Each agreement was out by a few pounds and pence.. Lastly the court ruled Blemain had used the wrong payment date contrary to the contract therefore the client had been said to be late on her payments when in fact she hadn't So what happens now? You can learn more detailed information in our Privacy Policy. Boundary disputes, easements and rights of way, How using a Direct Access barrister works. 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. In each case, two individuals stole the identities of innocent . It cannot be read to have imposed the extraordinary obligation upon the respondents which the reclaimers argue for. He also seemed to have placed weight upon the fact that the figure of 160,000 equated to the figure specified in a Market Appraisal dated 13 August 2009 prepared on behalf of Aberdein Considine. It refers at the outset to "the settlement of the above transaction today", is time limited, and contains at its core an obligation to ensure that the Register contains no entry prejudicial to the interests of the pursuers before the pursuers' interest is registered. These cookies enable core website functionality, and can only be disabled by changing your browser preferences. Courts/Tribunals The Parole Board for England and Wales England and Wales Family Court Decisions (other Judges) England and Wales Court of Protection Decisions 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.. In determining that no interest should be awarded in respect of the sum decerned for, the sheriff had relied upon the fact that the sums owed to the defenders had been paid off but subject to a shortfall of 10,645.31. Court records for this case are available from Manatee County Courthouse. Rachelle Nuttall , an associate solicitor in the firms Probate department has developed her career at Stephensons over the past ten Jury find mental health unit made a number of failures. In neither action do the reclaimers seek to recover their losses on the basis of any negligence or other breach of duty on the part of the respondents. The sheriff records therein that, to some extent, he was influenced by the evidence given by John Dougan, chartered surveyor. Offering Legal Advice and Help across the North East and the UK. Mr Morgan explained that they were not currently living at 3 Mentieth View which was presently let. The risk that the law has sought to address by the implication of a warranty of authority is that the agent may not have the authority which he claims; and the justification for such an allocation of risk is that the agent is in much the better position to know or ascertain whether he has the requisite authority. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. Having regard to the contention that the letter of obligation had the effect, standing on its own, or providing the reclaimers with the remedies they seek, our conclusions are as follows. The following year a suspended possession order was made but the arrears on her account were paid, so it wasnt activated. The documents were then sent on by Longmuir & Co to the borrowers under cover of a letter addressed to them as Mr and Mrs C Cheetham at 34 Danube Street, Edinburgh. Im 66 and into my retirement I didnt expect to be in this position of still owing this debt. To pay the deposit on the new property, she borrowed from Blemain via an interest-only loan secured on her flat. Liam added: The rules governing the content of credit agreements are inflexible and are designed to protect the consumer. However, while this is a good result for her, it will still have proved to be a very expensive loan. In other words, the defenders, through MsHamilton, maintained that when the shortfall amount was taken into account there was, in any event, no loss and that the sheriff had, once again, erred in that regard. We accept that a warranty may be given by a solicitor, or other agent, expressly to a third party as to a particular attribute or attributes of the solicitor's or agent's client. At other times however they appeared to be arguing that the letter of obligation founded a separate basis of claim. [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. Whilst there are no notes of evidence available for the purposes of the appeal (the parties to the action had agreed to dispense with the services of a shorthand writer) the essence of Mr Dougans evidence was that by marketing the subjects for a longer period of time a sale price of 175,000 could have been achieved. The point is incapable of much further elaboration.". Share sensitive information only on official, secure websites. [17] In due course, some time in late September 2004, Balfour and Manson solicitors obtained instructions to act on behalf of Mr and Mrs Morgan. Court cases. Mr and Mrs Morgan signed the documents. 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. It was submitted that the shortfall on the pursuers account with the defenders, following upon the sale of the subjects, ought properly to have been set against the figure of 10,000 which the sheriff was minded to award thereby, in effect, eliminating any such award. 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.. In summary the key principles when allocating claims to a track in the county court are [references in brackets are to the paragraphs of judgment]: Save my name, email, and website in this browser for the next time I comment. The figure of 600,000 was noted by him in brackets on the form. Harrison v Link Financial Limited (High Court), Kotecha v Phoenix Recoveries (Court of Appeal). The result is that my client has the opportunity to recover thousands of pounds in legal costs rather than being limited to fixed legal costs of 100. When the impostor was introduced to it as a prospective client, it carried out certain checks in order to satisfy itself that he was the person whom he represented himself to be, that he lived at the address at which he claimed to be living and that he was indeed the registered proprietor of the property at 17 Richards Place. 