England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
HIS HONOUR JUDGE GODSMARK QC
2PA97976

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/05/2015

Lord Justice Briggs :

Introduction

1. This is an application for permission to appeal, with appeal to follow if granted, against the Order of HHJ Godsmark QC, made on 18^th October 2013 in the Nottingham County Court at the conclusion of mortgage possession proceedings, whereby he gave judgment to the claimant Capital Bridging Finance Limited against the defendant Mrs. Bernice Wood in the sum of £151,883.34, together with contractual interest at 3% per month, pursuant to the terms of a written Loan Facility Agreement (the "Facility") made between the parties on or about 21^st November 2011.
2. It is not in dispute on this appeal that the sum for which judgment was given was a correct reflection of the amount of the defendant's then contractual liability to the claimant under the Facility. Rather, the main point taken by Mr. Soofi Din, direct access counsel for the defendant, was that the judge had been wrong in law to enforce that contractual liability by a simple money judgment, because the Facility was a regulated agreement under Section 8(3) of the Consumer Credit Act 1974 ("the CCA") and, since its form and content were not as prescribed by the CCA and regulations made thereunder, it could only be enforced by an enforcement order under Section 127, for which the claimant had not applied. By contrast with a simple contractual claim, an application for enforcement of a regulated agreement under Section 127 gives the court a range of powers either to refuse to enforce at all, to reduce or discharge a sum payable, to give the debtor time to pay, to impose conditions, and to suspend operation of the order.
3. The unusual feature of this litigation is that, although the question whether the Facility was a regulated agreement was formally in issue on the pleadings, both the parties and the judge appear to have lost sight of that issue by the time that the claim for a money judgment first became the subject of submissions. Mr. Din very properly acknowledged to us a share of the responsibility for that omission and was at pains to absolve the judge from any blame at all. Although, by the time of submissions about a money judgment, the primary facts relevant to the question whether the Facility was a regulated agreement had been found by the judge, in a careful extempore judgment at an earlier stage in the litigation (albeit for an entirely different forensic purpose), the main reason why this question had disappeared from view was because the litigation had, until that time, been entirely concerned with the question whether the loan made pursuant to the Facility had been secured by a legal or equitable mortgage. Although a money judgment had always been sought in the proceedings, it was until their very end little more than a formal back-stop, in proceedings designed mainly to enforce the security rights which the claimant asserted and assumed that it had.
4. Having invited Mr. Din to make all the submissions which he wished to advance, both for obtaining permission to appeal and on the merits of such an appeal if permission be granted, we gave him permission at the conclusion of his submissions. This judgment sets out the reasons why I have concluded, notwithstanding the concise submissions of Mr. Stone for the claimant, that the appeal should indeed be allowed.

The facts

5. I can take the relevant facts largely from the judge's excellent extempore judgment given at the conclusion of the first stage of the trial, on 2^nd August 2013. Subject to one point to which I shall return, they are not significantly in dispute on the appeal.
6. The defendant Mrs. Wood was, at the time of the Facility, a 75-year old lady, who had lived for most of her life, and continued to live, at 4 Hardwicke Road, Beeston. Her son-in-law Mark Johnson wanted to obtain money for the purposes of a business of his, and persuaded the defendant to apply for a business bridging loan from the claimant, on the security of a mortgage over her home. The amount sought, and lent, was £64,000, for a period of six months. The claimant company was in the business of making unregulated loans, unregulated that is under the CCA or under the separate regime regulating lending on the security of residential properties in the occupation (or partial occupation) of the borrower, under the Financial Markets and Services Act 2000 (Regulated Activities) Order 2001. Section 16B of the CCA excludes from regulation under that Act consumer credit agreements for the provision of credit exceeding £25,000 (and comparable consumer hire agreements) if the agreement is entered into by the debtor (or hirer) wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him. As I shall in due course describe, Section 16B(2) creates a presumption to that effect if the relevant agreement contains a declaration by the debtor (or hirer) to that effect, but sub-section (3) disapplies that presumption if the creditor, or anyone acting on his behalf, knows or has reasonable cause to suspect that the agreement was not entered into wholly or predominantly for the qualifying business purpose.
7. The Facility did indeed contain such a declaration, signed by the defendant. It was in the following terms:

"I am entering this agreement wholly or predominantly for the purposes of a business carried on by me or intended to be carried on by me.

