Arthistory Ltd v Campbell & Anor [2022] EWHC 848 (Ch) (08 April 2022)

Arthistory Ltd v Campbell & Anor [2022] EWHC 848 (Ch) (08 April 2022)

The court found that more than 40% of the property was used as or in connection with a dwelling, making the Facility Agreement and Legal Charge a regulated mortgage contract. However, the Claimant was not acting 'by way of business,' so the general prohibition under FSMA did not apply. The court held that the suite of agreements, particularly the Option Agreement, created an unfair relationship under s.140A CCA due to unfair terms and the operation of the option as more than mere security. As a result, the court declined to grant specific performance and refused to enforce the transfer of the property to the Claimant.

Citation
[2022] EWHC 848 (Ch)
Parties
Claimant: ARTHISTORY LTD; Defendant: Mr Alan Eric Campbell; Defendant: Mrs Maureen Campbell
Jurisdiction
England and Wales
Judgment Date
08 April 2022
Procedural Posture
Part 8 Claim (chancery Division) / Final Judgment After Trial
Outcome
Claim dismissed
Legal Topics
Specific Performance, Regulated Mortgage Contracts, Unfair Relationship Under Consumer Credit Act, Subrogation, Enforceability of Option Agreements
Property Law Contract Law Financial Regulation Specific Performance Regulated Mortgage Contracts Unfair Relationship Under Consumer Credit Act Subrogation Enforceability of Option Agreements

Case Brief

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Parties

ARTHISTORY LTD

Claimant

Mr Alan Eric Campbell

Defendant

Mrs Maureen Campbell

Defendant

Procedural Posture

Part 8 Claim (chancery Division) / Final Judgment After Trial

Legal Issues

  1. 1 Whether the Facility Agreement and Legal Charge constituted a regulated mortgage contract under FSMA and RAO
  2. 2 Whether the Claimant was carrying on a regulated activity 'by way of business' without authorisation
  3. 3 Whether the suite of agreements (including the Option Agreement) created an unfair relationship under s.140A CCA

Ratio Decidendi

The court found that more than 40% of the property was used as or in connection with a dwelling, making the Facility Agreement and Legal Charge a regulated mortgage contract. However, the Claimant was not acting 'by way of business,' so the general prohibition under FSMA did not apply. The court held that the suite of agreements, particularly the Option Agreement, created an unfair relationship under s.140A CCA due to unfair terms and the operation of the option as more than mere security. As a result, the court declined to grant specific performance and refused to enforce the transfer of the property to the Claimant.

Court Disposition

Claim dismissed

Orders

  • Specific performance of the Option Agreement refused
  • No order compelling transfer of the Property