B2/2006/1293 & 1293(Y)
ON APPEAL FROM COVENTRY COUNTY COURT
MR RECORDER MICHAEL DOUGLAS Q.C.
5CV02279
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE WALLER
VICE PRESIDENT OF THE COURT OF APPEAL
CIVIL DIVISION
LORD JUSTICE TUCKEY
and
LORD JUSTICE JACOB
Between:
WILSON & ANR. | Defendants/ Appellants |
- and - | |
HURSTANGER LTD | Claimant/ Respondent |
(Transcript of the Handed Down Judgment of
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Mr Bradley SAY (instructed by Messrs Heer Manak) for the Appellants
Mr Thomas SEYMOUR (instructed by Messrs Butcher Burns) for the Respondent
Hearing dates : 14 March 2007
Judgment
Lord Justice Tuckey:
This appeal raises two points under the consumer credit legislation and more generally and important points about commissions paid in breach of fiduciary duty. They arise on appeal from a judgment of Mr Recorder Michael Douglas Q.C. given in the Coventry County Court. He gave the defendant borrowers, Mr Wilson and Ms Burton, permission to appeal his conclusion that their loan agreement did contain a prescribed term correctly stating how they were to discharge their repayment obligations and to the claimant lender, Hurstanger Limited, to appeal his conclusion that the agreement did not state the amount of each repayment to be made. These conclusions meant that the agreement could be enforced by order of the court. The court so ordered on terms that the defendants were discharged from any liability to pay the claimant’s administrative/legal costs. Repayment of the loan was secured by a second legal charge on the defendants’ house and the Recorder made an order for possession. He rejected a submission that the claimant had paid a secret commission to the defendants’ broker and refused permission to appeal this part of his judgment. We granted permission at the beginning of the hearing.
The Facts
By early 2003 the defendants were in arrears under their mortgage with the Alliance and Leicester Building Society. They applied for a loan of £8,000 to the claimant through a local broker, Mr Dunk, who carried on business as One Way Finance in Coventry. The loan was to pay off the arrears on the first mortgage of about £5,500, to pay the broker’s arrangement fee of £1,000 and to provide some surplus liquid funds for the defendants’ own use. Upon receipt of their loan application from the broker the claimant sent the defendants three documents for them to sign and return.
One of these documents authorised payment of the broker’s fee out of the loan proceeds. It also said “we understand that an amount in the sum of £295 will be debited to the loan balance being the legal costs incurred in this matter”.
A longer document was headed PLEASE READ THIS COMMUNCAITON CAREFULLY. BY SIGNING SAME WHERE INDICATED YOU CONFIRMED THAT YOU HAVE STUDIED AND UNDERSTOOD THE CONTENTS, PRIOR TO OUR PROCEEDING FURTHER WITH YOUR APPLICATION FOR A LOAN. This document which the defendants signed made a number of statements designed to show that they knew what they were letting themselves in for, including:
(d) The broker who assisted us in making this loan application, is acting as our agent and is not tied in any way whatsoever to the company. We have not been persuaded, pressured or induced in any way to accept this loan or to borrow more money than we require or can comfortably afford to repay together with interest. In certain circumstances this company does pay commission to brokers/agents. In as far as it is able to do so; it endeavours to insure that the Broker conducts their business activities in a fair and proper manner. We will pay monies to your broker strictly in accordance with your signed authority by the deduction from this advance; this is not a condition of the loan.
This document also said that the sum of £295 would be debited to the mortgage balance on completion of the loan.
The transaction was completed on 5 August 2003 when the defendants executed the second charge on their house and the proceeds of the loan were dispersed in accordance with the authority which they had given to the claimant. But as well as the agreed arrangement fee of £1000 the claimant also paid the broker a commission of £240.
