[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Heath v Southern Pacific Mortgage Ltd [2009] EWHC 103 (Ch) (29 January 2009) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2009/103.html Cite as: [2009] NPC 20, [2009] 5 EG 107, [2009] 2 All ER (Comm) 687, [2009] EWHC 103 (Ch), [2009] Bus LR 984

[New search] [Printable RTF version] [Buy ICLR report: [2009] Bus LR 984] [Help]

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
BIMINGHAM DISTRICT REGISTRY
On appeal from the Worksop County Court

		Birmingham Civil Justice Centre The Priory Courts 33 Bull Street Birmingham B4 6DS
		Date: 29th January 2009

The Issue

1. This case raises a point on multiple agreements under the Consumer Credit Act 1974 ("the Act"). References to section numbers are references to the Act, unless otherwise stated.
2. The Respondent's predecessor advanced £28,932.50 to the Appellant under a mortgage dated 7^th May 2002 ("the 2002 mortgage") secured on her home at 52, Lowton Street, Worksop, Nottinghamshire ("the property"). The Appellant fell into arrears and possession orders have been made against her. She now wishes to appeal those orders and seeks permission to appeal out of time. Mr Say (who appears for her) contends that the mortgage is unenforceable.
3. Approximately £19,000 of the advance was required under the terms of the 2002 mortgage to be applied to discharge a previous mortgage on the property granted by another lender. The rest was used by the Appellant for her own purposes.
4. The 2002 mortgage appeared on its face to escape the consumer protection provisions of the Act, as it exceeded the then limit of £25,000. The advance included charges for credit but, even with those stripped out, still exceeded £25,000.
5. Mr Say argues however that the mortgage was a multiple agreement in 2 parts within section 18(1)(a). The first part was the advance of approximately £19,000. This was in the category of restricted-use credit falling within section 11(1)(c), as the advance was to refinance the Appellant's existing indebtedness to the previous mortgagee. The rest was in the different category of unrestricted-use credit falling within section 11(2), as the Appellant was free to do whatever she wanted with it. Under each part, credit of less than £25,000 was provided. Each part was therefore to be regarded as a separate consumer credit agreement regulated by the Act. This result follows, Mr Say contends, from section 18(2).
6. If Mr Say's analysis is correct, the 2002 mortgage was not properly executed under section 61, and the Court has no power to enforce it under section 65, as no document containing all the prescribed terms was signed by the Appellant: section 127(3), the effectiveness of which was confirmed by the House of Lords in Wilson v First County Trust Ltd (No 2 [2004] 1 AC 816. Section 127(3) was repealed by section 15 of the Consumer Credit Act 2006, but not so as to affect improperly-executed agreements made before the repeal came into force, which was 6^th April 2007: see The Consumer Credit Act 2006 (Commencement No 2 and Transitional Provisions and Savings) Order 2007, SI 2007/123, Art 3(2) and Schedule 2. Accordingly, section 127(3) still applies to the present case.

