Seculink Limited v Eren Salih

Seculink Limited v Eren Salih

The trial judge erred in dismissing the penalty and unfair relationship defences for lack of evidence from the borrower; the correct approach is that penalty is a matter of construction and the burden to prove fairness under s.140B(9) CCA lies on the creditor once the issue is raised. The matters must be remitted for retrial.

Parties
Respondent/claimant: Seculink Limited; Appellant/defendant: Eren Salih
Jurisdiction
England and Wales
Judgment Date
11 September 2024
Procedural Posture
Civil Appeal / Appeal Judgment
Outcome
appeal allowed in part
Legal Topics
Penalty Clauses, Unfair Relationship, Default Interest, Burden of Proof
Contract Law Consumer Credit Penalty Clauses Unfair Relationship Default Interest Burden of Proof

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 8
Sign in to unlock

Parties

Seculink Limited

Respondent/claimant

Eren Salih

Appellant/defendant

Procedural Posture

Civil Appeal / Appeal Judgment

Legal Issues

  1. 1 Whether the default interest clause (12% per month compounded) was unenforceable as a penalty
  2. 2 Whether the loan agreement created an unfair relationship under ss.140A-D Consumer Credit Act 1974

Ratio Decidendi

The trial judge erred in dismissing the penalty and unfair relationship defences for lack of evidence from the borrower; the correct approach is that penalty is a matter of construction and the burden to prove fairness under s.140B(9) CCA lies on the creditor once the issue is raised. The matters must be remitted for retrial.

Court Disposition

appeal allowed in part

Orders

  • Money judgment and order for costs set aside
  • Issues of penalty and unfair relationship remitted to County Court for retrial before another judge