The loan agreement was a regulated consumer credit agreement for a fixed sum credit. (Consumer Credit Act 1974 Act sections 8 and 10 (1) (b)). It is on a standard form which states that it is regulated by the Act. The material terms for present purposes appeared under the heading “The Loan and Monthly Payments”. Then in lettered boxes it said:
NETT AMOUNT OF LOAN £7000.00
PROTECTION PAYMENT PLAN PREMIUM (OPTIONAL) £0
TOTAL LOAN INCLUSIVE OF BROKERS FEE OF £1000.00 £8000.00
RATE OF INTERST PER MONTH 1.29%
(Variable in accordance with Condition (4) overleaf)
APR (No account of any variation of the rate or 16.60%
Amount of interest payable has been taken)
NUMBER OF MONTHLY REPAYMENTS 240
AMOUNT OF MONTHLY REPAYMENTS £93.33
(Assuming no variation of the rate of interest)
Under these boxes the agreement said:
The APR at (E). is based upon a total charge for credit which includes, the total charge for credit (other than interest at clause 1.4 overleaf) inclusive of (a) the borrowers brokers arrangement fee of £1,000 which sum is not a condition of the loan imposed by the lender and (b) the lenders administrative/legal costs of £295 (which becomes due and payable upon completion of the loan). The lender may agree to defer collection of this sum to a date no later than termination of this agreement or its earlier redemption, such costs if deferred will continue to bear interest at (D) above until discharged in full.
The defendants made various payments under the agreement, but when these mortgage possession proceedings were started in March 2005 they were nearly £700 in arrears.
The second defendant took no part in the proceedings but at trial the claimant accepted that any defences raised by the first defendant also availed her. His defence took points under the consumer credit legislation in addition to the one with which we are concerned and, by amendment on the first day of the trial, he contended that the agreement was void or voidable by reason of the £240 payment by the claimant to the broker. By his counter claim he elected to avoid the agreement and claimed rescission and such other equitable relief as the court considered just.
The Consumer Credit Legislation
It is not necessary or rewarding to go on a grand tour of the legislation in order to explain the issues we have to decide. Put shortly section 60 (1) of the Act gives power to the Secretary of State to make regulations as to the form and content of documents embodying regulated agreements. Section 61 (1) provides that a regulated agreement is not properly executed unless it is in a document containing all the prescribed terms and conforming to the regulations made under section 60 (1). An improperly executed agreement is enforceable against the debtor only on an order of the court (section 65 (1)), but no such an order can be made unless it contains all the prescribed terms (section 127 (3)).
The relevant prescribed term for present purposes is to be found in paragraph 5 of schedule 6 to the Consumer Credit (Agreements) Regulations 1983. It says that the agreement must contain:
A term stating how the debtor is to discharge his obligations under the agreement to make the repayments, which may be expressed by reference to a combination of any of the following –
(a) number of repayments;
(b) amount of repayments;
(c) frequency and timing of repayments;
(d) dates of repayments;
(e) the manner in which any of the above may be determined,
or in any other way, and any power of the creditor to vary what is payable.
Paragraph 4 requires “a term stating the rate of any interest on the credit to be provided under the agreement”.
Schedule 1 to the 1983 Regulations sets out the “information to be contained in documents embodying regulated consumer credit agreements”. Some of this information mirrors the terms prescribed by schedule 6, but some does not. Contrasting the provisions of the two schedules the Judge said:
33. In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties (with the benefit of legal advice if necessary) and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under section 61 that all the terms should be in a single document, and backed up by the provisions of section 127 (3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement. More detailed requirements, which are designed to ensure that the debtor is made aware, so far as possible, of specified information (including information contained in the minimum terms) are to be found in Schedule 1.
I agree. The discretionary power under section 65 (1) to order enforcement of an agreement which does not comply with schedule 1 may be exercised on terms discharging the debtor from having to pay any sum payable under the agreement (section 127 (2)).
Paragraph 13 of schedule 1 required the agreement in this case to contain information as to:
The amount of each repayment to be made under the agreement expressed as –
(a) a sum of money;
(b) a specified proportion of a specified amount (including the amount outstanding from time to time);
(c) a combination of heads (a) and (b) above; or
(d) in a case where the amount of any repayment cannot be expressed in accordance with head (a), (b) or (c) above, a statement indicating the manner in which the amount will be determined.
The Consumer Credit Appeals
It is convenient to deal with these appeals together. Logically the defendants’ appeal falls to be dealt with first. Put shortly the contention is that the agreement did not state how the £295 was to be repaid contrary to schedule 6 paragraph 5. The premise for this contention is that although the agreement provided that the £295 became due and payable upon completion of the loan, the pre-contractual documentation evidenced an agreement to “defer collection of this sum to” the date of termination (5 August 2023). The giving of time in this way extended credit to the defendants because it was a “form of financial accommodation” within the meaning of section 9 (1) of the Act and the payment to be made on termination would be “a repayment” within the meaning of regulation 1 (3) of the 1983 regulations. The Recorder accepted this analysis in [62] and [64] of his judgment. Mr Seymour for the claimant contended that there had been no agreement to defer, but for reasons I will explain when dealing with the claimant’s appeal I think he is wrong about this and so I proceed to consider the defendants’ appeal on the basis that the premise for it is correct.
