Mr Allan Hodgson v Creation Consumer Finance Ltd

JurisdictionEngland & Wales
CourtQueen's Bench Division (Commercial Court)
JudgePearce
Judgment Date29 July 2021
Neutral Citation[2021] EWHC 2167 (Comm)
Docket NumberCase No. CC-2019-MAN-000043

[2021] EWHC 2167 (Comm)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS IN MANCHESTER

CIRCUIT COMMERCIAL COURT (QBD)

CAPPED COSTS LIST

Manchester Civil Justice Centre

1 Bridge Street West

Manchester

M60 9DJ

Before:

HIS HONOUR JUDGE Pearce SITTING AS A JUDGE OF THE HIGH COURT

Case No. CC-2019-MAN-000043

Between:
Mr Allan Hodgson
Claimant
and
Creation Consumer Finance Limited
Defendant

Mark Harper QC (instructed by SMITH JONES) for the Claimant

Toby Riley Smith QC AND Lia Moses (instructed by EVERSHEDS SUTHERLAND INTERNATIONAL plc) for the Defendant

Hearing dates: 25, 26 May 2021

Supplemental written submissions: 21 July 2021 and 28 July 2021

Pearce His Honour Judge

This judgment was handed down in private at 2pm on 29 July 2021. I direct that no official shorthand note shall be taken of this judgment and that copies of this version as handed down may be treated as authentic.

INDEX

BACKGROUND

3

PROCEDURAL MATTERS

4

THE EVIDENCE Agreed Facts

6

Approach to lay witness evidence

7

The witness evidence

9

THE ISSUES

12

DISCUSSION Issue 1 – statements made by the sales representative

14

Issue 2 – authority of the sales representative

16

Issue 3 – understanding of statements made by the sales representative

18

Issue 4 – were they statements of fact or opinion?

19

Issue 5 – were the statement(s) false?

19

Issue 6 – intention/entitlement to rely on the statement(s)

19

Issue 7 – was there reasonable reliance on the statement(s)?

20

Issue 8 – correction of the statement(s)

21

Issue 9 – contributory negligence

21

Issue 10 — estoppel

24

Issue 11 – measure of loss A General Principles

26

B Uncertainty of loss

28

C Foreseeability

30

D Financial benefits from the solar panels

32

Issue 12 – past losses and deductions

40

Issue 13 – future losses and deductions

41

Issue 14 – cost of removing the solar panels

41

Issue 15 – damages for distress and inconvenience

42

CONCLUSION

42

APPENDIX A Agreed Facts In Relation To Pecuniary Benefits

45

APPENDIX B Benefits Calculator

47

APPENDIX C Actual Benefits in Years 1 to 7

49

APPENDIX D Predicted Benefits from Years 8 to 20

50

BACKGROUND

1

Solar power, generated by rooftop panels to domestic housing, is attractive both for its contribution to reducing climate change and for the potential savings on electricity bills that the householder can make. One can hope for a reduction in one's own electricity bills, but further the government has operated schemes to encourage the installation of solar panels that involve subsidies for the production of such power as well as payment for exporting electricity to the national grid. At the time relevant to this case, 2014, the so-called Feed In Tariffs (“FIT”) scheme was in operation, pursuant to which the householder received payments for the generation of electricity (“generation payments”) and payments for the export of electricity to the grid (“export payments”).

2

Mr and Mrs Hodgson live at 52 Rothbury Close, Trimdon Grange in County Durham. They were interested in having solar panels installed to their house. Following contact from a sales representative of a company called MyPlanet Ltd, they contracted to purchase a solar panels system (“the solar panel agreement”) funded by a fixed sum loan agreement for a term of 10 years (“the loan agreement”) with the Defendant. It is their case that they entered into the solar panel and loan agreements in reliance on a representation 1 from the sales representative that the system would pay for itself within 10 years, said to mean that the combined reduction in electricity bills plus payments from the FIT scheme would equal or exceed the sums payable to the Defendant under the loan agreement.

