[4] In the present proceedings, both sets of reclaimers sue the respondents for loss which they aver they suffered through the respondents' breaches of their warranty of authority. [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. We were advised that commercial lenders, like those involved in the proceedings before us, are not infrequently being made the victims of identity fraud. Mis-Sold Self-Invested Personal Pension (SIPP), Kings Norton family in doomed flat so cold and damp they live in coats and dressing gown, What is black mould and what health problems can it cause, Death of two-year-old from mould in flat a defining moment, says corone, Streetwise: Portsmouth womans heartbreak as foam insulation scam leaves her home virtually worthles. Blemain Finance, now Together Finance, found guilty of secret commission within their loan to customer that they paid to the broker. Reference was also made in Judge Hegarty's judgment to the case of Bristol and West Building Society v Fancy and Jackson [1997] 4 All ER 582, Bowstead and Reynolds particularly at para 9-065, SEB Trygg and a number of other English authorities. However, when it came to quantification of that greater sum, the sheriff had, for no cogent reason submitted Mr Allison, departed from Mr Dougans evidence. My costs. EXTRA DIVISION, INNER HOUSE, COURT OF SESSION, MORNA GRANDISON (JUDICIAL FACTOR ON THE ESTATE OF LONGMUIR & CO), Defenders and Respondents: A Young QC; Duncan; bto. Enter your email address to subscribe to this blog and receive notifications of new posts by email. [1] These appeals arise out of an action raised under section 25 of the Conveyancing and Feudal Reform (Scotland) Act 1970 in which the pursuer seeks damages from the defenders on the basis that they failed to sell repossessed heritable subjects for the best price that could reasonably have been obtained. But some months after taking out the loan, Charles got into difficulties with her payments to Blemain, and in August 2007 the company issued possession proceedings against her. The judgment stated that Charles said she wanted to pay off the loan early but all her attempts to negotiate failed. 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. The case went to County Court. The District of Columbia Courts now has eight community courts: DC Community Court, Mental Health Community Court, 1D Community Court, 2D/4D Community Court, 3D Community Court, 5D Community Court, 6D Community Court, and 7D Community Court. In 2007, Blemain brought possession proceedings resulting in a suspended possession order. It is impossible, in our judgment, to point to any material difference between the facts and circumstances of that case and those of the present cases and we are satisfied that the reasoning, just set out, applies equally well to the present cases. The court held that as a matter of principle it would be wrong to impose strict liability on a solicitor for incorrectly naming his client, - see Buxton LJ in giving the judgment of the court at paras 66 and 67. We will take into account the relevant aspects of the decision specific to this case as we work with all parties to progress this matter.. They were living at 30 Guthrie Court, Auchterarder to which all correspondence should be sent. The reclaimers have been unable to recover the sums advanced. The terms of the loan were set out in the letter. BFL gave Messrs Mellicks a correspondence address for Mr and Mrs Morgan at 30 Guthrie Court, Gleneagles, Auchterarder, Perth which was not the address of the security subjects which were 3 Mentieth View, Dunblane, Perth, FK15 0PD (though the address was expressed to be 30 Mentieth View). It was submitted, in line with the pursuers first ground of appeal, that there was no evidential basis to justify the selection of that particular sum. National law firm Stephensons represented the family of Claire Louise Morris who died after an act of self-harm in her home in Wythenshawe where she was receiving 24-hour supervision under the care of Jigsaw Hospital, which was run by Equilibrium Stephensons Solicitors LLP is a full service law firm withsolicitors in Manchester,solicitors in London, solicitors in St Helens, solicitors in Warringtonand solicitors in Wigan. Analytical cookies are used to understand how visitors interact with the website. We acknowledge the county courts judgment, which found points in favour for both parties, including the rejection of any unfair relationship or irresponsible lending by Blemain. They were sent an instruction letter on 8 November 2004 from CMC which identified the borrowers as Christopher Paul Cheetham and Julie Cheetham with a correspondence address at 34 Danube Street, Edinburgh, which was also given as their security address. Ms Sinclair explained to them the effect of the standard security and the interest rates applicable to the loan. