Dannielle Victoria Campbell v Joseph Tyrrell
| Jurisdiction | England & Wales |
| Judge | Hodge |
| Judgment Date | 08 March 2022 |
| Neutral Citation | [2022] EWHC 423 (Ch) |
| Docket Number | Case No: BL-2019-LIV-000026 |
| Year | 2022 |
| Court | Chancery Division |
[2022] EWHC 423 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN LIVERPOOL
BUSINESS LIST (ChD)
Liverpool Civil & Family Courts
35 Vernon Street
Liverpool L2 2BX
HIS HONOUR JUDGE Hodge QC
Sitting as a Judge of the High Court
Case No: BL-2019-LIV-000026
Mr Neil Berragan (instructed by Gosschalks LLP, Kingston-upon-Hull) for the Claimant
Mr Stephen Connolly (instructed by Gotelee Solicitors LLP, Ipswich) for the Second Defendant
The First and Third Defendants did not appear and were not represented
The following cases are referred to in the judgment:
Biles v Caesar [1957] 1 WLR 156
Carney v N M Rothschild & Sons Limited [2018] EWHC 958 (Comm)
The Chiltern Railway Company Limited v Patel [2008] EWCA Civ 178, [2008] 2 P&CR 12
Davis v Burton (1883) 11 QBD 537
Deutsche Bank (Suisse) SA v. Khan [2013] EWHC 482 (Comm)
East v Pantiles (Plant Hire) Limited [1982] 2 EGLR 111
Emmanuel v Avison [2020] EWHC 1696 (Ch)
Homburg Houtimport BV v Agrosin Private Limited (The Starsin) [2003] UKHL 12, [2004] 1 AC 715
Kerrigan v Elevate Credit International Ltd [2020] EWHC 2169 (Comm), [2020] CTLC 161
Pink Floyd Music Limited v EMI Records Limited [2010] EWCA Civ 1429
Plevin v. Paragon Personal Finance Ltd [2014] UKSC 61, [2014] 1 WLR 4222
Pollen Estate Trustee Co Limited v Revenue & Customs Commissioners [2013] EWCA Civ 753, [2013] 1 WLR 3785
TFS Stores Ltd v The Designer Retail Outlet Centres (Mansfield) General Partner Limited [2021] EWCA Civ 688, [2021] Bus LR 1407
Wisniewski v Central Manchester Health Authority [1998] PIQR 324
Wood v Capital Bridging Finance Limited [2015] EWCA Civ 451
Consumer Credit Act 1974, ss. 16B, 140A, 140B — Whether loan agreement regulated — Whether business exemption applies — Burden of proof — Effect of failures to give extended disclosure and serve witness evidence — Sufficiency of business purposes declaration — Omission of words “or predominantly” after “wholly” — Whether strict compliance with prescribed form of declaration required — Whether omission of words capable of being cured as a matter of construction — Whether reasonable cause to suspect agreement not entered into for business purposes — Whether relationship unfair
Hearing dates (by Teams): 16 and 17 February 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Hodge QC
His Honour Judge Hodge QC:
Introduction
By CPR 1.3, parties to civil litigation are required to help the court to further the overriding objective of dealing with the case justly and at proportionate cost. Apart from the detailed analysis and able submissions from both counsel instructed in this litigation, there has been precious little help afforded to the court in this case; instead, there has been a complete failure by both of the remaining parties to engage in the processes of extended disclosure and witness evidence. Indeed, this case might merit the title: The Curious Case of the Missing Evidence.
This is my judgment following the substantive trial of this Part 7 claim, which was issued in the Business & Property Courts in Liverpool on 7 November 2019. The claim concerns a loan agreement for £250,000 that was entered into by the claimant ( Ms Campbell) and her then husband ( Mr Tyrrell), in the form of a facility letter, with the second defendant, Goldcrest Finance Limited ( Goldcrest), on 28 November 2013, although the advance was not made until 17 January 2014, when Ms Campbell and Mr Tyrrell granted a second legal charge over their matrimonial home, known as Tree Tops, in the pleasant Liverpool suburb of Woolton, by way of security. At the time of the facility letter, Ms Campbell and Mr Tyrrell were apparently living separately; and their marriage was dissolved on 29 August 2014. Goldcrest is a specialist property finance lender based in central Manchester. Its sole shareholder is the third defendant ( Mr Chawla), who is also a director of Goldcrest. A related company, GC Capital Limited ( GC Capital), is engaged in the business of buying and selling real estate.
