|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Salkeld Investments Ltd v West One Loans Ltd  EWHC 2701 (QB) (8 November 2012)
Cite as:  EWHC 2701 (QB)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
LONDON MERCANTILE COURT
Strand, London, WC2A 2LL
B e f o r e :
| SALKELD INVESTMENTS LIMITED
WEST ONE LOANS LIMITED
Mr Peter de Verneul Smith (instructed by CKFT) for the Defendant
Hearing dates: 6 July and 5 September 2012
Crown Copyright ©
Judge Mackie QC :
The facts agreed or not much in dispute
i) The Loan ("the Loan") was to be advanced by the Defendant to an individual purporting to be Mr Massimo Barbini ("the Borrower").
ii) The total amount of the Loan to be advanced by the Defendant to the Borrower was £570,000.
iii) Security for the loan would be obtained by the Defendant in the form of a registered charge over a residential property purportedly owned by the Borrower ("the Property"), a three storey, mid terrace, three bedroom freehold house in Fulham, London SW6.
iv) The Property had an open market valuation of £950,000.
v) The term of the Loan was to be 7 months.
vi) The Borrower would pay an interest rate to the Defendant of 1.25% per month from which the Defendant would pay to the Claimant a net interest rate of 1% per month.
"West One Loans does not enter into any form of contract by means of Internet e-mail. None of the staff of West One Loans are authorised to enter into contracts on behalf of the company in this way. All contracts to which West One Loans is a party are to be documented by other means."
The evidence of Mr Miller
The Claimant's case and the Defendant's response
- The debt claim is unreal and there are good grounds to find that the Defendant did not promise expressly or impliedly to repay the Loan and interest. I consider that to the extent that the pleaded case makes a claim in debt it is hopeless.
- The Claimant's claim based upon express or implied warranties that security would be obtained and no advance made before security was obtained is subject to good defences as to construction and unreasonableness of the implied terms.
- The Defendant has reasonable grounds for claiming that the Client Agreement was incorporated by reference to the email footer.
- The Defendant has reasonable grounds in support of the defence that the Client Agreement was known to Mr Randall, that his knowledge is to be imputed to the Claimant and that the Client Agreement was therefore binding.
- The Defendant has reasonable grounds in support of the limitation of liability in the Client Agreement not being found to be unreasonable under the Unfair Contract Terms Act. In my view this fact sensitive point cannot be decided at the summary judgment stage.
- The Defendant has reasonable grounds in support of the defence to the allegations of negligence. In my view this claim too is unsuitable for summary judgment.
I therefore turn to the three issues which arise.
Terms of the contract-more detail
"The service offered to clients includes the entire management of their lending operation. The management company obtains loan applications, processes each application by taking up all necessary references where applicable, obtains chartered surveyors valuation, prepares and submits the facility letter and finally instructs solicitors to perfect a legal charge over the property or properties offered as security…"
Terms of the Contract- decision on assumption that Client Agreement is not incorporated as part of the Contract
"(1) that the default obligation is one limited to the taking and exercise of reasonable care; (2) that it requires special facts or clear language to impose an obligation stricter than that of reasonable care; (3) that a professional man will not readily be supposed to undertake to achieve a guaranteed result; and (4) that if he is undertaking with care that which he was retained or instructed to do, he will not readily be found to have nevertheless warranted to be responsible for a misfortune caused by the fraud of another."
The Client Agreement
The email footer
"In the factual context I disagree with the judge's conclusion. He concluded that the words conveyed no more than that terms and conditions were available in the sense that there were terms which might be included at the customer's request. I can see that grammatically the words could be construed that way, but it is not a construction which I would expect to occur to a businessman in the position of the parties. The work order was intended to be sent to the customer for signature as a contractually binding order rather than a form of pre-contractual negotiation. It would also be commercially most odd to have a contract for the performance of services where, instead of it containing any detailed commercial terms, eg as to payment, the contractor devised such terms but left them for inclusion only at the customer's request.
17. Since this is not an appeal from a trial of a preliminary issue but an appeal from an order striking out part of the defence, the issue is only whether CSE's construction is reasonably arguable. In my judgment it is the more likely construction on the present material, although there may be evidence of a more detailed nature about the underlying contractual framework and contractual background."
"(1) The law may impute to a principal knowledge relating to the subject matter of the agency which the agent acquires while acting within the scope of his authority.
(2) Where an agent is authorised to enter into a transaction in which his own knowledge is material, knowledge which he acquired outside the scope of his authority may also be imputed to the principal."
"Where the agent acts within his authority with the knowledge in question present to his mind, the principal should be bound by that knowledge, however acquired. I see no basis for ignoring any part of the agent's knowledge, present to his mind, when he is doing the authorised act. The source of the knowledge seems irrelevant. What must matter is the agent's state of mind when doing the authorised act."
Client Agreement- exclusion of liability