Cheltenham Borough Council v Laird
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson |
| Judgment Date | 11 June 2010 |
| Neutral Citation | [2010] EWCA Civ 854 |
| Docket Number | Case No: A2/2010/0055 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2010 |
[2010] EWCA Civ 854
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(Mr Justice Roderick Evans)
Before: Lord Justice Toulson
Case No: A2/2010/0055
THE APPELLANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Toulson:
1.This is a renewed application for permission to appeal from the judgment of Roderick Evans J given on 18 December 2009 on appeal from a judgment given by Mr Recorder Riza QC in the Clerkenwell and Shoreditch County Court on 21 September 2009. As it would be a second appeal, the provisions of CPR 52.13 require that permission should not be given unless this court considers that the appeal would raise an important point of principle or that there is some other compelling reason for the court to hear it.
The proceedings were brought by Mr Shaw under section 140A and B of the Consumer Credit Act 1974 (as amended), under which the court may give various forms of relief to a debtor under a consumer credit agreement if the court considers that the relationship between creditor and debtor arising out of the agreement is unfair to the debtor because of any of the terms of the agreement or any related agreement or the way in which the creditor exercised or enforced any of his rights under the agreement or any related agreement or anything else done or not done by the creditor. Section 140A(2) stipulates that in deciding whether to make a determination the court should have regard to all matters which it thinks relevant, including matters relating to the creditor and matters relating to the debtor. In other words, it can take into account matters personal to the debtor if it considers them relevant.
In this instance, Mr Shaw borrowed £3,000 from the respondent company on 29 July 2008 for 36 months, on terms that he was to pay 156 weekly instalments of £87.98, which would be equivalent to a rate of interest of 119.16% per annum. He also executed a bill of sale over a motorcycle to secure the loan. He claimed that the bill of sale was invalid. He encountered various procedural difficulties in having the two issues conjoined, but it is unnecessary to go into the details of that because the recorder was seised of both issues.
The appellant had intended to repay the loan in a short time from the proceeds of an insurance claim, but they did not come through when expected. He in fact repaid the principal amount of the loan by four instalments, the last of them on 9 October 2008. In the county court proceedings he sought the court's determination that the relationship was unfair, the bill of sale invalid and that he had no further liability to the respondent. The respondent counterclaimed for the full amount which would have been payable at the end of the 36 month period of the loan, less the amount which had been paid. That would amount to £10,856.88 on top of the £3,000 already paid.
The recorder found that the relationship was unfair in one respect. In his judgment he described Mr Shaw as sophisticated, articulate and intelligent, although prone to bad financial judgment. He found that Mr Shaw knew exactly what the terms of the agreement were after careful consideration, as Mr Shaw had candidly accepted in his evidence. The purpose of the loan was to go on holiday, not because of some pressing financial constraint. The terms of the loan were clear and Mr Shaw was able to afford the loan. The basis on which that he found that the relationship was unfair is set out in his judgment as follows:
“[6]g) I do not regard all the actions of the Creditors as reasonable. I regard the decision to terminate and seek payment of £13,451.63 on 29 September 2008 as a product of an unfair relationship. It was a disproportionate exercise of contractual power as evidenced by the fact that in the end the Creditor was prepared to offer to accept much less in full settlement viz. £1577 on 16 October 2008 and even less, £1523.86, on 5 November 2008. Moreover, in my judgment it is obviously the product of an unfair relationship for a person to borrow £3000 in July 2008 and by the end of September 2008 be then contractually required to pay £13,451.63 particularly as this put the debtor in terrorem.
7) I therefore accede to the debtor's application and hold that the relationship was indeed unfair and reduce the sum payable by the Debtor from £10,451.63 to £1,523.86 pursuant to my powers contained in section 140(B) (c) of the CCA 1974.”
He dismissed Mr Shaw's complaints in relation to the bill of sale, which he described as highly technical and opportunistic, and he held that the amount that ought to be paid would continue to be secured by the...
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...see Silva-Douglas v. London School of Economics and Political Science; 10 Khan v Heywood & Middleton Primary Care Trust; 11 Cheltenham Borough Council v Laird 12 and our Civil Procedure Rule, Part 37.8 (" CPR 37.8"). In Silva-Douglas, Reid J. said: "…if there is no dismissal it may be pos......