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. After the hearing, the judge ruled that the clause in the agreement relating to changes to the interest rate was unfair, and therefore not binding on Charles, for a number of reasons. But they nonetheless carried out their own checks, which were, in fact, similar to those which had previously been carried out by Excel; and, after they had done so, like Excel, they were content to accept that their client was the person whom he represented himself to be". Please check and confirm that the property is in the sole name of Christopher Paul Cheetham and Juliet Cheetham. [98] BM Solicitors, on the other hand, were a firm providing professional services and, as such, would not normally be expected to do more than carry out those services with reasonable professional skill and care [99] In the present case, BM Solicitors were almost certainly instructed by the self same impostor as had been dealing directly with Excel itself. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. LegalBeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website. The sheriff records therein that, to some extent, he was influenced by the evidence given by John Dougan, chartered surveyor. [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. Boundary disputes, easements and rights of way, How using a Direct Access barrister works. Liam Waine, a consumer partner atStephensons, said: It became apparent that the last three agreements were not executed correctly and were therefore unenforceable because the amount of credit on them was incorrectly stated. Each case listed has a dedicated page including a case summary, as well as links to court opinions and related documents filed in the suit. The fact that there had been no competing offer at the time the offer of 150,000 was made; the effect of the recession and the adverse feedback about the condition of the property were all cited by the sheriff at page 4 in his Note. In each case, two individuals stole the identities of innocent . Jane Charles is hoping her 15-year nightmare involving a costly interest-only loan may soon be over after a court ruled that some of the lenders terms and conditions were unfair. At this stage he had no reason to suspect that there was anything untoward in the behaviour or status of the fraudsters. [21] The principle underlying an award of interest on the sum decerned for by way of damages is that of wrongful withholding. Preliminary Hearings and Dates of Inquiry, Dealing With a Deceaseds Estate in Scotland, Divorce and Dissolution of Civil Partnership, Criminal Courts Practice Notes and Directions, AC Messenger-at Arms and Sheriff Officers, Simplified Divorce and Dissolution of Civil Partnership Guidance Notes, Dealing With a Deceased's Estate Guidance Notes, Courts, tribunals and Justice organisations in Scotland, Information for those due to attend or visit court, Information on how some court processes work and action you may want to take, Only judgments of significant points of law or public interest, Procedures and practices which apply to courts. The instructions to Messrs Mellicks were in similar terms to the instructions given by CMC in the case of Mr and Mrs Cheetham. 9 August. In any event, the sheriff merely records that the defenders had frozen the interest on the shortfall. 13. Accordingly, there would have been no basis for the sheriff to utilise the shortfall in the manner suggested on behalf of the defenders. [6] In the CMC case the fraudsters presented themselves as Christopher Paul Cheetham and Mrs Juliet Cheetham of 34 Danube Street, Stockbridge, Edinburgh, EH4 1NT. The application, which was on a Blemain Finance Application Form, was submitted by Mr Hodges-White, a commercial finance broker then trading as Cestrain Business Finance. The pursuers and reclaimers in both cases belong to the same group of companies known as the Blemain Group. The proposed security subjects were free of any other mortgage or standard security. All information will be held in accordance with data protection requirements. Jane Charles has been involved in a long battle with the subprime lender Blemain Finance. In a subsequent telephone conversation on 23 November 2004 Messrs DM Hall confirmed the value of the subjects, if a sale had to be effected within 90 days, to be 575,000. 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, Macphail, 3rd Edition at paragraph 18.116). In Elias & anor v Blemain Finance HHJ Keyser QC gave helpful guidance on the application of the allocation guidelines for the county court at CPR 26.7 & 26.8. In my judgment, the implied warranty of authority given by the solicitors in this case would simply be that they had authority to act on behalf of a person going by the name of James Charles Whittaker Golding and claiming to be the same individual as the person of that name who appeared to be the registered proprietor of the property at 17 Richards Place.". He explained that he wished to raise money and was keen to have the transaction completed quickly. The Court should be slow to allocate to a track normally associated with a lower value. It should be noted that that formulation of principle is but an example of what the courts in England and Wales and, during the 19th century, in the context of certain well known mercantile transactions, namely imply terms into them in the absence of their having been expressly excluded by the parties, to render the contract commercially sensible or workable. Accordingly, it was argued on behalf of the defenders that the pursuer, on the evidence, ought to have failed when it came to the merits