Latest cases represented by Lawyer BLACKMORE , JONATHAN LEE . 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. The cookies is used to store the user consent for the cookies in the category "Necessary". To do so risks summarily judging the value of the claim. BFL issued an offer letter to the borrowers the same day i.e. This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The sheriff principal, having resumed consideration of the pursuer's appeal and the defenders' cross-appeal, refuses the latter and in respect of the former allows same in part; varies the. At the beginning of December Ms Sinclair arranged for the transfer of the net balance to the account of Elmwood Contracts as instructed by Mr and Mrs Morgan. But the risks against which Excel is seeking to be protected in these proceedings are the commercial risks involved in lending to a person who may not be all that he claims to be. Christmas party season prompts drink-drive warning following 239% increase in arrests. In particular the standard and specific instructions were the same. Privacy Policy | Both of these letters were headed "34 Danube Street". The sheriff records therein that, to some extent, he was influenced by the evidence given by John Dougan, chartered surveyor. District Judge Pithouse at Dartford County Court found that the secret commission paid by Blemain Finance to the broker made it not possible for the broker to act in the best interest of the customer and that Blemain were liable because there was nothing in their finance agreement to inform the customer of this. The amount of loan being sought by them was 350,000. Necessary cookies are absolutely essential for the website to function properly. In considering whether or to what extent interest should be awarded on the damages figure, I am, at best, doubtful that the court is entitled to consider arrangements which may or may not have been made in regard to the charging of interest on a discrete sum of money which is distinct from the award made by the court. Having done so, it decided to proceed with the proposal and enter into a transaction with the impostor, albeit on the mistaken footing that his name was James Charles Whittaker Golding, the owner of the property in question. (See paragraph [8] in his Note). Click here for a full list of Google Analytics cookies used on this site. [17] In any event, in determining these appeals, I require to recognise that in presiding over the proof the sheriff had the advantage of having seen and heard the witnesses involved. This cookie is set by GDPR Cookie Consent plugin. There was also reference to the price recommended by Aberdein Considine at the beginning of the sale process. As in the CMC transaction the "borrowers" subsequently disappeared, the standard security has proved to be a nullity and no recovery has been made of the sums advanced by BFL. Offering Legal Advice and Help across the North East and the UK. The proceedings related to an unregulated, interest-only, secured loan for 30,000 that Mrs Charles entered into in August 2006. District Court Opinions; Unsealed Orders, Opinions, Documents and Docket Reports; Standing Orders; Guantanamo Cases; Links to Other Courts; ECF & Court Records. His, is there any update on this. [8] Messrs Mellicks Solicitors were instructed to act on behalf of CMC in the loan transaction. Blemain Finance, now Together Finance, found guilty of secret commission within their loan to customer that they paid to the broker. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. The fact of entering into the transaction with the professed agent, as such, is good consideration for the promise.". We also use third-party cookies that help us analyze and understand how you use this website. 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. 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. Mr Morgan also produced the paper part of the driving licences of himself and his wife and two utility bills, one each in the name of himself and Mrs Morgan, which Ms Sinclair considered satisfactory identification. 12. This is a relevant consideration in applying CPR 26.8(1)(b) [20-21]. But opting out of some of these cookies may affect your browsing experience. Please revert this information back to us.". There was no attempt on record to challenge the pursuers averments thereanent. Information Commissioner Office number: ZA176000. She had never met or acted for Mr and Mrs Morgan previously. They lend both to individuals. We look forward to hearing from you. However, the terms of that judgment are recorded in his Note dated 1 July 2014. In both cases the couple, who turned out to be fraudsters, executed pretended standard securities over the heritable properties which they claimed they owned. What followed thereafter was what would routinely be expected to follow in a secured loan agreement of the sort in question. It was held that it was not necessary for the plaintiff in that case a building society who had lent on reliance of the security given, and to whom the representation of authority had not been directly made by the solicitor, to establish that he had been induced to enter into some form of dealing with the supposed principal in that case the wife. However, in concluding that the figure of 175,000 was too high, the sheriff articulated his reasons for the selection of a lesser figure. Both companies are in the business of secured lending. [27] In SEB Trygg Liv Holding AB v Manches (2006) 1 WLR 2276 the limited nature of the implied warranty of authority was emphasised by the Court of Appeal in a case involving solicitors who commenced arbitration proceedings in the name of a company which was no longer in existence. 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. It does not store any personal data. [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. Please liaise with client's solicitor to ensure that the client is fully aware of the legal implications of signing the loan agreement forms. The Defendant says that rescission as a remedy is fanciful in this case, that the Court will have to look at all the circumstances, that the borrowing was actually used for consolidation of other loans and that in reality what the Court will be doing is looking at an appropriate remedy probably of damages based on commission and charges most likely in the region of around 2,500. The obligation arising in such a case is well expressed by saying that a person, professing to contract as agent for another, impliedly, if not expressly, undertakes to or promises the person who enters into such contract, upon the faith of the professed agent being duly authorised, that the authority which he professes to have does in point of fact exist. The Lord Ordinary reached the conclusion that all of that material had come to CMC from the broker or from the fraudsters themselves. This appears to have been a major consideration in the emergence and development of the doctrine. All that the agent is warranting is that he has a client and that client has given him authority to act. It is noteworthy, indeed, that no such claim is made in the Blemain case where a similar letter of obligation was granted. (It should be noted that while the substantive law in both England and Scotland is the same in its effect the English tend to classify the liability as resulting from a collateral contract and the English system has also been concerned with judging as to whether there was consideration in respect of it, a factor that does not trouble the law of Scotland. On or about 29 September BFL instructed Messrs Mellicks to act in relation to the proposed loan and security documentation. [33] It follows that in relation to the BFL case the reclaiming motion is refused. Some cookies are essential, whilst others help us improve your experience by providing insights into how the site is being used. Nothing is disclosed that would adversely affect your security". The Shermans got into difficulties in repaying both the principal mortgage on the property (which was the subject of a first charge), and the second mortgage from Blemain. 