IN THE COVENTRY COUNTY COURT
Case No: 1IQ57522
The Law Courts
140 Much Park Street
23rd March 2012
HIS HONOUR JUDGE GREGORY
B E T W E E N :
Mr Graham Barnes
- and –
Black Horse Limited
APPROVED TRANSCRIPT OF JUDGMENT
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For the Claimant: Miss Niamh Katrina O'Brien
Lamb Chambers, Elm Court, Temple, London EC4Y 7AS
Instructed by Wixted & Co Limited trading as "Claims for you", 57, Putney Bridge Road, London, SW18 1NP.
For the Defendant: Mr James William Ross
Gough Square Chambers, 6-7 Gough Square,
London EC4A 3DE
Instructed by SCM Solicitors, Holbrook House,
116 Cockfosters Road, Barnet, Hertfordshire. EN4 0DY
23rd March 2012
HIS HONOUR JUDGE GREGORY:
"I wish to purchase the following insurance (tick relevant box)…"
The words "Payment Protection" appear, and the box to the right of that is ticked. Mr Barnes said he did not place that tick in that box, he does not know who did but it had nothing to do with him. Underneath that statement and tick, appears the following:
"I understand that I am purchasing the product ticked above on credit provided by you and that the terms relating to the credit for the products can be found in each of the terms of this agreement. Your signature…"
Mr Barnes has signed that. Underneath that, is a box headed
"Important: Use of Your Information"
and underneath that, the heading
"Payment Protection Plan Type: Bronze; interest payable: £419.43; total cost of payment protection plan: £1462.07."
Then, to the left, on the same page, under "Key Financial Information", there is
"Amount of credit: £10,114; duration of the agreement: 60 months; total amount payable: £14,079."
"Other financial information", "Cash price of goods: £9,071;
cash price of Payment Protection Plan (optional) [emphasis added] £1,043; total cash price £1,114."
So, all of that information was on this document when Mr Barnes signed it.
"Obviously I read it",
then he said:
"Well, I just glanced at it; I didn't realise what it was I was signing for; I didn't realise that the Payment Protection was optional; I've not had this document."
Mr Barnes told me that he was not given a copy of this document when he left the dealers; of course, he should have had a copy and the provisions of the Consumer Credit Act and the Regulations thereunder require that he should be provided with another through the post, but Mr Barnes said that no document was ever sent to him in the post.
"It was a couple of months before I contacted Wixted & Co in August 2010 [they are his solicitors in this case] that I discovered I had been sold a PPI policy with this loan. We were struggling financially and I was looking through the paperwork to see if there was any way my payments could be reduced. I noticed I had a Payment Protection Insurance Policy and telephoned in order to see whether I could make a claim on the same. I was told I was self-employed and so I couldn't."
He says that, during his meeting with Motor Nation, he had made them fully aware that he was self-employed.
"Review date set for 22/08/06; contact customer to confirm when
documents will be received."
The submission on behalf of Black Horse is that this documentation should enable the Court to infer that Mr Barnes had been to Motor Nation on an occasion before the 11th June, and then gone back on 11th June when everything had been set up for him to have the motorcar. The submission on behalf of Mr Barnes is that all it establishes is that there had been some contact between him and Motor Nation, not that Mr Barnes was able to tell me any more about that apart from the fact that he had been in touch with them and said that he would like to look at this car, and they had said they would get it from another of their dealerships. In my judgment, the obvious inference is that Mr Barnes had been to Motor Nation on an earlier occasion, given them all the information that they required to progress this arrangement, they then did so with Black Horse so that, when he went in on 11th June, he was able to sign the paperwork and take away the motorcar, which is what happened.
"There is no rule of law that in a Hire Purchase transaction the dealer never is or always is acting as agent for the finance company or as agent for the customer. In a typical Hire Purchase transaction, the dealer is a party in his own right, selling his car to the finance company and he is acting primarily on his own behalf and not as general agent for either of the other two parties. There is no need to attribute to an agency in order to account for his participation in the
transaction. Nevertheless, the dealer is, to some extent, an intermediary between the customer and the finance company, and he may well have in a particular case some ad hoc agencies to do particular things on behalf of one or the other or, it may be, both of those two parties."
"On the facts of this case, I do not consider that the mere possession by way of the Respondent's forms was enough to constitute agency."
And Lord Upjohn at page 577S stated as follows:
"It is argued that in having possession of a finance company's forms and the ability to settle and fill in all these essential figures, he showed that he was acting in the transaction generally as the agent of the finance company but I do not myself think that this is a realistic approach. The motor dealer must have, if he is to be successful, one or more finance companies willing to enter into bone fide Hire Purchase agreements with purchasers, many of whom cannot pay the cash
price. They must therefore supply him with forms and tell him, as a matter of common sense, the terms upon which they are prepared to do business."
He goes on to say:
"I cannot see that this makes him an agent of the finance company. In any event, all he is doing is to fill in a document which he submits on behalf, as I think clear, of the would be hirer which contains a proposal for Hire Purchase."
"…(a) any of the terms of the agreement or of any related agreement;
(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;
(c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement)."
[Discussions on costs ensued]
[Interjection by Miss O'Brien who confirms the exact details of the Conditional Fee Agreement]
"The costs estimated do not exceed the costs which the Claimant is liable to pay in respect of the work which this estimate covers."
So, in reality, I would have been asked had the claim succeeded to Order payment of over £9,000, which is not going to be required I am told because the claim has failed. It begs the question of for whose benefit this litigation has been run. It has seemingly not been for the benefit of Mr Barnes and it is a bill of costs drawn like this that strikes me as precisely the sort of behaviour which has caused the Court of Appeal and others to be so concerned about the disrepute into which the law has fallen as a consequence of the problems over costs and the reforms that are to be brought in by Jackson LJ. It is, quite frankly, outrageous that a claim of £1,500 should produce a bill of costs of nearly £30,000, howsoever it might be justified.
End of judgment