The High Court has held in School Facility Management Ltd and others v Governing Body of Christ the King College [2020] EWHC 1118 (Comm), among other findings, that a contract between a school and a construction company constituted a finance lease and was void because of the school’s lack of capacity under the Education Act 2002.
Continue ReadingThe New Year saw the demise of the FLA’s well-established Finance House Base Rate (“FHBR”) essentially to avoid the regulatory consequences of some complex EU Benchmark Regulations.
However, in practice the FLA will continue to publish a figure which will effectively replace FHBR. In the words of the FLA statement explaining the change:
Continue ReadingThe title of this article does not quite rise to the level of “Man Bites Dog”, but it refers to a rather unusual case which was reported recently and which provides a welcome albeit relatively unusual example of a dissatisfied customer accepting its liability under Hire Purchase Agreements and seeking its remedy against the supplier of the defective equipment.
New York Laser Clinic Limited v Naturastudios Limited [2019] EWHC 2892 (QB) involved the supply of a large quantity of laser equipment to the claimant for use in its laser hair removal business, following oral representations made by the supplier as to the performance of the equipment upon which the claimant made detailed profit projections which formed the basis of its business case put to 3 financiers.
Continue ReadingOne of the more nebulous provisions of CONC which has led to widely different interpretations in practice has been the rule relating to the disclosure of commission found at 4.5.3 which currently provides as follows:
“A credit broker must disclose to a customer in good time before a credit agreement or a consumer hire agreement is entered into, the existence of any commission or fee or other remuneration payable to the credit broker by the lender or owner or a third party in relation to a credit agreement or a consumer hire agreement, where knowledge of the existence or amount of the commission could actually or potentially:
Continue ReadingOn a separate but related note, the FCA’s October 2019 report has proposed a ban on commission models within the motor finance industry where the amount received by the broker is linked to the interest rate paid by the customer where the broker has the power to set or adjust this interest rate.
The FCA refers to these as “discretionary commission models”, which have a number of variations, but in essence the empirical evidence unearthed by the FCA’s enquiries strongly suggest that these discretionary commission models significantly disadvantaged customers compared to flat fee models of remuneration. The ban will be limited to regulated consumer credit agreements and will not extend to consumer hire.
Continue ReadingMost asset finance agreements contain an express provision that any equipment added to the asset financed by the lessee automatically belongs to the financier. This reflects the common law doctrine of accession, by which the rights of the original owner of the added equipment are extinguished.
Continue ReadingWe recently successfully represented Ferrari Financial Services GMBH in roundly defeating a claim by administrators who sought to interfere with Ferrari’s right to possession of a vehicle worth in the region of £7 Million.
Continue ReadingThe FCA has indicated that it intends to increase the limit of an award which can be made by the Financial Ombudsman Service under its compulsory jurisdiction scheme from £150,000 to £350,000.
Continue ReadingWe were surprised to come across a situation recently in which an asset financier (who we were not advising) sought to rely upon a declaration contained within its standard terms and conditions to the effect that the assets on finance had been delivered, were of satisfactory quality and were fit for their purpose.
Continue ReadingWe recently advised asset financiers as to their rights where a company which had taken numerous items of plant and machinery on Hire Purchase purported to sell the assets to a buyer in the European Union who then sold them on to a buyer in Asia.
The Hirer Company was effectively insolvent but it was clear from the investigations we carried out that the purported sale had been arranged by the sole director of the Company, and that no other individual had any real involvement in the transaction on its behalf.
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