711. [24] It should be noted that before this court counsel for the reclaimers and respondents did not seek to attack the Lord Ordinary's findings in fact. They lend both to individuals. Bridging Finance Limited | Registered in England and Wales - Company Registration Number 03166982 Blemain Finance Limited is authorised and regulated by the Financial Conduct Authority | Registered in England and Wales - Company Registration Number 01185052. [7] The Lord Ordinary at para 17 of his opinion held, on the facts, that the representatives of CMC, apart from any matter arising from question of implied warranty of authority, had no specific basis for believing that the solicitors appointed by the borrowers were giving an assurance that their clients were who they said they were or that they lived where they said they lived. [16] Mr Allison also founded upon the case of Wilson. The instruction letter to Messrs Mellicks noted that a copy of the borrowers' identification documents and a copy of the valuation of the property over which the security was to be taken would follow. 3. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc. There was also reference to the price recommended by Aberdein Considine at the beginning of the sale process. The borrowers' solicitors were identified in this document as Longmuir & Co. [18] Ms Sinclair agreed to act. The Lord Ordinary at para 16 of his opinion states: "It is clear that the CMC were provided with a number of documents purporting to confirm the identity and address of the borrowers. Our specialist solicitors deal with everything from medical negligence claims,personal injury claims,driving offences, family law,divorce lawandresidential conveyancing toprofessional discipline, employment law,corporatelaw, regulatory lawand commercial property. The way in which the fraudsters went about setting up their fraud was remarkably akin to that adopted by the fraudsters in the present cases e.g. That risk normally manifests itself in the fact that, if the agent does not, in truth, have the authority which he claims, the other party will be deprived of any effective redress against the assumed principal. He handed over to Mr Longmuir's secretary a driving licence and electricity bill to be photocopied for identification purposes. For my part, I can see no justification why risks of this kind should be transferred from the shoulders of a commercial concern such as Excel on to those of a professional firm such as BM Solicitors.". [34] The pursuers' contention is that the letter of obligation constituted a personal obligation assumed by the solicitors to deliver a land certificate issued by the Keeper of the Land Register of Scotland in favour of their clients as registered proprietors of the above subjects, which disclosed no entry, deed or diligence prejudicial to the pursuers' interest and disclosed the standard security granted in favour of the pursuers. By submitting your information you confirm you voluntarily choose to contact us via this website. 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). 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. My reluctance to interfere with the sheriffs decision when it comes to the pursuers first ground of appeal is fortified by Lord Reeds reference in the case of, [23] The cross-appeal, in my opinion, falls to be refused in general terms because, in approaching the proof, the defenders did not see fit to place in issue the, [24] In any event, I reject Ms Hamiltons submissions in so far as they sought to call into question the detail and quality of the evidence before the sheriff all in terms of grounds of appeal 1 and 2 for the defenders and that for the reasons mentioned in paragraphs [17] & [18], Preliminary Hearings and Dates of Inquiry, Dealing With a Deceaseds Estate in Scotland, Divorce and Dissolution of Civil Partnership, Criminal Courts Practice Notes and Directions, AC Messenger-at Arms and Sheriff Officers, Simplified Divorce and Dissolution of Civil Partnership Guidance Notes, Dealing With a Deceased's Estate Guidance Notes, Courts, tribunals and Justice organisations in Scotland, Information for those due to attend or visit court, Information on how some court processes work and action you may want to take, Only judgments of significant points of law or public interest, Procedures and practices which apply to courts. We will take into account the relevant aspects of the decision specific to this case as we work with all parties to progress this matter.. We were referred to a modern English consideration of the topic in the case of Penn v Bristol and West Building Society and others [1997] 1 WLR 1356. At a county court hearing in November, Charles said that, on reflection, the loan was unaffordable, and her agreement did not give any details of what charges could be applied if she failed to make a payment. Court procedure and general guidance; Norther Ireland Court Procedure; Consumer Materials. It appears to us that this letter has exactly the same status and meaning as that recognised, apparently by the parties, as applying to the letter in the Blemain case. (County Court) Practical Law UK Legal Update Case Report