Seculink Ltd v Salih [2023] EWHC 1706 (KB) (11 July 2023)

Seculink Ltd v Salih [2023] EWHC 1706 (KB) (11 July 2023)

The judge erred in dismissing the penalty and unfair relationship defences solely due to lack of evidence from the defendant; the issues must be remitted for retrial as the proper legal standards were not applied, particularly regarding the construction of penalty clauses and the reverse burden of proof under the...

Source-derived case information.

Citation
[2023] EWHC 1706 (KB)
Parties
Respondent/claimant: Seculink Limited; Appellant/defendant: Eren Salih
Jurisdiction
England and Wales
Judgment Date
11 July 2023
Procedural Posture
Appeal / Judgment on Appeal From County Court to High Court
Outcome
Appeal allowed in part; money judgment and costs order set aside; issues of penalty and unfair relationship remitted for retrial before a different judge.
Legal Topics
Penalty Clauses, Unfair Relationship, Default Interest, Burden of Proof, Consumer Credit Act 1974
Contract Law Consumer Credit Civil Procedure Penalty Clauses Unfair Relationship Default Interest Burden of Proof Consumer Credit Act 1974

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Parties

Seculink Limited

Respondent/claimant

Eren Salih

Appellant/defendant

Procedural Posture

Appeal / Judgment on Appeal From County Court to High Court

Legal Issues

  1. 1 Whether the default interest clause (12% per month compounded) is unenforceable as a penalty
  2. 2 Whether the loan agreement created an unfair relationship under ss.140A-D Consumer Credit Act 1974

Ratio Decidendi

The judge erred in dismissing the penalty and unfair relationship defences solely due to lack of evidence from the defendant; the issues must be remitted for retrial as the proper legal standards were not applied, particularly regarding the construction of penalty clauses and the reverse burden of proof under the Consumer Credit Act 1974.

Court Disposition

Appeal allowed in part; money judgment and costs order set aside; issues of penalty and unfair relationship remitted for retrial before a different judge.

Orders

  • Set aside money judgment and costs order of 26 July 2021
  • Remit issues of penalty and unfair relationship to County Court for retrial before another judge