Killerschick
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Posts posted by Killerschick
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Hi Manc,
I'll do my best with your questions but it's probably worth getting some properly qualified advice in relation to making a will and inheritance issues.
1. The letter of consent is generally for anyone over 18 who is resident but not a joint owner and not named on the mortgage. The mortgage company need them to waive any rights they might have to the property which might come before the mortgage company's so that they do not have any problems seeking possession at a later date if you do not pay the mortgage.
2. If you die before the mortgage is repaid the property will pass to your estate and your estate will become liable for the mortgage. If you have life assurance then whoever is dealing with the estate may well want to use this to pay the mortgage in full but it will be up to them. They might decide they want to sell the property to repay the mortgage and move somewhere else. They could also decide to use funds from life assurance for something else and have the property and mortgage transferred to their name then take on the monthly payments.
The bank could not take the property simply because you had died. If the mortgage feel into arrears they could bring possession proceedings against your estate in the same wasy they could against you during your lifetime. If the mortgage did fall into arrears as a result of your death while your wife was claiming on life assurance and generally dealing with your estate, probate etc the bank would probably be sympathetic. Your wife would probably have solicitors involved in sorting out your affairs who could assist if any difficulties arose with the mortgage.
Hope this helps.
KC
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Hi Jimbo,
I would be very wary of taking out an equity release mortgage particularly if you are only experiencing short term difficulties. I wouldn't go so far as calling these products a [problem] but you can end up losing all the equity in the property. For more information about how these schemes work and what the pitfalls are there is a good leaflet from money made clear:-
http://www.moneymadeclear.org.uk/pdfs/equity_release.pdf
Regards,
KC
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People who want to buy a home or property apply for a loan from the lender and with that money buy their property and then that property is owned by the lender/bank until all the loan is repaid right?
Hi Fretful,
Just on this one point this is not the case. Historically this was how mortgages were formed but since the Law of Property Act 1925 introduced legal charges this is not the case. For a readable explanation you could try this link:-
http://en.wikipedia.org/wiki/Mortgage#Mortgage_by_legal_charge
First and second charges are exactly the same and the difference is only order in which they are registered. If you repaid a first charge while a second charge remained outstanding then it would become a first charge.
First charges are not necessarily for house purchase, plenty of people remortgaged for capital raising purposes until funds dried up in the credit cruch.
To get a secured loan whether it's the first, second, third or fiftieth the lender will expect a charge on a property by the very nature of the product.
There are obviously differences in regulation (or lack of it) with second charges but not with the way they are created and registered with land registry.
Hope this helps.
KC
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Hi Red,
I would suggest starting with data subject access requests to both Future and the broker who placed your mortgage with them. This should get you full copies of both of their files which should arm you with information to find any problems.
You may uncover legal challenges such as a secret commission paid to the broker.
Alternatively there may be things you can raise with the FOS, such as poor advice from the broker in not pointing out the potential to end up in negative equity with a 100% mortgage, the broker selling an interest only mortgage with no investigation of how the mortgage would be repaid (these first two assume the sale was on an advised basis rather than execution only) or Future continuing to charge monthly arrears administration fees when you are making agreed payments.
Hope this helps as a starting point.
KC
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If the litigation is ongoing then fair play I accept that no one would want to reveal their tactics etc. I was just under the impression that some of the cases were coming to a conclusion with hearings within the last week.
My only concern is that inexperienced Swift consumers may read the information on this thread, perhaps not fully understand things and try to put some of the advice into practice, get in well over their head and make even more of a costly mistake than taking the loan out in the first place.
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From a quick glance, he's probably got a claim for mis-sold payment protection insurance to start off with. He can start by complaining about this direct to GE and if they don't refund him the premium + interest then take it to FOS.
It's not clear whether interest has been charged on the broker fee but if so there's a case in the Supreme Court next month to determine whether it is legal to do this:-
The Supreme Court - Case details
which may result in further grounds for claims against SPML.
There might be more wrong with it but it's not my expert area so hopefully others will assist. KC
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Meritforce are part of Mckenzie Hall so the person to contact with their letter is Alan Stewart at East Ayrshire Trading Standards. He knows all about this company and their threats. Another nail in their coffin is needed.
