Latest cases represented by Lawyer BLACKMORE , JONATHAN LEE . However having gone on to look at the background of the case before him, and having described at para 99 the transaction as proceeding as an "ordinary conveyancing transaction", he concluded at para 100: "In those circumstances, I am quite unpersuaded that BM Solicitors impliedly warranted either the identity of their client or his title to the property in question. It is frequently said to be narrow in its scope. [21] The principle underlying an award of interest on the sum decerned for by way of damages is that of wrongful withholding. We have had sight of the necessary Searches in respect of the properties. BFL issued an offer letter to the borrowers the same day i.e. The case of Blemain Finance Limited v Ridley [June 2012 Darlington County Court] is such an example. It shows that the courts will not allow creditors to impose unfair terms and conditions on consumers, and where such terms are used, the courts will not hesitate in striking those terms from the contracts.. He had not given much thought to why Mr Hone had not resorted to more conventional forms of . The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. 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 point is incapable of much further elaboration.". Although it is not in the "classic" form, the letter bears all the hallmarks of a letter of obligation, long recognised as an obligation ancillary to that of the solicitor's client, designed to provide protection to, in this case, lenders during the gap period between settlement of the transaction and the recording of the lenders' interest. It concerned the issue of whether, and if so when, an arrears payment had been received.. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. [11] The fraudsters met a representative of Messrs Longmuir & Co, Mr Martin Longmuir on 27 October. [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. However, while this is a good result for her, it will still have proved to be a very expensive loan. 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. 3. The pursuer having suffered loss as a result of Longmuir & Co's breach of representation as to their authority et separatim as a result of the breach of the Letter of Obligation by Longmuir & Co, is entitled to reparation therefor. We agree. Legal - General; Statutes and . For her part, Charles says she just wants to get this whole thing sorted and put it behind me its been a total nightmare. In para 97 of his judgment Judge Hegarty said: "Excel carries on business in the financial sector, specialising in making short-term commercial loans. [8] Mr Allison criticised the sheriffs approach to interest on two levels. However, the terms of that judgment are recorded in his Note dated 1 July 2014. Unauthorised use and or duplication of the material contained on this blog without permission from this blog's author is strictly prohibited. Thus, for example, as has been noted, the agent may expressly disclaim or qualify any implied representation by his words or conduct. 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. That is made clear in Bowstead and Reynolds at para 9-066 where the writers state: "The basic warranty is only that the agent has authority from his principal: this is something particularly within the agent's knowledge. This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. Clicking the Accept All button means you are accepting analytics and third-party cookies (check the full list). [17] In any event, in determining these appeals, I require to recognise that in presiding over the proof the sheriff had the advantage of having seen and heard the witnesses involved. 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. 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 sum first 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. Please be aware that we would never ask for money upfront, and we do not provide unsecured loans. In dealing with the scope of the warranty the judge at para 59 of his judgment stated: "The essential legal principles applicable to such a claim are not in doubt. [13] On 26 November Messrs Mellicks wrote to Longmuir & Co enclosing the formal offer of loan together with the acceptance form which required to be signed and returned to them along with the standard security document and the standing order mandate. 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. The broker was supposed to have been acting in the customer's best interest in finding a loan that was the best for the customer. Privacy Policy | The offer letter was signed for acceptance on 2 November by "Mr and Mrs Cheetham". [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. Both companies are in the business of secured lending. We are aware of a financial scam whereby a firm purporting to be Blemain Finance will ask for money upfront for unsecured loans. There was no counterclaim. On 1 November, the day before signing the acceptance of the offer letter, the fraudsters, again representing themselves as Mr and Mrs Cheetham, wrote to CMC on writing paper headed with the address 34 Danube Street, Edinburgh to confirm that the monthly payments in the respect of the loan were affordable by them. 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. [3] The sheriff had issued an ex tempore judgment. 165. [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. The defenders pleas in law exclusively concerned the merits of the action and the relevancy etc of the pursuers averments. Your choice regarding cookies on this site, Succession & estate planning for business owners, Partnership agreements & limited liability partnerships, Directive on security & network information systems, Privacy & electronic communications regulations, Claims against HM Courts & Tribunal Services, Care home fees and planning for the future. It added that Charles, who now lives in Worthing, was an intelligent borrower who went into the agreement open-eyed and, based on the figures she provided, the monthly payments were affordable. 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. [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. 