Milne v Open Access Finance Ltd & Anor [2020] EWHC 1420 (Ch) (12 March 2020)

Milne v Open Access Finance Ltd & Anor [2020] EWHC 1420 (Ch) (12 March 2020)

The court held that the statutory provisions of the Consumer Credit Act 1974 do not impose an inflexible requirement to join all lenders as defendants regardless of the rules of court. The court has discretion to make a representative order under CPR 19.6 where appropriate, and such an order does not prejudice the parties if proper notification and opportunity to object are provided. However, the First Defendant was not an appropriate representative due to a conflict of interest; an individual lender should be appointed instead. Disclosure of corporate lenders' identities is required to allow the claimant to investigate potential commercial lending claims.

Citation
[2020] EWHC 1420 (Ch)
Parties
Appellant/claimant: Andrew Milne; First Respondent/defendant: Open Access Finance Limited; Second Respondent/defendant: Open Access Finance Limited (as representative of lenders)
Jurisdiction
England and Wales
Judgment Date
12 March 2020
Procedural Posture
Appeal / Judgment on Appeal From Chief Master Marsh's Order Regarding Representative Defendant and Disclosure
Outcome
Appeal allowed in part and dismissed in part
Legal Topics
Representative Proceedings, Joinder of Parties, Disclosure of Parties' Identities, Consumer Credit Act 1974, Peer to Peer Lending, Conflict of Interest in Representation
Civil Procedure Consumer Credit Financial Services Representative Proceedings Joinder of Parties Disclosure of Parties' Identities Consumer Credit Act 1974 Peer to Peer Lending +1 more

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Parties

Andrew Milne

Appellant/claimant

Open Access Finance Limited

First Respondent/defendant

Open Access Finance Limited (as representative of lenders)

Second Respondent/defendant

Procedural Posture

Appeal / Judgment on Appeal From Chief Master Marsh's Order Regarding Representative Defendant and Disclosure

Legal Issues

  1. 1 Whether the court can make a representative order under CPR 19.6 for Consumer Credit Act claims involving multiple lenders
  2. 2 Whether all lenders must be joined as defendants under sections 140B(8) and 141(5) of the Consumer Credit Act 1974
  3. 3 Whether the First Defendant is an appropriate representative for the lenders given potential conflicts of interest

Ratio Decidendi

The court held that the statutory provisions of the Consumer Credit Act 1974 do not impose an inflexible requirement to join all lenders as defendants regardless of the rules of court. The court has discretion to make a representative order under CPR 19.6 where appropriate, and such an order does not prejudice the parties if proper notification and opportunity to object are provided. However, the First Defendant was not an appropriate representative due to a conflict of interest; an individual lender should be appointed instead. Disclosure of corporate lenders' identities is required to allow the claimant to investigate potential commercial lending claims.

Court Disposition

Appeal allowed in part and dismissed in part

Orders

  • The representative order is to be varied to substitute an individual lender as representative defendant in place of the First Defendant.
  • The First Defendant is to provide details of the proposed representative lender for court approval.