Charles Cleland Helden –v- Strathmore Limited [2011] EWCA Civ 542

Posted on Wednesday, May 11th, 2011

H had taken various loans from S secured by a charge over property. A dispute arose as to the repayment of the loans and H issued proceedings on the basis that they contravened the Financial Services and Markets Act 2000. H argued that the charge was incorrectly drafted. The judge found that it was but that it was clear what the parties had agreed and therefore enforceable. Furthermore, S had contravened the FSMA but it was nonetheless just and equitable to uphold the charge. Both findings were upheld on appeal. The Judge also ordered H to pay S’s costs on the indemnity basis because most mortgages contain such a term. Although H had defeated S’s claim in respect of one loan of £90,000, that had not involved “significant extra costs”. On appeal the Court held that the charge in the present case contained no term for costs on the indemnity basis and it would be wrong to proceed on the basis that it did. The Court therefore had to consider what order to make. S had largely succeeded. However, two important points had gone the other way. S had failed on the issue of whether the FSMA applied and, in order to enforce the charge it had had to seek the indulgence of the Court under section 28(3) of the FSMA. In the circumstances, the correct order was that H should pay 60% of S’s costs to be assessed on the standard basis.

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