Financial services

• 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: Chambers 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;
• Joanne Properties Ltd v Moneything Capital Ltd & anr [2020] EWCA Civ 1541: successfully represented the appellant in a case involving a disputed settlement agreement arising out of a corporate financing arrangement;
• Arkin (as fixed charge receiver) v Marshall [2020] EWCA Civ 620, [2020] 1 WLR 3284: decision on Practice Direction 51Z staying possession proceedings for 90 days from 27 March 2020 due to the coronavirus pandemic.
• 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;

• Notting Hill Finance Ltd v Sheikh [2019] 4 W.L.R. 146; [2019] EWCA Civ 1337: a procedural appeal arising out of a commercial bridging loan. The Court of Appeal’s judgment resulted in substantive amendment to the relevant White Book commentary;
• 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;
• 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);
• Santander UK plc v Harrison [2013] EWHC 199 (QB): capitalisation of mortgage arrears not credit in the form of a cash loan;
• London Scottish Finance Ltd v Craig and ors [2013] EWHC 4047 (Ch): debt collection in respect of irredeemably unenforceable agreement; right to recover payments under s106;
• 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;
• Helden v Strathmore Ltd [2011] EWCA Civ 542; [2011] C.T.L.C. 158: mortgage was enforceable under FSMA although entered in breach of general prohibition; formalities for entering mortgage;
• Southern Pacific Mortgage Ltd v Heath [2010] Ch 254: multiple agreements; part of mortgage discharging previous mortgage;
• Hurstanger v Wilson [2007] 1 WLR 2351: undisclosed commissions paid to finance brokers; mortgagee procuring breach of fiduciary duty;
• Bank of Scotland v Euclidian (No 1) Ltd (QB) [2007] C.T.L.C. 151: construction of indemnity clause in master certificate of insurance re CFA scheme; drafting of cancellable credit agreements in context of litigation funding;
• Goshawk Dedicated (No. 2) Ltd v Bank of Scotland [2005] EWHC 2906 (Ch), [2006] 2 All ER 610: legal expenses insurance; notice of cancellation rights.

Gough Square financial services barristers are experienced in:

• 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 Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (“the RAO”);
• Drafting mortgage and security documentation;
• Advising on the application of, and compliance with, the FCA’s Mortgage (Conduct of Business) Sourcebook (“MCOB”), Consumer Credit Sourcebook (“CONC”), Conduct of Business Sourcebook (“COBS”) and other parts of the FCA Handbook;
• Reviewing documentation, promotions and procedures for compliance with FSMA and the FPO;
• Advising on the scope of activities requiring FCA authorisation;
• Litigating cases of undue influence, breach of fiduciary duty and irresponsible lending;
• Advising on applications to the Treasury by entities seeking exemption from the general prohibition in FSMA;
• 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;
• Advising on whether arrangements constitute a collective investment scheme under FSMA s235;
• Advising on the regulatory obligations of friendly societies;
• Advising on the regulatory obligations and liabilities of FCA approved persons (e.g. in the context of alleged foreign exchange rate manipulation);
• 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 the Financial Ombudsman Service’s jurisdiction and the FCA’s DISP rules;
• 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.

‘Modern Financial Regulation’ (‘the Blue Book’), Jordan (2013): 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.

• New Law Journal: Consumer credit: no sunset in sight? by Fred Philpott