Consumer Rights
Cases
Christopher Linnett Ltd v Harding (t/a M J Harding Contractors)
[2017] EWHC 1781 [2017] WLR(D) 509, [2017] EWHC 1781 (TCC)
Nissen QC
The material definitions from the Regulations are as follows:
4. “Consumer” and “trader”
In these Regulations—
“consumer” means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession;
“trader” means a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf.
5. Other definitions
In these Regulations—
“business premises” in relation to a trader means—
(a) any immovable retail premises where the activity of the trader is carried out on a permanent basis, or
(b) any movable retail premises where the activity of the trader is carried out on a usual basis;
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;
“off-premises contract” means a contract between a trader and a consumer which is any of these—
(a) a contract concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;
(b) a contract for which an offer was made by the consumer in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;
(c) a contract concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer;
(d) a contract concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
“service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.
Part 2 of the Regulations sets out the information requirements for certain types of contract. Subject to exceptions, Part 2 applies to on-premises, off-premises and distance contracts. It is a criminal offence for a trader to enter into an off-premises contract without giving the consumer the relevant information which is listed.
Part 3 of the Regulations contains the right to cancel distance and off-premises contracts between a trader and a consumer subject to other provisions. In particular, Regulation 27(1) of Part 3 states:
“This Part applies to distance and off-premises contracts between a trader and a consumer…”
If applicable, the cancellation period is 14 days after the contract is entered into. However, the cancellation period is extended where there has been a breach of the information requirement in accordance with Part 2. In the present case, since no relevant information was provided to the Defendant, it is not in dispute that the purported cancellation notice given by the Defendant was in time if the Regulations applied.
There is precious little guidance on the application of the Regulations. In disputing their application to this contract, the Claimants focussed their submissions on two points. First, that the Defendant was not a consumer. Second, that this was not a distance or off-premises contract.
The rival contentions in brief
In support of the first submission, Mr Eljadi pointed out that Mr Harding was trading in the name of MJ Harding Contractors. He therefore entered into the building contract as a trader acting for purposes relating to his business and not as a consumer. The adjudication agreement was part of that building contract. The adjudicator’s agreement was necessarily concluded with the Defendant on the same basis.
In response, Mr Davies argued that Mr Harding was a consumer. He was a builder who, it was common ground, had never required the services of an adjudicator until disputes had arisen under this building contract. In his witness statement, the Defendant pithily expressed the point in this way:
“Adjudication has not ever formed any part of my course of trade or business over its 32 years. In all the years I have been building I have not regularly bought adjudication services…Adjudication is not my stock in trade of business. It does not form part of the building process I undertake. I build houses.”
Mr Davies also referred to a series of authorities in which the courts have considered expressions such as “in the course of a trade or business”. He also relied on authorities arising under the Unfair Contract Terms Act 1977, section 6(2) of which uses the phrase “dealing as a consumer”.
As to the second point, it was common ground that the adjudicator’s agreement was not an “off-premises contract”. However, Mr Davies argued that it was a “distance contract”which therefore fell within the scope of Regulation 27(1). On his case, the fact that the nomination of Mr Linnett came from the RICS made it a “distance contract” because the RICS was an organisation which provided for distance sales. Mr Eljadi submitted that it was not a distance contract within the meaning of the definition.
Decision
In my judgment, the Claimants are right in respect of both of these points.
For the purposes of the Regulations, a consumer is an individual acting for purposes which are wholly or mainly outside that individual’s trade or business. In this case, the services which were requested pursuant to the adjudicator’s agreement were commissioned for purposes which were wholly (or at least mainly) inside the Defendant’s trade or business. The Defendant entered into the building contract as part of his business. He is named in the recital to the building contract as “Matthew J Harding trading as MJ Harding Contractors”. The adjudicator is paid to determine the rights and liabilities which the Defendant has under the building contract in that capacity. Mr Davies accepted that all the receipts and expenses relating to the building contract would have formed part of the Defendant’s business accounts. It was very much part of the Defendant’s trade or business to minimise his financial liability to the employers by requesting the provision of adjudication services so as to obtain a favourable decision in that regard. Although he was acting as an individual, he was not entering into the adjudicator’s agreement in his private, personal capacity.
