Claim No: 2014 Folio 538 |
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
THE HONOURABLE MR JUSTICE TEARE
Strand, London, WC2A 2LL |
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B e f o r e :
THE RIGHT HONOURABLE LADY JUSTICE SHARP DBE
and
THE RIGHT HONOURABLE LORD JUSTICE HAMBLEN
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MARK ROBERT ALEXANDER (as representative of the "Property118 Action Group") |
Appellant |
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- and - |
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WEST BROMWICH MORTGAGE COMPANY LTD |
Respondent |
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Raymond Cox QC and Chloe Carpenter (instructed by Addleshaw Goddard LLP) for the Respondent
Hearing date: 28 April 2016
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Crown Copyright ©
Lord Justice Hamblen:
Introduction
The contractual documentation
"We are pleased to make the attached Offer of Loan, to be secured on the Property to be mortgaged, on the terms set out in this letter. Attached to this letter you will find some important information about your loan. A copy of our booklet "Information you need to know about your Mortgage" is enclosed. It contains important information about your loan, including the Standard Conditions of Offer and the Mortgage Conditions 2006 (Daily Interest) applicable to your loan ……..
Please note that except during the period of any specified fixed rate of interest all rates of interest are liable to change both before and after completion and that monthly payments will vary with the interest rate."
"Buy To Let 6.29% fixed until 30.06.2010 (115% cover). Any applicable change in the Bank of England Base Rate will be applied to your account on the first day of the month following the change…"
The repayment method was described as "interest-only" and the interest rate payable was said to be 6.29%. It then added:
"After 30 June 2010 your loan reverts to a variable rate which is the same as the Bank of England Base Rate, currently 5%, with a premium of 1.99%, until the term end, giving a current rate payable of 6.99%. Any applicable change in the Bank of England Base Rate will be applied to your account on the first day of the month following the change, unless the change is made after the 13th of the month in which case it will be applied on the 1st. day of the second month following the change."
"After 22 payments, your fixed rate ends and assuming that interest rates do not change your new payment on your loan will be £534.17.
This new payment will continue for 277 payments at a variable rate which is the same as the Bank of England Base Rate, currently 5%, with a premium of 1.99% until the term end, giving a current rate payable of 6.99%. Any applicable change in the Bank of England Base Rate will be applied to your account on the first day of the month following the change, unless the change is made after the 13th of the month in which case it will be applied on the 1st day of the second month following the change. "
Under the heading "Cost of repaying the mortgage" it provided:
"You will still owe £91,703.48 at the end of the mortgage term. You will need to make separate arrangements to repay this. When comparing the payments on this mortgage with a repayment mortgage, remember to add any money that you may need to pay into a separate savings plan to build up a lump sum to repay this amount."
"What if interest rates go up?
The Monthly payments shown in this illustration for your loan could be considerably different if interest rates change. After the fixed rate ends on 30 June 2010 then for one per cent increase in the initial variable rate, your Monthly payment would increase by around £76.42.
RATES MAY INCREASE BY MUCH MORE THAN THIS SO MAKE SURE YOU CAN AFFORD THE MONTHLY PAYMENTS."
"Interest Only Loans
If you select an Interest Only Loan, any Payment that you make to us will cover only interest and not the capital borrowed…It is therefore extremely important to ensure that you have, or will have, the means to repay the Loan (including all capital) at the end of the Mortgage Term…
Whatever arrangements you put in place to repay the Loan, you are reminded that it is generally a long term commitment…it is also important to check regularly the performance of your investment plan to see whether it is likely to be adequate to repay the capital at the end of the Mortgage Term.
….
Interest on your loan
You will be required to pay interest on the amount of the Loan each month. The amount of these monthly payments is detailed in your Offer of Loan Letter.
The rate of interest charged may be varied by us from time to time, except during periods when the Loan is expressed to be at a fixed rate of interest. We will notify you of any variations in the interest rate."
