Goldhill Finance Ltd v Smyth [2023] EWHC 362 (KB) (21 February 2023)

Goldhill Finance Ltd v Smyth [2023] EWHC 362 (KB) (21 February 2023)

The appeal was dismissed because the issue of unfair relationship under the Consumer Credit Act 1974 was not properly pleaded or pursued at trial, and it would be unjust and contrary to established procedural principles to allow the point to be raised for the first time on appeal after a full trial. The agreed case...

Source-derived case information.

Citation
[2023] EWHC 362 (KB)
Parties
Respondent/claimant: Goldhill Finance Limited; Appellant/defendant: Tracey Margaret Smyth
Jurisdiction
England and Wales
Judgment Date
21 February 2023
Procedural Posture
Appeal (possession and Money Judgment) / High Court Appeal From County Court Decision
Outcome
Appeal dismissed
Legal Topics
Unfair Relationship Provisions, Consumer Credit Act 1974 Ss.140 a D, Regulated Mortgage Contracts, Default Interest Rates, Pleading and Amendment of Defences, Burden of Proof in Unfair Relationship Claims
Consumer Credit Mortgage Law Civil Procedure Unfair Relationship Provisions Consumer Credit Act 1974 Ss.140 a D Regulated Mortgage Contracts Default Interest Rates Pleading and Amendment of Defences +1 more

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Parties

Goldhill Finance Limited

Respondent/claimant

Tracey Margaret Smyth

Appellant/defendant

Procedural Posture

Appeal (possession and Money Judgment) / High Court Appeal From County Court Decision

Legal Issues

  1. 1 Whether the County Court judge erred in failing to consider the 'unfair relationship' provisions of the Consumer Credit Act 1974 (ss.140A-D) in relation to an unregulated mortgage contract
  2. 2 Whether the issue of unfair relationship was properly pleaded or raised at trial
  3. 3 Whether the burden of proof as to fairness was wrongly placed on the borrower rather than the lender

Ratio Decidendi

The appeal was dismissed because the issue of unfair relationship under the Consumer Credit Act 1974 was not properly pleaded or pursued at trial, and it would be unjust and contrary to established procedural principles to allow the point to be raised for the first time on appeal after a full trial. The agreed case summary limited the fairness issue to regulated agreements, and the trial was conducted on that basis. Even if the point were allowed, there was insufficient evidence to support a finding of unfairness or penalty in the relationship or the default interest rate.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed; County Court possession and money judgment order stands