I would also send a copy direct to the Office of Fair Trading as this is a very severe breach of their debt collection guidance. Their address is:
Fleetbank House, 2-6 Salisbury Square, London, EC4Y 8JX.
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You can't be sent to jail for a civil debt. Debtors prisons finished with Dickens.
Perhaps Sillygirl was referring to the possibility of end up in prison for contempt of court such as due to failure to attend an oral examination. I have seen it getting as far as an arrest warrant being issued in this circumstance although I don't know of anyone being incarcerated as a consequence. Just to stress that it is a very remote possibility, first requiring a judgment to be granted and the lender then to apply for the defendant to attend an oral examination.
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Hi KC
I am led to believe the £25,000 limit was removed in April 2008. However, I know it still applies to buy-to-let mortgages. I don't think (but I'm in the process of checking) that I bought the property on a buy-to-let mortgage, I think I recall it was bought under some family discount kind of mortgage as I bought it from mymum. I'm just wondering out loud here.....if I can play them at their own game. There is nothing really to prove that I haven't been living at my 'buy-to-let address after seperating from my husband?!
There is absolutely no possible way you stand any chance of arguing that your loan is/was/should have been regulated under the Consumer Credit Act 1974.
I'm not sure what you are referring to when you say "However, I know it still applies to buy-to-let mortgages." there are no limits on buy to let mortgages as they are not regulated.
If you didn't take out a buy to let mortgage but the property was in fact used as a buy to let that is fraud and lenders can (and do) take possession action for this breach of their terms and conditions. Either that or they whack a few % on your interest rate for the additional risk and because buy to lets are generally more expensive than residential. If you try and pretend you were living there when you weren't you could end up a whole mess of trouble with the lender, Inland Revenue etc and surely there would be evidence in the form of the correspondence address you gave?
The argument about moving into the property is academic anyway because your loan was far in excess of the financial limit of £25,000 which applied in April/May 2007 so still would have fallen outside of regulation under the CCA.
You may well have other grounds for dissatisfaction/legal redress against Swift but you cannot use non-compliance with the CCA.
Sorry if that sounds a bit brutal but it's to save you wasting time researching CCA points which could more productively be spent on other issues.
KC
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On a topic more pertaining to the site, I've been looking at the unenforceable elements of credit agreements and noticed my agreement with Swift was signed by me on 12 April, 2007 and by them on 14 May, 2007. Obviously this is only 6 days before the Credict Act 1974 stipulations kick in. Anyone know if I stand a chance of fighting this gven it's only days?
Hi Westlandbabe,
Just to reiterate - your loan is not regulated under the Consumer Credit Act (CCA) 1974. From what you have said it was for more than £25,000 and secured on a buy to let property.
Whilst the financial limit of £25,000 was removed on 6th April 2008, loans on non-residential property are still not regulated in any way, shape or form.
You will not be able to use non-compliance with the CCA as grounds to have your loan declared unenforceable.
You may stand a chance with other arguments such as a secret commission being paid to your broker (not something I'm expert in so I would advise you to seek advice from others on this).
Hope this helps.
KC
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I agree as well, Swift customers have been encouraged to fight the business through litigation - a potentially risky and expensive solution to their difficulties - they should be told whether the legal arguments which have been put forward on this thread are successful before they go down the litigation route. Or maybe if some of the arguments have turned out to be more successful than others advice should be given in this regard.
Swift know the outcome of the cases anyway so why would writing about it here give them any information they don't already have?
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Hi All,
Excellent posting KC.....Very informative.
It looks to me that Swift probably do securitise regardless of what Webster and Co have stated. After all Swift Advances plc used to be called Purbeck House Securities Ltd.
Apollo18
Thank you Apollo18!
For anyone who's finding my attempts at explaining legal vs equitable assignment as clear as mud here are some external links which might help:
http://www.vinodkothari.com/glossary/Eassignm.htm
http://law.jrank.org/pages/13986/assignment.html
http://www.proeconomics.com/Law/Banking/Legal_and_Equitable_Assignment.html
http://ld.practicallaw.com/2-107-6540
Some of them (the insolvency service particularly) are a bit legalese but practical law gives a nice concise definition and some of the other articles might help.