3

Many people might think that the North of England would not be a productive area for the generation of power through solar panels and indeed Mr Hodgson now complains that the solar panels are not as profitable as they had been led to believe and that, far from the system having paid for itself, through reduced electricity bills and the tariff payments for producing and exporting such electricity, within ten years, the system may never pay for itself and certainly, if it does, it will not be for some time. The Defendant concedes that the system would never have achieved the necessary return for this representation to be true and contends that this was (or should have been) obvious to the Claimant.

4

The Claimant seeks damages against the Defendant pursuant to the Consumer Credit Act 1974 (“the 1974 Act”). The supplier, MyPlanet, has long since ceased to trade, liquidators having been appointed in March 2016. They are not a party to this litigation. Further, the sales representative who met Mr and Mrs Hodgson has not been available to give evidence since he has not been

traced. Thus the court has the uncontradicted evidence of the householders as to what was said and how it influenced their decision making
5

The Defendant not only puts the Claimants to proof of their factual allegations but contends that their account is inherently unlikely. Even if the Defendant is liable to the Claimant, there are significant issues as to the correct calculation of the loss (if any) that the Claimant has suffered especially as to the potential benefits to be gained from the solar panels and the quantification of those benefits.

PROCEDURAL MATTERS

6

The case was issued in the now defunct Capped Costs List of the Circuit Commercial Court in Manchester. The pleaded value of the claim was just in excess of £16,000. The Defendant applied to strike out the case alternatively to transfer it to the County Court, given its value. That application was refused by Judge Halliwell on 27 July 2020.

7

The case came before me for case management on 10 September 2020. By this time, it was apparent that there were a number of similar cases either already issued or close to being issued, and this case was treated as a case that might provide guidance to other cases. Leading counsel were to be instructed on both sides and I understand that some other cases have been stayed pending judgment being handed down in this case.

8

It had been my hope at the Case Management Conference that the parties would be able to agree the approach to the calculation of benefits from the system, at least in so far as one was concerned with the probable future performance of the system and the probable future tariffs. The possibility of expert evidence was considered but rejected at that stage. The expert evidence proposed related to the calculation of the benefits to be made from the installation of the solar panels. For reasons noted below, whilst it is possible that expert evidence could assist the court in calculation of some of the detail of the benefits, it is likely that such costs would be disproportionate to the benefit given that the matters that would be addressed would only marginally affect the valuation of the claim.

9

In the event, whilst the future tariffs have been agreed, the likely future performance of the system has not and indeed the parties' opening positions reflected radically different approaches to whether it was even possible to predict the future performance of the system as well as the likely benefits from such performance. During the trial, it became clear that there was reasonably reliable evidence of the past performance, sufficient to make findings as to probable future performance. However, for reasons identified below, there are further contingencies, at least as important as the future performance of the system, to which it is necessary to have regard.

10

The trial took place on 25 and 26 May 2021. Mr and Mrs Hodgson gave evidence and were cross examined. The Defendant called Mr David Carson, its current Director of Legal and Regulatory Affairs.

11

The parties prepared comprehensive skeleton arguments and a detailed list of issues. I am obliged for their diligence in presenting the case. In the event not all of the issues fall for determination and one particularly difficult issue on remoteness has been rendered hypothetical by a change in how the Claimant put the case. Nevertheless, in order to assist the parties in this case, as well as to provide what I hope is a practical framework for resolving such relatively low value cases, I have sought to deal with as many of the points as possible.

12

The Claimant produced three electronic bundles of documents for trial. The first contained the statements of case, witness statements, orders and key document. The second contained correspondence in chronological order. The third somewhat confusingly contained previous skeleton arguments, more documents and more correspondence. The contents of the third bundle may be explained by the contents only coming into existence or coming to light after the first two bundles had been prepared. However, what cannot be properly explained (or at least justified) is the pagination of the bundles. In each case, the bundle as provided to the court started with an index. These pages were not paginated on their face. Thus, in the first bundle, when one reaches the page that bears the number 1, the electronic page number is 3, so the page numbers are for a short section two out. Later on, three pages are incorporated into the bundle containing the Schedule of Loss. These are numbered 15a, 15b and 15c. Thus when one gets to the page which bears the printed number 16, one is on electronic number 21. Thereafter the pages are 5 out. In second bundle, the two page unnumbered index renders the rest of the bundle 2 pages different than the electronic numbering. In the third bundle, the introduction of a one page unnumbered index renders all of the...

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