John Pugh's Chambers
33 Cheadle Avenue
Liverpool
L13 3AE

Specialist in consumer credit litigation

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John Pugh LLB (Hons)
Barrister

Eileen Ashton JP LLB (Hons)
Practice Manager

Suzanne Thomas
Administrator

Recent Reported Cases

Nelmes v NRAM Plc [2016] EWCA Civ 491 (26 May 2016) On instructions from Trinity Law Solicitors in Huddersfield we appealed to the Court of Appeal in a case involving a finance company who lent money to an established buy to let landlord. They solicited his custom from other lenders. He was represented by a broker in the transaction, who was acting as agent for the appellant in his dealings with the lender. The appellant was entitled to his undivided loyalty. The payment of the procuration fee by the lender to the broker of 0.5% of the sum advanced, being half the arrangement fee payable by the appellant was kept secret from him. Its acceptance by the broker, who was already charging the appellant 0.75% of the amount of the advance for his services was a breach of the duty owed by him to the broker and was brought about by the lender by the payment of it.  We persuaded the Court of Appeal that the claimant would be entitled to recover the amount of the commission paid by the lender to the broker from either of them, and in this case the lender. As so often happens with fact sensitive unfair relationship cases, we could not persuade the court to reverse the finding that the relationship between the broker and the lender was fair in other respects save for the secret commission payment.

McMullen v Secure the Bridge Limited (Rev 1) [2015] EWCA Civ 884 (5 August 2015) On instructions from Trinity Law Solicitors in Huddersfield we acted for an appellant who had been a litigant in person in the lower court in proceedings brought by a finance company to enforce a bridging loan made by them in circumstances where the respondent’s director and principal shareholder was he was also concerned with, and worked part-time as, a trainer or coach for, a business and the appellant was one of his pupils. Unfortunately, we were unable to persuade the court to displace the finding that the relationship between the parties arising from that had been unfair. The Court of Appeal expressed the view that those findings of fact cannot be challenged in an appeal court because they were capable of justifying the Recorder's conclusion – which, being a matter of judgment and evaluation, should not be overturned unless the Court of Appeal was sure that it was plainly wrong. Underhill LJ however stated that “I would not want this Court to give the impression that it is either good practice or legally safe for advisers in positions analogous to that of (the director) in this case to enter – themselves or through associated companies – into credit agreements with their clients. On the contrary, the Court is likely to subject any such relationship to jealous scrutiny; the fact that in the particular circumstances of this case the Respondent survived that scrutiny does not mean that that will necessarily be the outcome in most – perhaps not even in many – other such cases arising out of relationships of this kind.” So some good for others in a similar position came from the bringing the appeal. Also the award was substantially reduced because the trial judge had permitted contractual penalty interest under the bridging loan, which was regulated. The Court of Appeal accepted that that was wrong because the provision for default interest at a considerably higher rate was void under sections 93 and/or 173, as the appellant had contended.

William Kelly v Sheila Miller Joan Brewer and Animal Aid (a charity) [2014] EWCA Civ 1151 (22nd July 2014) This was a public access case. The appellant was in dispute with the respondents over their mutual involvement in the work of a charity.  Neither party was legally represented at trial.  Un-beknown to the trial judge a judgment had been entered for the appellant against the respondents early on in the proceedings and the claim progressed as an assessment of loss.  The Trial Judge treated it as a trial and found against the appellant on every issue. Upon being informed of the judgment after delivering his judgment he assessed damages at nil. We persuaded the Court of Appeal that the Trial Judge's misunderstanding as to the nature of the hearing that was before him and, more particularly, his complete unawareness of the fact that the issues at large between the parties had been confined by a succession of hearings before the district judges, together with the fact that in more than one respect the judge relied for the rejection of the appellant’s claim on points that were, as a result of those district judges' orders, not truly open and in dispute between the parties, that the judge's order was reached following what is a serious procedural irregularity in the proceedings below.  As a result the four day trial was entirely wasted. That notwithstanding the Court of Appeal allowed the appeal, directed that court's order must be to set aside and remitted the matter to the County Court at Liverpool to be reheard before a different judge on a proper basis.