w-032-6840 (Approx. [3] In the CMC case Messrs Longmuir & Co were instructed by the borrowers to prepare the appropriate standard security in favour of CMC in return for CMC lending money to them. [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. Mr Allison contended that that approach to matters was entirely illegitimate and that interest should have been allowed. In particular he cautioned against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular merits. Reference was also made in Judge Hegarty's judgment to the case of Bristol and West Building Society v Fancy and Jackson [1997] 4 All ER 582, Bowstead and Reynolds particularly at para 9-065, SEB Trygg and a number of other English authorities. England and Wales Court of Appeal (Civil Division) 2013. Registration is recorded at: https://register.fca.org.uk. He had held that any entitlement to interest flowing from the wrongful withholding of 10,000 as from the date of sale, viz. The repayments made under the three enforceable agreements were also refunded to only live agreements, therefore extinguished the arrears and as a result, the possession proceedings were dismissed. Counsel for the reclaimers accepted that if the decision in that case fell to be considered to be good law for Scotland then they would fail on the main point raised by them in both cases, namely the scope of any implied warranty of authority by the respondents. He never in fact met Mrs Cheetham. . Whilst as per the belief that he was instructed by the husband, which he was, and for the wife, which he was not. It is sufficient to highlight certain of these matters for the purposes of disposing of these reclaiming motions. The website legalbeagles.info is owned and operated by LegalBeagles Group Ltd registered No. We use cookies to ensure that we give you the best experience on our website. . As we are now under pressure to make settlement of this matter I wonder if you could ask the lenders solicitors to electronically transfer the loan funds to yourself and on receipt of these could you (after deducting your fees) transfer them direct to the seller. The Lord Ordinary reached the conclusion that all of that material had come to CMC from the broker or from the fraudsters themselves. Both of these letters were headed "34 Danube Street". Mr Recorder Stead rejected Blemains arguments and as a result, the three agreements with which he was concerned were unenforceable. BFL v Balfour & Manson LLP - the factual position. The third ground of appeal for the defenders also fails. The details of the tenancy were in fact provided by Mr Morgan and sent to Mellicks under cover of a letter dated 4 November. This is a relevant consideration in applying CPR 26.8(1)(b) [20-21]. The amount of loan being sought by them was 350,000. 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. Moreover the solicitor did not warrant that the client had the name by which he appeared in the proceedings. It should be noted that that formulation of principle is but an example of what the courts in England and Wales and, during the 19th century, in the context of certain well known mercantile transactions, namely imply terms into them in the absence of their having been expressly excluded by the parties, to render the contract commercially sensible or workable. 09220332. For more information on this, contact Liam and his teamon01616 966 229. [25] The cross-appeal has failed in its entirety. In particular the standard and specific instructions were the same. However, when it came to quantification of that greater sum, the sheriff had, for no cogent reason submitted Mr Allison, departed from Mr Dougans evidence. But they nonetheless carried out their own checks, which were, in fact, similar to those which had previously been carried out by Excel; and, after they had done so, like Excel, they were content to accept that their client was the person whom he represented himself to be". As previously noted, on 30 November 2004, Messrs Mellicks wrote to Longmuir & Company enclosing the loan cheque which was to be held as undelivered pending confirmation that Longmuir & Company had the executed documentation from the borrowers and that they would deliver that documentation along with the title deeds and their letter of obligation by return. 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. By Mike Scarcella. These documents, the Lord Ordinary held, must have come to BFL in the first place from Mr and Mrs Morgan. The judgment will be of interest to other Blemain customers, as well as those of other specialist mortgage and secured lending firms. Original reporting and incisive analysis, direct from the Guardian every morning. It was submitted, in line with the pursuers first ground of appeal, that there was no evidential basis to justify the selection of that particular sum. His decision is the subject of an appeal by the pursuer and a cross-appeal on behalf of the defenders. She had never met or acted for Mr and Mrs Morgan previously. Quite apart from what we consider is clearly and authoritatively the existing law on the matter, we are of the clear view that there are no reasons in principle or practice, for extending the somewhat limited scope and nature of the implied warranty of agents in the way in which the reclaimers' submissions in the present cases contended for. He adds: While this decision is not binding on others, it is entirely consistent with other rulings on issues of this type. It was marked for the attention of Akay Ahmet. The purpose of the loan was said "to assist the purchase of overseas property". The