Funders gearing up to deal with the avalanche of broker commission claims in motor finance cases will likely be aware of a recent stream of negative decisions coming from the higher Courts on matters including the relevant limitation period for bringing claims, but there is some welcome news in a recent County Court decision on one of the key issues.
Continue ReadingOur last Briefing contained a detailed analysis of the decision of the commercial Court judge in Last Bus Ltd (trading as Dublin Coach) v Dawsongroup Bus and Coach Ltd which resulted in a welcome and somewhat rare victory for a funder in upholding an exclusion clause in a Hire Purchase Agreement.
Continue ReadingThe announcement by the FCA in late July last year of its final decisions on implementing the new Consumer Duty has led to a range of responses within the leasing and consumer credit industries.
The aim of the FCA is said to be to fundamentally improve how regulated firms serve consumers, by setting higher and clearer standards of consumer protection across financial services and explicitly requiring regulated firms to put their customers’ needs first.
Continue ReadingAsset financiers have not had much comfort from the sorry tale of the Arena TV fraud, but we did notice with interest a passage in a recent judgment against the main perpetrator individuals behind the fraud which illustrates the principle that in certain circumstances victims of fraud can trace assets such as foreign property which the fraudsters have obtained with the proceeds of the fraud.
Continue ReadingOn 9 December 2022 HM Treasury published a consultation paper on reform of the Consumer Credit Act 1974 (“CCA”).
The Government announced its intention to reform the CCA in June 2022, with the ambition of moving most of the CCA from statute to FCA rules. Given the scale and complexity of this work, it is expected to take a number of years. The consultation paper is the first step in this process. In it, HM Treasury seeks views on the objectives, principles and overall direction of the proposed reform.
Continue ReadingAs long ago as 2001 in the landmark case of Royal Bank of Scotland Plc v Etridge [2001] UKHL 44 the House of Lords (since renamed the UK Supreme Court) significantly extended the circumstances in which a financier will be put on constructive notice of misrepresentation or undue influence committed against an individual executing a Guarantee or other security, but there remains a great deal of misunderstanding of the relevant principles.
Continue ReadingThe Government has announced that it is committed to a long-term wholesale reform of the Consumer Credit regime.
Whilst welcoming this announcement, it is rather difficult to see how there was any alternative.
Much of the legislation and regulatory framework around Consumer Credit in the UK has intimate links with the European Consumer Credit regime, which goes some way to explaining the inordinate complexity of the current framework, which is comprised of numerous layers of primary and secondary legislation, including the Consumer Credit Act 1974 (“CCA”), detailed Regulations made under it and the FCA Handbook.
Continue ReadingDisclosure of Brokers’ Commissions remains very much a live issue within the asset finance industry, and in our last Briefing we suggested some practical steps in Dealing with Broker Commission Refund Claims – Click Here
Since then we have been involved in a number of instructions which has caused us to undertake a thorough review of the case law both in terms of the Wood and Pengully decisions and various other cases, which has given us some encouragement in the approach to be adopted to at least some of these claims.
Continue ReadingWe recently succeeded in full in a claim for damages for conversion on behalf of a financier which raised the apparently novel point of whether a large Excavator fell within the definition of “motor vehicle”.
In De Lage Landen Leasing Limited t/a Hyundai Construction Equipment Europe Finance v Dring (Manchester Circuit Commercial Court 13 July 2022) both parties were the victim of a fraudulent disposition of the Claimant’s Excavator by the Hirer and/or an associated company.
Continue ReadingFinanciers have been, together with almost all other litigants, subject to what seems to be an ever-increasing spiral of expense in navigating the various fees and charges payable under the court system, a trend which is been in place now for almost 2 decades.
We thought it is worth highlighting two points which can bring some relief to this situation.
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