The Recorder decided that the agreement did state how the £295 was to be repaid. He said:
66. Following the sub-paragraph numbers in paragraph 5, the agreement.
(a) specifies the number of repayments: one
(d) specifies the date of the repayment: the completion of the loan or in the event of deferment, the date of termination of the agreement (5 August 2023)
(e) states the manner in which the amount of the repayment is to be determined: by adding to the sum of £295 (simple) interest over the life of the loan at the rate of 1.29% per month.
67. The combination of these three provisions amounts in my judgment to a term “stating how the debtor is to discharge his obligations under the agreement to make the repayments” within the meaning of Schedule 6 paragraph 5.
Mr Say for the defendants submits that this conclusion is wrong. Boxes F and G in the agreement were, he said, intended to comply with paragraph 5 to tell the debtor how his obligations were to be discharged and they did not say how the £295 was to be repaid. The Schedule required this to be done in a term. It was not therefore permissible for the agreement to provide different ways for repayment – a single term was required. If he was wrong about this, at least the amount to be repaid had to be stated.
When we tested these arguments they became less and less convincing. First Mr Say conceded that as a matter of construction boxes F and G explained how the debtor was to repay the £8,000 and the words below the boxes explained how he was to repay the £295 in the way described by the Recorder. Mr Say says this was not clear, but if, as a matter of construction, the agreement contained the necessary prescribed term it was compliant. Lack of clarity is more appropriately a matter for Schedule 1. This led Mr Say to submit that a prescribed term is something different from a term of the agreement. That cannot be right. It is obvious that Schedule 6 is dealing with terms of the agreement and Mr Say was unable to point to anything which suggested the contrary. At one stage Mr Say conceded that if the agreement had contained a further box or boxes spelling out how the £295 was to be repaid this would be compliant. He was right to do so in my judgment, but this simply illustrates that paragraph 5 does not require a single term. One can see for example that the obligation to repay the £8,000 is dealt with by way of more than one term i.e. those contained in boxes F and G.
In support of his submission that the amount to be repaid had to be stated Mr Say relied on a passage from the judgment of Clarke LJ in McGinn v Grangewood Securities Limited [2002] EWCA Civ 522. In that case the agreement required payment of legal costs of £250 with a provision for deferment similar to that in this case but it made no mention of an obligation to pay interest. Clarke LJ said that if the lenders had wanted to retain the power to defer the obligation to pay the costs on terms that interest would be payable this fact would have to be stated “in a document signed by the debtor” (i.e. in the agreement). But Clarke LJ added “so should the amount of such payments”. This obiter statement does not appear to have been the subject of argument and for reasons which I shall explain it needs some qualification.
Mr Say also relied on the decision of the Court of Appeal in Northern Ireland in O’Hagan v Wright [2001] NICA 26, a case involving comparable provisions relating to credit hire agreements. At [27] Lord Carswell, Chief Justice, said “that the debtor must receive fairly precise information about the times and amount of repayments to be made”. But what the agreement with the debtor must state is prescribed by the regulations and I do not think this general statement is of any real assistance here.
The fact is that paragraph 5 gives a significant degree of flexibility about the way in which the agreement may deal with the debtor’s obligations. The lender may go for a combination of (a) to (e) or “any other way”. The requirement is simply to state how the debtor is to discharge his obligations. The agreement may require him to discharge one obligation in one way and another in another way. There is no express requirement to state the amount of any repayment provided the agreement otherwise states what is required by paragraph 5. That is the qualification which I would make to what Clarke LJ said in McGinn. So in this case, as the Recorder said,:
55…a term stating that there should be a single lump sum payment at the end of the term of the loan plus interest on that sum calculated over the period of the loan at a rate of 1.29% per month … would satisfy paragraph 5 notwithstanding that the amount of the repayment was not expressly stated.
For these reasons I do not accept Mr Say’s submissions. When referring to Mr Say’s submission that the only repayment obligation was to be found in boxes F and G the Recorder pointed out that if that was so then the agreement did comply with paragraph 5. This led Mr Say to submit that if boxes F and G contained the terms upon which a total of £8,295 was to be repaid box D, which stated the rate of interest, would be wrong and so the agreement did not comply with schedule 6 paragraph 4. This, as Mr Say conceded, was an extremely unmeritorious argument but as the agreement does not bear the construction upon which it is premised I do not need to deal with it further.