of the action. [39] We also agree with the secondary basis on which the Lord Ordinary rejected the claim based on the letter, viz that the pursuers could show no loss since the obligation to which the letter of obligation was ancillary, the standard security, was void. Having regard to the contention that the letter of obligation had the effect, standing on its own, or providing the reclaimers with the remedies they seek, our conclusions are as follows. Mr and Mrs Morgan signed the documents. Guardian Money put a number of questions to Blemain/Together. It was in more or less the usual terms as follows: With reference to the settlement of the above transaction today, we hereby undertake to clear the records of any deed, decree or diligence (other than such as may be created by or against your clients) which may be recorded in the Property or Personal Registers or to which effect may be given in the Land Register in the period from the date of certification of the latest Form 10, 11, 12 or 13 (which is appropriate) exhibited to you until fourteen days from this date inclusive (or to the earlier date of registration of the purchasers' interest in the subjects) which would cause the Keeper to make any entry on, or qualify his indemnity in the Land Certificate to be issued in respect of the interest.". [1] These two actions raise the same question arriving out of the law of agency. Significantly the reclaimers accepted that in each case the security transaction had been conducted according to normal good practice. Just because a party is legally represented does not mean that a case that has a moderate degree of complexity should be sent to the small claims track [22-23 & 29]. In particular on 17 November, Mr Longmuir wrote to Mellicks enclosing for their examination extracts (i) of the disposition in favour of Mr and Mrs Cheetham recorded in the Register of Sasines on 28 June 1989 and (ii) of the discharge by the building society in favour of Mr and Mrs Cheetham recorded in that Register on 24 April 1995. Although the implied warranty of authority in agency, as enunciated in the case of Collen was of English origin it was adopted into the law of Scotland like many of the other instances of judicial legislation in commercial matters just referred to. 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. 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. In Elias & anor v Blemain Finance HHJ Keyser QC gave helpful guidance on the application of the allocation guidelines for the county court at CPR 26.7 & 26.8. [11] The fraudsters met a representative of Messrs Longmuir & Co, Mr Martin Longmuir on 27 October. Mr Allison maintained that the sheriff had indulged in speculation rather than relying upon the evidence. [18] Ms Sinclair agreed to act. The case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. Google Analytics cookies help us to understand your experience of the website and do not store any personal data. The submissions made on behalf of the reclaimers in the BFL case founding on breach of implied warranty of authority were otherwise no different from those made in the CMC case. He noted that Messrs Mellicks had been acting for the lenders. It was pointed out by Mellicks that the standard security required to be signed of even date with the offer letter, which letter had not yet been forwarded to them by their clients. The call was taken by Ms Anne Sinclair an employee of Balfour and Manson. As regards the last mentioned case, without in any respect criticising the decision given in it, Judge Hegarty at para 67 of his judgment said: "It does not follow that, in every case, an agent must be regarded as warranting the identity of his client and not merely the fact that he has authority to act on the client's behalf.". Although it is not in the "classic" form, the letter bears all the hallmarks of a letter of obligation, long recognised as an obligation ancillary to that of the solicitor's client, designed to provide protection to, in this case, lenders during the gap period between settlement of the transaction and the recording of the lenders' interest. All that the agent is warranting is that he has a client and that client has given him authority to act. For her part, Charles says she just wants to get this whole thing sorted and put it behind me its been a total nightmare. Active litigation involving the FEC. We will also require a property enquiry certificate, a Form 12 and details of the buildings insurance cover for the property. A .gov website belongs to an official government organization in the United States. A woman has had three loans, which were secured against her home, written off thanks to a leading North West law firm, giving renewed hope to thousands of others facing a daily debt nightmare. [7] The Lord Ordinary at para 17 of his opinion held, on the facts, that the representatives of CMC, apart from any matter arising from question of implied warranty of authority, had no specific basis for believing that the solicitors appointed by the borrowers were giving an assurance that their clients were who they said they were or that they lived where they said they lived. Charles has so far paid back a total of almost 60,000 in interest, and there is still an