England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRURO COUNTY COURT
(His Honour Judge Tyzack)

		Royal Courts of Justice Strand London WC2 Tuesday, 15th January 2002

Tuesday, 15th January 2002

1. LORD JUSTICE DYSON: This is an adjourned hearing of Mr Godolphin's application for permission to appeal. On 12th November last year I refused him permission in relation to his costs point, but I adjourned the application insofar as it related to accounts 3, 5 and 6. In his amended skeleton argument he contended that the judge had failed to reflect properly in the money judgment the fact that the claimant made certain concessions in relation to its claims in respect of accounts 3, 5 and 6. The claimant's total claim was £173,199.84. The judge had deducted the sums of £9,000, £6,000 and £13,000, which were said to be the sums referable to these three accounts respectively. That is how judgment came to be given for £95,199.84. In his amended skeleton argument Mr Godolphin said that the amount should have been further reduced by £22,998.23, on the basis that further sums had been claimed and awarded in respect of these three accounts. I adjourned the application to enable notice to be given to the building society.
2. The basic facts are that on 30th March 1989 the claimant advanced to Mr Godolphin the sum of £48,000 secured by way of a legal charge over his home. The first loan was split into two accounts for the purposes of MIRAS. The claimant subsequently made four further advances, namely £9,000 on 18th April 1990 (account no.3), £4,000 on the 21st January 1991 (account no.4), £6,000 on 31st January 1991 (account no.5) and £13,000 on 18th September 1991 (account no.6).
3. The applicant fell into arrears with his payments. He sent his payments by one cheque at a time. A question therefore of apportionment arose. The claimant applied each cheque to the applicant's no.1 account. The result was that the no.1 account eventually went into credit, whereas the other accounts fell into even greater arrears. Mr Godolphin contended that his payments should have been apportioned pro rata between each of the six accounts and that they were not credited to his accounts as soon as they should have been. The claimant did not agree with this. However, in order to avoid further dispute on the figures, it decided to limit its claim to the arrears calculated in accordance with the entries made by the applicant on the Scott Schedule that was prepared in the current proceedings. An expert forensic accountant was then jointly appointed by the parties to calculate the arrears in accordance with the terms of each of the loan agreements and in accordance with the apportionments between each of the six accounts credited on the dates stated by the applicant. This resulted in a report by a Mr Barnes which set out exactly how much was due and how much was paid each month in accordance with the Scott Schedule.
4. Section 87 of the Consumer Credit Act 1974 provides that a default notice is necessary before the creditor can become entitled, by reason of any breach of the debtor of a regulated agreement, inter alia, to demand earlier payment of any sum. The agreements which are the subject of accounts 3, 5 and 6 are all regulated agreements. The arrears figure stated by the claimant in the default notices for those three accounts were higher than the figures calculated by Mr Barnes. The claimant decided not to proceed with its claim that these default notices were valid by virtue of section 87 of the 1974 Act. The claimant was therefore not entitled to demand earlier payment of the sums advanced in respect of these three accounts. That is why the claim for the sums lent in respect of those accounts was abandoned. But that did not have any effect on the claimant's entitlement to the arrears of interest that had already fallen due in respect of those accounts.
5. At paragraph 30 of the written comments prepared by Nichola Muir for the purposes of this adjourned hearing the relevant figures are set out. They show that the judgment sum of £95,199 odd was based upon Mr Barnes' summary. They also show that the sum of £22,998 to which I have earlier referred relates to the capital sums advanced on the three accounts. They relate to arrears of interest. Mr Godolphin does not dispute this. In those circumstances it seems to me that there is no substance in the suggestion that any part of the £95,000 odd figure for which judgment was awarded relates to claims which were abandoned by the claimant.
6. The next point Mr Godolphin seeks to make is that the claimant should not have commenced these proceedings on the basis of invalid default notices, and that the claimant failed to cure this defect by serving a partial discontinuance notice. But the claimant's acceptance that the figures stated in the default notices for the three accounts were too high did not invalidate the claim to arrears of interest in respect of those accounts. Nor does the fact that no partial notice of discontinuance was served afford Mr Godolphin any ground of appeal.
7. The next point that is that the contracts which were the subject of the three accounts and which were, therefore, subject to provisions of the 1974 Act were not enforceable by virtue of section 127(3) of the Act because they did not comply with the Consumer Credit (Agreements) Regulations 1983. In particular he relies on paragraph 6 of the Regulations and paragraph 5 of Schedule 6 to the Regulations.
8. Paragraph 5 sets out prescribed terms for repayments, and is in these terms:

"A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following:

(a) number of repayments;

(b) amount of repayments;

(c) frequency and timing of repayments;

(d) dates of repayments;

(e) the manner in which any of the above may be determined;

or in any other way, and any power of the creditor to vary what is payable."

9. Mr Godolphin submits that the three contracts in question did not state what the first date of repayment was. What contract did say was this:

"The Borrower will be notified of the date and amount of the first monthly payment after completion of the mortgage and subsequently monthly payments will become due on the same date in each successive month."

10. What happened was that in each of the three cases the borrower was indeed notified of the date of the first monthly payment. Mr Godolphin says that the date of the first repayment should have been incorporated as a prescribed term in the agreement itself, and because it was not those three agreements are unenforceable. It seems to me that the answer to that submission is to be found in paragraph 5(e) of Schedule 6. The manner in which the first and subsequent payments were to be made was stated in the agreements. It was to be notified to the borrower. That, it seems to me, is a complete answer to this highly technical point that Mr Godolphin seeks to make. I would therefore not grant him permission to appeal on that point.
11. The only other point that he wishes to make concerns what he describes as the confusing and incomprehensible way in which the no.1 MIRAS account was dealt with. He may be right about that, but it seems to me that that cannot afford him any ground of appeal, since the judgment was based upon the figures produced by Mr Barnes and there is no complaint about Mr Barnes' figures.
12. I have attempted briefly to deal with all of Mr Godolphin's points, and in my judgment he has no real prospect of succeeding on any of them. For these reasons, I would refuse this application for permission to appeal.
Order: Application dismissed. No order for costs.