Nicola McKenzie v Creation Consumer Finance Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffiths |
| Judgment Date | 28 July 2023 |
| Neutral Citation | [2023] EWHC 1904 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: KA-2023-000001 |
[2023] EWHC 1904 (KB)
Mr Justice Griffiths
Case No: KA-2023-000001
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ON APPEAL FROM THE COUNTY COURT AT CARDIFF
HHJ HYWEL JAMES
COUNTY COURT CASE NUMBER H18YJ847
Cardiff Civil and Family Justice Centre
2 Park St, Cardiff CF10 1ET
Frederick Lyon (instructed by SK Lloyds Solicitors) for the Appellant
Lia Moses (instructed by Eversheds Sutherland International LLP) for the Respondent
Hearing date: 12 July 2023
Approved Judgment
This is an appeal by the Claimant against the order of a judge in the County Court at Cardiff on 13 January 2023 dismissing the Claimant's claim with costs after a fast track trial for reasons given in a reserved judgment on 12 January 2023 after a hearing on 16 November 2022.
The case arose out of the purchase by the Claimant of solar panels from My Planet Ltd (“My Planet”) after a cold call at her home from an agent of My Planet called “Clive”. The price was £7,540 and it was entirely funded by finance from the Defendant, Creation Consumer Finance Limited. The total repayable amount, inclusive of interest and an arrangement fee, was £11,905.20. This was repayable by 120 monthly instalments of £99.21. My Planet has since gone into liquidation.
In findings against which there is no appeal, the judge found that the Claimant entered into the agreements in reliance upon false representations made by Clive on behalf both of My Planet and of the Defendant and for which the Defendant, therefore, was liable (applying section 56 of the Consumer Credit Act 1974).
However, he concluded that the Claimant had suffered no loss. The benefits to her of the solar panel system outweighed the costs by just under £1,500.
The Grounds of Appeal are that the judge erred in law and erred in making findings contrary to the evidence in that:
i) He failed to give adequate reasons for his decision to set out the legal basis why the Claimant must give credit for the future benefits as would be derived from the panels.
Another three Grounds are advanced on the basis of what the Claimant says are “the three alternative possible reasons why the Claimant was required to give credit”, namely:
ii) The judge found that, notwithstanding that the Claimant had moved from her property, she was required to give credit for the benefits received from the installed solar panels by the purchaser of that property. Such a decision (it is argued) was inconsistent with the decision in Hodgson v Creation Consumer Finance [2021] EWHC (Comm) 2167 and was wrong in law.
iii) The judge found that the Claimant had benefitted from receiving a higher price for her property or alternatively had failed to sell her property at a higher price when she had the opportunity to do so when the evidence in the case (it is argued) did not support such a finding. The Grounds of Appeal argue that, in coming to his conclusion, the judge “placed weight on an irrelevant factor, namely that [the Claimant's] buyers conveyancing solicitors had asked whether the entitlement to receive the FIT [Feed-in Tariff] payments was included within the sale and disregarded the oral evidence of [the Claimant] that a nearby property without solar panels had recently sold for more than her own.”
iv) Insofar as the judge's findings can be termed a finding that the Claimant failed to mitigate her loss, such findings were wrong due to procedural irregularity and/or gave weight to irrelevant factors. The Grounds of Appeal argue that the judge found that, by selling her property, the Claimant would secure a windfall (if future benefits of the solar panel system were not taken into account) by failing to take steps either to increase the value of her property or to avoid a sale altogether. As to that, the Grounds of Appeal argue:
a) An argument that the Claimant had failed to mitigate her loss by selling her property was not heralded prior to trial so as to allow her to meet the same.
b) The point was not canvassed with the Claimant in cross-examination.
c) The point was not advanced in closing submissions by the Defendant's Counsel.
d) Such a finding was, in any event (it is argued) not supported on the evidence and placed an undue burden on the Claimant.
