Court of Appeal decision on consent orders and regulated activites

On the 28 March 2018, the Court of Appeal handed down judgment in the case of Fortwell Finance v Halstead, in which Simon Popplewell of Gough Square Chambers successfully appeared for the Respondent.

The case concerned a finance company that had provided a bridging loan to a borrower secured over a renovation property.  The borrower had failed to repay the loan and the finance company then issued possession proceedings.  The borrower, a qualified solicitor, had compromised that claim by way of a consent order on terms providing for a delayed possession order, but then subsequently sought to set aside the consent order when he failed to refinance the loan.  In dismissing the appeal against the decision not to set aside the consent order the Court of Appeal rejected the borrower’s arguments that the act of entering into the consent order was itself 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,  which would have been in breach of the general prohibition in section 19 of FSMA 2000.

The full judgment can be read here: Fortwell Finance v Halstead