Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. 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. [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. 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. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. In late 2016 she contacted a lawyer, Paul Tilley, and decided to start the legal process. In the BFL case Messrs Balfour & Manson were instructed by the borrowers to prepare the appropriate standard security, in favour of BFL Both firms of solicitors then engaged with Messrs Mellicks Solicitors, acting for the lenders, in relation to the execution of the standard securities. There are various funding options open to people, including legal aid and conditional fee arrangements, also known as no-win, no-fee. Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. He adds: While this decision is not binding on others, it is entirely consistent with other rulings on issues of this type. In that case the Lord Ordinary rejected the reclaimers' arguments based on an alleged breach of the letter of obligation. Mrs Thomas quickly fell into arrears with the loan agreements. 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. Information Commissioner Office number: ZA176000. Court Procedure. 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 particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. 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. 3 pages) Ask a . 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. It was submitted, in line with the pursuers first ground of appeal, that there was no evidential basis to justify the selection of that particular sum. 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. 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. Ms Sinclair explained to them the effect of the standard security and the interest rates applicable to the loan. 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. Share sensitive information only on official, secure websites. In the absence of such circumstances the extent of the warranty which arises by implication of law is as described in Bowstead and Reynolds. 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. The sheriff records therein that, to some extent, he was influenced by the evidence given by John Dougan, chartered surveyor. Earlier this year I had success in an appeal against allocation of a claim to the small claims track in the county court. The fact of entering into the transaction with the professed agent, as such, is good consideration for the promise.". His Lordship then went on at para 91 to state: "On the other hand, a person acting on behalf of another will not normally be deemed to warrant any particular attributes of his principal or any other aspects of the transaction in which he claims to be acting on his behalf". 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 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. 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. [21] The rest of the transaction appeared to proceed in a straightforward and routine manner. (Irving v Burns 1915 SC 260).". 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. Court records for this case are available from Manatee County Courthouse. It was submitted that the shortfall on the pursuers account with the defenders, following upon the sale of the subjects, ought properly to have been set against the figure of 10,000 which the sheriff was minded to award thereby, in effect, eliminating any such award. He further emphasised that the starting consideration for allocation should be the pleaded value of the claim. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). 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. [18] Accordingly, I reject the first ground of appeal for the pursuer. This website uses cookies to improve your experience while you navigate through the website. (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". Court cases. The fact that the professed agent honestly thinks that he has authority affects the moral character of his act; but his moral innocence, so far as the person whom he has induced to contract is concerned, in no way aids such person or alleviates the inconvenience and damage which he sustains. Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. Blemain Finance, now Together Finance, found guilty of secret commission within their loan to customer that they paid to the broker. Offering Legal Advice and Help across the North East and the UK. In addition to being written in unusual terms, the letter refers to a land certificate in relation to a title which is recorded in the Sasine Register. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. Debt Camel - Getting Out Of Debt UK, Follow Consumer Credit Litigation, Banking & Debt Collection on WordPress.com. 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. [37] Although the obligation assumed in the Cheshire Mortgage letter of obligation was much wider, both in terms of its duration and the content of the obligation, than is normally the case, it was plainly written and delivered as a letter of obligation ancillary to the mortgage transaction being settled on the date of its delivery. BFL v Balfour & Manson LLP - the factual position. [36] The peculiarities of the Cheshire Mortgage letter do not end with the terms in which the obligation is stated. The award of damages is entirely separate from any indebtedness said to be due to the defenders. 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. 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. They lend both to individuals and corporate borrowers against security provided by the borrowers, normally in the form of a standard security over heritable property. A .gov website belongs to an official government organization in the United States. 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. 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. 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. 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. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. He did not accept that the discrepancies in the figures were merely mistakes. 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? The instructions contained in the document issued to Mellicks on 8 November contained inter alia the following: 1. The result is that my client has the opportunity to recover thousands of pounds in legal costs rather than being limited to fixed legal costs of 100. You can learn more detailed information in our Privacy Policy. In any event, the sheriff merely records that the defenders had frozen the interest on the shortfall. 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