Milne v Open Access Finance Ltd & Anor

Milne v Open Access Finance Ltd & Anor

The court has discretion under the Consumer Credit Act and Civil Procedure Rules to make a representative order in claims involving numerous lenders, rather than requiring joinder of all individual lenders. However, the First Defendant is not an appropriate representative due to conflict of interest; an individual lender should be appointed instead. Disclosure of corporate lender identities is ordered to allow the Claimant to assess potential claims against commercial lenders.

Parties
Appellant/claimant: Andrew Milne; Respondent/defendant: Open Access Finance Limited; 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 Against Representative Order and Disclosure Directions
Outcome
Appeal allowed in part; representative order to be varied; limited disclosure ordered; costs adjusted.
Legal Topics
Representative Proceedings, Joinder of Parties, Disclosure, Conflict of Interest, Regulated Agreements
Civil Procedure Consumer Credit Contract Law Representative Proceedings Joinder of Parties Disclosure Conflict of Interest Regulated Agreements

Case Brief

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Parties

Andrew Milne

Appellant/claimant

Open Access Finance Limited

Respondent/defendant

Open Access Finance Limited (as representative of lenders)

Respondent/defendant

Procedural Posture

Appeal / Judgment on Appeal Against Representative Order and Disclosure Directions

Legal Issues

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

Ratio Decidendi

The court has discretion under the Consumer Credit Act and Civil Procedure Rules to make a representative order in claims involving numerous lenders, rather than requiring joinder of all individual lenders. However, the First Defendant is not an appropriate representative due to conflict of interest; an individual lender should be appointed instead. Disclosure of corporate lender identities is ordered to allow the Claimant to assess potential claims against commercial lenders.

Court Disposition

Appeal allowed in part; representative order to be varied; limited disclosure ordered; costs adjusted.

Orders

  • Substitute an individual lender as representative defendant for all lenders under the loan agreements.
  • First Defendant to provide details of proposed representative lender and their interest.