KC
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Hi again Killerschick.
I do not think this can be accepted as it would mean that contracts are not binding and are a waste of time anyone signing them, I do not understand you saying this.
Notice of any assignment must be given to the debtor, the debtors agreement to it is not required but notice MUST be given.....all other creditors have to give notice of assignment that is a presumption of fact in all cases as has been ruled in countless cases....Can you explain why should Swift not be required to do so?
sparkie
Quote;
£3. Regardless of what the contract says if an assignment of a debt is only equitable i.e. notice is not given to the debtor, the right to sue remains with the assignor. It would be down to a court to determine whether Swift had exceeded it's contractual rights in conducting an assignment in this way. In my view (for what it's worth!) the wording is wide enough for a judge to go either way"
Hi Again!
Going back to my original post, Section 136 of the Law of Property Act 1936 requires notice to be given in writing in order for the assignee to be able to sue the debtor:-
136.
Legal assignments of things in action
— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—
(a) the legal right to such debt or thing in action;
(b) all legal and other remedies for the same; and
© the power to give a good discharge for the same without the concurrence of the assignor:
Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—
(a) that the assignment is disputed by the assignor or any person claiming under him; or
(b) of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1 Trustee Act, 1925.
(2) This section does not affect the provisions of the M2 Policies of Assurance Act, 1867.
The important bit being the express notice bit emboldened above which is what makes the difference between a legal and equitable assignment.
If the assignee does not want to take on all the rights of the original creditor (as is the case with Swift/Kestrel where Swift keep the right to sue) they do not need to give notice to the debtor and as far as the debtor is concerned there is no change in who they owe the money to or who can bring a claim against them.
You haven't cited any specific cases but I perhaps the ones you are referring to would relate to legal assignments such as those to debt purchasers where the assignee wants to be able to sue and wants to take on all the rights of the original creditor. I have been involved in a number of cases (at county court level so unreported) involving debt purchasers where the service and validity of the notice of assignment has been at issue and therefore whether the debt purchaser had the right to sue.
KC
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Westlandbabe, included in the following pamphlet from the OGT is how they calculate the APR.
If you follow their method, and your figure remains the same, it would appear that you may have an unenforceable agreement.
http://oft.gov.uk/shared_oft/business_leaflets/consumer_credit/oft144.pdf
It also explains how to work out the total charge for credit
Unfortunately Westlandbabe's loan was unregulated as it was over the limit of £25,000 which was stipulated in the CCA at the time and also on a buy to let property.
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:-xI have a suspended repossession order with Capstone Mortgage Services. They are now trying to evict us even though I have offered to pay £2620 before the eviction date I have made three proposals of payment all of which have been rejected. I am getting really frightened now as I keep thinking I am going to go home and all the locks will have been changed. We have no eviction date yet will I be able to apply to the court to have the order put aside. My partner was made unemployed last March and I have had to pay the mortgage on my own I even took on an extra job at night just to help us out. My partner will be starting employment this July but the mortgage company dont want to know can anyone help?
Hi Roxy,
As Tilly says, it's best to start your own thread but just to reassure you that the mortgage company need to apply to court for a warrant of possession (this is a bailiff's appointment or eviction date) so you should not arrive home to find the locks changed. You will also be able to apply to court to suspend the warrant if you have proposals for clearing the arrears or if you don't have proposals you can just apply for more time but that would be at the discretion of the judge and only likely to be granted if there's plenty of equity.
It would be useful to know where things are at the moment - has there been a possession order granted? did you breach the terms of the order? can you afford the mortgage payments now? will you be able to afford the mortgage payments plus something towards arrears from July?
There are plenty of people here to help:)
KC
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HI mate,
The reason I disagree is in your own argument
1....Swift Advances Plc categorically state that they do not securitise ANY of their loans.
2...Their accounts state clearly that they have SOLD them ...not assigned them ...I can assure you nowhere in companies house is there any records of what they have done EXCEPT to selling them
3...The term in their agreements says as follows
" we may transfer our rights under this agreement to another firm"
It does not say "Part of our rights" it does not say " Any of our rights" it does not say " Some of our rights" ....as do the vast majority of other lenders agreements state.