For the reasons I have given I would dismiss the defendants’ consumer credit appeal.
So I turn to the claimant’s consumer credit appeal. Schedule 1, as I have already said, sets out the information which the agreement is required to contain. The Recorder rightly noted that the requirements of paragraph 13 were more precise and demanding than those of Schedule 6 paragraph 5. Based on his conclusion that this agreement required the defendants to repay £295 plus interest at the date of termination (as opposed to the date of completion), the question he had to answer was: could the amount of this repayment be expressed as (a) a sum of money or (b) a specified proportion of a specified amount or (c) a combination of these two? If it could the agreement did not comply; if it could not then it was common ground that the agreement did comply with paragraph (d).
The Recorder held that it was possible to state the amount of the repayment at termination as a sum of money. If this was 5 August 2023 it would be £295 plus £1210; it could be expressed as £295 plus interest of £X per day/month/year until the date of repayment or something similar to this. He said:
104 …In my judgment such a statement would express the amount of the repayment as a sum of money and would fulfil the purpose of Schedule 1 by providing important information to the borrower about the repayment which he was letting himself in for on top of the monthly instalments required in the box.
He rejected the submission that the statement that the sum of £295 would attract interest at the rate of 1.29% until discharged would be an expression of a specified proportion of a specified amount because:
102…Although £295 is a specified amount, the repayment will not be a “specified proportion” of that amount. The repayment will be such figure as is produced by applying to the sum of £295 a rate of 1.29% per month for X months or Y days. That is the “rate of charge” (as referred to in Schedule 1 paragraph 10) but the repayment required on the deferred date (whenever that may be) is not a “specified proportion” of anything.
Mr Seymour attacks the Recorder’s conclusions on grounds which he did not advance below. He submits that the agreement complied because it expressed the repayment as a sum of money (a). Alternatively it was expressed as a sum of money and a specified proportion of a specified amount; in other words it was a combination of heads (a) and (b) complying with (c).
Mr Seymour’s first submission is simple. He says that the agreement required payment of £295 on completion and the Recorder was wrong to conclude that there had been any agreement to defer collection after completion.
As I have already said I do not accept this submission. The Recorder found as a fact that the pre-contractual documentation evidenced an agreement to defer collection of the £295. His conclusion about this is, I think, unassailable. Such an agreement was contemplated by the standard form contract. The documents show that from the outset it had been the claimants’ stated intention, to which the defendant obviously agreed, that the £295 would be debited to the loan balance on completion and would not therefore be paid or become payable at that time. The agreement to defer became effective at the moment of completion. It follows that the agreement did not state the amount of the repayment as a sum of money because a repayment of £295 plus interest was required.
Mr Seymour’s alternative argument is that the requirement to pay interest on £295 at 1.29% per month is a statement of a specified proportion of a specified amount. So the amount of the repayment stated by the agreement is £295 (a) plus 1.29% per month of £295 (b) thus complying with head (c) of paragraph 13.
Ingenious though this argument is, I do not accept it for the same reasons as the Recorder gave when rejecting this argument based, as it then was, solely on sub-paragraph (b). The interest is not stated as a proportion of £295. It is only stated as a rate (a requirement of paragraph 10 (1) of this schedule). It does not tell the borrower the amount to be repaid but leaves the calculation to him. Stating the manner in which the amount to be repaid is to be determined is sufficient for schedule 6 paragraph 5, but not in my judgment for schedule 1 paragraph 13.
So for these reasons I would also dismiss the claimant’s consumer credit appeal.
Secret Commission?
As I have already said this issue only arose by amendment made at trial. The first defendant did not give or call any evidence about it. A letter from the broker was put before the Recorder saying he was not tied to the claimant and that “it was an expectation that we would receive a commission from the lender in addition to the broker fee negotiated with the borrower”. The claimant called Mr Fellowes, one of its directors, who explained that the tertiary or non-status lending market was highly competitive and that it had become necessary for small companies like the claimant to pay commission to brokers to attract their business. Such commissions were a matter of separate discussion or negotiation and the rates were largely dictated by market forces. The Recorder notes that he was not invited to make any finding that this was a trade practice because, if there was such a practice, it was not suggested that the defendants were aware of it. However he did find that there was nothing unusual about the circumstances in which the commission was paid in this case or its amount (3%) which he described as conventional.
