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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Seculink Ltd v Salih [2023] EWHC 1706 (KB) (11 July 2023) URL: http://www.bailii.org/ew/cases/EWHC/KB/2023/1706.html Cite as: [2023] EWHC 1706 (KB) |
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KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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SECULINK LIMITED |
Respondent/Claimant |
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- and – |
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EREN SALIH |
Appellant/Defendant |
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Mr Barnaby Hope (instructed by Viceroy Legal) for the Respondent
Hearing date: 18 May 2023
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Crown Copyright ©
MR JUSTICE SOOLE :
Background
'140A Unfair relationships between creditors and debtors
(1) The court may make an order under section 140B in connection with a credit agreement if it determines that the relationship between the creditor and the debtor arising out of the agreement (or the agreement taken with any related agreement) is unfair to the debtor because of one or more of the following –
(a) any of the terms of the agreement or of any related agreement;
(b) the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement;
(c) any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).
(2) In deciding whether to make a determination under this section the court shall have regard to all matters it thinks relevant (including matters relating to the creditor and matters relating to the debtor).
…
140B Powers of court in relation to unfair relationships
(1) An order under this section in connection with a credit agreement may do one or more of the following –
(c) reduce or discharge any sum payable by the debtor or by a surety by virtue of the agreement or any related agreement;
(e) otherwise set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement or any related agreement;
(f) alter the terms of the agreement or of any related agreement;
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(9) If, in any such proceedings, the debtor or a surety alleges that the relationship between the creditor and the debtor is unfair to the debtor, it is for the creditor to prove to the contrary.'
'(a) The entire manner in which the Defendant was required to sign the various documents, including the Legal Charges, in the street, and without being given an opportunity to read them…;
(b) The arrangement fee of £36,605 was unjustifiably high;
(c) The original interest rate (which equated to 30% per annum) was unjustifiably high;
(d) The provision in clause 7(e) that, in the event of default, the interest rate would increase to 12% per month and would be compounded (resulting in an interest rate of 289.06%[1] per annum) was wholly unreasonable;
(e) The failure of the Claimant to provide copies of the documents he signed on 1 June 2018 was unreasonable; and
(f) Since the expiry of the agreement on 7 December 2018 both the Claimant and [its] solicitors have failed to provide prompt or adequate replies to questions asked and failed to properly provide copies of all relevant documents.'
The Judgment
The Judge's reference to 'an explanation as to the commercial effects' was evidently to the Flowchart which had been placed before him.
The appeal
Penalty
Unfair relationship
(b) the fact that a challenge was belated did not, without more, provide any proper basis to reject it;
(c) it was not necessary for Mr Salih to provide expert, or any, evidence in support of the contention that the initial interest rate was unreasonably high. Nor was the absence of any or any adequate evidence from Seculink remedied by the Judge's reference to his experience from other cases; and in any event this did not deal with the default rate of interest or the other charges and fees.
The response
Penalty
Unfair relationship
Remedy on appeal
Conclusions
Penalty
Unfair relationship