McHale & Co. Solicitors Blog

When does a Court defeat feel like a victory??

When the Court of Appeal give a clear indication that they feel that their hands have been tied by an incorrect judgment and give a clear indication that the injustice should be remedied at the Supreme Court-that’s when!


Judgment has just been handed down in the case of Conlon –v- Black Horse Ltd and whilst our clients appeal has been dismissed it is clear that all of the Appeal Court judges have serious misgivings about the decision at the same court in the case of Harrison –v-Black Horse Ltd. Effectively the Court was bound to follow Harrison. In Harrison the Court of Appeal had decided that despite what was clearly on the face of it appalling behavior by Black Horse (part of the Lloyd’s Banking Group), they did not feel that there had been a regulatory breach and that felt the need to guard against “a visceral instinct that the relevant conduct was beyond the Pale”. In Conlon our client had won her case against Black Horse in the County Court. Unfortunately after the decision in Harrison at the Court of Appeal, Black Horse successfully appealed the first instance decision. The case decided today was our appeal against that decision.   In Conlon Lord Justice Briggs has come to a conclusion that Harrison has tied his hands but:

“In so concluding, I do not mean to express any sense of comfort about the principle laid down in the Harrison Case.  If I had been free to do so, I would have regarded a visceral instinct that the relevant conduct was beyond the Pale as a persuasive starting point in the analysis whether such conduct gave rise to an unfair relationship, all the more so where, as the report of the Competition Commission makes plain, the standards imposed at the time by the regulatory authorities manifestly failed to prevent the abuse of point of sale single premium PPI , to an extent that it has since become a national scandal, and has ben prohibited for the future. But these are questions which must be addressed, if at all, in the Supreme Court”

 Strong stuff. Lord Justice Beaston agreed and added :

I share the discomfort expressed by both my Lords about the state of the law in the light of the principle laid down by this court in the Harrison’s case, and hope that the Supreme Court will be able to consider the questions raised by it”

Lord Justice Moses went further and described that fact that he was bound by Harrison as “a dispiriting conclusion”. He said:

“I see no point, however in dissenting [from the decision of LJ Brigs and LJ Beaston to dismiss the present appeal] in the light of my hope that the Supreme Court, if your Lordships agree, will consider this Court’s decision in Harrison. My dissent is not going to make such consideration any more likely in light of the fact that when its reliance on ICOB last appeared under threat, following the Supreme Court’s grant of permission in Harrison, Black Horse paid the amount at stake and costs in full. It seems a pity that such a concession which only appears to have been made “ultimately”, deprives this court of the opportunity to express its support of the Recorder’s judgment in answering the question whish the statute poses: was the relationship arising out of the agreement unfair? The value judgment which the statute requires the court to make can hardly be described at visceral, even in circumstances where the facts are in danger of arousing indignation. Even Mr Hodge Malek QC’s measured and persuasive advocacy, on behalf of Mrs Conlon, was unable to restrain a certain sense of impotence at the inability of this court to support what appears to me to have been the Recorder’s own unimpeachable conclusion based on the facts”.

Hear hear, and roll on the Supreme Court.

Categories: Mis Sold PPI

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