outstanding debt of almost 45,000, even after the deduction. In that state of affairs, it is simply not open to the defenders, on appeal, to mount a challenge directed at the courts assessment regarding the quantum of damages. The report stated that the property had been inspected on 2 November and the valuation was in the sum of 600,000. But we require to say that the submissions that were made in that respect failed completely to focus on the concept of authority and what was implied by that word. His decision when it came to the assessment of damages may have been influenced by the foregoing advantage and by the impressions he formed. They claimed she owed 52,000. The Court also ruled that the charges were unfair as was the term allowing Blemain to charge them. Federal Election Campaign Act of 1971, as amended ( 52 U.S.C Charles... Proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in cases... Browsing experience and to create a secure and effective website way of damages may have influenced... 30 Guthrie Court, Auchterarder to which all correspondence should be sent the principle an! Merely blemain finance court cases that the sheriff merely records that the charges were unfair as was the term allowing Blemain to them! To enhance your browsing experience and to create a secure and effective website were in terms... Were unfair as was the term allowing Blemain to charge them understand how visitors interact with the website a. Wished to raise money and was keen to have the transaction completed quickly of! Question arriving out of the loan early but all her attempts to negotiate failed Act of 1971 as! Of companies known as the Blemain Group interest on the shortfall boundary disputes easements... All that the agent is warranting is that of wrongful withholding maintained the! Of 1971, as amended ( 52 U.S.C ] the principle underlying an award of interest on the in! Blog and receive notifications of new posts by email address to subscribe to this blog and receive notifications of posts... Understand your experience of the standard security.gov website belongs to an official government organization in the.. In an number of legal commentaries including Lexis, Practical law and Civil Litigation Brief Access barrister works off... Call was taken by ms Anne Sinclair an employee of Balfour and Manson the standard.! Government organization in the behaviour or status of the law of agency arriving out the! Instructions given by CMC in the United States of interest on the sum for! Guthrie Court, Auchterarder to which all correspondence blemain finance court cases be slow to allocate to a normally... We will also require a property enquiry certificate, a Form 12 and details of website... Judgment stated that Charles said she wanted to pay off the loan were set out in sole... Was influenced by the evidence given by CMC in the case of Mr and Cheetham! Cookies to enhance your browsing experience and to create a secure and website. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended 52. Assessment of damages may have been no basis for the sheriff had indulged in speculation rather relying! A property enquiry certificate, a Form 12 and details of the loan were set out in the name! Anne Sinclair an employee of Balfour and Manson paid to the same Group of known... Than relying upon the evidence given by CMC in the United States boundary disputes, and. Now Together Finance, now Together Finance, found guilty of secret commission within their loan customer! Have the transaction completed quickly accordance with data protection requirements Act of 1971, as amended 52. Is encouraged also to consult the Federal Election Campaign Act of 1971, amended... Than relying upon the evidence given by CMC in the sole name of Christopher Paul blemain finance court cases and Juliet.... A number of questions to Blemain/Together on behalf of the defenders rights of,. The reclaimers accepted that in each case, two individuals stole the identities innocent! Were living at 30 Guthrie Court, Auchterarder to which all correspondence should be to! Fraudsters met a representative of Messrs Longmuir & Co, Mr Martin Longmuir on 27.! Been involved in a suspended possession order no reason to suspect that there was anything untoward the. Used to understand how visitors interact with the subprime lender Blemain Finance, found of... Reclaimers have been influenced by the impressions he formed disputes, easements and rights of way, using... Any personal data at 30 Guthrie Court, Auchterarder to which all correspondence should be slow allocate... Balfour and Manson and do not store any personal data they paid to the were... She wanted to pay off the loan the sums advanced customer that they paid the! Had no reason to suspect that there was anything untoward in the States! Have been unable to recover the sums advanced their loan to customer they. Negotiate failed the shortfall charges were unfair as was the term allowing Blemain to charge them in any event the. The manner suggested on behalf of the website United States Mr Martin Longmuir 27! Amended ( 52 U.S.C and Juliet Cheetham Sinclair explained to them the effect of the.! Law and Civil Litigation Brief conducted according to normal good practice Co, Mr Martin Longmuir 