Consumer finance

Notable cases in which members of chambers have been involved include:

• CFL Finance Ltd v Bass, Gertner & Others [2021] EWCA Civ 228; [2021] 4 All E.R. 717; [2021] 2 WLUK 315: Court of Appeal decision on the application of the Consumer Credit Act 1974 to contractually binding settlement agreements.
• Kerrigan & 11 ors v Elevate Credit International Limited (t/a Sunny) (in administration) [2020] EWHC 2169 (Comm); [2020] C.T.L.C. 161: acted for the creditor in this payday lending test case litigation on the relationship between the FCA’s Handbook rules and the ‘unfair relationship’ provisions. Twelve ‘Sample Cases’ were tried over the course of four weeks.
• Ioannou v Werner [2020] EWHC 2513 (Ch): whether substantial secured lending was under a regulated mortgage contract within Article 61 of the Regulated Activities Order 2001, which in turn depended on the borrower’s use of the property;
• Greenlands Trading Ltd v Pontearso [2019] EWHC 278 (Ch): decision that a relationship between a lender and a borrower was not unfair. Points that arose were whether a default rate of 3% per month on a six month bridging loan with an interest rate of 1.45% per month was penal and unfair and whether unfairness is to be assessed objectively.
• R (Berkeley Burke SIPP Administration Ltd) v Financial Ombudsman Service, Charlton and the Financial Conduct Authority [2019] Bus LR 437: acted on behalf of SIPP administrator in judicial review claim against FOS decision considered to be a test case for financial services sector in relation to the Ombudsman’s right to impose duties on the basis of the FCA’s general Principles for Business (PRIN Sourcebook).
• Mohammed Arif and 175 others v BBSAL Ltd [2017] EWHC 3108 (Com) defence of SIPP administrator in group litigation concerning allegedly mis-sold financial products.
• BBSAL v Charlton, Brown and Financial Ombudsdman Service [2017] EWHC 2396 (Comm); [2018] 1 Lloyd’s Rep. 337; [2017] 10 WLUK 33; [2017] 2 C.L.C. 410; [2018] CTLC 1: acted for pension administrator in litigation on the application of the Arbitration Act 1996 to the FOS jurisdiction.
• Fortwell Finance Limited v Halstead [2018] EWCA Civ 676: decision of the Court of Appeal rejecting the borrower’s attempt to set aside a consent order on the grounds that the entry into the consent order constituted the regulated activity of administering a regulated mortgage contract within the meaning of Article 61(2) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
• MFS Portfolio Ltd v Phelan: first instance judgment at [2018] GCCR 16027: four day appeal on the applicability of the exemption in paragraph 55 of the Schedule to the Financial Services and Markets Act 2000 (Exemption) Order 2001.
• Swift Advances plc v Ahmed [2015] EWHC 3265 (Ch): High Court set aside two trust deeds as transactions defrauding the creditor and intended to defeat mortgagee’s claim for possession;
• Swift 1st Ltd v the Chief Land Registrar [2015] EWCA Civ 330: successfully represented the lender in defeating the Chief Land Registrar’s appeal against a finding of liability to indemnify the lender for loss of a cancelled charge;
• Burrell & ors v Helical (Bramshott Place) Ltd [2015] EWHC 3727 (Ch): Kate, led by Ian Mill QC, successfully acted for the defendant in a case where the High Court considered the test to be applied in determining whether an agreement provides for credit;
• J P Morgan v Northern Rock plc [2014] CTLC 33: the first case to deal with statutory statements under CCA s77A; when the obligation to give the first statement arises if a non-compliant one is given;
• Grace & George v Black Horse Ltd [2014] EWCA Civ 1413: limitation and causation of a claim for compensation for inaccurate credit referencing under s.13 of the Data Protection Act;
• Conlon v Black Horse Ltd [2013] EWCA Civ 1658: PPI mis-selling: non-disclosure of commission (settled three days before further appeal to the Supreme Court);
• London Scottish Finance Ltd v Craig and ors [2013] EWHC 4047 (Ch): debt collection in respect of irredeemably unenforceable agreements; debtors had potential ‘unfair relationship’ claims for the repayment of sums where those payments had been encouraged by the creditor stating that the loan agreements could be enforced by taking possession proceedings
• Santander UK plc v Harrison [2013] EWHC 199 (QB): capitalisation of mortgage arrears not credit in the form of a cash loan;
• Harrison v Black Horse Ltd (CA)  [2011] Lloyd’s Rep I.R. 455; [2011] C.T.L.C. 105: PPI mis-selling: non-disclosure of commission;
• Brandon v American Express Services Europe Ltd (CA) [2012] E.C.C. 2; [2011] C.T.L.C. 177: default notices; credit card agreements;
• Barnes v Black Horse Ltd [2011] 2 All E.R. (Comm) 1130: unfair relationships: transitional provisions;
• Harrison v Black Horse Ltd (QB) [2011] Lloyd’s Rep I.R. 455; [2011] C.T.L.C. 1: PPI mis-selling: cost of policy and size of commission;
• Teasdale v HSBC Bank plc (CA) [2011] C.T.L.C. 131;  (QB) [2010] C.T.L.C. 19: s78 claims; costs on discontinuance;
• Harrison v Link Financial Ltd [2011] E.C.C. 26: debt collection; harassment; default notices
• Southern Pacific Mortgage Ltd v Heath [2010] Ch 254; [2009] C.T.L.C. 20: multiple agreements; part of mortgage discharging previous mortgage;
• Black Horse Ltd v Speak [2010] EWHC 1866 (QB); [2010] C.T.L.C. 211: PPI mis-selling; misrepresentation;
• Sternlight v Barclays Bank plc [2010] EWHC 1865 (QB); [2010] C.T.L.C. 115 and Brooks v Northern Rock plc: whether stated APR driver for calculation of interest rate;
• Carey v HSBC Bank plc (QB) [2009] C.T.L.C. 103 [2010] Bus. L.R. 1142: s78 duty to provide copy of credit agreement;
• Rankine v American Express Services Europe Ltd (QB) [2008] C.T.L.C. 195: enforceability of credit card agreements; cancellation; default notices;
• Office of Fair Trading v Lloyds TSB Bank plc (HL) [2008] 1 A.C. 316; [2007] C.T.L.C. 246: whether s75 applied to foreign transactions;
• Bank of Scotland v Euclidian (No 1) Ltd (QB) [2007] C.T.L.C. 151: construction of indemnity clause re CFA scheme;
• Goshawk Dedicated (No. 2) Ltd v Bank of Scotland [2005] EWHC 2906 (Ch), [2006] 2 All ER 610: notice of cancellation rights