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. To control which cookies are set, click Settings. He explained that he wished to raise money and was keen to have the transaction completed quickly. In a case where the parties themselves had agreed to dispense with shorthand notes (and, consequently, no transcript of the evidence was available for the purposes of the appeal) I would be slow to interfere with the decision of the sheriff at first instance unless it could be demonstrated, clearly, that he had misunderstood the facts, applied the wrong principles or arrived at a conclusion which was manifestly unjust (see, generally, Macphail, 3rd Edition at paragraph 18.116). In particular the standard and specific instructions were the same. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. There is no detail as to the date upon which interest had been frozen or as to the rate of interest involved. Mr Longmuir admitted at the proof that there was an error in that letter. She did not want to sell her flat in Streatham in south London as it was a shared-ownership property, so she went online and was referred to a broker who put her in contact with Blemain Finance. There are many people facing similar situations and this case illustrates that even the most complicated debt problems can be unravelled to secure a positive outcome.. It was marked for the attention of Akay Ahmet. [25] The cross-appeal has failed in its entirety. If your clients wish to proceed please could you let us have the title deeds as a matter of urgency. Liam added: The rules governing the content of credit agreements are inflexible and are designed to protect the consumer. Moreover, the defenders having explicitly agreed to the shortfall being left out of account (for the reasons specified at paragraph [9] in the sheriffs Note) that agreement precludes the defenders from founding upon the figure of 10,645.31. However, it is now well established that, in such circumstances, the agent will normally be regarded as giving an implied warranty as to his authority. [22] It was argued before the Lord Ordinary on behalf of the reclaimers that those factual situations allowed the reclaimers, in each case, to sue the respondents for their losses on the basis that the respondents in each case had been in breach of their implied warranty of authority as agents. Having considered the relevant authorities on this topic the Lord Ordinary reached the following conclusions in both cases, at para 64 of his opinion: "In those circumstances, it is, in my opinion, difficult to see any room for any implied representation by the solicitors as to the identity of the borrowers for whom they were acting, other than that they were acting for the people with whom the lenders were already engaged in a process of finalising a loan transaction. It must be well aware of the commercial risks involved in making such loans, including the risk of fraud and, in particular, identity theft. Significantly the reclaimers accepted that in each case the security transaction had been conducted according to normal good practice. 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. (1) (a) The small claims track is intended to provide a proportionate procedure by which most straightforward claims with a financial value of not more than 10,000 can be decided, without the need for substantial pre-hearing preparation and the formalities of a traditional trial, and without incurring large legal costs. 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 sent us this statement: We are sorry to hear that our customer, who took a loan out with us in 2006, was unhappy in her experience. [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. [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. The claimants appealed the decision to allocate the matter to the small claims track. 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 Commission brings enforcement suits in U.S. District Courts when matters are not satisfactorily resolved through the administrative enforcement process and sues to enforce administrative subpoenas. 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. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. Consumer Reclaim is a claims management company which specialises in consumer mis-selling of goods, services and insurance.We are regulated by the Financial Conduct Authority. [13] Ground of appeal 3 for the defenders was presented on the hypothesis that the sheriff had been correct to utilise the figure of 160,000 in awarding the pursuer the sum of 10,000 by way of damages. 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. 12. 13. His dealings were with Mr Cheetham. [27] In SEB Trygg Liv Holding AB v Manches (2006) 1 WLR 2276 the limited nature of the implied warranty of authority was emphasised by the Court of Appeal in a case involving solicitors who commenced arbitration proceedings in the name of a company which was no longer in existence. [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. However, that particular error was not relied upon by the defenders as a defence to the claim for failure to implement the letter. This situation has affected my mental and emotional health, my credit file is ruined, and the funds I expected for my retirement are now also affected.. He confirmed that they had requisitioned copies of the prior title deeds. We use cookies to optimise site functionality and give you the best possible experience. A woman has had three loans, which were secured against her home, written off thanks to a leading North West law firm, giving renewed hope to thousands of others facing a daily debt nightmare. 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. Will ask for money upfront, and we do not provide unsecured loans All button means you are analytics... Concerned the merits of the pursuers averments sight of the material contained on this blog 's is... Are recorded in his Note dated 1 July 2014 foregoing advantage and by the when. Have not been classified into a category as yet interest involved 25 ] the has! Those that are being analyzed and have not been classified into a as... Use cookies to optimise site functionality and give you the best possible experience [ 11 the. Assessment of damages is that of wrongful withholding rate of interest on the awarded! 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