It also referred to "Benefits of Portability" as including "You keep your current fixed, discounted, tracker or capped product".
"3. Mortgage Terms
You have been provided with a letter (your "Offer of Loan Letter") in which we offer to make the Loan and which contains an offer document setting out the costs, features, terms and conditions of the Loan. Please read the offer document carefully. Part of this booklet contains our Mortgage Conditions 2006 (Daily Interest). These Conditions will apply to your Loan. Please also read them carefully".
11. Payments
All payments which comprise or include interest are subject to variation in accordance with the terms of our Mortgage Conditions (except during periods where Loans are expressed to be at a fixed rate of interest). We may vary our method of calculating interest and monthly payments.
""Mortgage Deed" means the contract that you will sign before your loan can be completed.
"Mortgage Term" means the length of time that you are given by the Company to pay off the Loan as specified in your Offer of Loan Letter.
"Offer of Loan Letter" means the letter sent to you in which we offer to make the Loan and which contains an offer document.
"Offer of Loan" means the offer of Loan made by us to you consisting of the Offer of Loan Letter, the Special Conditions of Offer and our Standard Conditions of Offer and including any matters that may have been specifically alerted by us in writing to you."
"These Mortgage Conditions incorporate any terms contained in the Offer of Loan. If there are any inconsistencies between the terms in the Mortgage Conditions and those contained in the Offer of Loan then the terms contained in the Offer of Loan will prevail. "
"5.1 Interest is payable by you...at the rate or rates specified in your Offer of Loan Letter which, except during any period in which interest is expressed to be at a fixed rate, may be varied by the [Lender] at any time for any of the following reasons:
- if there has been, or we reasonably expect there to be in the near future, a change in the Bank of England Base Rate or in interest levels generally;
- if investment interest rates have increased or decreased;
- to reflect market conditions generally;
- to take account of changes in the law, or any decisions, determinations, precedent, compelling guidance, regulations or instructions issued by a relevant governmental body, ombudsman, regulator or similar person or any code of practice with which we intend to comply;
- at the end of any period during which any fixed rate or concession or alternative rate (such as the Bank of England Base Rate) is in force;
- to reflect a change in the way the Property is used or occupied;
- to make sure our business is carried out prudently, efficiently and competitively;
- to make sure we can meet our obligations to third parties.
If any of the above reasons is found to be invalid, we may still vary the interest rate for any of the remaining valid reasons.
5.2 We can also vary the interest rate specified in your Offer of Loan Letter, except during any period in which interest is expressed to be at a fixed rate, for any valid reason other than those set out in condition 5.1 if:
- we give you at least two months' notice in writing of the variation in interest rate and allow you, should you wish, during the 3 months following such notification of the variation in interest rate, to repay the Loan in full without paying any Early Repayment Charge (other than all interest accruing in respect of the Loan up to the date of repayment of the Loan and any reasonable costs reasonably incurred by us in connection with such repayment)."
"9.1 Each Payment will consist of interest due under the Mortgage.
9.2 Your last Payment will consist of the aggregate amount of the outstanding balance of your Loan including all unpaid interest and Charges."
"14 You may be obliged by us to repay the Loan in full together with any accrued interest and unpaid Charges and we will become entitled to exercise all the powers conferred on us under Condition 15 of these Mortgage Conditions immediately if any of the following events occur:
- we give you one month's notice requiring such repayment;
- any Payment remains unpaid for longer than one calendar month;
- you are in breach of any of the other obligations or conditions contained in these Mortgage Conditions;
- the Property becomes subject to a Compulsory Purchase Order;
- you are made bankrupt;
- you enter into an arrangement with or for the benefit of your creditors or propose to do so;
- you die or become incapable of managing your affairs;
- you do anything which may damage or reduce the value of the Property or you fail to perform any obligation (whether to pay money or otherwise) imposed upon you as the owner of the Property;
- the Guarantor terminates or purports to terminate its obligations under the Mortgage Conditions or becomes insolvent or dies or becomes incapable of managing his affairs."
