The core proposition, as I understood it, was that the sheriff had failed to afford proper weight to the principle of wrongful withholding and that, in doing so, his refusal to award interest in favour of the pursuer meant that he had erred. As already noted the reclaimers also disclaimed, as they had before the Lord Ordinary, any claim which is to any extent dependent on some failure of duty of care said to be owed to them by the respondents. In the BFL case Messrs Balfour & Manson were instructed by the borrowers to prepare the appropriate standard security, in favour of BFL Both firms of solicitors then engaged with Messrs Mellicks Solicitors, acting for the lenders, in relation to the execution of the standard securities. Please liaise with client's solicitor to ensure that the client is fully aware of the legal implications of signing the loan agreement forms. This page was generated at 16:20:PM. Connecting decision makers to a dynamic network of information, people and ideas, Bloomberg quickly and accurately delivers business and financial information, news and insight around the world For. Furthermore, he was almost certainly the person with whom Excel itself had been dealing on the basis of the same misapprehension as to his name and identity. Jane Charles is out of pocket despite a court ruling that some of her lenders terms and conditions were unfair. The pursuer has achieved a modicum of success in terms of her appeal. BFL v Balfour & Manson LLP - the factual position. In dealing with the scope of the warranty the judge at para 59 of his judgment stated: "The essential legal principles applicable to such a claim are not in doubt. Im going to have to sell my flat to pay them off, says Charles, adding: Its a ridiculous situation. Messrs Mellicks, who had been informed that Balfour and Manson were acting for Mr and Mrs Morgan, wrote to Ms Sinclair on 29 September giving details of the proposed loan and requesting details of the title and the short assured tenancy which they understood was in place in relation to it. It was marked for the attention of Akay Ahmet. The cookie is used to store the user consent for the cookies in the category "Other. 3. Its parent company, Together Financial Services, describes itself as one of the UKs leading specialist mortgage and secured loan providers. It would be quite unreasonable and inappropriate to extend this to an implied warranty that his client has a certain attribute or attributes. The sheriff had cited the effect of the recession and the adverse feedback about the condition of the property as justification for the figure of 160,000. There is no detail as to the date upon which interest had been frozen or as to the rate of interest involved. December . The case of Blemain Finance Limited v Ridley [June 2012 Darlington County Court] is such an example. These propositions clearly focus on the conduct of the agent involving an expressed or implied representation by him that he has authority to act for the principal he says he is acting for in the transaction he is entering into with the third party. The call was taken by Ms Anne Sinclair an employee of Balfour and Manson. Guardian Money put a number of questions to Blemain/Together. This is not the case of a bare misstatement by a person not bound by any duty to give information. It sent us this statement: We are sorry to hear that our customer, who took a loan out with us in 2006, was unhappy in her experience. 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". Upon receipt of that letter Mr Longmuir wrote to Mellicks confirming that he was taking his clients instructions. [33] It follows that in relation to the BFL case the reclaiming motion is refused. She had never met or acted for Mr and Mrs Morgan previously. The judgment will be of interest to other Blemain customers, as well as those of other specialist mortgage and secured lending firms. Vat no: 294 8327 19Authorised and regulated by theSolicitors Regulation Authority-Stephensons Solicitors LLP - No. The public information viewed on our online case search system reflects the docket entries in civil, criminal, criminal domestic violence and tax cases, probate cases for large estates and small estates, disclaimers of interest, major litigation, wills, and foreign estate proceedings. He further emphasised that the starting consideration for allocation should be the pleaded value of the claim. We were advised that commercial lenders, like those involved in the proceedings before us, are not infrequently being made the victims of identity fraud. In considering whether or to what extent interest should be awarded on the damages figure, I am, at best, doubtful that the court is entitled to consider arrangements which may or may not have been made in regard to the charging of interest on a discrete sum of money which is distinct from the award made by the court. He confirmed that they had requisitioned copies of the prior title deeds. Click here for a full list of third-party plugins used on this site. It appears to us that this letter has exactly the same status and meaning as that recognised, apparently by the parties, as applying to the letter in the Blemain case. That was a person identifying himself by the name of James Charles Whittaker Golding and claiming to be the registered proprietor of the property at 17 Richards Place. At the beginning she says the interest rate was 13.9%, and the court documents say it went up to 14.9% at one point. they produced passports and utility bills to the solicitors to support their identity. On 25 November the signed documents