The Recorder proceeded on the basis that it was common ground that where a person (in this case the claimant) makes a payment to the agent of another person with whom he is dealing (in this case the defendants) knowing of the agency and fails to disclose that he is making or has made that payment, the other is entitled to rescind the contract. The dispute before the Recorder was purely factual: was the £240 commission paid by the claimant to the broker secret? Relying on the document which said that the claimant did pay commission to brokers in certain circumstances the Recorder held that the payment was not secret. He said that anybody reading that document, as the defendants were enjoined to do, would appreciate that the broker might receive a direct commission from the claimant. Such notice would have enabled the defendants to challenge the broker, insist on a term that no commission be paid or approach a different broker. If the borrower simply proceeded with the transaction without comment or enquiry “the inference must be that he or she would not be troubled if commission is in fact paid to the broker by the lender”. He therefore concluded that the commission was not secret.
During the course of counsels’ submissions on this part of the case it seemed to us that we might need to consider the applicable law, its application to the facts of this case and the consequences of doing so in rather greater depth than counsel had anticipated. Therefore at the end of the hearing we asked for written submissions and we are grateful to both counsel for the further submissions which they have provided.
Certain things are clear. The defendants retained the broker to act as their agent for a substantial fee. The contract of retainer contained the usual implied terms, but the relationship created was obviously a fiduciary one. As a fiduciary the agent was required to act loyally for the defendants and not put himself into a position where he had a conflict of interest. Yet he agreed that he would be paid a commission by the other party to the transaction which his clients had retained him to procure. By doing so he obviously put himself into a position where he had a conflict of interest. The defendants were entitled to expect him to get them the best possible deal, but the broker’s interest in obtaining a further commission for himself from the lender gave him an incentive to look for the lender who would give him the biggest commission.
The broker could only have acted in this way if the defendants had consented to his doing so “with full knowledge of all the material circumstances and of the nature and the extent of [his] interest”. (Bowstead Article 44, 18th Edition [6-055] – duty to make full disclosure). An agent who receives commission without the informed consent of his principal will be in breach of fiduciary duty. A third party paying commission knowing of the agency will be an accessory to such a breach. The remedies for breach of fiduciary duty are equitable: they of course include rescission and compensation.
What amounts to sufficient disclosure for these purposes? Bowstead says:
6-057. Consent of the principal is not uncommon. But it must be positively shown. The burden of proving full disclosure lies on the agent and it is not sufficient for him merely to disclose that he has an interest or to make such statements as would put the principal on inquiry: nor is it a defence to prove that had he asked for permission it would have been given.
I think this is an accurate statement of the law. Whether there has been sufficient disclosure must depend upon on the facts of each case given that the requirement is for the principal’s informed consent to his agent acting with a potential conflict of interest.
There is some doubt as to whether the agent’s duty of disclosure requires him to disclose to his principal the amount of the commission he is to receive from the other party. At [6–084] Bowstead says:
… where [the principal] leaves the agent to look to the other party for his remuneration or knows that he will receive something from the other party, he cannot object on the ground that he did not know the precise particulars of the amount paid. Such situations often occur in connection with usage and custom of trades and markets. Where no usage is involved, however the principal’s knowledge may require to be more specific.
The cases cited support these propositions. Here I think the requirement is more special. Borrowers like the defendants coming to the non-status lending market are likely to be vulnerable and unsophisticated. A statement of the amount which their broker is to receive from the lender is, I think, necessary to bring home to such borrowers the potential conflict of interest.
There is nothing about any of this which should come as a surprise to any lender or broker working in the non-status lending market. In November 1997 the Office of Fair Trading issued revised guidelines which told such lenders to:
[15]. warn that the broker or other intermediary may not be in a position to give unbiased advice if they are tied to the lender or are paid a fee or commission by the lender. [16] The contract documentation and any customer booklet or leaflet … should … indicate if any commission or other payment is payable by the lender to the broker, and should explain the purpose and nature of any such commission and the basis of calculation.
and told such brokers to:
[20]. disclose both orally and in writing at an early stage, the existence and nature of any commission or other payment payable by the lender … they should explain clearly the implications of any such commission for the broker’s role with regard to the borrower. This is in order that the borrower is clear as to any potential conflict of interest on the part of the broker. The Office would encourage brokers to disclose the amount or likely amount or percentage figure of the commission, since such transparency will help to reassure borrowers that they are receiving appropriate advice from the brokers. Where this is not done, the broker should disclose the factors which will determine its calculation, including whether it will be a percentage of the loan or a fixed sum and whether it is intended to reflect the actual costs incurred by the broker in arranging the loan or is linked to the total volume or value of business brought to the lender over a given period. All such disclosures should be made in writing before the borrower enters into the loan agreement and preferably before the loan application is submitted to the lender.