Having some knowledge of the law ( which I haven't.)..I base my views on pure logic) surely you must agree under these circumstances when this term is invoked as Swift Advances Plc have invoked it ....it means ALL their rights and that includes the transfer of the title also they cannot split it as and at their whim and decide what and which they transfer ...it must be all or none.
Anything else would/should be considered a unilateral altering of the agreement and considered a grossly unfair action.
What further makes me believe this is that to borrow the amount of money that Kestrel did they could not borrow it on Equity value alone ...they must have held Title.....even if they only did for a short space of time .....evryones title entry on thie deeds was incorrect it should have been changed to Kestrel and the changed back IF Kestrel GAVE the titles back .... but they must have held them at one time....I believe they still do.
Unless my logic is wrong................I have brought this aspect to the attention of the OFT for them to consider along with Swift Advances Plc licence renewal application.
I do welcome ANYONES contra arguments it helps to get to the bottom of what they are exactly doing, which is a very dificult task.
sparkie
Hello again Sparkie
1. I am not addressing any issues regarding whether Swift securitise or not. I have seen the arguments on both sides and don't understand their business well enough to take a position on the issue. The loans are clearly being moved off Swift's balance sheet to the Kestrel companies but as to why? As I said it could be to protect assets if the operating company(s) went bust but it could also be to do with funding.
2. The terms sale and assignment are not mutually exclusive they are the same. Sale = assignment. In the debt purchase market the assignment documents are even called 'sale and purchase agreements'. I don't know how else I can explain it other than the examples in my previous post. The assignment is just the means by which the sale is put into effect.
3. Regardless of what the contract says if an assignment of a debt is only equitable i.e. notice is not given to the debtor, the right to sue remains with the assignor. It would be down to a court to determine whether Swift had exceeded it's contractual rights in conducting an assignment in this way. In my view (for what it's worth!) the wording is wide enough for a judge to go either way.
KC
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Sorry to disagree KC ........but Swift have not assigned their loans and morgages they have sold them OUTRIGHT ...there is on record in an email from Mr Mark White that "Swift"????? do not securitise their loans, their .
company accounts state that they sold them.
Also with regard to Swifts renewal application this will be considered....so you see they are not home and dry on this iisue YET
In assessing fitness we focus on:
• evidence that raises doubts about the personal integrity of individuals running or controlling a licensed business, and business activities that because of either their nature or past association with high levels of complaint have a greater potential for consumer detriment
any breach of other consumer protection law, including that relating to misleading advertisements, price indications and product descriptions, harassment of debtors, unfair contract terms, and distance selling
• any breach of the rules or principles of the Financial Services
Authority (FSA) Business activities for which we are likely to require a CRP include secured sub-prime lending and lending in the home. One of the OFT's main regulatory interests in these areas will be to ensure that lending takes place responsibly. 'Irresponsible lending' is now cited specifically in the fitness test as a business practice that we may consider deceitful or oppressive or unfair or improper. Lending irresponsibly will therefore call into question your fitness to be licensed. When considering your fitness, we may ask you to explain the policies and practices that you intend to follow, for example, in assessing ability to repay a loan.
sparkie
Hi Sparkie,
I don't understand why you disagree with me - I am not saying the accounts have not been sold in fact I agree that they have.
The assignment is simply the means by which the sale is put into effect. For example if you sold your house you would also need to transfer it with the land registry for the outcome of the sale to be put into effect i.e. the new owner registered. Or if you paid for something in a shop you would effect the sale by picking it up and taking it away with you. The assignment itself is a document specifying the terms and conditions of the sale and the assets being sold.
Assignments may be used as a means of securitising debts but they can also be used in other ways. I would not like to comment on whether or not Swift securitise as I do not have enough knowledge to determine their reasoning behind the assignments to the Kestrel companies. It might simply be for protection of assets in the event of Swift being made bankrupt.
Perhaps you disagree with my statement that Swift retain the right to bring legal proceedings as the assignment is equitable? I was simply trying to put across the legal position (as I understand it from the legal training I have had) in response to queries which had been raised.
