Southern & District Finance Plc v Turner [2003] EWCA Civ 1574 (07 November 2003)

Southern & District Finance Plc v Turner [2003] EWCA Civ 1574 (07 November 2003)

The judge was wrong to hold he had no power to waive the procedural irregularity; CPR 3.10 gave the court discretion to permit amendment of the notice of appeal and to waive the requirement for evidence if just. The appeal was allowed, permitting the defendant to amend her notice of appeal and counterclaim for a...

Source-derived case information.

Citation
[2003] EWCA Civ 1574
Parties
Claimant/respondent: Southern & District Finance PLC; Defendant/appellant: Elizabeth Mary Turner
Jurisdiction
England and Wales
Judgment Date
07 November 2003
Procedural Posture
Civil Appeal / Court of Appeal Judgment Following Appeal From Preston County Court
Outcome
Appeal allowed; defendant permitted to amend notice of appeal and counterclaim for declaration as to enforceability, subject to condition barring restitution of past payments.
Legal Topics
Extension of Time for Appeal, Enforceability of Credit Agreements, Conditional Orders, Procedural Irregularity, Consumer Credit Act 1974
Civil Procedure Consumer Credit Extension of Time for Appeal Enforceability of Credit Agreements Conditional Orders Procedural Irregularity Consumer Credit Act 1974

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Summary, issues, holding and outcome

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Parties

Southern & District Finance PLC

Claimant/respondent

Elizabeth Mary Turner

Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment Following Appeal From Preston County Court

Legal Issues

  1. 1 Whether the court had power to waive procedural irregularity and grant extension of time for appeal without evidence
  2. 2 Whether the defendant could counterclaim for a declaration as to enforceability of the credit agreement
  3. 3 Appropriateness of conditional orders to mitigate injustice

Ratio Decidendi

The judge was wrong to hold he had no power to waive the procedural irregularity; CPR 3.10 gave the court discretion to permit amendment of the notice of appeal and to waive the requirement for evidence if just. The appeal was allowed, permitting the defendant to amend her notice of appeal and counterclaim for a declaration as to enforceability, subject to a condition barring restitution of past payments if unenforceability was found.

Court Disposition

Appeal allowed; defendant permitted to amend notice of appeal and counterclaim for declaration as to enforceability, subject to condition barring restitution of past payments.

Orders

  • Defendant may counterclaim for declaration as to enforceability of credit agreement and/or mortgage deed on grounds set out in draft defence, subject to condition that restitution of monies paid prior to order is barred if unenforceability is found.
  • Defendant to pay claimants' costs of appeals, such costs to be added to security.