Obviously if there has been no disclosure the agent will have received a secret commission. This is a blatant breach of his fiduciary duty but additionally the payment or receipt of a secret commission is considered to be a form of bribe and is treated in the authorities as a special category of fraud in which it is unnecessary to prove motive, inducement or loss up to the amount of the bribe. The principal has alternative remedies against both the briber and the agent for money had and received where he can recover the amount of the bribe or for damages for fraud where he can recover the amount of any actual loss sustained by entering into the transaction in respect of which the bribe was given. (Mahesan v Malaya’s Housing Society [1979] AC374, 383). Furthermore the transaction is voidable at the election of the principal who can rescind it provided counter-restitution can be made. (Panama & South Pacific Telegraph Co. v India Rubber, Gutta Percha, and Telegraph Co. [1875] 9 Ch App 515, 527, 532-3).
But “the real evil is not the payment of money, but the secrecy attending it” (Chitty L.J. in the leading case of Shipway v Broadwood [1899] 1 QB 369, 373). Is there a half way house between the situation where there has been sufficient disclosure to negate secrecy, but nevertheless the principal’s informed consent has not been obtained? Logically I can see no objection to this. Where there has only been partial or inadequate disclosure but it is sufficient to negate secrecy, it would be unfair to visit the agent and any third party involved with a finding of fraud and the other consequences to which I have referred, or, conversely, to acquit them altogether for their involvement in what would still be breach of fiduciary duty unless informed consent had been obtained. There is no authority which sheds any light on this question. We have been referred to Bartram & Sons v Lloyd [1904] 90 Law Times Reports 357 where a secret commission had been agreed and paid but the question there was whether the principal had elected to affirm the contract with the other party at a later meeting when he was given some information about what had happened. The court held that he had not, but the decision turned upon whether the principal had made his election with full knowledge of the material facts and not upon the consequences of an inadequate initial disclosure.
So what is the position in this case? Mr Say submits that the disclosure to the defendants was entirely inadequate and did not negate secrecy. It simply said that a commission might be paid to the broker but should have said that a commission was to be paid and stated the amount because these facts were known at the time the defendants were asked to sign the document relied upon by the claimant. The defendants’ fully informed consent to the payment of commission had not therefore been obtained. Furthermore he submits that the notice was ambiguous: having said that in certain circumstances the claimants did pay commission it went on to say it would “pay monies to your brokers strictly in accordance with your signed authority by deduction from this advance”.
Mr Seymour submits that it was for the defendants to establish that there had been inadequate disclosure. The allegation that the claimant had paid a secret commission or bribe was serious and yet the defendants had called no evidence to substantiate it. We do not know what, if anything, they were told by the broker or what they understood from the document which they signed. It had not been established that the claimant had procured any breach of duty by the broker. Nevertheless Mr Seymour submits that there was sufficient disclosure. Secrecy had been negated by informing the defendants that commission might be paid and the payment did not become secret simply because they were not given the actual details of the amount paid. Nor, Mr Seymour submits, was the notice ambiguous. Read carefully, as the borrower was told to do, the passage relied upon by Mr Say referred first to a payment by “the company“ “in certain circumstances”, and then two sentences later to monies payable by the borrower which they had authorised to be dispersed out of the proceeds of the loan. In other words the document is referring to different payments by the lender and the borrower. The payment by the lender to the broker would only be made in certain circumstances; the payment by the defendants out of the proceeds of the loan would be made to the broker in any event.
Having looked at the pleadings, the written submissions and the Recorder’s judgment it seems to me that it was common ground between the parties at trial that the only disclosure made to the defendants was by means of the claimant’s document which the defendants signed. The broker’s letter said nothing about any disclosure which he had made; nor did Mr Fellowes suggest that anything else had been disclosed by anyone. By signing the document the defendants must be taken to have understood what it said but no more. Quite apart from this, the passage from Bowstead which I have cited in [35] says that it is for the agent to establish that sufficient disclosure has been made. Here the claimant knew that the broker was the defendants’ agent and so it had to show that it paid commission to him in circumstances where its borrowers had given their informed consent to such a payment. That was obviously the purpose of the document the defendants were asked to sign. The question is whether it achieved that purpose.