Permission to Appeal and Extension of Time

7. I need first to consider the questions of whether permission to appeal should be granted, and the time for appealing extended.
8. On the first of those questions, the points raised by Mr Say are clearly highly arguable. There is some controversy over the ambit of section 18, and there are conflicting judgments at County Court level. I have no doubt that, for that reason alone, this is a proper case for permission to appeal to be given. That, however, is separate from the question of whether the Appellant should have an extension of time for that purpose.
9. The Appellant wishes to appeal 2 possession orders, the first of which was made as long ago as 18^th June 2004 by District Judge Smith. No argument based on the Act was advanced on either occasion.
10. At the time of the first possession order, the Appellant was in arrears (then totalling £1,014.07) under her mortgage. The possession order was suspended on condition that the arrears were paid by monthly instalments of £39.61 in addition to the current instalments under the mortgage.
11. Following further defaults, the second possession order of 29^th September 2006 was made, again by District Judge Smith. The arrears at that date were £1,107.26. The order was again suspended on condition that the arrears were paid by an instalment of £45.00 by 20^th October 2006, and then £35.00 monthly, in addition to the current instalments under the mortgage.
12. The Appellant at the time of both possession orders was receiving advice from the Citizens Advice Bureau. They did not alert her to the potential availability of the defence she now puts forward.
13. In July 2007, the Appellant contacted Framework, a local housing charity. Whilst their in-house Barrister was considering her papers, a Warrant of Execution was issued out of the Worksop County Court.
14. The Appellant's present solicitors were instructed on 12^th September 2007 and obtained public funding for her on 4^th October 2007.
15. On 16^th October 2007, District Judge Hudson stayed the Warrant pending appeal provided an appeal notice was filed by 13^th November 2007. This condition was complied with. The appeal notice also sought an extension of time.
16. On 30^th November 2007 Judge Inglis directed a 2.5 hour hearing of the permission application, with the appeal to follow at a later date (if permission was given). That hearing came before Judge Machin in Lincoln on 15^th January 2008, who transferred the entire matter to Birmingham to be heard by the Designated Chancery Judge, with a time estimate of 2 days. He did not deal with the question of permission, which remains open.
17. On 20^th May 2008, I made an Order without a hearing transferring the matter to the High Court and giving directions.
18. It is apparent that since Framework came on to the scene and solicitors were instructed, the matter has progressed with proper expedition.
19. It is also the case that the Respondent is in no worse position, as a result of the delay, in answering the Consumer Credit Act point than it would have been had the point been taken at the outset. Moreover, I do not think that the Appellant can realistically be blamed for not having this point in mind until she was alerted to it following consideration by Framework's barrister of the matter. The point is not obvious, either to a lay person or indeed to most lawyers. I am neither surprised nor remotely critical that the Citizens Advice Bureau did not spot the point.
20. In those circumstances, there is considerable merit in granting an extension of time for the purposes of what is otherwise an entirely proper appeal. If Mr Say is correct, the Appellant is at risk of being turned out of her home when Parliament has declared the 2002 mortgage to be unenforceable. The possession orders, though made some time ago, have not been enforced and the interests of justice are in favour of allowing the Appellant now to take the Consumer Credit Act point.
21. I have had regard to the check list set out in CPR 3.9, as required by Sayers v Clarke Walker [2002] 3 All ER 490. Applying that list:-

(i) The interests of the administration of justice require a determination of the enforceability of the 2002 mortgage;

(ii) Though not made promptly, the application has been made and pursued promptly once it was known that there was a point to be taken;

(iii) There has been no intentional non-compliance as the Appellant was not aware of the point until late in the day;

(iv) The explanation for the delay is, again, that the Appellant was unaware of the point until late in the day;

(v) There is no other relevant default;

(vi) As noted above, to attribute fault is unrealistic;

(vii) No trial date is affected;

(viii) The Respondent is not significantly adversely affected by the delay;

(ix) Granting the extension allows an important issue to be aired. If the Appellant succeeds, she will keep her home and be relieved of any obligation towards the Respondent. This prospect is not in the Respondent's interests, but the Respondent has no legitimate complaint if that turns out to be the case, as this will do no more than reflect its legal position.

22. I accordingly grant permission to appeal, and an extension of time for that purpose.

Multiple Agreements

23. The first 4 sub-sections of section 18 provide as follows:-

"(1)     This section applies to an agreement (a 'multiple agreement') if its terms are such as—

(a) to place a part of it within one category of agreement mentioned in this Act, and another part of it within a different category of agreement so mentioned, or within a category of agreement not so mentioned, or

(b) to place it, or a part of it, within two or more categories of agreement so mentioned.

(2)     Where a part of an agreement falls within subsection (1), that part shall be treated for the purposes of this Act as a separate agreement.

(3)     Where an agreement falls within subsection (1)(b), it shall be treated as an agreement in each of the categories in question, and this Act shall apply to it accordingly.

(4)     Where under subsection (2) a part of a multiple agreement is to be treated as a separate agreement, the multiple agreement shall (with any necessary modifications) be construed accordingly; and any sum payable under the multiple agreement, if not apportioned by the parties, shall for the purposes of proceedings in any court relating to the multiple agreement be apportioned by the court as may be requisite."