In reaching this conclusion, I have merely applied the normal meaning of the words used in the definition. I was not assisted by any of the authorities relied on by Mr Davies since they were not concerned with the definition within the Regulation itself.
Nor is this a distance contract. A distance contract is one which is “concluded” between a trader and consumer under an organised distance sales scheme. The adjudicator’s agreement between the Defendant and Mr Linnett was not concluded under an organised distance sales scheme. There is apparently no authority on the expression “organised distance sales scheme”. However, I am wholly unpersuaded that a scheme whereby, for a fee, the RICS nominates adjudicators as part of its statutory function as an adjudicator nomination body[1] could be described as an organised distance sales scheme. Moreover, the nomination of Mr Linnett by the RICS pre-dated the conclusion of the adjudicator’s agreement. That adjudicator’s agreement was concluded by an offer and acceptance which only occurred once Mr Linnett had already been nominated by the RICS. The RICS was not a party to the adjudicator’s agreement. In no sense can it be said that that contract was concluded under an organised distance sales scheme.
I am therefore satisfied that, for at least the two reasons described above, the Regulations did not apply to the adjudicator’s agreement. It follows that the Defendant did not have a right to cancel it. His notice which purported to do so was ineffective. I should add, merely for completeness and without criticism, that the Claimants did not mount a full scale submission to the effect that the Regulations should not apply to a contract for the provision of dispute resolution services such as this. Any such point will have to be considered on another occasion.
The postulated counterclaim for a return of fees which the Defendant would have wished to advance had he had a right to cancel the agreement he had made with Mr Linnett would therefore have failed.
(5) To what sum, if any, is either Claimant entitled in respect of interest?
The claim is based on the asserted right to interest arising from the Late Payment of Commercial Debts (Interest) Act 1998 (“LPA”) and subsequent Regulations applicable thereto. Section 2 of the LPA provides:
“This Act applies to a contract for the supply of goods or services where the purchaser and the supplier are each acting in the course of a business, other than an excepted contract.”
No point arises about an “excepted contract” under section 2(5).
As set out above, the first sentence of clause 9 of the Terms provides:
“Any invoice that is not paid within the time limits specified above shall be subject to the addition of simple interest and compensation, in accordance with the Late Payment of Commercial Debts (Interest) Act 1998, the Late Payment of Commercial Debts Regulations 2002 and the Late Payment of Commercial Debts Regulations 2013.”
On the Claimant’s case, the provisions of the LPA are applicable as a matter of contract because the first sentence of clause 9 of the Terms of the adjudicator’s agreement so provided. On this submission, the Act applies even if it is not a contract where the purchaser and supplier are acting in the course of a business. But, on the alternative case, it is said that the LPA applies because those parties were in fact acting in the course of a business.
The Defendant denies that clause 9 renders the Act applicable in circumstances where it would not otherwise be engaged. He also submits that, as purchaser, he was not acting in the course of a business.
Clause 9 makes clear that any invoice which is not paid shall be the subject of interest “in accordance with” the LPA and the Regulations. It is a question of construction whether this means that the interest which shall be added will be the interest which is due subject to the proper application of the LPA or the interest which would be due in accordance with the LPA whether or not it applies.
Mr Linnett is invariably supplying his services as adjudicator in the course of his own business. He may, occasionally, provide such services to a purchaser who is acting in a private capacity such as a residential owner of a property that is the subject of building works. More frequently, his services will be purchased by someone acting in the course of a business so that the LPA will apply anyway.
Mr Eljadi’s submission is that the purpose of the first sentence of clause 9 is to render the LPA applicable in circumstances where it would not otherwise be. He argued that a provision which rendered the LPA applicable when it was engaged anyway would add nothing.
Whilst I see the attraction of that point, I do not agree with it for two reasons. The first reason is that, in my view, the only interest which is due in accordance with clause 9 is the interest which is due “in accordance with” the LPA. Interest which would be payable by someone not acting in the course of a business would not be interest “in accordance with” the LPA. Quite the reverse.
The second reason is that the whole of clause 9 should be read together and, when that is done, the Defendant’s construction is the more consistent one. The second sentence provides:
“The reasonable costs of recovering the debt, in accordance with section 3 of the Late Payment of Commercial Debts Regulations 2013 shall include all time spent by me in pursuing recovery of overdue sums and shall be invoiced at the hourly rate quoted in part (3) above.”