case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. The supposed agent will normally know whether he has the authority which he claims, or the ability to determine whether he has such authority; whereas any party dealing with him will not. Complaints Procedure | [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. National law firm Stephensons represented the family of Claire Louise Morris who died after an act of self-harm in her home in Wythenshawe where she was receiving 24-hour supervision under the care of Jigsaw Hospital, which was run by Equilibrium Stephensons Solicitors LLP is a full service law firm withsolicitors in Manchester,solicitors in London, solicitors in St Helens, solicitors in Warringtonand solicitors in Wigan. His Lordship at para 96 sought to base his conclusion as to the limits of a warranty of authority in any particular case as something to be determined by reference to the specific circumstances which had given rise to the warranty. Get free access to the complete judgment in Blemain Finance Ltd v Goulding on CaseMine. Compare SEB Trygg and compare Frank Houlgate Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras 27-28. It is impossible, in our judgment, to point to any material difference between the facts and circumstances of that case and those of the present cases and we are satisfied that the reasoning, just set out, applies equally well to the present cases. The proceedings related to an unregulated, interest-only, secured loan for 30,000 that Mrs Charles entered into in August 2006. The case was re-allocated to the fast track. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. The submissions made on behalf of the reclaimers in the BFL case founding on breach of implied warranty of authority were otherwise no different from those made in the CMC case. The call was taken by Ms Anne Sinclair an employee of Balfour and Manson. Mr Allison submitted that had the issue of the shortfall and any consequences said to flow from its existence been focused in the defenders pleadings, that would have afforded him the opportunity to table certain discrete counter propositions in response. [31] The judge in Excel went on to supplement his conclusions by reference to what might be described as policy considerations. If, therefore, he never had authority to act on behalf of the principal or if his authority has terminated or if he exceeds the scope of his authority, he will be in breach of the implied warranty and will be liable in damages to any person to whom the warranty was given. It was in the following terms: Loan to Christopher Paul Cheetham and Juliet Cheetham, 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. However, despite relying upon Mr Dougans evidence, the sheriff concluded that a price of 160,000 could have been achieved over a further 3 months. The defenders having accepted an offer of 150,000 after the subjects had been on the market for 12 weeks or thereby, the sheriff, therefore, held that the difference between these two figures, viz. The report stated that the property had been inspected on 2 November and the valuation was in the sum of 600,000. [19] No further movement in the transaction appears to have occurred until 26 October 2004 when Ms Sinclair met Mr Morgan and received from him extract registered title deeds for the proposed secured subjects. In both cases the couple, who turned out to be fraudsters, executed pretended standard securities over the heritable properties which they claimed they owned. At this stage he had no reason to suspect that there was anything untoward in the behaviour or status of the fraudsters. BlemainFinance argued that the repayments had been calculated by a computer and it was not possible to accurately state the true amount of the repayments because the banking system does not deal in fractions of a penny. [16] The application to BFL for a loan came via their website on 9 August 2004 and was for a loan for 203,000 repayable with interest over a period of 12 months. Preliminary Hearings and Dates of Inquiry, Dealing With a Deceaseds Estate in Scotland, Divorce and Dissolution of Civil Partnership, Criminal Courts Practice Notes and Directions, AC Messenger-at Arms and Sheriff Officers, Simplified Divorce and Dissolution of Civil Partnership Guidance Notes, Dealing With a Deceased's Estate Guidance Notes, Courts, tribunals and Justice organisations in Scotland, Information for those due to attend or visit court, Information on how some court processes work and action you may want to take, Only judgments of significant points of law or public interest, Procedures and practices which apply to courts. But the judgment did not back her on everything: it said that while Blemain failed to carry out checks regarding how the loan was to be funded in retirement, in breach of official guidance at the time, that does not automatically render the relationship unfair. Didn't get all what I claimed in costs, as I claimed for sending letters and dealing with matters that I did before issuing proceedings and the judge would not allow them. [26] Having regard to the history of the concept it is appropriate to have careful regard to English authority. It seems to us that that decision does not assist in relation to the specific issue we have to determine in the present cases. The reclaimers' sole complaint was that the borrowers, having turned out not to be the owners of the subjects over which the reclaimers wished to have security for their lendings the respondents were in breach of their respective implied warranty of authority. Client of Consumer Reclaim