24. The first thing to note about these provisions is that in deciding whether the section applies, regard must be had to the "terms" of the agreement itself, which have to be construed in the light of the admissible surrounding circumstances. The section does not entitle the Court to embark upon an investigation of the subjective intentions of the parties to get to the substance of the agreement. The substance, so far as relevant, has to be objectively ascertained.
25. I mention this because commentators on the Act appear to agree that section 18 is an anti-avoidance provision. So it is (at least in part). If the agreement is really 2 agreements rolled into one, the 2 parts must be viewed separately. That is the combined effect of subsections (1)(a) and (2).
26. What the section does not do, however, is treat every agreement which falls into two or more different categories as necessarily being an agreement in parts. The words "to place it … within two or more categories" in subsection (1)(b), recognise that the agreement as a whole may fall within more than one category without being an agreement in parts. If every agreement falling within two or more different categories is also to be construed as being an agreement in parts, it is difficult to see why the section makes, as it clearly does, a distinction between the two classes of case.
27. The distinction between an agreement in parts and an agreement in more than one category is critical in the present case. As I have mentioned, Mr Say argues that the 2002 mortgage was an agreement in parts falling within the 2 categories of restricted-use and unrestricted-use credit. It follows (if he is right) that subsection (2) applies and the two parts are to be regarded as separate agreements. As the 2 agreements are each for less than £25,000, and there was no proper execution, the 2002 mortgage cannot be enforced.
28. The contrary argument is that this is not an agreement in parts at all, though it may be an agreement which falls within the 2 categories of restricted-use and unrestricted-use credit. There was just one advance, and one cannot get from the terms of the 2002 mortgage separate bargains which have been rolled up into one.
29. The relevant mortgage condition was as follows:

"If the Property is mortgaged to another lender when the Company makes the Loan, the other lender's mortgage must be paid off out of the Loan."

30. "The Loan" was, however, the total advance. There was one loan, not two. It was merely a term that the existing mortgage should be paid off out of that total advance, not that it should be paid out of any particular part of it. Moreover, had the Appellant paid off the existing loan from another source, the total advance would not have been any different.
31. As I have said, it may well be appropriate to regard the 2002 mortgage as falling within more than one category. In that case, subsection (1)(b) appears to apply, and not subsection (1)(a), as no part of the agreement (as opposed to the agreement as a whole) can from its terms be identified as falling within one category rather than another. Indeed, it is difficult to see from the terms of the 2002 mortgage how it can be split up into parts at all.
32. Subsection (2), as I have noted, is only engaged where "part" of an agreement falls within subsection (1). If the agreement is not in parts, but still falls within more than one category, subsection (3) applies. The agreement is treated as an agreement in each of the categories in question and the Act applies to it accordingly. It is thus not necessary to consider in such a case what is the predominant category. What subsection (3) does not do, however, is require the categories to be treated as separate agreements or for there to be any apportionment of the advance. What that means in the present case is that, even if the 2002 mortgage is properly regarded as falling within more than one category, it is not regulated by the Act, as the advance was for more than £25,000. For apportionment to come about, the agreement needs to be in parts, so that subsections (2) and (4) come into play.
33. On the basis, therefore, of the language of section 18, and consideration of the mortgage documents, I would not regard the 2002 mortgage as an agreement in parts and would reject Mr Say's analysis.
34. My approach accords with the following views set out in Goode: Consumer Credit Law and Practice, at para 25.106a:

"The [Act], s 18(1)(b) presupposes that the mere fact that an agreement falls within two or more statutory categories does not of itself make it an agreement in parts so as to attract a notional division of the agreement under the [Act], s 18(2). Hence, when the section speaks of an agreement part of which falls within one category and part within another, it would seem to be envisaging a situation in which two or more essentially distinct bargains are rolled up into one agreement."