Permission to appeal was granted on all grounds by Stacey J.
The appeal operates by way of a review and not re-hearing. The appeal will be allowed if the decision of the lower court was either “wrong” or unjust because of a serious procedural or other irregularity: CPR 52.21(3).
Ground 1 – Failure to give adequate reasons
Ground 1 is that the judge failed to give adequate reasons for his decision. The other Grounds are essentially derived from Ground 1. The Claimant argues that it is not clear which of the interpretations explored in Grounds 2, 3 and 4 is the operative basis of the judge's reasoning, and that the reasoning or at least the explanation provided for the reasoning in the judgment is therefore defective: see English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409.
Per Lord Phillips of Worth Matravers MR giving the judgment of the Court in English v Emery Reimbold at para 26:
“Where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment, in the context of the material evidence and submissions at the trial, in order to determine whether, when all of these are considered, it is apparent why the judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed.”
I therefore turn to the question of whether it is apparent why the judge reached the decision that he did.
When making his decision on breach of duty (against which there is no appeal) the judge found the Claimant to be credible in her recollection of the events of the day in which the false representations were made to her (judgment para 16).
The appeal is against the judge's finding that there was no loss, and the relevant part of the judgment therefore begins at para 30, which begins his consideration of that question.
The judge was asked to and did base himself upon the approach devised and applied by His Honour Judge Pearce in the Circuit Commercial Court in Manchester when considering another My Planet/Creation Consumer Finance case: Hodgson v Creation Consumer Finance Limited [2021] EWHC 2167 (Comm). He noted, however, “a significant distinguishing factor in this case”, which was that the Claimant had at the time of the hearing before him sold the property, “together with the solar panels in situ” (judgment para 30). She had done this only a couple of weeks before the hearing (para 31). “No expert evidence was before the court that the property had a lower, or indeed greater, value as a result of the installation of the solar panels” (para 31). The Claimant stated in her oral evidence “she did not believe the panels had increased the value of the property” (para 32). I read this in conjunction with the previous observation that there was no expert evidence on this point. Whilst I accept (as is argued on her behalf) that the judge at no point resiles from his finding that she was a credible witness, it does not follow that he was saying that he would accept her view on a question of valuation, expressed as a belief, or opinion.
The judge noted her evidence that “the property had significantly increased in value since its purchase some 20 years earlier” (para 34). Before me, this is criticised as an irrelevant observation on the question of whether the price was increased or not by the inclusion of the solar panels, because 20 years is a long time, and a general increase in value is to be expected over that time. However, to my mind, it has to be read with the sentence which immediately follows it: “The house, she noted, sold for slightly more than the initial valuation” (para 34). It is part of a discussion suggesting that the sale price was more than expected, which therefore fits in to a later finding that it was increased because of the benefit provided by the solar panels included with it.
That reading is, to my mind, supported by the content and the phrasing of the next two sentences (para 35):
“The claimant did note in her evidence a neighbouring property had sold for a greater sum than her property. No documentary or other corroborative evidence was provided to the court that this in any way was related to the solar panels.”
The word “did” in the first sentence provides an emphasis that suggests that this passage is counter to the general direction of the judgment's travel. It is a piece of countervailing evidence. The next sentence, therefore, as I read it, is explaining why it is not taken entirely at face value. The fact that a neighbouring property sold for a greater sum might be, in itself, of very little weight. It might have been a bigger property. It might have been in better condition. To carry weight on the question before the judge, the extent to which the neighbouring property was comparable (over and above its geographical location) had to be considered, and the judge is in this sentence indicating that he did not know enough about the context to say whether the difference in sale price “in any way related to the solar panels”.
Unusually for an appeal of this nature, no transcript of the hearing was included in my papers. When I queried this, both parties sensibly insisted that the appeal could and should proceed without one. Both Counsel in the appeal appeared below and they were able to tell me that there was nothing in the evidence before the judge which went beyond what he said in the passage I...
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