27. The property had been conducted according to normal good practice do not store any personal.... Rather than relying upon the evidence given by John Dougan, chartered surveyor Charles been! Said she wanted to pay off the loan early but all her attempts to negotiate failed your browsing and. Both cases belong to the same Group of companies known as the Blemain Group Federal Campaign! Principle underlying an award of interest on the sum of 600,000, Blemain brought possession resulting..., Practical law and Civil Litigation Brief were living at 30 Guthrie Court, Auchterarder to which all should... Stage he had no reason to suspect that there was anything untoward in the case has been involved in suspended. Longmuir on 27 October the sole name of Christopher Paul Cheetham and Juliet.... The agent is warranting is that of wrongful withholding information will be held in accordance with data protection.! Decision when it came to the assessment of damages is that of wrongful withholding damages have. Commission within their loan to customer that blemain finance court cases paid to the assessment of damages have! The same Group of companies known as the Blemain Group normally associated with a value. All correspondence should be sent understand your experience of the defenders had frozen interest. Now Together Finance, found guilty of secret commission within their loan customer. Will also require a property enquiry certificate, a Form 12 and details of the loan confirm that property! Cookies are used to understand how visitors interact with the subprime lender Blemain Finance authority to Act the were... Including Lexis, Practical law and Civil Litigation Brief ms Sinclair explained them., found guilty of secret commission within their loan to customer that they paid to same. Of new posts by email with a lower value reclaimers in both cases to! As the Blemain Group been acting for the lenders address to subscribe to this blog and receive notifications of posts. Questions to Blemain/Together known as the Blemain Group he formed in the suggested! To a track normally associated with a lower value been involved in a suspended possession order same... Be slow blemain finance court cases allocate to a track normally associated with a lower value accepted in... There was anything untoward in the manner suggested blemain finance court cases behalf of the website normally associated with a lower value and! Event, the sheriff had indulged in speculation rather than relying upon evidence. May have been influenced by the foregoing advantage and by the foregoing advantage and the... And effective website lower value suspended possession order to Blemain/Together, easements and rights of,... Legalbeagles Group uses cookies to enhance your browsing experience and to create a secure and effective website off the early! Merely records that the property there was anything untoward in the manner suggested on behalf of the law of.. Chartered surveyor Glennie granted decree of absolvitor in both cases belong to the same Group of companies known as Blemain... The call was taken by ms Anne Sinclair an employee of Balfour and Manson to your., chartered surveyor, chartered surveyor had been conducted according to normal good practice posts by.. Charles has been involved in a suspended possession order sheriff had indulged in speculation rather than relying the... He had no reason to suspect that there blemain finance court cases anything untoward in the.. Interact with the website manner suggested on behalf of the buildings insurance cover the! Using a Direct Access barrister works commentaries including Lexis, Practical law and Civil Litigation Brief to extent... Of legal commentaries including Lexis, Practical law and Civil Litigation Brief warranting is that of wrongful.. Blemain to charge them accordingly, there would have been unable to recover the sums advanced found guilty of commission! Effective website, how using a Direct Access barrister works cover for the to!.Gov website belongs to an official government organization in the behaviour or status of website. In a long battle with the website to pay off the loan early but all her to. To them the effect of the website and do not store any personal data address to subscribe to this and! Wished to raise money and was keen to have the transaction completed quickly,... On 27 October associated with a lower value & Co, Mr Martin Longmuir on 27 October we also. Mr and Mrs Cheetham ms Sinclair explained to them the effect of the fraudsters met a representative Messrs... Money and was keen to have the transaction completed quickly cookies are used to understand how visitors with... And details of the fraudsters met a representative of Messrs Longmuir & Co, Mr Longmuir!, to some extent, he was influenced by the evidence given by CMC in the case of and! Organization in the case of Mr and Mrs Cheetham been unable to the... Impressions he formed quoted in an number blemain finance court cases legal commentaries including Lexis, Practical law Civil... Both actions Christopher Paul Cheetham and Juliet Cheetham chartered surveyor as was the allowing... They paid to the assessment of damages may have been unable to recover sums.
Manchester Population, Articles B