I understand that I will not have the benefit of the protection and remedies that would be available to me under the Consumer Credit Act 1974 if this agreement were a regulated agreement under that Act.

I understand that this declaration does not affect the powers of the court to make an order under section 140B of the Consumer Credit Act 1974 in relation to a credit agreement where it determines that the relationship between the creditor and debtor is unfair to the debtor.

I am aware that, if I am in any doubt as to the consequences of the agreement not being regulated by the Consumer Credit Act 1974 I should seek independent legal advice."

8. In fact of course the defendant's real purpose in making the loan agreement was to obtain loan finance for her son-in-law to use in connection with his business, rather than in connection with any business of hers. Furthermore, and perhaps surprisingly, neither she, her son-in-law nor the broker acting on her behalf, a Mr. Esqulant, made any secret of her real purpose. Mr. Esqulant told a Mr. Philip Dabbs (who handled the transaction for the claimant) that the loan was for the purpose of assisting a family member, by email on 24^th October 2011. When Mr. Dabbs met the defendant and her son-in-law on 21^st November, he was told that the defendant was keen to help her son-in-law in connection with his business, and that this was the purpose of her application to the claimant for a loan. The judge's conclusion that this was what Mr. Dabbs had been informed, immediately prior to the making of the Facility, was derived from the unambiguous terms of his witness statement, the relevant part of which was not challenged. Thus, although the declaration which I have recited was clearly false, the claimant was not misled, still less deceived, by it.
9. The position was very different in relation to the occupation of 4 Hardwicke Road, which was being offered as mortgage security. The defendant could not expect to obtain a loan from the claimant if it appreciated, as was the case, that she was living there. The judge found that, at her son-in-law's instigation, she dishonestly participated in a deception of the claimant, to the effect that she was living elsewhere, which included providing to her solicitors, for onward transmission to the claimant, a doctored version of a bank statement of hers, putting forward a false residential address. By this fraud, the claimant was indeed deceived.
10. Unfortunately for the claimant, the mortgage deed signed by the defendant in relation to Hardwicke Road was defective, because it was not properly witnessed. This omission went unnoticed when the claimant advanced the loan of £64,000 to the defendant, who passed it on, as planned, to her son-in-law.
11. Unfortunately for the defendant, her son-in-law's promise to her to repay in due time went unfulfilled. Further, he decamped to North Cyprus, along with the defendant's daughter and her grandchildren, leaving her to face the music.

The proceedings

12. The claimant issued mortgage possession proceedings in the Nottingham County Court in August 2012 using the standard form N120. Paragraph 4(b) of the Particulars of Claim pleaded that:

"The agreement for the loan secured by the mortgage is not (or none of them is) a regulated consumer credit agreement."

By paragraph 11, the claimant sought that the defendant:

"(a) give the claimant possession of the premises;

(b) pay to the claimant the total amount outstanding under the mortgage."