This sentence repeats the phrase “in accordance with”. In this context it is clear that it assumes that the Act must actually apply rather than be rendered applicable as a matter of agreement. Section 3, to which the clause refers, provides:
“A debt created by virtue of an obligation under a contract to which this Act applies…”
I therefore conclude that the LPA applies only if the statute itself is engaged. I do not agree that this means the first sentence has no purpose. It is there in order to make the position clear what the consequences of late payment will be and to act as means of introducing the purely contractual provision in the second sentence.
In those circumstances, it is necessary to determine whether the Defendant was acting in the course of a business. In this context, the parties largely repeated the submissions they had made in the context of Issue (4). However, in this context Mr Davies relied particularly on R&B Customs Brokers Ltd v United Dominions Trust Ltd [1988] 1 WLR 321. Mr Eljadi again submitted that none of the authorities including that one were relevant to the LPA.
I am satisfied that, in contracting with Mr Linnett pursuant to the adjudicator’s agreement, the Defendant was acting in a business capacity rather than in his personal capacity. As I have already concluded, the role of the adjudicator was being performed at the Defendant’s request so as to determine a dispute arising under a building contract into which the Defendant had entered as part of his business. The services which the adjudicator performed would determine whether the business operated by the Defendant would gain or lose to the extent of the claim made. As Mr Eljadi expressed it, a favourable decision from Mr Linnett would further the Defendant’s business interests. The Defendant was not contracting with Mr Linnett in his private, personal capacity. He was contracting in a business capacity.
However, according to Mr Davies that was not a sufficient basis for the application of the LPA. The question was not merely whether the Defendant was a business but whether he was “acting in the course of a business”, that being the expression used in section 2 of the LPA. In this context, he again relied on a large number of authorities. With two notable exceptions, I did not derive any assistance from those authorities.
The two exceptions were R&B Customs Brokers Ltd v United Dominions Trust Ltd [1988] 1 WLR 321 and Feldarol Foundry plc v Hermes Leasing (London) Ltd [2004] EWCA Civ 747. The first of these was a case in which the phrase “in the course of a business” was considered by the Court of Appeal. That phrase appears in section 12 of the Unfair Contract Terms Act 1977 (“UCTA”) and provides a further definition of when someone is “dealing as a consumer” In that case, the question for the Court was whether the focus should be solely on the nature of the transaction or the degree of regularity with which that transaction had been undertaken. By way of example, a company might purchase a carpet for use in the office. It will do so as a business but that does not determine whether it was purchased “in the course of a business”. In an earlier case under the Trades Descriptions Act 1968, Davies v Sumner, the Court had identified the need to establish a degree of regularity before a transaction had been concluded “in the course of a business”. At p.329G, Dillon LJ said he would be reluctant to conclude that the words “in the course of a business” meant one thing in the UCTA and something significantly different in Trades Descriptions Act 1968. That is because both statutes had consumer protection as their primary purpose. Neill LJ reached a similar view: p.336E. The Court considered that no difficulty would arise when the transaction was clearly an integral part of the business concerned but where the transaction was incidental to the carrying on of the relevant business then a degree of regularity was required before it could be said that the contract had been entered into in the course of that business.
Applying the degree of regularity test to the facts in R&B, evidence that a car was the second or third vehicle acquired on credit terms was not sufficient to show that it had been purchased in the course of a business.
In Stevenson v Rogers [1999] QB 1029, the Court of Appeal said that the ratio of R&B was limited to its context, namely the application of section 12 of UCTA, and was not concerned with the question of whether the same words in section 14(2) of the Sale of Goods Act 1979 should be similarly construed. Whilst recognising the desirability of construing identical phrases in associated sections of a statute in the same way, it was not necessary to do so if the clear intent of the provision suggested otherwise: see p.1040E in which Potter LJ said:
“As to the proper construction of section 14(2), given the clear view which I have formed, I do not consider it right to displace that construction simply to achieve harmony with a decision upon the meaning of section 12 of the Act of 1977. Section 14(2) as amended by the Act of 1973 was itself a piece of consumer protection intended to afford wider protection to a buyer than that provided in the Act of 1893. Indeed, there is a sense in which the decision in the R & B case can be said to be in harmony with that intention. … To apply the reasoning in the R & B case … in the interests only of consistency, thereby undermining the wide protection for buyers which section 14(2) was intended to introduce, would in my view be an unacceptable example of the tail wagging the dog.”