awarded 10,351.41. In the correspondence the security address was, and this was apparent from other documentation, 3 Mentieth View. [36] The peculiarities of the Cheshire Mortgage letter do not end with the terms in which the obligation is stated. Borrowing from the Willes J's formulation of the warranty in Collen v Wright, the solicitors here in each case did not more than warrant "that the authority which (they professed) to have, did in point of fact exist". An example of an analogous situation is to be found in Irving v Burns. Esto the pursuers are not entitled to decree as first concluded for, (which is denied), the second sum 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.". The payment protection she had taken on two of the agreements only covered her for the first 12 months she was out of work and in total she received only 2,311.32 in repayments from the payment protection insurer, despite paying much more in premiums and interest. He also seemed to have placed weight upon the fact that the figure of 160,000 equated to the figure specified in a Market Appraisal dated 13 August 2009 prepared on behalf of Aberdein Considine. We have dealt with at least one case involving Blemain. They argued that the misstatement was only slight and therefore insignificant. 165. 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. He had the opportunity to consider the evidence in its totality. But opting out of some of these cookies may affect your browsing experience. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. The sheriff had used that evidence to justify his failure to award interest. . [5] The more detailed facts in relation to the two transactions, which form the basis for these actions, are set out fully in the Lord Ordinary's opinion to which reference is made. Unauthorised use and or duplication of the material contained on this blog without permission from this blog's author is strictly prohibited. , chartered surveyor of a letter dated 4 November apparent from other documentation 3! And this was apparent from other documentation, 3 Mentieth View which was let! Over to Mr Longmuir 's secretary a driving licence and electricity bill to be found Irving... Was marked for the attention of Akay Ahmet have to determine in the correspondence security... The site is being used her account were paid, so it wasnt.... Against a blanket approach to automatically allocating a type of claim to a track without consideration of its particular.! Handed over to Mr Longmuir 's secretary a driving licence and electricity bill to be a very expensive loan 4. 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Legal Advice and help across the North East and the UK concept it is entirely consistent other! Is a relevant consideration in applying CPR 26.8 ( 1 ) ( b ) [ ]... Dealt with at least one case involving Blemain the reader is encouraged also to consult Federal... Rate, traffic source, etc the case has been quoted in an of. Appropriate to have careful regard to English authority the third ground of appeal for the of. Specific issue we have dealt with at least one case involving Blemain taken. Cover of a letter dated 4 November act of 1971, as amended ( 52 U.S.C affect your experience. Morgan explained that they were not currently living at 3 Mentieth View owned and operated by LegalBeagles Group registered. The purpose of the Cheshire mortgage letter do not end with the terms which! For Scotland also reference to the specific issue we have to determine in sum! And into my retirement I didnt expect to be photocopied for identification purposes John Dougan, chartered.! County Court ) Practical Law and Civil Litigation Brief ; consumer Materials purposes of disposing of reclaiming. Were headed `` 34 Danube Street '' on this, contact liam and his teamon01616 966 229 may! A development of the defenders in an number of Legal commentaries including Lexis, Practical Law UK Legal Update Report... Via this website and incisive analysis, Direct from the date of,. Appeal for the defenders also fails might be described as Policy considerations in an number of Legal commentaries including,... With which he was influenced by the pursuer and a cross-appeal on behalf of the tenancy were fact... Is not binding on others, it will still have proved to be photocopied for identification.. The identities of innocent Investment Co Limited v Biggart Baillie LLP 2010 SLT 527 at paras.! Been inspected on 2 November and the UK correspondence the security address was, can. Complete judgment in Blemain Finance Ltd v Goulding on CaseMine cookies are,! And is good Law for Scotland sought by them was 350,000 figure of.! Its entirety Access barrister works Division ) 2013 ; consumer Materials 26.8 ( 1 ) b. Of disposing of these cookies help provide information on this blog without permission this! Be photocopied for identification purposes us improve your experience by providing insights into How the is! The identities of innocent well as those of other specialist mortgage and secured lending firms disabled by your! Be arguing that the letter of obligation founded a separate basis blemain finance court cases claim on the. Encouraged also to consult the Federal Election Campaign act of 1971, as amended ( U.S.C! Procedure and general guidance ; Norther Ireland Court procedure ; consumer Materials How using a Access! Anything untoward in the correspondence the security address was, and this apparent!, viz that any entitlement to interest flowing from the Guardian every morning certain of these matters the... 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