13. By an Amended Defence, the defendant denied having borrowed anything from the claimant or having signed any of the relevant documents, other than purely as a witness. More to the point for present purposes, she did not admit that the loan agreement was not a regulated consumer credit agreement, so that its status in that respect was put in issue.
14. By its Reply, the claimant pleaded the defendant's declaration as to the business purpose of the loan and that, by reason of its reliance upon that declaration, the defendant was estopped from denying that the Facility was not a regulated agreement.
15. It is in the light of those pleadings all the more surprising that the claimant relied at trial upon a witness statement from Mr. Dabbs that asserted in the clearest terms that he had been told, both by email and at a meeting, that the defendant's purpose in taking the loan was to support her son-in-law in his business. The explanation is, I think, that the main pre-occupation of the claimant was to deal in evidence with her assertion that she not been the borrower at all, and probably also to fend off any suggestion that the borrowing and the grant of the Mortgage might have been the result of undue influence or other abuse exercised upon the defendant by her son-in-law of which the claimant had notice, although this has not been pleaded by her.
16. After a full trial, the judge gave an extempore judgment on 2^nd August 2013, firmly rejecting the defendant's case that she had not borrowed the money, or signed the relevant documents as borrower. He described her reliability as a witness in charitable terms, as that of "an unreliable historian". But he accepted Mr. Din's submission that, because of defective attestation, the form of legal mortgage which she had signed was ineffective as a deed, so that it could take effect as no more than an equitable mortgage. Since this would confer no statutory power of sale on the claimant, the judge adjourned the proceedings to enable the claimant to make an application for an order for sale, as the precursor to an order for possession. The judge said nothing at that stage about any money judgment, from which I infer that none had by then been applied for.
17. Pursuant to directions given by the judge, an application for an order for sale was duly made by the claimant, supported by evidence served upon the defendant's then solicitors on 14^th August. That evidence contained a full breakdown of the amount by then alleged to be owing under the Facility and secured by the alleged equitable mortgage, which had risen to an alarming £155,781.41, largely due to default interest and costs. The evidence also included a proposed amendment to the Particulars of Claim sufficient to support an application for an order for sale. The evidence about the amount owing appears to have been deployed not for the purpose of obtaining a money judgment, but rather so as to assist the court in the exercise of its discretion whether, and upon what terms, to make an order for sale.
18. The matter came back before the judge on 17^th September, by which time the defendant had not replied to the claimant's further evidence, had discharged her solicitors, but re-engaged Mr. Din on the day before the hearing.
19. Yet again, the claimant failed in its revised attempt to obtain possession of the property. In a second extempore judgment, the judge accepted Mr. Din's submission that no equitable mortgage could be relied upon by reference to the Facility. Although it was duly signed, it made reference to a charge only by way of condition precedent rather than contractual obligation. The result was that there was nothing sufficient to satisfy Section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
20. It was at this low point in the proceedings that the claimant by Mr. Stone resorted to its long-stop, namely a claim for a money judgment, based upon the further evidence about the very large increase in the amount owing pursuant to the Facility.
21. The transcript of the proceedings following judgment shows that Mr. Din sought, without success, to have the proceedings adjourned, so that he and his client could consider what he described as a new claim. He conceded on several occasions during his submissions that, pursuant to the Facility, the defendant had a contractual liability to repay the claimant, although he made no concession as to the amount. He added this:

"Next, again, I do not want to end up being hurried into something and then have to regret at my leisure. There is no longer a loan charged on land. A loan charged on land escapes, generally speaking, the Consumer Credit Act. … Now, I am not going to stick my neck out and agree to a course of action when I may then find myself in a situation that there is a Consumer Credit point that will affect, leaving aside the amounts of interest, all the other bits and pieces it is being sought to add on."

Mr. Din did not elaborate as to what that Consumer Credit point might be, and the judge declined to grant anything other than a half-hour adjournment. But he permitted Mr. Din to cross-examine the claimant's deponent as to the amount owing under the Facility, at the conclusion of which he gave judgment for £151,883.34, being approximately £4,000 less than the full claim, after disallowing certain items. The judge was, plainly, conducting a purely contract-based account, rather than applying any discretion under the CCA, of the type which would be available on an enforcement application in relation to a non-compliant regulated agreement. Thus, the proceedings before the judge reached a conclusion and final judgment without the question whether the Facility was or was not a regulated agreement ever having been made the subject of submissions, or any ruling, although Mr. Din told us that, in correspondence after the extempore judgment on 17^th September, but before the order was made, he attempted without success to raise the point.

The appeal

22. Mr. Din makes two points for the defendant on this appeal. First, he submits that the judge ought to have refused to entertain or at least adjourned the claim, since it was advanced on 17^th September for the first time, for a money judgment based on the Facility. This was, he submitted, a serious procedural irregularity.
23. Secondly, and this became his main oral submission, he said that the judge's decision to give judgment on the Facility on a purely contractual basis was simply wrong in law because, on the facts which he had by then found, the Facility was a regulated agreement. It was, or became, common ground between Mr. Din and Mr. Stone, that if the Facility was a regulated agreement, it was non-compliant in terms of form and/or content, such that it could only be enforced by an application for an enforcement order under Section 127.
24. I have found it to be convenient to take Mr. Din's two points in reverse order.
25. The relevant provisions of the CCA are as follows:

"8. – Consumer credit agreements

(1) A consumer credit agreement is an agreement between an individual ("the debtor") and any other person ("the creditor") by which the creditor provides the debtor with credit of any amount.