"2. This Mortgage incorporates the Mortgage Conditions and the offer of Mortgage both of which the Borrower acknowledges having received.
By signing this Mortgage you accept the terms of the Standard Conditions of Offer, the Special Conditions of Offer and the Mortgage Conditions."
The factual matrix
(1) Retail Mortgages: Law, Regulation and Procedure (1st Ed):"Tracker Mortgages2-15Interest is charged at a rate which follows, or "tracks", changes in a specified external rate, that is to say, a variable rate which the lender does not control, such as the Bank of England's Official Lending Rate or LIBOR…...3-06 Power to vary the interest rate. Not all retail mortgages provide for interest to be charged at a variable rate and not all of those that do provide for the rate to be variable by the lender10. Nevertheless, it remains common to find that a retail mortgage confers power on the lender to vary the interest during all or part11 of the mortgage term…10. Interest may, for example, be charged at a tracker rate, which will change to reflect changes in a specified reference rate which is outside the lender's control.11. It is common for the mortgage to provide for interest to be charged at a fixed or tracker rate for the first few years, and for the rate then to revert to a rate which is variable by the lender (typically, its standard variable rate)."(2) The Council of Mortgage Lenders website says:
"What types of interest rates deals are there?Fixed-rate - your interest payments are fixed for a set period of time after which you will be moved on to another rate, such as the standard variable rate or tracker rate.Standard variable rate - your interest will vary with your lender's mortgage rate.Tracker rate - your interest rate will move up or down by tracking an external rate such as the Bank of England rate or London interbank rate".(3) The Money Advice Service, set up by the Government, says:
"Tracker mortgagesTracker mortgages move directly in line with another interest rate, normally the Bank of England's base rate. So if the base rate goes up by 0.5%, your mortgage rate will go up by 0.5%.The advantages of tracker mortgagesIf the rate is linked to the Bank of England base rate and it falls, you'll know for sure that your mortgage payments will fall.The disadvantages of tracker mortgagesIf the rate being tracked goes up too much, you may struggle to meet your repayments.You may have to pay an early repayment charge if you want to switch.Suitable if you're looking for…The opportunity to pay less when interest rates are low and don't mind the risk that rates might rise".(4) The Financial Conduct Authority website says:
"Tracker- where the interest rate is guaranteed to move in line with either the Bank of England Base (or repo) Rate (BBR) or another index such as LIBOR (London InterBank Offered Rate).Capped (and collared) rate mortgage where the interest rate is guaranteed not to exceed a stated maximum rate (the 'capped' rate) for specific period of time, but where the standard variable interest rate applies when the rate is lower than the capped rate. Also includes products where the interest rate is subject to a minimum rate (the 'collared' rate)".
The law
".....it is not enough if one term qualifies or modifies the effect of another; to be inconsistent a term must contradict another term or be in conflict with it, such that effect cannot fairly be given to both clauses."
"Indeed, it seems to me that the doctrine of the exclusion of terms which do not make sense (and the doctrine of manipulation which is designed to save an appropriate term for incorporation which would otherwise have to be excluded) as well as the doctrine of inconsistency are but aspects of the overall process of arriving at the true intention of the parties in which the concept of rationality and commercial commonsense must play their appropriate and fundamental roles."
"I do not see the case law which discourages the finding of inconsistency in contractual provisions of much application to a specific clause providing for what is to happen in the event of a conflict. In a sense Clause 5.7 simply removes the need to apply that case law when an apparent conflict emerges. Similarly there is no contractual disharmony when a provision like Clause 5.7 exists to remove it".
".. one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract".
The application of that principle obviously depends upon being able to identify "the main purpose" (per Lord Halsbury) or the "main object and intent" (per Lord Herschell) of the contract, which depends on the construction of the contract as a whole considered in its proper context.
