blemain finance court cases

He also advised the secretary that payment of the funds was to be made electronically to "Elmwood Contracts". To do so risks summarily judging the value of the claim. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. The Court also ruled that the charges were unfair as was the term allowing Blemain to charge them. There was also a letter of obligation in the Blemain case. In July 2008,BlemainFinance issued possession proceedings to take Mrs Thomas home in relation to four of the agreements. This was a 25-year loan Charles was 52 when she took it out and the rate has moved up and down. The proposed security subjects were free of any other mortgage or standard security. We look forward to hearing from you. [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. The sheriff had cited the effect of the recession and the adverse feedback about the condition of the property as justification for the figure of 160,000. The pursuer having suffered loss as a result of Longmuir & Co's breach of representation as to their authority et separatim as a result of the breach of the Letter of Obligation by Longmuir & Co, is entitled to reparation therefor. (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. 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". You can learn more detailed information in our Privacy Policy. Whilst as per the belief that he was instructed by the husband, which he was, and for the wife, which he was not. The judge said he did not accept that Blemain knew about the real purpose of the loan. Mr Longmuir admitted at the proof that there was an error in that letter. [31] The judge in Excel went on to supplement his conclusions by reference to what might be described as policy considerations. 10,000, should be awarded in favour of the pursuer by way of damages. They were living at 30 Guthrie Court, Auchterarder to which all correspondence should be sent. The starting point is the pleaded value of the claim pursuant to CPR 26.8(1)(a). JUDGE WAS WRONG TO ALLOCATE ACTION TO SMALL CLAIMS TRACK: CLAIMANT SUCCEEDS IN APPEAL AND CASE ALLOCATED TO THE FAST TRACK, Click to share on Facebook (Opens in new window), Click to share on Twitter (Opens in new window), Click to share on LinkedIn (Opens in new window), JUDGE WAS CORRECT TO ORDER DEFENDANT TO FACE NORMAL CONSEQUENCES WHEN CLAIMANT BEAT THEIR OWN PART 36 OFFER: HIGH COURT DECISION, RUDE CORRESPONDENCE: A RECAP: JUST REMEMBER WHAT YOU WRITE COULD END UP ON A BLOG SOME DAY (FOR THE WHOLE WORLD TO SEE), PROVING THINGS 246: WHEN THE WITNESS EVIDENCE MATCHES NEITHER THE PLEADINGS NOR THE CONTEMPORARY RECORDS, COURT OF APPEAL DECISION: DEFENDANT SHOULD NOT HAVE BEEN GRANTED PERMISSION TO SET ASIDE NOTICE OF DISCONTINUANCE: DEFENDANT WOULD NOT HAVE BEEN ABLE TO STRIKE OUT THE CLAIM, COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF METAPHORICAL WARFARE, COST BITES 47: PROVING (OR DISPROVING) THAT THERE WAS A VALID RETAINER: APPORTIONING RECOVERABLE COSTS BETWEEN TWO DEFENDANTS, A CAUTIONARY TALE FOR LITIGANTS: CLAIMANT ORDERED TO PAY 17,500 IN COSTS IN A SMALL CLAIMS TRACK CASE, COST BITES 48: WHERE THE ONLY RELEVANCE OF THE BUDGET IS TO SET AN UPPER LIMIT ON RECOVERABLE COSTS: THE ESCALATING COSTS OF "METAPHORICAL WARFARE", Coronavirus: Guidance for lawyers and businesses, Munkman & Exall on Damages for Personal Injuries and Death 14th ed, The APIL Guide to Fatal Accidents 4th edition, Kings Chambers Costs & Litigation Funding, Website of 4-5 Gray's Inn Square, Catastrophic Injury Group. In particular the standard and specific instructions were the same. 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 case pitted Charles, a. . . [36] The peculiarities of the Cheshire Mortgage letter do not end with the terms in which the obligation is stated. Click here for a full list of third-party plugins used on this site. His, is there any update on this. Its the responsibility of the creditor to ensure they comply. All times are GMT. 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? (See paragraph58 in the Letham Grange case). On 26 November Messrs Mellicks confirmed receipt of the documents including the standard security and confirmed that the funds had been transferred to Balfour and Manson. 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. Details of the short assured tenancy she said would be forwarded to them as soon as possible. [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. Since no such land certificate had been delivered, the defender was in breach of that obligation and bound to compensate the pursuers for their resultant loss. After analysing these authorities and considering the submissions made to him the judge, at para 90 of his judgment, stated: "The fundamental reason why a person, purporting to act as agent for another would normally be deemed to have warranted his authority so to act is to ensure that any person dealing with the supposed agent is protected against the risk that he does not have the authority which he claims. Please check and confirm when the customers purchased the property and for how much. A lock ( LockA locked padlock ) or https:// means you've safely connected to the .gov website. He had the opportunity to consider the evidence in its totality. 