(2) […]

(3) A consumer credit agreement is a regulated agreement within the meaning of this Act if it is not an agreement (an "exempt agreement") specified in or under section 16, 16A, 16B or 16C.

…

16B Exemption relation to businesses

(1) This Act does not regulate-

(a) a consumer credit agreement by which the creditor provides the debtor with credit exceeding £25,000, or

(b) a consumer hire agreement that requires the hirer to make payments exceeding £25,000,

if the agreement is entered into by the debtor or hirer wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him.

(2) If an agreement includes a declaration made by the debtor or hirer to the effect that the agreement is entered into by him wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him, the agreement shall be presumed to have been entered into by him wholly or predominantly for such purposes.

(3) But that presumption does not apply if, when the agreement is entered into-

(a) the creditor or owner, or

(b) any person who has acted on his behalf in connection with the entering into of the agreement,

knows, or has reasonable cause to suspect, that the agreement is not entered into by the debtor or hirer wholly or predominantly for the purposes of a business carried on, or intended to be carried on, by him.

(4) The Secretary of State may by order make provision about the form, content and signing of declarations for the purposes of subsection (2)

(5) Where an agreement has two or more creditors or owners, in subsection (3) references to the creditor or owner are references to any one or more of them.

(6) Nothing in this section affects the application of sections 140A to 140C.

…

65. – Consequences of improper execution

(1) An improperly-executed regulated agreement is enforceable against the debtor or hirer on an order of the court only.

(2) A retaking of goods or land to which a regulated agreement relates is an enforcement of the agreement.

26. It is in my view implicit in the structure of sections 8 and 16B of the CCA that the burden of proving that the business exception applies to a credit agreement, so as to make it unregulated, falls on the creditor. This is because, prima facie, all consumer credit agreements (as defined in section 8(1)) are regulated unless they are exempt agreements, and section 16B sets out one class of exemption. Nonetheless, Parliament has prescribed by section 16B(2) an easy method of discharging that burden by way of presumption, where the creditor obtains a declaration in the prescribed form. But where, on the facts, the presumption is inapplicable because sub-section (3) applies, then the burden falls back on the creditor: see Chitty on Contracts (31^st Ed) Vol 2 at paragraph 38-044, with which I agree. Of course, if (within the meaning of sub-section (3)) the creditor knows that the agreement is not entered into by the debtor wholly or predominantly for the purposes of business carried on, or intended to be carried on, by him, then it is hard to see how the creditor could ever prove the contrary. But if the creditor merely has reasonable cause to suspect that this may be so, this by no means disables him from proving, if he can that, with the benefit of hindsight, such a suspicion was wrong.
27. It was common ground between counsel on this appeal that the declaration in the Facility which I have recited in full was on its face compliant with section 16B(2), and no point was taken as to whether it was in the prescribed form. But the claimant's unchallenged evidence (from Mr. Dabbs) was that he knew that the defendant wanted the loan for the purpose of assisting her son-in-law for his business. Mr. Dabbs was plainly the person who acted on the claimant's behalf in connection with the entering into of the agreement, within the meaning of section 16B(3)(b). The judge's findings were, plainly, that this was indeed the defendant's purpose, and that Mr. Dabbs knew that it was. On the face of it therefore, the presumption in section 16B(2) did not apply. Since this was not a case of suspicion, but rather of knowledge, the judge's findings left no realistic room for the claimant to establish that the defendant's predominant purpose was such as to bring the Facility within the section 16B business exemption.
28. Mr. Stone for the claimant tried hard to escape from this simple consequence. First, he submitted that, had the point been taken for the defendant at trial, he might by cross-examination of the defendant, or by further evidence from Mr. Dabbs, have established, for example, that the defendant had a share in her son-in-law's business so that what they had described to Mr. Dabbs as his business was also hers.
29. That seems to me to be a speculative, if not fanciful, assumption. The defendant was an elderly lady, well past retirement age, and there was no suggestion anywhere in the evidence that she might have been a partner with her son-in-law, or had any share in his business. But the claimant's more serious difficulty was that, since on any view the exchange which the judge found had taken place between the defendant and Mr. Dabbs must have created at the very least a suspicion that the purpose of the loan was not to serve the defendant's business, the onus to show that it did rested upon the claimant at trial, and no attempt was made to discharge it.
30. Secondly, Mr. Stone submitted that the defendant was estopped by her declaration in the Facility from denying that the agreement was unregulated. Three estoppels were briefly relied upon, and I will take them for convenience in reverse order. First, contractual estoppel, as explained in Peekay International Limited v Australia & New Zealand Banking Group Limited [2006] EWCA Civ 38 and, more recently, in Springwell Navigation Corp v JP Morgan Chase Bank [2010] EWCA Civ 1221. In my judgment, contractual estoppel cannot prevail against the clear prohibition of contracting out of the protection of the CCA in section 173(1), which provides that:

"A term contained in a regulated agreement or linked transaction, or in any other agreement relating to an actual or prospective regulated agreement or linked transaction, is void if, and to the extent that, it is inconsistent with a provision for the protection of the debtor or hirer or his relative or any surety contained in this Act or in any other regulation made under this Act."

31. The essence of contractual estoppel, as it is now understood, is that it has contractual force. I consider that to give contractual effect to a declaration of in what is otherwise a regulated agreement that it is not a regulated agreement must therefore fall foul of the prohibition on contracting out of the CCA set out in section 173.
32. Secondly, estoppel by representation. This was the only estoppel pleaded by the claimant in reply to the non-admission of the allegation that the Facility was not a regulated agreement. The suggestion is that the defendant's written declaration contained a representation by her that the loan was sought for the defendant's own business purposes, upon which the claimant relied. It was of course a misrepresentation but, as the judge found, the claimant through Mr. Dabbs knew the truth, so that there was no relevant reliance.
33. Finally, Mr. Stone relied upon estoppel by convention. Again, I cannot envisage how this could assist the claimant. Mr. Dabbs (and therefore the claimant) knew before the defendant even signed the declaration that its content was not true. Thereafter, it is difficult to identify any relevant conduct between the parties which could properly form the basis of a conclusion that they thereafter acted upon a mistaken assumption that it was true. Furthermore, an attempt to construct an estoppel by convention from a declaration designed to comply with section 16B(2) in circumstances where it is disabled by section 16B(3) seems to me to run counter to the requirements of the CCA.
34. Finally, Mr. Stone submitted that even if there was no real prospect that further evidence might demonstrate that the defendant sought the loan for her own business purposes, and no estoppel, so that the question was purely one of law, applied to the judge's findings of fact, nonetheless the defendant should not be permitted to raise it for the first time on appeal, having obtained the loan by fraud, and done nothing more than decline to admit that the Facility was not a regulated agreement. I do not accept that submission, for the following reasons, in combination. First, the onus of demonstrating, as a necessary part of a claim for a contractual money judgment, that the Facility was not a regulated agreement, lay upon the claimant, and its attempt to rely upon the defendant's declaration was nullified by its own evidence, from Mr. Dabbs.
35. Secondly, although a money claim had always lain as a long-stop on the pleadings, it was one advanced by reference to the mortgage rather than the Facility so that its resurrection on 17^th September after the mortgage had been found to be wholly ineffective was, to an extent, a new claim because it was, for the first time, based upon a contractual obligation in the Facility agreement itself. It was therefore incumbent upon the claimant to present that contractual claim in a way that demonstrated that the Facility could be relied upon purely in contract, rather than by way of enforcement order under the CCA, and no attempt was made to do so.
36. Thirdly, the protection afforded to consumers by the CCA exists as a matter of public policy, even in cases where, for example, the debtor has made a false declaration as to her business purpose, where there are grounds for suspicion by the creditor within the meaning of section 16B(3).
37. Fourthly, the claimant seeks to hold on to a judgment in a sum which, as Mr. Stone was constrained to acknowledge, was much larger by virtue of a contractual enforcement of the Facility than would have been a claim for recovery of the money lent by way of rescission for fraud, or damages for deceit. The claimant had advanced only £64,000, in late 2011, but obtained judgment for £151,000-odd two years later. It is hard to see how the most generous assessment of damages for deceit, or payment upon rescission, could have produced anything like such a large amount. There is therefore no real substance in the submission that the claimant should justly be able to hold on to a judgment in excess of £151,000 by reason of having been deceived into making a loan of £64,000 two years earlier which, if the defendant had been honest about her residential address, would plainly never have been made.
38. Finally, there was an element of ambush, albeit not one which it can be said that the claimant set out to create, in Mr. Din's predicament when faced for the first time with the active pursuit of the claimant's monetary claim, after succeeding in disposing of the application made on 17^th September, which had been, on its face, limited to an application for an order for sale. He had been instructed only on the previous day and the transcript shows that, while conscious that there might be some CCA point to make, he was not equipped to research or pursue it on the day, and not given an adjournment to enable him to do so, as he had sought.
39. For all those reasons, there is in my view no injustice in permitting the defendant to take this point of law for the first time on appeal, based upon the facts already found by the judge. There might have been an injustice if there was any prospect that further forensic work on the facts might have led to a different conclusion about the business purpose for which the loan was sought. For the reasons which I have given, there is no real prospect of such an outcome.
40. Mr. Din's main point, based upon error of law, is therefore a sufficient and indeed necessary basis for allowing this appeal. It follows that, for my part, I do not need to deal with his separate, although related, submission that the judge's refusal to adjourn the case on 17^th September was a serious procedural error. I make it clear that, like Mr. Din himself, I attribute no blame to the judge for not focussing upon the fact that, the issues as to security for the loan having all dissipated, his findings of fact demonstrated that the Facility was a regulated agreement. That would, indeed, only have statutory consequences if it was also non-compliant, in terms of its form and content, a matter about which the judge was not addressed either, although it is now common ground. If the appeal had depended upon categorising the judge's refusal of an adjournment as a serious procedural irregularity, I doubt whether I would have acceded to it. But, for the reasons given, it is unnecessary for me to reach a final question.