On 17 August 2020 DDJ Watkin entered judgment in default for Ms Campbell against Mr Tyrrell for damages for an amount to be assessed by the trial judge; and Ms Campbell's application for declaratory relief against Mr Tyrrell was adjourned for determination by the trial judge. Neither of these heads of relief was pursued at trial; and I therefore assess damages against Mr Tyrrell as nil and I dismiss the claim for declaratory relief against him.
On 15 February 2021 DJ Lampkin made comprehensive case management directions, including directions for extended disclosure and witness statements, leading to a seven day trial which (on 6 April 2021) was listed to commence on 14 February 2022. As explained in an extemporary judgment which I delivered at the pre-trial review on 4 January 2022 (which should be read in full in order to explain how the substantive trial has proceeded without the benefit of either full and proper extended disclosure or any witness evidence), Ms Campbell and her then newly-appointed solicitors failed to engage at all with Goldcrest's solicitors in complying with any of the case management directions. However, in the face of such lamentable failure, there is no reason why Goldcrest and Mr Chawla could not have provided extended disclosure or produced any witness evidence upon which they might have wished to rely. Instead, they did nothing until shortly before the pre-trial review, when they first wrote to the court proposing that both the pre-trial review and the trial should be adjourned, and fresh case management directions issued. Then, in response to a communication from the court, Goldcrest and Mr Chawla issued an application for summary judgment and/or to strike out the claim. This at last spurred Ms Campbell's solicitors into action, leading them to issue a cross-application for relief from sanctions, for permission to serve amended particulars of claim, and an order vacating the trial.
For the reasons I gave in my extemporary judgment, I: (1) dismissed Ms Campbell's application; (2) gave summary judgment for Mr Chawla on all claims against him; (3) gave summary judgment for the Goldcrest on all the claims against it, save for those set out in paragraphs 33 to 42 and 44 of the particulars of claim and paragraphs (3), (4), (6), (7) and (8) of the prayer for relief; and (4) directed that the trial should proceed, starting with a day for pre-reading on 15 February 2022, on the claims in relation to which summary judgment had not been given and the counterclaim, and (save and unless permission was later given) without oral evidence and on the basis of the documents already disclosed. No such permission has ever been sought.
The trial proceeded, remotely by teams, over two days, on Wednesday 16 and Thursday 17 February 2022 without any witness evidence and on the basis of the (limited) existing disclosure. Neither Mr Tyrrell nor Mr Chawla took any part in the trial. Ms Campbell was represented, as she had been at the pre-trial review, by Mr Neil Berragan (of counsel). Goldcrest was represented by Mr Stephen Connolly (also of counsel), who had represented both Goldcrest and Mr Chawla at the pre-trial review. Both counsel had produced detailed written skeleton arguments, which I had pre-read, together with the pages of the hearing bundle to which they had directed me. Mr Berragan addressed the court for about 3 1/2 hours; Mr Connolly for about 5 hours; and Mr Berragan replied for a little over half an hour. The principal hearing bundle (with two additional pages) extended to 722 pages; and there was a correspondence bundle of 62 pages. A further bundle, comprising some 167 pages of “WhatsApp” messages, apparently provided by Mr Tyrrell to Ms Campbell, was produced shortly before the hearing, although there was a significant gap covering the period between 8 November 2013 and the late afternoon of 26 June 2014. At the beginning of the second day of the hearing, before Mr Connolly resumed addressing the court after the overnight adjournment, Mr Berragan produced an additional supplemental bundle of 108 pages.
As a result of my order of 4 January 2022, there are two live issues between the parties: (1) Was the loan agreement a regulated agreement for the purposes of the Consumer Credit Act 1974 (the CCA) or was it subject to the exemption relating to businesses in s. 16B? (In the course of this judgment, whenever I refer to a provision of the CCA, I will use the version that applied to this loan agreement.) It is common ground that if the loan agreement was a regulated agreement, then, since it was improperly executed, it is, and was, unenforceable unless and until an enforcement order has been obtained from the county court following the service of a default notice. (2) Irrespective of the status of the loan agreement, was the relationship between Ms Campbell and Goldcrest unfair within the meaning of ss. 140A and 140B of the CCA? The first issue, in particular, gives rise to a number of sub-issues. Although this was not the way in which those sub-issues were addressed by counsel, logically it seems to me that the appropriate way forward is to consider, first, whether, in fact, the loan agreement was entered into wholly or predominantly for the purposes of a business carried on by Mr Tyrrell and Ms Campbell; secondly, whether the loan agreement contained a valid declaration for the purposes of s. 16B (2), so as to give rise to the presumption that it was entered into wholly or predominantly for such purposes; and, finally,...
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