were forwarded to Mellicks. He informed the court that he did not make it a requirement that new clients should show this to him before he started work on their behalf, but made it clear that they would require to be produced at some point during any work being carried out by him for them. The transaction in this case followed closely the path of what happened in the CMC case. 3 pages) Ask a . On or about 29 September BFL instructed Messrs Mellicks to act in relation to the proposed loan and security documentation. As we are now under pressure to make settlement of this matter I wonder if you could ask the lenders solicitors to electronically transfer the loan funds to yourself and on receipt of these could you (after deducting your fees) transfer them direct to the seller. The case involved a solicitor warranting that he acted for both a husband and wife in the granting of a security over a home jointly owned by them. All that the agent is warranting is that he has a client and that client has given him authority to act. In determining that no interest should be awarded in respect of the sum decerned for, the sheriff had relied upon the fact that the sums owed to the defenders had been paid off but subject to a shortfall of 10,645.31. Key court cases relating to the campaign finance law. Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet. We use cookies to ensure that we give you the best experience on our website. Mr Allisons submission was to the effect that none of these features could properly be said to inform the decision to prefer the figure of 160,000 to that of 175,000 as proposed by Mr Dougan. Moreover, it was, he argued, clear that the sheriff had placed reliance upon Mr Dougans expert testimony when it came to the proposition that a sum greater than 150,000 ought to have been achievable with the passage of further time. In accordance with that approach, to my mind, the sheriff exercised a broad judgement as he was entitled to do in a case where the amount of damages did not admit of precise of calculation. Search by state or ZIP code, Look up contributions from specific individuals, Find and contact your committee's analyst. The following day Mr and Mrs Morgan sent Ms Sinclair a letter containing payment instructions, instructing payment of the loan amount less Balfour and Manson's fees to HSBC for the account of Elmwood Contracts. Counsel for the reclaimers accepted that if the decision in that case fell to be considered to be good law for Scotland then they would fail on the main point raised by them in both cases, namely the scope of any implied warranty of authority by the respondents. [22] At all odds, I have given effect to the proposition that the sheriff ought to have awarded interest in favour of the pursuer principally for the reasons set out in her second ground of appeal. The case has been quoted in an number of legal commentaries including Lexis, Practical Law and Civil Litigation Brief. That is made clear in Bowstead and Reynolds at para 9-066 where the writers state: "The basic warranty is only that the agent has authority from his principal: this is something particularly within the agent's knowledge. He had the opportunity to consider the evidence in its totality. In successfully defending the possession proceedings, the legal charges relating to the unenforceable agreements were ordered to be removed from Mrs Thomas property. [35] The terms of the letter of obligation are unusual and the period of time covered extraordinary. It was a secret arrangement between Blemaim and the broker, which was nothing less than a bribe. We have reached the clear conclusion that the decision in Excel Securities was correct and is good law for Scotland. The facts found, in both actions, reveal a striking resemblance. [27] In SEB Trygg Liv Holding AB v Manches (2006) 1 WLR 2276 the limited nature of the implied warranty of authority was emphasised by the Court of Appeal in a case involving solicitors who commenced arbitration proceedings in the name of a company which was no longer in existence. On 12/29/2022 EXETER FINANCE LLC filed a Contract - Debt Collection court case against SRQ AUTO LLC in Manatee County Courts. The cookie is set by GDPR cookie consent to record the user consent for the cookies in the category "Functional". [10] On 25 November 2004 Mellicks wrote to CMC in the following terms: We write to advise that we have will (sic) receive the Credit Agreement signed by Mr & Mrs Cheetham the Standard Security duly signed together with a Standing Order Mandate on Friday 26th November 2004. Mr Longmuir's secretary photocopied these. We consider it more appropriate in such discussions to talk of attributes of clients rather than the identity of a client. 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). 