In Feldarol Foundry plc, the question again arose as to whether a person was dealing as a consumer because he had not made a contract “in the course of a business” within the meaning of section 12 of UCTA. The Court of Appeal adopted the reasoning in Stevenson v Rogers. At paragraph 16, Tuckey LJ said:
“It is clear from this decision that the court felt bound by R & B. The fact that it was a decision of a two-man court is not to the point. It was and is a decision which is binding on this court. Secondly, the decision is not inconsistent with R & B. Lord Justice Potter explains in the passage I have cited at length how the two decisions can be reconciled. An interpretation of the words “deals as consumer” in the 1997 Act, which gave increased protection for consumer buyers, was consistent with the wide meaning which the court gave the words “seller in the course of a business” in the 1979 Act.”
Based on these authorities, Mr Davies submits that three adjudications arising out of only one building contract in 32 years does not provide a sufficient degree of regularity for the purposes of the LPA and that, for this reason, I should conclude that the Defendant was not acting “in the course of a business” when he concluded the adjudicator’s agreement.
The JCT Contract which the Defendant concluded with Mr Paice and Miss Springall would be an example of a contract that was integral to the business of acting as a building contractor. However, I agree that a contract for the provision of adjudicator’s services is not an integral part of the business of acting as a building contractor. Rather, it is a contract which is incidental to the carrying on of the relevant business. It is therefore necessary to decide as a matter of principle whether a degree of regularity is required before it could be said to have been concluded in the course of the business for the purposes of the LPA. It is fair to say, without criticism, that the competing arguments on this specific point were not fully developed on either side.
Based on the authorities set out above, it seems to me that before I take into account the fact that the same words have been used in other legislation I must consider the extent to which the intended purpose of both that and the subject legislation are the same or similar.
In my view the shared purpose of consumer protection statutes such as UCTA and the Trades Description Act is quite different from the purpose of the LPA. Whereas their primary function in the case of the first two statutes is to enhance consumer rights and consumer protection, the purpose of the LPA is to provide businesses with a new right to statutory interest which they would not otherwise have had and which they will not acquire as against a consumer. The short title of the LPA includes the word “commercial” and its long title is:
“An Act to make provision with respect to interest on the late payment of certain debts arising under commercial contracts for the supply of goods or services”
In my view, when set against that purpose, the adjudicator’s agreement can properly be regarded a commercial contract between two parties for the supply of services. Accordingly, I have concluded that it is not necessary to import the “degree of regularity” test into the assessment of whether a contract was entered into in the course of a business for the purposes of the LPA. This also makes practical sense. It would be odd if the question of whether a commercial purchaser was liable to pay statutory interest to a supplier was dependent on the number of occasions on which the purchaser had entered into similar contracts – a matter which the supplier would not necessarily even know.
On that basis, I conclude that the LPA does apply to the adjudicator’s agreement not only because the Defendant was acting in a business capacity but also because he concluded it in the course of a business. It was a commercial transaction. Accordingly, it follows that the fees claimed by Mr Linnett are a qualifying debt for the purposes of s.3 of the LPA.
Allied Irish Bank Plc & anor -v- McGouran & ors
[2016] IEHC 629 Costello J
Discussion
17. In AIB v. Higgins [2010] IEHC 219, Kelly J., held that the subjective view of the Bank in relation to the facility, whether right or wrong, was of no relevance. Therefore the defendants’ argument based upon the attitude of the Bank to the term facilities is of no assistance to them in this case.
18. Mr Justice Kelly also held that it was for the defendants to demonstrate that they borrowed as consumers in order to be beneficiaries of s.30 of the Consumer Credit Act, 1995. He quoted with approval the decision of Hardiman J. in Aer Rianta c.p.t v. Ryanair Ltd. [2001] 4 IR 607 where Hardiman J. in turn cited with approval the observations in National Westminster Bank v. Daniel [1993] 1 W.L.R. 1453:
“…the mere assertion in an affidavit of a given situation which is to be the basis of a defence did not of itself provide leave to defend; the court had to look at the whole situation to see whether the defendant had satisfied the court that there is a fair or reasonable probability of the defendant’s having a real or bona fide defence.”