Figurasin & Figurasin v Central Capital Limited [2014] EWCA Civ 505 On instructions from Quality Solicitors C Turner of Blackburn we successfully defended a judgment obtained in the Manchester County Court in a case of PPI financial mis-selling. The issue of principle was whether the court should, when considering whether communications were clear fair and not misleading for the purposes of the Insurance Conduct of Business Sourcebook (ICOB) at 2.2.3R view the communications as a whole or whether, if part of the communication was unclear, unfair and misleading (as in this case it was) was that alone enough to establish a breach of the regulations. The Court of Appeal held that our submission was correct. The correct approach was to then consider whether the breach was causative of any loss and in this case it was. The Court of Appeal rejected Central Capital Limited's proposal that if the written documentation was correct that negated any deficiency in the oral communication and upheld the award of £13,000 damages.

Consolidated Finance Limited v Collins & others [2013] EWCA Civ 475. On instructions from Chadwick Lawrence of Huddersfield we invited the Court of Appeal to look into the cold calling of persons who had been made bankrupt on a creditor's petition and been offered the annulment of the bankruptcy order by the advance of moneys on short-term loan. This involved substantial interest and fees becoming payable by the debtor. The total of the moneys advanced, interest, fees and costs incurred in connection with the annulment were secured on the debtor's home. If the debtor secured refinancing of the short-term indebtedness, it was repaid out of its proceeds. If not, which was the case for all the Defendants their house was to be sold to pay the bankruptcy debts, bankruptcy costs, Consolidated's fees, its sister company's fees, solicitors fees and the very high accrued interest. Consolidated had persuaded about 40 county courts that its agreement was unregulated and the court could not interfere. We persuaded the Court of Appeal that such an arrangement involved a refinancing. Therefore it was a debtor-creditor agreement, making it regulated and unenforceable without an order of the Court.

Brandon v American Express [2011] EWCA Civ 1187. On instructions from Trinity Law Solicitors of Huddersfield we obtained permission to bring a second appeal and persuaded the Court of Appeal that time taken for posting should be allowed for when considering the date of service of a default notice and that the  period specified between service of a default notice and the 'remedy by' date of 14 days was neither discretionary, nor was failure to provide it de minimis if payment had not been effected within the period concerned.  Further an attempt by AMEX to change its case between the first hearing and the first appeal without amendment should not have been permitted and the issues ought not to have been determined summarily either at first instance or on the first appeal. 

Evans v Cherry Tree Finance Limited [2008] EWCA Civ 331. In the Court of Appeal, on further instructions from Chadwick Lawrence we fended off a collateral attack on the decision above mentioned challenging the applicability of the Regulations to a business man making a commercial agreement outside his normal business. The Court of Appeal held that Mr Evans was a consumer under the UTCC Regulations 1998 and that they applied to his mortgage despite the premises having a commercial use.

Evans v Cherry Tree Finance [2007] EWCA 3527 (Ch) . On instructions from Chadwick Lawrence of Huddersfield we persuaded a Chancery Judge that the use of the Rule of 78 as a basis for a redemption charge in non status consumer lending over a substantial term contravened the Unfair Terms in Consumer Contracts Regulations 1998 in that it was opaque and unclear and failed to comply with the requirements that the terms should be in plain, intelligible language. and they required Mr Evans to pay a disproportionately high sum in compensation for early termination.

Euro London Limited v Claessens [2006] EWCA Civ 385. On instructions from Berkson & Berkson of Birkenhead we persuaded the Court of Appeal in a second tier appeal to distinguish between primary payment obligation and a liquidated damages claim when a a payment obligation was contingent on an event which was also a breach (i.e. loss of rebate for early termination under a recruitment agency agreement due to non payment of original invoice).

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