In English v English and others, the claimant home owner attended a meeting at the second defendant solicitors' offices where she signed a "solicitor's verification certificate" (SVC). This confirmed she had been advised about the consequences of entering into a joint loan (with the first defendant, her son) of £50,000 to be provided by the third defendant. The loan was to be secured on her home. The first defendant told her the loan had not been approved, whereas the monies were advanced to, and kept by, him. The loan was subsequently increased to £106,000 without the claimant's knowledge. Payments were not made and an application for possession was made. The claimant alleged she knew nothing about the loans and that her son had forged her signature on the documentation. The claimant sold the property and the charge was cleared.
The claimant brought proceedings to recover the money paid to redeem the charge. She alleged professional negligence against the second defendant contending that the SVC should not have been signed as she had never been properly advised. She had thought the transaction was an unsecured loan. As against the lender she sought a return of the monies paid by way of constructive trust or payment by mistake, the mistake being her liability to pay.
The court dismissed the claims. It held that although expert evidence indicated that the claimant's signature on the documentation had been forged, on a balance of probabilities, the SVC accurately recorded what had happened at the meeting with the second defendant and the advice that had been given. The second defendant had not been in breach of duty.
The lender's defence that the claimant's conduct ratified her son's actions in obtaining the loan and registering the charge succeeded on the facts. The claimant was aware of and had paid off some of the arrears; had spoken to the lender on the phone; had advised her conveyancing solicitors of the charge; had redeemed the charge on completion of the sale, all without protest or seeking advice as to whether she was liable to pay. This had the effect of retrospectively constituting the claimant's son as her agent to enter into the transaction and to put forward the documentation. It did not therefore matter that the signatures on the documents were not the claimant's.
Things to consider
This was an unfortunate, although not a wholly exceptional, situation for the claimant. Lack of objection or protest at an early stage to what the claimant knew had occurred was essential to the lender's defence.