The Issues
(1) Was clause 5 of the Mortgage Conditions a term of the mortgage contract?
(2) Was the first bullet point of clause 14 of the Mortgage Conditions a term of the mortgage contract and/or, if so, did it permit the Lender to require the Borrower to repay the Loan in full together with any accrued interest and unpaid Charges merely by giving one month's notice, and absent any default by the Borrower?
Issue 1 - Was clause 5 of the Mortgage Conditions a term of the mortgage contract?
(1) In Box 4 it is made clear that once the period of fixed rate of interest came to an end the rate would be "variable". Once the interest payments had moved to a rate expressed to be variable then, on the clear wording of clause 5, that clause was applicable.(2) The correct question in principle is whether clause 5 can be sensibly read with box 4 and the rest of the terms of the Offer of Loan. The Judge rightly held that it could be. The rate in Box 4 could be varied in any of the circumstances in clause 5. Box 4 does not state that the margin could not thereafter be varied in accordance with the contractual mechanism, or otherwise seek to refer to or exclude clause 5; it simply did not say anything about the mechanism for variation in clause 5.
(3) The inconsistency clause only applies if the "Offer of Loan" is inconsistent with the Mortgage Conditions, and the Offer of Loan was defined to include the Special and Standard Conditions. The Standard Conditions of Offer (contained in Part B of the Mortgage Booklet) specifically referred to the right under clause 5 of the Mortgage Conditions to vary the rate except during any period when it was expressed to be fixed (clause 11).
(4) It is incorrect to state that it makes no commercial sense if the Lender was able to vary the margin, as the Judge rightly held at [30]. The mortgage was not for a fixed period after the initial period. The mortgage could be terminated early by either of the Borrower or the Lender. If the Borrower did not like the margin as varied, the Borrower was entitled to terminate the loan and remortgage. So from a commercial point of view, the pressure was on the Lender to keep the rate competitive or lose the business.
(5) The Lender's right to vary the interest rate was repeatedly made clear in the documents sent to the Borrower and acknowledged, such as the Application Form, section A of the Booklet and the Acceptance of Offer Letter.
(6) The Borrower's case, if accepted, would have the consequence that clause 5 can never be invoked by the Lender in respect of the Borrower's mortgage or the many thousands who have mortgages with the same material terms. The Lender would have no power to vary the interest rate for a borrower on such a mortgage, save where such variation is specifically provided for in the Offer of Loan, even if required by law, regulation or code of practice. That is an extreme construction which cannot be correct.
Issue 2 - Was the first bullet point of clause 14 of the Mortgage Conditions a term of the mortgage contract and/or, if so, did it permit the Lender to require the Borrower to repay the Loan in full together with any accrued interest and unpaid Charges merely by giving one month's notice, and absent any default by the Borrower?
(1) This was an interest only mortgage and the "Mortgage Term" (i.e. the length of time that the Borrower was given to pay off the loan) was 25 years. The terms of the mortgage contract made clear that the principal loan amount (£91,703.48 in total) would be outstanding at the end of the mortgage term, and that the Borrower should make adequate provision to ensure that he could repay that principal loan amount, but only as at the end of the mortgage term (and not at any earlier time).
(2) As is apparent from the Offer Document, the Borrower incurred various fees in concluding the mortgage, some of which were added to the loan, and all of which were non-refundable.
(3) There is no hint in the Offer Document that the term of the mortgage may be abbreviated by a termination in the absence of any breach or event of default by the Borrower.
(4) The capitalised words at the end of the General Conditions – "YOUR HOME MAY BE REPOSSESSED IF YOU DO NOT KEEP UP REPAYMENTS ON YOUR MORTGAGE" – would be highly misleading if the mortgage contract in truth provided that the Lender could call in the full loan and repossess the property, absent any breach or event of default, at any time, merely by giving one month's notice.
Conclusion
Sharp LJ:
Sir Brian Leveson P: