The Defendant in this case was a 70 year old man who resided in a retirement community. He entered into two successive fixed term loan agreements with Swift Advances PLC (the Claimant), both of which were secured by a second charge on his home and were regulated by the Consumer Credit Act 1974 (CCA).
At the time of entering into the loan agreement the Defendant told the Claimant that he worked as a driving instructor and would continue to do so past retirement age. In fact, the defendant had no such job. The Defendant fell into arrears and the Claimant commenced possession proceedings. The Defendant argued that bearing in mind his age and the term of the loan (which would take him to 85 years old), he was never likely to be able to sustain the loan over its full term and so the Defendant alleged that there was an unfair relationship pursuant to Section 140A CCA.
The County Court gave judgment in favour of the Claimant and held that:
- The Claimant had proved the relationship was fair under section 140A.
- The court is required to look at the whole transaction from the point of view of both the debtor and creditor before determining whether the relationship is unfair - Plevin v Paragon Personal Finance Ltd.
- The mendacity of the Defendant was a relevant consideration for the purposes of section 140A CCA.
- The Claimant’s practice and experience in dealing with elderly borrowers was relevant in judging whether or not it had acted unfairly.
- The Claimant’s actions were not to be judged by guidance or standards of behaviour that came into force after the loans had been agreed. The Claimant was operating in accordance with the then existing guidance and so there was no reason for criticising the Claimant.