KC
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Hi again Jay,
Just to let you know Halifax personal loan roll numbers were all in the format 7/*******-* with the *s representing numbers (I used to work for them about 10 years ago). Even if you haven't got the roll number they should be able to find your records just make sure you give your details as they were when Halifax were last in contact with you.
KC
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KC Im confused. Can you explain how equitable assignment becomes a legal one as soon as it's not a secret?
:confused:Maybe the use of the word secret was not that helpful. What the Act says is that an assignment becomes legal when written notice is given to the debtor.
Generally there are two types of assignment - legal and equitable. It will usually be intended at the outset that a particular type of assignment will be used to achieve the desired effect for the parties concerned.
Legal assignment is used when the assignee wants to take on all the rights of the original creditor i.e. the ability to sue the debtor. This is used in the debt purchase industry by the likes of Cabot, Aktiv, Link, Capquest etc because they want to be able to sue debtors (sorry to be using that word I find it somewhat derogatory but I'm just lifting it from the Act). In order to take on these legal rights either the original creditor or the assignee must give written notice of assignment to the debtor to make it legal.
Equitable assignment is used when the assignee wants to take on the benefit of the asset but not the legal rights of the original lender. This is used as the means for securitising debts where the right to sue remains with the original creditor.
Usually the only situation where an equitable assignment becomes a legal one is where it was always intended that it would be a legal assignment but there is some delay in giving notice to the debtor.
Swift's assignments to Kestrel were never intended to be legal as Swift obviously wants to retain the right to bring legal proceedings. Therefore Swift would not give notice to customers about the assignment in fact they would specifically not want to as this would change the nature of the assignment to a legal one and they would lose the right to sue.
The fact that people have become aware of the assignments by other means such as reference to the company accounts makes no difference. Notice has not been given to Swift's customers by either them or the relevant Kestrel company so the assignments remain equitable and Swift retains the right to sue.
I hope this is clearer but if not please let me know.
KC
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Please note everyone Swift Advances Plc OFT licence expires at 12 p.m. tomorrow night....
As for news from N.Ireland I have been advised by those concerned to post this and no more
HALLELUYA!!!!!........AMEN!!!........Tick Tock!! Tick Tock!!! TICK TOCK!!!!!
:D:D:D:D:DPick the bones out of this post TIE
sparkie
Sorry to burst anyone's bubble here but as Swift have submitted their renewal before the expiry of the existing licence they are able to continue trading while the renewal is considered. This is an extract from the OFT website:-
Renewal forms
You can apply to renew online up to one month prior to the expiry of your licence. Renewal forms cannot be downloaded from this website so if you do not intend to renew on line and need a paper form contact the OFT and ask them to send you a renewal pack when your licence nears expiry. We do not allow renewals to be made until one calendar month prior to expiry so please do not apply early. We published a general notice (pdf 44 kb) about this in December 2007.
If you have not heard from us within three weeks of your licence expiry date, please contact us. Please note that a licence remains valid while the renewal is being processed as long as we receive your renewal application prior to the expiry date. Please pass this information on to organisations who may be concerned about a licence lapsing.
If anyone wishes to verify this the link is here:-
How to apply for a credit licence - forms and procedures - The Office of Fair Trading
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Hi Killerschick. Yes just goes to show how little they will sue you for these days! Now i need to find about whats made up of charges. How do i do this? Do i ask the bank for statements or do i have to send subject access request. I don't want to upset them, but just need to know the full breakdown of this £400 i got CCJ for.
Hi Jay,
You're probably not going to get what you need from Capquest with a subject access request as they won't have the information on file. Most debt purchase companies don't automatically obtain copy agreements and full statements of account when they buy the debts and only go back to the original lender if a query is raised.
A better option would be a request under Section 77/78 of the Consumer Credit Act enclosing the statutory £1 fee. You should find template request letters on this site, I would recommend using one which does not acknowledge the debt.
Alternatively, you could send the subject access request to HBOS as they should still hold records of the debt even though it's been assigned to Capquest. The data subject access request costs £10.00 while the CCA is only £1 so the CCA option is cheaper.