Did it negate secrecy? I think it did. If you tell someone that something may happen, and it does, I do not think that the person you told can claim that what happened was a secret. The secret was out when he was told that it might happen. This was the Recorder’s view and I agree with him.
Was the defendants informed consent obtained? I do not think it was. The passage which I have quoted was muddled although, read carefully, for the reasons given by Mr Seymour, it may not in fact have been ambiguous. But it could and should have been clearer and informed the defendants that a commission was to be paid and its amount and done so in terms which made it clear that the defendants were being asked to consent to this. I also think this statement should have been accompanied by the warning recommended by the OFT to the effect that its payment to the broker might mean that he had not been in a position to give unbiased advice.
So for these reasons I do not accept either party’s submissions about the disclosure. This is a half way house case. The claimant did not pay the broker a secret commission but procured the broker’s breach of fiduciary duty by failing to obtain the defendants’ informed consent to the broker acting in the way he did.
This conclusion means that the defendants are not entitled to deploy the full armoury of remedies which would have been available if this had been a true secret commission case. If it had been, a difficult question would have arisen as to whether they were entitled to rescission as of right. As the loan agreement was voidable and the defendants had elected to avoid it, the argument would be that the agreement had gone and they were entitled to rescission simply on terms as to counter-restitution. In other words the equitable remedy of rescission would simply be deployed in aid of the common law to ensure that its consequences were dealt with fairly between the parties.
But no such difficulty arises when considering the appropriate remedy for breach of fiduciary duty for which purely equitable relief is available. Here there is no doubt that the court has a discretion as to whether or not to grant rescission. This is illustrated by Johnson v E.B.S. Pensioner Trustees Limited [2002] Lloyds Reps. PN 309 where this court had to consider, among other things, whether a guarantee given by one of the defendants as security for a loan made by solicitors to his company should be rescinded because the solicitor acting for him had a conflict of interest and had been in breach of his fiduciary duty by failing to disclose that his firm received service charges on the loan. The court (Mummery and Dyson LJJ and Douglas Brown J) upheld the Judge’s refusal to grant rescission and rejected the submission that rescission was available as of right in such circumstances. The remedy was discretionary. Dyson LJ said:
When exercising its equitable jurisdiction the court considers what fairness requires not only when addressing the question of the precise form of relief, but also when considering whether the remedy should be granted at all.
In Johnson the court ordered the solicitor to account for the service charge to his client. In this case the broker could similarly have been required to account to the defendants for the £240 commission he received from the claimant. But no such claim has been made against the broker and so, alternatively, the defendants have a claim for equitable compensation against the claimant as it procured the broker’s breach of fiduciary duty. This mirrors the common law right to claim the return of a bribe as money had received.
I think the defendants are also entitled to interest on the £240 from the date it was received (5 August 2003). Mr Seymour says only “ordinary” interest should be awarded. I would award simple interest at the loan agreement rate of 1.29% per month.
The only remaining question is whether we should order rescission of the loan agreement and its related legal charge. As I have said we have a discretion as to whether or not to make such an order. I do not think we should do so. The agreement and charge are fair and have been held to be enforceable except for the £295. The defendants will be fully compensated by an award of £240 plus interest. To rescind the transaction altogether would be unfair and disproportionate. This is my view irrespective of whether the defendants would be able to make counter-restitution.
Conclusion
I would dismiss both the consumer credit appeals. I would allow the “secret” commission appeal and award the first defendant £240 plus simple interest at 1.29% per month from 5 August 2003. This award is in favour of the first defendant as only he has participated in these proceedings, but the liability must be to both defendants. The parties should agree some means of ensuring that payment to the first defendant is in full and final satisfaction of the second defendant’s claim as well.
The Recorder stayed enforcement of the agreement and the legal charge (including his order for possession) pending this appeal. We will consider any further application for a stay when we hand down this judgment.
Finally I should like to pay tribute to the Recorder’s judgment in this case. It is a model of clarity and deals comprehensively with the various complicated issues he had to decide. He cannot be criticised for the conclusion he reached about secret commission since on the way the case was argued before him I think he reached the right conclusion.
Lord Justice Jacob: I agree
Lord Justice Waller: I also agree