Head of Banking & Lender Disputes | Dispute Resolution | Banking & Finance
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The High Court has handed down its written judgment giving reasons for the striking out of seven cases at a hearing which took place on 21 April 2023. Whilst the claims were brought by separate claimants, each possessed what the judge described as a curious similarity, giving rise to the conclusion that the same guiding hand sat behind each of the proceedings.
Each of the cases concerned Part 8 claims issued against mortgage lenders as a method to delay and undermine existing County Court mortgage possession claims, rather than responding directly in the usual course (i.e. defending the claim or applying for a stay) in the relevant enforcement proceedings. Part 8 claims are intended to be used where a claimant seeks the Court’s decision on a question which is unlikely to involve a substantial dispute of fact.
One of these cases involves asset management platform Lendinvest. In this case, the Claimant had been advanced a loan by Lendinvest of around £380,000, secured against a property in Croydon. Following a default of the repayments, the property was sold at auction, and Croydon County Court awarded the shortfall of the sale and costs to Lendinvest. The Claimant consequently issued a Part 8 claim in the High Court in respect of the same matters which had already been decided by the County Court, serving unusual 'Affidavits' and other documents that had been stained with what the Judge hoped was simply red ink. The judge concluded that the Claimant's actions were an abuse of process.
Each of the cases to which the judgment relates shared the same order of actions as described above. These are just a selection of many more cases which have been issued in the High Court with similar characteristics.
Some of the defendants in these cases highlight the similarity of the claims to those of interest groups such as the 'Freemen of the Land'. The 'Freemen' are those who declare themselves exempt from laws to which they have not provided consent, in the belief that this will allow them to escape the jurisdiction of the Court (and even criminal charges). The growth in the Freemen of the Land movement is consistent with an increase in claims of the kind described above, particularly against financial institutions.
Whilst the beliefs of such groups may be enticing to vulnerable individuals facing debt and/or enforcement action, especially in the backdrop of the current cost of living crisis in the UK. Individuals who embark on misconceived actions, without having an appropriate legal basis for doing so are likely to find themselves worse off in the long run, not only incurring the costs of advancing the claim, but also potentially bearing the other party's costs.
The submissions of the claimants in these cases contained what the judge described as incoherent and untenable language, displaying a stringing together of non-existent or considerably adapted legal terminology. The judgment questions the origin of the legal advice provided to the claimants, noting that if anyone has been providing unqualified legal advice, such advice has not been well placed.
To be a qualified solicitor in the UK you must have been admitted as a solicitor, have your name entered on the roll, and have in force a practice certificate issued by the Solicitors Regulation Authority. Any unqualified person who pretends to be a solicitor is liable to a fine, and any unqualified person who goes as far as to act as a solicitor may be liable to a fine and up to two years imprisonment. Anyone who is unsure about whether the advice they are receiving is being provided by a qualified legal professional can check the Solicitors Register.
Further, pursuant to the Legal Services Act 2007, the conduct of litigation is a reserved legal activity. This means that only authorised or exempt persons may engage in the conduct of litigation, i.e. those persons approved by the relevant regulator (eg. the Law Society). The term persons in this sense includes corporate bodies, and therefore captures individuals acting on behalf of (and with the authority of) an approved/regulated firm. Any person who carries on the conduct of litigation when not entitled to do so is guilty of contempt of court and may be liable to a fine and up to two years imprisonment.
A litigant in person (i.e. those without legal representation) may seek the court's permission to authorise a non-qualified person or friend to represent or assist them. The court will use its discretion in deciding whether or not to allow this, and will likely only give its permission where doing so would be in the interests of justice.
Citizens Advice can direct individuals in need of legal advice to appropriate resources. For support through the court system, pro bono charity Advocate run a number of schemes to support litigants in person (i.e. those without legal representation).
The High Court judgment shows a willingness by the Court to actively manage unmeritorious claims designed to delay or thwart other legitimate proceedings. These claims are often issued in bulk and are driven or influenced by disinformation shared by groups or individuals who lack the expertise to provide appropriate legal advice. Those considering issuing a claim should therefore ensure that anyone offering legal advice being obtained is qualified to do so.
In light of recent announcements by the Government and lenders to facilitate changes to mortgage products to alleviate pressures, the FCA's Finalised Guidance issued in March 2023 merits close consideration.
In most cases, early engagement between lenders and customers often provides for better outcomes than the last resort of formal proceedings.
If you would like to discuss any of the issues explored in this article, please do get in touch with a member of the team on the contact details below.