KC
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Just a proposal as far as tactics are concerned, when it comes to the grounds I agree with 1 & 2 proposed by Donkey B but possibly you might want to put the lender to strict proof (i.e requiring them to produce a copy agreement and statements as evidence of the debt) as your third point.
I imagine Capquest purchased this debt for very little and are unlikely to have a copy agreement or full statement of account. I am actually surprised they sued for such a small amount.
If you put them to strict proof there is a chance that:-
a) they won't be able to get it from HBOS (although to be honest HBOS are relatively good at record keeping)
b) they decide it is not worth contesting such a small claim (the costs to them could outweigh the amount of the debt and as it is a small claim they would not be able to claim them even if they successfully defended the app to set aside)
c) they do provide the evidence (in which case if the statements show the debt is largely made up of charges as you say, you can then file a defence on the basis of the charges)
Hope this helps.
KC
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Takeiteasy, one of the problems with securitisation or reassigning a debt is the question of who has the right to sue the borrower when they fall into arrears and how does the borrower find out who does have the right. Indeed, how does any borrower ever know if their loan has been assigned at all?
If a borrower is not given notice of an assignment then it is an equitable assignment and makes no difference to the assignor's right to sue the borrower. Equally if the borrower were bringing an action against the lender the party to sue would still be the assignor.
If a borrower is given notice of the assignment then is is a legal assignment and the right to sue the borrower passes to the assignee.
This is in accordance with S136 of the Law of Property Act 1925:-
136.
Legal assignments of things in action
— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—
(a) the legal right to such debt or thing in action;
(b) all legal and other remedies for the same; and
© the power to give a good discharge for the same without the concurrence of the assignor:
Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice—
(a) that the assignment is disputed by the assignor or any person claiming under him; or
(b) of any other opposing or conflicting claims to such debt or thing in action;he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the M1 Trustee Act, 1925.
(2) This section does not affect the provisions of the M2 Policies of Assurance Act, 1867.
The important bit being the express notice bit emboldened above which is what makes the difference between a legal and equitable assignment.
In order to keep an assignment equitable a lender basically has to keep it secret otherwise it will become legal. By it's very nature it's something that the borrower will not be told about and it should not make any difference to the borrower in most cases as they will deal happily with the original lender.
There are some cases where it has become an issue (SPML springs to mind) where the decision making is being made by the assignee so it's not really the assignor bringing proceedings etc.
I hope this helps
KC
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Hi Buster,
MCOB does not apply to buy to lets, at present they are completely unregulated as they have been considered to be a commercial proposition. This links to the money made clear part of the FSA website:-
Mortgages made clear : FSA Money made clear ? products explained
It is something that is under review due to the number of non-business people who got involved in the market during the boom. There are proposals for this sector to become regulated by the FSA but at the moment there are no safeguards for purchasers of buy to let mortgages, no recourse to FOS, no point in raising issues with OFT or FSA etc.
It might seem unfair but the reason buy to let became attractive was that people thought they could make money out of it.
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Hi Mrs iphone,
If you Google the quote you will find it's just blurb from a claims company's website, Emmetts Solicitors aka www.financialmisselling.co.uk. They happen to mention Carey on their page about Consumer Credit Claims and this seems to be where some confusion has arisen.
The quote comes wholesale from their section about secret commissions:-
Ordinarily, the introducer or broker will be treated as an agent of the borrower. As such they owe a fiduciary duty to their client including the duty not to make a secret profit.
Provided that it is disclosed to the client, there is nothing wrong in principle in an intermediary charging a broker’s fee. However, the commission must be disclosed and a general statement that “a commission may be paid in certain circumstances” is not adequate.
The receipt of a secret commission by a broker is a species of fraud and is actionable both against the broker or introducer and the lender who paid the secret commission.
In the Court of Appeal case of Hurstanger v Wilson [2007] EWCA Civ 299, Lord Justice Tuckey commented as follows:
Just to confirm none of this is referred to in Carey although the latter bit is taken from Hurstanger v Wilson. It's paragraph 39 of the full judgment which you can find here (among other places):-
http://www.creditlaw.co.uk/Cases/Full%20case%20-%20Wilson%20v%20Hurstanger%202007.doc
Hope this clarifies the position.