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. He had the opportunity to consider the evidence in its totality. Having regard to the circumstances of the present case it is, in our opinion, of some significant interest to have regard to what is said shortly after in the passage just cited: "But where a plumber had done work on the instructions of an agent who, as it turned out, had no authority, but the principal named was a company which was insolvent and had no assets, it was held that as the obligation of the company was valueless, the plumber had lost nothing by the want of it, and therefore could recover no damages from the agent for breach of his implied warranty. This came about by Mr Morgan telephoning Balfour and Manson's offices and asking to speak to a solicitor in connection with the granting of a standard security over a property. [23] The Lord Ordinary proceeded to absolve both sets of respondents from the conclusions of the summons in each case. As already noted the reclaimers also disclaimed, as they had before the Lord Ordinary, any claim which is to any extent dependent on some failure of duty of care said to be owed to them by the respondents. He wrote also to the fraudsters at 34 Danube Street including a copy of Mellicks' letter and requested them to contact him in order that he could take their further instructions. (It should be stressed that the fact that the assessment of damages was at large for the sheriff was not the subject of any challenge by the pursuer having regard to the state of the defenders pleadings). The judgment raises issues that could affect thousands of people, and is likely to be studied closely by other borrowers, including customers of other subprime lenders. I would be interested to know. . The reclaimers in each action now reclaim against those decisions of the Lord Ordinary. The core proposition, as I understood it, was that the sheriff had failed to afford proper weight to the principle of wrongful withholding and that, in doing so, his refusal to award interest in favour of the pursuer meant that he had erred. The offer letter was signed for acceptance on 2 November by "Mr and Mrs Cheetham". [6] In the CMC case the fraudsters presented themselves as Christopher Paul Cheetham and Mrs Juliet Cheetham of 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. They argued that the misstatement was only slight and therefore insignificant. Third-Party cookies are set by our partners and help us to improve your experience of the website. The judgment stated that Charles said she wanted to pay off the loan early but all her attempts to negotiate failed. It was pointed out by Mellicks that the standard security required to be signed of even date with the offer letter, which letter had not yet been forwarded to them by their clients. Key Facts, Consumer Reclaim Ltd is regulated by the Financial Conduct Authority in respect of regulated claims management activities, reference number: 835212. The purpose of the loan was said "to assist the purchase of overseas property". Gordon Exall, Civil Litigation Brief, 2013-2023. The starting point is the pleaded value of the claim pursuant to CPR 26.8(1)(a). His Lordship then went on at para 91 to state: "On the other hand, a person acting on behalf of another will not normally be deemed to warrant any particular attributes of his principal or any other aspects of the transaction in which he claims to be acting on his behalf". He handed over to Mr Longmuir's secretary a driving licence and electricity bill to be photocopied for identification purposes. Beyond that, no further case had been made out. 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. This website uses cookies to improve your experience while you navigate through the website. Click here for a full list of third-party plugins used on this site. Both companies are in the business of secured lending. Firstly, under reference to paragraph [9] in the sheriffs Note, having explicitly precluded consideration of the shortfall for the purposes of determining the principal sum due to the pursuer, the sheriff then decided that the existence of the shortfall, [9] Secondly, Mr Allison stressed that the defenders pleadings were silent both as to, [10] Ground of appeal 3 was a development of the main theme inherent in ground of appeal 2, viz. In relation to the latter authority, passages at paragraphs [17] and [18] within the opinion of the Extra Division of the Inner House were referred to. His decision is the subject of an appeal by the pursuer and a cross-appeal on behalf of the defenders. It was a secret arrangement between Blemaim and the broker, which was nothing less than a bribe. If your clients wish to proceed please could you let us have the title deeds as a matter of urgency. (Collen v Wright (1857) 8 EL and BL 647)". The reclaimers have been unable to recover the sums advanced. The case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. SHERIFFDOM OF GLASGOW AND STRATHKELVIN AT GLASGOW. 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. BlemainFinance was also ordered to pay most of Mrs Thomas legal costs. Even if the facts and law on liability are relatively straight forward, the application of a remedy may not be. We have had sight of the necessary Searches in respect of the properties. The agency also defends suits contesting its dismissals of administrative complaints, petitions for review of Commission decisions regarding the presidential public funding program and civil suits challenging the constitutionality of provisions of the Federal Election Campaign Act . He did so at paras 73 and 74 of his opinion by saying that the letter of obligation was collateral to the principal transaction and "could not be enforced if that principal transaction was void (as it was here)" and that, in any event, the pursuers could show no damage flowing from any failure by Longmuir & Company to produce a title encumbered with the standard security "since the standard security referred to in the Letter of Obligation was itself void". 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. The agency also defends suits contesting its dismissals of administrative complaints, petitions for review of Commission decisions regarding the presidential public funding program and civil suits challenging the constitutionality of provisions of the Federal Election Campaign Act (FECA) and the validity of the Commission's regulations. The application, which was on a Blemain Finance Application Form, was submitted by Mr Hodges-White, a commercial finance broker then trading as Cestrain Business Finance. He never in fact met Mrs Cheetham. 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