAY 17,500 IN COSTS IN A SMALL CLAIMS TRACK CASE, COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF "METAPHORICAL WARFARE", Coronavirus: Guidance for lawyers and businesses, Munkman & Exall on Damages for Personal Injuries and Death 14th ed, The APIL Guide to Fatal Accidents 4th edition, Kings Chambers Costs & Litigation Funding, Website of 4-5 Gray's Inn Square, Catastrophic Injury Group. Mr Allison submitted that had the issue of the shortfall and any consequences said to flow from its existence been focused in the defenders pleadings, that would have afforded him the opportunity to table certain discrete counter propositions in response. [24] It should be noted that before this court counsel for the reclaimers and respondents did not seek to attack the Lord Ordinary's findings in fact. The point is incapable of much further elaboration.". The award of damages is entirely separate from any indebtedness said to be due to the defenders. In other words, the defenders, through MsHamilton, maintained that when the shortfall amount was taken into account there was, in any event, no loss and that the sheriff had, once again, erred in that regard. 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. Stephensons consumer team is one of the leading specialists in the country in dealing with debt problems on behalf of clients. His dealings were with Mr Cheetham. [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. Under the heading "B Standard instructions" there appeared as follows: "11. Anyone contracting with such an agent must look to the principal for any redress to which he is entitled as matter of contract. At other times however they appeared to be arguing that the letter of obligation founded a separate basis of claim. BFL issued an offer letter to the borrowers the same day i.e. All rights are reserved. 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. He wrote also to the fraudsters at 34 Danube Street including a copy of Mellicks' letter and requested them to contact him in order that he could take their further instructions. Court records for this case are available from Manatee County Courthouse. Mr and Mrs Morgan attended, as requested, on 23 November. He did so at paras 73 and 74 of his opinion by saying that the letter of obligation was collateral to the principal transaction and "could not be enforced if that principal transaction was void (as it was here)" and that, in any event, the pursuers could show no damage flowing from any failure by Longmuir & Company to produce a title encumbered with the standard security "since the standard security referred to in the Letter of Obligation was itself void". In a subsequent telephone conversation on 23 November 2004 Messrs DM Hall confirmed the value of the subjects, if a sale had to be effected within 90 days, to be 575,000. It appears to us that this letter has exactly the same status and meaning as that recognised, apparently by the parties, as applying to the letter in the Blemain case. 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. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. In neither action do the reclaimers seek to recover their losses on the basis of any negligence or other breach of duty on the part of the respondents. 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. 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. Blemain has had to reconstruct the account as a result, and the judgment has reduced the sum Charles is said to owe by about 25,000. We are aware of a financial scam whereby a firm purporting to be Blemain Finance will ask for money upfront for unsecured loans. Consumer Reclaim Ltd is registered in England and Wales, Company Registration number: 07223077. In particular the standard and specific instructions were the same. It might be argued that, when it comes to the issue of interest, the pursuers third ground of appeal is somewhat tautologous. Professional lenders were seeking to recover from a firm of solicitors their losses resulting from identity fraud by borrowers for whom the solicitors had acted in preparing security documents over property of which the borrowers claimed they were the true owners. Once again, Ms Hamilton sought to challenge the detail and the quality of the evidence before the sheriff in support of a submission to the effect that absent evidence suggesting that a higher offer would have been submitted to the defenders had they taken other steps, no finding could be made against them in terms of section25. . It is noteworthy, indeed, that no such claim is made in the Blemain case where a similar letter of obligation was granted. Gordon Exall, Civil Litigation Brief, 2013-2023. Registered in England and Wales. We have had sight of the necessary Searches in respect of the properties. They claimed she owed 52,000. Mr Allison maintained that the sheriff had indulged in speculation rather than relying upon the evidence. The stated value is also relevant to the wider issue of proportionality when allocating the claim [16]. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). Longmuir & Company on 7 December wrote to Mr and Mrs Cheetham at 34 Danube Street advising them that the foregoing had been carried out and that the balance of funds after deduction of their fee had been forwarded as instructed by telegraphic transfer. Whilst as per the belief that he was instructed by the husband, which he was, and for the wife, which he was not. By submitting your information you confirm you voluntarily choose to contact us via this website. The claimants appealed the decision to allocate the matter to the small claims track. Guardian Money put a number of questions to Blemain/Together. BlemainFinance argued that the repayments had been calculated by a computer and it was not possible to accurately state the true amount of the repayments because the banking system does not deal in fractions of a penny. In addition, two of the agreements contained Payment Protection Insurance, known as PPI, costing between 800 and 1,500. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. It appears, however, to highlight the limitations placed on an implied warranty of authority in such a situation as it was understood in at least that case. [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. But, in any event, where, as here, no such express warranty was asked for, or given, matters must rest on the implied, warranty of authority to be implied as a matter of law the extent and nature of which was defined correctly in the Excel case. When the impostor was introduced to it as a prospective client, it carried out certain checks in order to satisfy itself that he was the person whom he represented himself to be, that he lived at the address at which he claimed to be living and that he was indeed the registered proprietor of the property at 17 Richards Place. 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). 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. [39] We also agree with the secondary basis on which the Lord Ordinary rejected the claim based on the letter, viz that the pursuers could show no loss since the obligation to which the letter of obligation was ancillary, the standard security, was void.
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