19. It is thus clear that the mere assertion that the first and second named defendants are in fact consumers is not sufficient on its own to establish that the defendants have raised an arguable defence and the proceedings should be referred to plenary hearing.
20. Thus, the first two grounds advanced by these defendants must be rejected. I turn then to see whether the other grounds advanced on behalf of the defendants can assist their argument.
21. In AIB v. Higgins, Kelly J. construed the word consumer in the Act of 1995. Consumer is defined in the Act as meaning a natural person acting outside the person’s business. The term “business” is defined as including “trade and profession”. A credit agreement is “an agreement whereby a creditor grants or promises to grant to a consumer a credit in the form of a deferred payment, a cash loan or other similar financial accommodation”.
22. He noted the observations of the European Court of Justice in the case of Benincasa v. Dentalkit (Case 269/95) [1997] E.C.R. 337. In the course of its judgment, that court stated:-
“15. As far as the concept of ‘consumer’ is concerned, the first paragraph of Article 13 of the Convention defines a ‘consumer as a person acting ‘for a purpose which can be regarded as being outside his trade or profession’. According to settled case-law, it follows from the wording and the function of that provision that it affects only a private final consumer, not engaged in trade or professional activities….
16. It follows from the foregoing that, in order to determine whether a person has the capacity of a consumer, a concept which must be strictly construed, reference must be made to the position of the person concerned in a particular contract, having regard to the nature and aim of that contract, and not to the subjective situation of the person concerned. As the Advocate General rightly observed in point 38 of his Opinion, the self-same person may be regarded as a consumer in relation to certain transactions and as an economic operator in relation to others.
17. Consequently, only contracts concluded for the purpose of satisfying an individual’s own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically. The specific protection sought to be afforded by those provisions is unwarranted in the case of contracts for the purpose of trade or professional activity, even if that activity is only planned for the future, since the fact that an activity is in the nature of a future activity does not divest it in any way of its trade or professional character.” (emphasis added).
23. It seems to me clear that the Court of Justice envisages that each individual contract must be assessed to ascertain whether or not it was concluded for the purpose of satisfying the individual’s own needs in terms of private consumption. The concept of a consumer is one which must be strictly construed. This does not admit the possibility of a dual purpose contract coming within the ambit of the protections afforded to consumers by the Directive. It would involve accepting that a person could at one and the same time and in one contract be entitled to the protection of the Directive as both satisfying their individual private needs and acting in their trade or profession. This is inconsistent with a strict construction of the concept of a consumer. If a person wishes to maximise the protection afforded to him by the Act and the Directive it is open to the person to separate his business or trade dealings from his purely personal dealings. The provisions do not in my opinion apply to dual purpose contracts as argued by counsel (even assuming for the purposes of the argument that the term facilities were dual purpose facilities). Such a construction is without authority. It is inconsistent with the reasoning of the judgment of the Court of Justice. It introduces uncertainty into the application of the Act and the Directive and is not necessary to give effect to the protections to be afforded to consumers.
24. I am, therefore, satisfied that the assertion by the first and second named defendants that they are “consumers” which is contained in the affidavit of the first named defendant is not sufficient to warrant this case being adjourned to plenary hearing. No arguable defence or triable issue has been identified by the defendants on this issue.
25. If I am incorrect in my conclusion that the first and second named defendants are not consumers within the meaning of the Act in respect of the term facilities, I am satisfied that, in fact, the Bank has complied with the requirements of s. 30(1) and (2) of the Act of 1995. Therefore the first and second named defendants have no defence to the claim in respect of the term facilities base upon section 38 of the Act. Section 30 of the Act provides as follows:
……
Discussion
52. The starting point must be the guarantees themselves. The third and fourth named defendants do not deny that they executed the guarantees or that they had the benefit of legal advice and indeed their execution of the guarantees was witnessed by their solicitor. Clause 1 expressly states that the guarantee is in respect of “all sums due”. It is a continuing guarantee (Clause 2). Therefore, on its face, it is not a specific guarantee, as was contended by the third and fourth named defendants. They do not make the case that they agreed with the Bank to provide a specific guarantee rather than an all sums due guarantee and that therefore the documentation did not reflect the terms reached between the parties. They do not state that the Bank represented to them that their guarantees were to be specific guarantees. They state, on the basis of the Bank’s statement in the letters offer of 2nd June, 2010, that the Bank only required a specific guarantee, and not an all sums due guarantee. This is based upon their construction of the security as being restricted to the identified loan account.