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. The defenders agent had seen fit not to introduce a counterclaim in relation to the shortfall amount nor were there any pleas in law directed towards the way in which the court should approach the assessment of damages or interest. 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 should be taken into account when consideration was being given to what, if any, award of interest should be made. 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. In connection with the pursuers first ground of appeal, Mr Allison made reference to the cases of Gage v HMA 2011 SCL 645 and Wilson v Dunbar Bank plc 2008 SLT 301. StephensonsSolicitors LLP won the County Court case for Mrs Thomas fromPenzance, who had taken out five secured loans over her property between September 2004 and January 2008 with creditor,BlemainFinance. There was no attempt on record to challenge the pursuers averments thereanent. In the absence of such circumstances the extent of the warranty which arises by implication of law is as described in Bowstead and Reynolds. They also returned the draft letter of obligation drafted by Longmuir & Company. [16] Mr Allison also founded upon the case of Wilson. The court held that the warranty given by a solicitor, when conducting proceedings, was that he had a client who had instructed him to assert or deny the claims made against the opposing party. Recent decisions lists contain the 20 most recently rendered court judgments for each BAILII court/tribunal database, in reverse chronological order. Mrs Thomas said: "The stress of this caused me to dread the postman calling." She went to her local Citizen's Advice Bureau who referred her to Stephensons in September 2008. In successfully defending the possession proceedings, the legal charges relating to the unenforceable agreements were ordered to be removed from Mrs Thomas property. 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. This is a specific type, in fact probably the original type, of collateral contract: the agent offers to warrant his authority in return for the third party's dealing with his principal.". 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. Together with the instructions were included a valuation of the secured subjects by DM Hall and copies of driving licences for both Mr and Mrs Morgan for identification purposes. FEC cases are listed alphabetically with links to summaries and (for some cases) court opinions and other documents. However, it is now well established that, in such circumstances, the agent will normally be regarded as giving an implied warranty as to his authority. (2) Every person who purports to act as an agent is deemed by his conduct to represent that he has in fact been duly authorised so to act, except where the purported agent expressly disclaims authority or where the nature and extent of his authority, or the material facts from which its nature and extent may be inferred, are known to the other contracting party". [32] Insofar as the reclaimers position was to argue that, under the existing law there could be an implied warranty of authority, in respect of what they called "the identity" of the agent's client, we have already commented on the appropriateness of the use of the word "identity" in this context. Moreover, it was, he argued, clear that the sheriff had placed reliance upon Mr Dougans expert testimony when it came to the proposition that a sum greater than 150,000 ought to have been achievable with the passage of further time. [11] The fraudsters met a representative of Messrs Longmuir & Co, Mr Martin Longmuir on 27 October. Under the heading "B Standard instructions" there appeared as follows: "11. 4-5 Gray's Inn Square, London. The frauds perpetrated upon them as a result of fraudsters, each of the reclaimers involved two different pairs of individuals applying for a loan, pretending to be husband and wife who were owners of heritable property which was to institute the security for the loans. Each agreement was out by a few pounds and pence.. Court cases. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. Counsel for the reclaimers submitted that the question as to what the nature and extent of the liability was in a particular case was a fact sensitive issue. It might be argued that, when it comes to the issue of interest, the pursuers third ground of appeal is somewhat tautologous. 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, [18] Accordingly, I reject the first ground of appeal for the pursuer. Both companies are in the business of secured lending. The reclaimers have been unable to recover the sums advanced. 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. The Court should be slow to allocate to a track normally associated with a lower value. It would be quite unreasonable and inappropriate to extend this to an implied warranty that his client has a certain attribute or attributes.
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