Tew & Ors v BoS (Shared Appreciation Mortgages) No 1 Plc & Ors

Tew & Ors v BoS (Shared Appreciation Mortgages) No 1 Plc & Ors

The court rejected the claimants' attempt to define GLO issues so as to exclude individual circumstances, holding that the statutory fairness inquiry necessarily involves both common and individual circumstances. The proper approach is to manage the litigation through lead/test cases, with a GLO permitted if issues are appropriately defined to include both common and individual factors.

Parties
Claimant: Donald William Tew; Claimant: Lucy Margaret Tew; Defendant: BoS (Shared Appreciation Mortgages) No 1 plc; Defendant: BoS (Shared Appreciation Mortgages) No 2 plc; Defendant: BoS (Shared Appreciation Mortgages (Scotland) Limited; Defendant: BoS (Shared Appreciation Mortgages) No 3 plc; Defendant: BoS (Shared Appreciation Mortgages) No 4 plc; Defendant: BoS (Shared Appreciation Mortgages (Scotland) No 2 Limited; Defendant: BoS (Shared Appreciation Mortgages) No 5 plc; Defendant: BoS (Shared Appreciation Mortgages) No 6 plc; Defendant: BoS (Shared Appreciation Mortgages (Scotland) No 3 Limited; Defendant: Barclays SAMS Limited
Jurisdiction
England and Wales
Judgment Date
22 January 2010
Procedural Posture
Group Litigation Order (glo) Appeal and Case Management Directions / Ruling on Appeal Against GLO and Directions for Case Management
Outcome
Appeal allowed in part; claimants' proposed GLO issues rejected; GLO permitted with issues to be properly defined; directions for lead/test cases to be given.
Legal Topics
Unfair Terms in Consumer Contracts, Fairness of Contractual Relationships, Group Litigation Orders, Case Management, Consumer Credit
Consumer Protection Contract Law Banking Law Unfair Terms in Consumer Contracts Fairness of Contractual Relationships Group Litigation Orders Case Management Consumer Credit

Case Brief

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Parties

Donald William Tew

Claimant

Lucy Margaret Tew

Claimant

BoS (Shared Appreciation Mortgages) No 1 plc

Defendant

BoS (Shared Appreciation Mortgages) No 2 plc

Defendant

BoS (Shared Appreciation Mortgages (Scotland) Limited

Defendant

BoS (Shared Appreciation Mortgages) No 3 plc

Defendant

BoS (Shared Appreciation Mortgages) No 4 plc

Defendant

BoS (Shared Appreciation Mortgages (Scotland) No 2 Limited

Defendant

BoS (Shared Appreciation Mortgages) No 5 plc

Defendant

BoS (Shared Appreciation Mortgages) No 6 plc

Defendant

BoS (Shared Appreciation Mortgages (Scotland) No 3 Limited

Defendant

Barclays SAMS Limited

Defendant

Procedural Posture

Group Litigation Order (glo) Appeal and Case Management Directions / Ruling on Appeal Against GLO and Directions for Case Management

Legal Issues

  1. 1 Whether fairness under the Unfair Terms in Consumer Contracts Regulations 1994 and Consumer Credit Act 1974 can be determined solely by reference to common circumstances without individual circumstances
  2. 2 Whether the terms of the SAM Loan Agreements are in plain and intelligible language under Regulation 3(2)
  3. 3 Whether Regulation 3(2) excludes fairness assessment

Ratio Decidendi

The court rejected the claimants' attempt to define GLO issues so as to exclude individual circumstances, holding that the statutory fairness inquiry necessarily involves both common and individual circumstances. The proper approach is to manage the litigation through lead/test cases, with a GLO permitted if issues are appropriately defined to include both common and individual factors.

Court Disposition

Appeal allowed in part; claimants' proposed GLO issues rejected; GLO permitted with issues to be properly defined; directions for lead/test cases to be given.

Orders

  • GLO to be made with issues reflecting both common and individual circumstances, including Regulation 3 point.
  • Directions for trial of lead/test cases to resolve fairness issues.