53. This is rejected by Mr. Philip Butler on behalf of the Bank. No corroborating document from the Bank to either the third or fourth named defendants has been produced to support this construction of the guarantee which the Bank required from the third and fourth named defendants in the letter of loan offer addressed to the first and second named defendants. There is no evidence to indicate that the Bank did not seek guarantees in the terms of the drafts sent to the third and fourth named defendants’ solicitor for acceptance and execution. In my opinion, the Bank sent out guarantees in the terms it required from the third and fourth named defendants and these terms were accepted by the third and fourth named defendants without demur, and were executed in the presence of their solicitor. Therefore this argument on behalf of the defendants must be rejected.
54. If I am incorrect in this conclusion, the averment by the third named defendant that he and his wife believed that the guarantees were restricted to the particular loan account, on the facts of this case, makes no difference to the Bank’s right to recover judgment against them in these proceedings. It is clear from the documentation that the facilities were extended in 2011. That means that they remain the same facility which, on their own case, the third and fourth named defendants agreed to guarantee to the Bank on 4th June, 2010. Thus, even if the guarantees were not all sums due guarantees, they are continuing guarantees in respect of facilities which still remain outstanding from 2010. These defendants do not deny that the guarantees were continuing guarantees.
55. I also find no merit in a defence based upon the fact that the terms of the 2010 facilities were varied in 2011. Clause 6 of the guarantees expressly acknowledges that the Bank may vary the terms upon which the borrowers borrow money from the Bank and it is not obliged to obtain the consent of the guarantors to any such variation and indeed, is not obliged to notify the guarantors of any such variation. In point of fact, the Bank did notify the third and fourth named defendants of the variations as I have set out above. It is noteworthy that the third and fourth named defendants made no response to these letters and in particular did not object to the variations or claim that they were in any way discharged from their liabilities under the guarantees.
56. I do not accept that the third and fourth named defendants have raised a triable issue in relation to the demands made by the Bank on the third and fourth named defendants on 20th August, 2015. The guarantees provide that service upon the guarantor at his or her residence or place of business shall be deemed sufficient service. It is not required that they be served at that address. The demand was served upon what might be described as a family address. Mr Butler on behalf of the Bank exhibits 14 letters addressed to the third and fourth named defendants at 9 Hillcourt Park in 2014 and there was no indication that these were not received or that either the third or fourth named defendants objected to the use of this address for the correspondence. The crucial point is that the third and fourth named defendants received the demand. In the affidavit of the third named defendant sworn on behalf of himself and his wife he made no complaint regarding receipt of the demand. Specifically, he did not state that it was not received and his affidavit is completely silent on the subject of the demand.
57. Secondly, it is argued that the demand was incorrect in that it referred to the agreements of November, 2011 rather than the original term facilities dated 2nd June, 2010. It is clear that the letters of November, 2011 extended and varied the facilities granted in June, 2010. The first and second named defendants were only in default once there had been a failure to repay the sums advanced in accordance with the extension granted by the letters of November, 2011. While it might have been possible to demand repayment in respect of the agreement of June, 2010 as amended and extended by the agreements of 2011, it does not follow that demanding payment pursuant to the agreements of November, 2011 was incorrect. Certainly, I am not of the opinion that it could give rise to an arguable defence in this case.
58. Finally, as I have rejected the defence of the first and second named defendants based upon s.38 of the Consumer Credit Act 1995, it follows that this defence is likewise not opened to the third and fourth named defendants.
59. Thus the third and fourth named defendants have not established an arguable ground of defence to the Bank’s claim and there is no reason to remit the matter to plenary hearing.
Conclusion
60. The Bank is entitled to judgment against each of the defendants in accordance with the rulings in this judgment. I direct that the Bank file an affidavit setting out the sums due by each of the defendants in accordance with my findings and I adjourn the matter for one week to enable this to be done. Judgment will then be entered in accordance with the updated affidavit against each of the defendants.