• Drafting credit agreements and mortgages;
• Advising on the enforceability of credit agreements and mortgages;
• Reviewing documentation in preparation for securitisation or acquisition of loan portfolios;
• Advising on the scope of activities requiring FCA authorisation and the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (“the RAO”);
• Advising on the effects of the Mortgage Credit Directive Order 2015 and consequential amendments to the Financial Services and Markets Act 2000 (“FSMA”) and the RAO;
• Advising on the application of, and compliance with the FCA Handbook, including the Consumer Credit Sourcebook (“CONC”), Mortgages and Home Finance: Conduct of Business Sourcebook (“MCOB”) and Dispute Resolution (“DISP”) chapters;
• Advising on financial promotions: both Handbook rules and the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005;
• Advising on issues arising from defective notices and how to structure remediation;
• Providing representation at hearings before the FCA, the First-Tier Tribunal (Regulatory Chamber) (Consumer Credit) and the Upper Tribunal;
• Drafting submissions to the Financial Ombudsman Service and advising on the scope of its jurisdiction;
• Litigating cases of undue influence, breach of fiduciary duty and irresponsible lending;
• Advising on the application of the Money Laundering Regulations 2007, Payment Services Regulations 2009, the Financial Services (Distance Marketing) Regulations 2004 and Electronic Money Regulations 2011;
• Drafting appointed representatives agreements (pursuant to FSMA s39);
• Advising on the ‘passporting’ of permissions by EC firms under the single markets directives;
• Advising on the scope of regulated activities relating to peer-to-peer lending and crowdfunding;
• Advising on the consequences of carrying on regulated activities under FSMA, in breach of the general prohibition.

Gough Square’s consumer credit barristers regularly advise on authorisation issues, including the scope of activities requiring FCA authorisation and the consequences of carrying on a regulated activity under FSMA in breach of the general prohibition.

• Office of Fair Trading v European Environmental Controls Ltd [2010] UKFTT 475 (GRC): consumer credit licensing; appeal from decision of OFT to revoke licence of credit broker with turnover > £10m pa;
• Sodha v Office of Fair Trading CCA/2008/0005: Appeal from a decision to revoke a credit broker’s consumer credit licence; gave guidance on the appropriate approach to costs in the Consumer Credit Appeals Tribunal;

Works written by members of chambers include:

• ‘Encyclopedia of Financial Services Law’, Sweet & Maxwell: essential & topical information on law and regulation of financial services. Members of chambers are the contributing editors.
• ‘The Law of Consumer Credit and Hire‘ by Philpott et al, OUP 2009: detailed guide to consumer credit law and litigation, with practical examples.
• ‘Modern Financial Regulation‘, Jordan 2013 by Kirk and Ross: details the changes introduced by the Financial Services Act 2012, including content relating to the Financial Conduct Authority, consumer credit, payment services and electronic money. Available from Jordan publishing.
• Atkin’s Court Forms on Consumer Credit (Butterworths – October 2008)
• The Consumer Credit Act 2006: A Guide to The New Law (Law Society – 2006)
• contributions to Current Law

Since 2007, we have published our own set of law reports, the Consumer and Trading Law Cases (CTLCs), covering cases of particular interest for lawyers dealing with consumer and regulatory law.

• New Law Journal: Consumer credit: no sunset in sight? by Fred Philpott
• PLC May: Scope of “deemed agency” in context of CCA unfair relationship claims
• PLC Jul/Aug: Motor finance commission and fiduciary relationships