Nolan v Wright: ChD 26 Feb 2009

The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement amounted to an extortionate bargain would not be a substantive relief, and was therefore not subject to a time bar. The claimant had admitted leaving agreements to run unenforced to avoid arguments over whether the agreement was extortionate.
Held: The defendant was required under the rules to give notice to apply for such an order, and therefore ‘a claim to reopen a credit agreement as an extortionate credit bargain is an action upon a specialty to which in principle, and subject to section 9 (and the other provisions) of the 1980 Act, a limitation period of 12 years from the date of entry into the relevant credit agreement applies.’ It was clear that many of the defendant’s assertions were fanciful, and contradicted by his own contemporaneous and later documents. However there were similarly doubts about the claimants own case which required investigation at trial.

Hodge QC J
[2009] EWHC 305 (Ch)
Consumer Credit Act 1974 137 138 139 140, Limitation Act 1980 8
England and Wales
CitedCollin v Duke of Westminster CA 1985
In 1975 the tenant sought to exercise his right to purchase the freehold reversion of his property. The landlord argued that the rent payable precluded any such entitlement. Under the law as then understood, the landlord’s contention appeared . .
CitedHill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006
The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
CitedBray v Stuart A West and Co 1989
The court’s inherent supervisory jurisdiction over legal professions are not proceedings founded on any cause of action, and so are not subject to the Limitation Act. . .
CitedParagon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
CitedFirst National Bank Plc v Syed CA 1991
The court can exercise the supervisory jurisdiction over consumer contracts under the 1974 Act irrespective of any application made by a party. . .
CitedRe Priory Garage (Walthamstow) Limited ChD 2001
The court considered the relevance of a statutory limitation period in relation to applications to set aside transactions as being at an undervalue or as voidable preferences under section 238 to 241 of the 1986 Act. Applications to set aside . .
CitedRahman v Sterling Credit Ltd CA 17-Oct-2000
A lender sought repossession of a property securing a loan from 1998. The borrower sought to assert that the loan was an extortionate credit bargain under the Act. The lender asserted that that claim was out of time.
Held: A claim under a . .
CitedLetang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .
CitedNational Westminster Bank v Daniel CA 1993
The defence contained two contradictory grounds, and the defendant’s evidence again contradicted the defences. The plaintiff sought summary judgment.
Held: A judge, when considering whether a claim should be determined then or allowed to . .
CitedSwain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
CitedThree Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
CitedE D and F Man Liquid Products Ltd v Patel and Another CA 4-Apr-2003
The rules contained two occasions on which a court would consider dismissal of a claim as having ‘no real prospect’ of success.
Held: The only significant difference between CPR 24.2 and 13.3(1), is that under the first the overall burden of . .
CitedNationwide Building Society v Dunlop Haywards Ltd and Another ComC 14-Jun-2007
Claims in deceit with regard to valuations of commercial properties. . .
CitedExtraktionstechnik Gesellschaft fur Anlagenbau GmbH v Oskar CA 1984
Where there are unexplained features of both the claim and the defence which are disturbing because they bear the appearance of falsity and disreputable business dealings and questionable conduct, the Court should not make tentative assessments of . .

Lists of cited by and citing cases may be incomplete.

Limitation, Contract, Consumer

Updated: 11 November 2021; Ref: scu.304541