Conclusion

41. If my Lord and my Lady agree, this appeal should therefore be allowed. I would set aside the judge's money judgment but I would not, at this stage, dismiss the proceedings in their entirety. It is clear, and Mr. Din has very sensibly continued so to acknowledge, that it is virtually inevitable that the defendant will have to pay a substantial sum to the claimant if application is now made for an enforcement order, and I am not persuaded that any sensible purpose, consistent with the overriding objective, would be served by dismissing these proceedings in their entirety and requiring the claimant to start again. Rather, I would give liberty to the claimant to apply in these proceedings for an enforcement order, and for directions as to any necessary amendment and exchange of evidence sufficient to enable the court to exercise its various powers under the CCA in relation to the enforcement of the Facility. The application should be made to Judge Godsmark QC, if available.
42. There remains the question whether the claimant should have some protection as against the defendant's home in the meantime. Until trial, the claimant had the de facto protection of an apparent registered mortgage. Thereafter it obtained a charging order in support of the money judgment which persists until this day. But if the money judgment is set aside, it seems to me that the charging order cannot survive, because there is nothing upon which it would be based.
43. At the conclusion of the hearing, we briefly canvassed with the parties, against the possibility that we might allow the appeal, the question whether any and if so what interim protection might be appropriate for the claimant, having regard in particular to the fact that the defendant at her son-in-law's instigation had made a fraudulent application for the loan in the first place. Mr. Din indicated that he might be able to obtain appropriate undertakings from his client designed to preserve the property or its equivalent as a means of recourse to the claimant by way of execution of any enforcement order which it may in due course obtain. Again, if my Lord and my Lady agree, I would be disposed to consider, on written submissions, the nature and extent of any undertakings or other interim protection which the claimant ought to be given, pending the making of an application for an enforcement order, and its determination by the judge, to whom any further applications in these proceedings ought, if possible, to be made.

Lady Justice King:

44. I agree.

Lord Justice Patten:

45. I also agree.