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). [8] Mr Allison criticised the sheriffs approach to interest on two levels. The respondents in the action at the instance of Blemain Finance Limited ("BFL") are Balfour & Manson LLP a firm of solicitors who acted in a security transaction with which the action at BFL's instance is concerned. Call on 0161 348 7670 or freephone 0800 988 822 for advice. [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. On 1 November, the day before signing the acceptance of the offer letter, the fraudsters, again representing themselves as Mr and Mrs Cheetham, wrote to CMC on writing paper headed with the address 34 Danube Street, Edinburgh to confirm that the monthly payments in the respect of the loan were affordable by them. Mrs Thomas maintained the repayments on her loans until July 2007 when she suffered an accident at work and could no longer work. The judgment raises issues that could affect thousands of people, and is likely to be studied closely by other borrowers, including customers of other subprime lenders. That last mentioned case was not, in the event, cited to the court by either side. [20] In any event, esto the sheriff was entitled to have regard to the shortfall amount, to eliminate what would otherwise have been an appropriate award of interest particularly where the defenders pleadings were silent on that very issue, was, to my mind, of doubtful legitimacy. [23] The cross-appeal, in my opinion, falls to be refused in general terms because, in approaching the proof, the defenders did not see fit to place in issue the quantum of the pursuers claim. These ought to have been factors considered by the court when determining whether to allow interest on the damages awarded. He did not accept that the discrepancies in the figures were merely mistakes. It appears, however, to highlight the limitations placed on an implied warranty of authority in such a situation as it was understood in at least that case. It is sufficient to highlight certain of these matters for the purposes of disposing of these reclaiming motions. Offering Legal Advice and Help across the North East and the UK. An agent acting on behalf of an identified principal will not normally incur any personal, contractual liability so long as he acts within the scope of his authority. On 22 November Mr Longmuir sent Mellicks copies of the prior title deeds which he had obtained from Miller & Bryce. Longmuir & Company on 7 December wrote to Mr and Mrs Cheetham at 34 Danube Street advising them that the foregoing had been carried out and that the balance of funds after deduction of their fee had been forwarded as instructed by telegraphic transfer. England and Wales Court of Appeal (Civil Division) 2013. As can be seen below, in the context of litigation, the warranty is similarly limited in that the agent (normally a solicitor) does not promise that a claim is valid". You're using Internet Explorer, some features might not work. The point is incapable of much further elaboration.". In the Cheshire Mortgage Corporation Limited ("CMC") case a separate point also arises as to the meaning and effect of a letter of obligation. We use cookies to optimise site functionality and give you the best possible experience. But the risks against which Excel is seeking to be protected in these proceedings are the commercial risks involved in lending to a person who may not be all that he claims to be. . Details of the short assured tenancy she said would be forwarded to them as soon as possible. 09220332. Please switch to another browser like Chrome, Firefox, or Edge for a better experience. [37] Although the obligation assumed in the Cheshire Mortgage letter of obligation was much wider, both in terms of its duration and the content of the obligation, than is normally the case, it was plainly written and delivered as a letter of obligation ancillary to the mortgage transaction being settled on the date of its delivery. The repayments made under the three enforceable agreements were also refunded to only live agreements, therefore extinguished the arrears and as a result, the possession proceedings were dismissed. [12] On 12 November 2004 Mr Longmuir received a letter from Messrs Mellicks which was dated 11 November. Please check and confirm that there is nothing that would adversely affect our security on any of the searches. Mr Allison maintained that the sheriff had indulged in speculation rather than relying upon the evidence. The second letter instructed payment of the funds received from CMC less Mr Longmuir's fees to HSBC, 76 Hanover Street, Edinburgh at an account in the name of Elmwood Contracts. Please revert this information back to us.". [2] After proof before answer the Lord Ordinary, Lord Glennie granted decree of absolvitor in both actions. I do not consider that they gave any implied warranty going beyond this". The obligation arising in such a case is well expressed by saying that a person, professing to contract as agent for another, impliedly, if not expressly, undertakes to or promises the person who enters into such contract, upon the faith of the professed agent being duly authorised, that the authority which he professes to have does in point of fact exist. Since no such land certificate had been delivered, the defender was in breach of that obligation and bound to compensate the pursuers for their resultant loss. [30] We would simply add this. In the CMC case the reclaimers' pleas-in-law are as follows: "1. The authority which they professed to have was this, that they were instructed by the borrowers who were already known to the lenders to assist in drawing up the loan and security documentation. The Lord Ordinary at para 16 of his opinion states: "It is clear that the CMC were provided with a number of documents purporting to confirm the identity and address of the borrowers. Merely as agent, therefore, the agent does not warrant that his principal is solvent, or will perform the contract (if any). Find elections. The claimants appealed the decision to allocate the matter to the small claims track. It is plain that there was evidence from Mr Dougan to the effect that the property had been sold for too little and that with marketing over a longer period it might possibly have fetched 175,000. England and Wales Cases page 45. . 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