A bank had a clause in its standard terms which provided that it could continue to recover interest at the contract rate after judgment for default. The clause was an unfair term. The clause allowed a bank to impose an arrangement for repayment by instalments without the court having the opportunity to judge the level of such payments. The bank undertook to add information about the procedure and no injunction was given to prevent it relying upon the clause.
‘It is trite law in England that once a judgment is obtained under a loan agreement for a principal sum and judgment is entered, the contract merges in the judgment and the principal becomes owed under the judgment and not under the contract. If under the contract interest on any principal sum is due, absent special provisions the contract is considered ancillary to the covenant to pay the principal, with the result that if judgment is obtained for the principal, the covenant to pay interest merges in the judgment. Parties to a contract may agree that a covenant to pay interest will not merge in any judgment for the principal sum due, and in that event interest may be charged under the contract on the principal sum due even after judgment for that sum.’
Judges:
Peter Gibson, Waller and Buxton LJJ
Citations:
Times 21-Sep-1999, Gazette 15-Sep-1999, Gazette 17-Feb-2000, Times 14-Mar-2000, [2000] EWCA Civ 27, [2000] QB 672
Links:
Statutes:
Unfair Terms in Consumer Contracts Regulations 1994 (1994 No 3159)
Jurisdiction:
England and Wales
Citing:
Appeal from – Director General of Fair Trading v First National Bank Plc ChD 30-Jul-1999
The claimants sought an injunction under the regulations to prevent the defendant bank from including in any of its agreements a clause allowing them to claim interest on judgments on regulated agreements. . .
Cited – In re Sneyd; Ex parte Fewings CA 1883
The mortgagee’s costs, whether costs of an enforcement or a redemption action or included in ‘costs, charges and expenses’, are not recoverable from the mortgagor personally, but both as against the mortgagor and other persons interested in the . .
Cited – Ealing London Borough Council v El Isaac CA 1980
Templeman LJ said: ‘I do not for myself understand how a debt payable with interest until actual repayment can be merged in a judgment without interest or with a different rate of interest payable thereafter.’ . .
Cited – Bank of Scotland v Davis SCS 1982
A bank’s borrower’s covenant to pay interest is ordinarily to be taken to continue until the full sum of principal is repaid, after as before judgment. An appeal was allowed from the order of the sheriff in an undefended action for repayment of a . .
Cited by:
Appeal from – Director General of Fair Trading v First National Bank HL 25-Oct-2001
The House was asked whether a contractual provision for interest to run after judgment as well as before in a consumer credit contract led to an unfair relationship.
Held: The term was not covered by the Act, and was not unfair under the . .
Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Lists of cited by and citing cases may be incomplete.
Consumer, Banking
Updated: 19 May 2022; Ref: scu.79974