Regulated lending

Gough Square Chambers is a leader in the field of regulated credit and mortgages, with an in-depth knowledge of the area that can only come through specialism. Our clients include all types of creditors (including clearing banks, credit card issuers, retailers and non-status lenders), borrowers and regulatory and enforcement authorities.

Members of Gough Square have been involved in most of the leading cases in the area, from the county court to the Supreme Court. We are also experienced in:

  • 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.

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

  • 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.
  • 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 agreement; right to recover payments under s106;
  • 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;
  • Black Horse Ltd v Dickinson [2011] G.C.C.R. 11379: setting off existing judgment against costs under CFA;
  • 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

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;

Members have advised on licensing/authorisation issues and compliance with the OFT’s Debt Collection Guidance (relevant provisions now incorporated into CONC).

  • 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

Works written by members of chambers include:

  • 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.

Members of Chambers attend monthly meetings of the Regulated Lending and Banking Forum and Finance Litigation Forum, both informal groups, for discussion of key topics in this complex area.