35. Turning now to the authorities, I was referred to the decision of the House of Lords in Dimond v Lovell [2002] 1 A.C. 1121. In that case, an agreement to hire a car (following an accident) which provided credit by deferring payment until litigation against the other party to the accident was concluded was held to be a regulated agreement and unenforceable for non-compliance with the statutory formalities. Paradoxically, the Claimant hirer (financed by the hire company) argued in favour of enforceability, as the hire company through her wanted to recover the hire charges as damages. She argued amongst other things that the provisions for credit and the provisions for hire were separate parts of the agreement so that the agreement should be regarded as a multiple agreement in parts. The hire part was unregulated and could therefore be enforced.
36. Lord Hoffmann in rejecting this argument, commented as follows:

"The difficulty I have with this argument is that it seems to sever the provisions that create the debt (hiring the car) from the provisions that allow credit for payment of the debt. Whatever a multiple agreement may be, one cannot divide up a contract in that way. The creation of the debt and the terms on which it is payable must form parts of the same agreement. The truth of the matter is that I accept that the hiring agreement was a single contract. But I do not accept Mr Wingate-Saul's submission as to what that contract was. He argues that it involved multiple obligations on the part of 1st Automotive that had to be performed over a period starting when the car was hired and ending when the damages were recovered. I consider, on the contrary, that the only primary obligation of 1st Automotive was to provide the car. The rest of the agreement dealt with the conditions upon which it would be entitled to recover the hire. To such an agreement section 18 has, of course, no relevance."

37. That case was of course very different from the present one, but the process of construing the agreement to ascertain whether it is a single contract or a contract in parts is in my judgment the correct approach here too.
38. I was also referred to the decision of the Court of Appeal in National Westminster Bank v Story & Pallister [1999] C.C.L.R. 70, where 3 facilities were provided under one agreement. As the 2 relevant loans were both held to be for unrestricted-use credit, no point arose on section 18(1)(a), as the categories have to be "different" for that subsection to apply. Auld LJ nevertheless gave useful guidance at pp. 78-9. He thought that the meaning of "part" was not limited to a facility whose terms differed from another facility under the same agreement, but could include, as in that case, a separate facility under an agreement where the debtors' use, or non-use, of it did not affect the contractual nature of the agreement as a whole, in particular, his entitlement to use those other facilities. That is of no assistance to Mr Say in this case, as the mortgage did not provide separate facilities. The Appellant borrowed one sum alone. Had she for example, chosen not to draw down the amount needed for redemption of the existing mortgage, and paid it off out of other resources, the 2002 mortgage would have needed rewriting, as she did not have separate facilities, but one loan in a fixed amount. She did not have the option to draw down a defined part only of the loan.
39. Auld LJ went on to refer with apparent approval to an OFT discussion paper of June 1995, suggesting that an agreement was not in parts if the categories were so interwoven that they could not be separated without affecting the nature of the agreement as a whole. If that is right (as I think it is) then the 2002 mortgage could not be separated into parts without affecting its essential character, which was to make one advance, not two.
40. A similar approach had previously been adopted by Judge Mellor, sitting in the Norwich County Court, in The National Home Loans Corporation v Hannah [1997] C.C.L.R. 7. That was a remortgage case like the present. The borrower first borrowed money on mortgage (the 1989 loan) to pay off an existing third party mortgage (as well as raising additional funds) and later paid off the new mortgage as part of the process of substituting that mortgage for a different one from the same lender.
41. One of the issues considered by the Judge was whether the 1989 loan agreement should be construed as falling into parts, so as to engage section 18(1)(a). He held that the 1989 loan was an integrated package which could not be split up without altering its essential character and that section 18(1)(a) did not therefore apply. In that respect, the case is materially indistinguishable from the present case. It is not, of course, binding upon me, but Mr Payton for the Respondent says that the approach is correct, and I agree.
42. Mr Say argues that the approach in Storey and Hannah is misconceived in that the question is asked the wrong way round. The approach in those cases asks first: is the agreement in different parts, and then goes on to ask whether the parts fall into different categories. The correct approach according to Mr Say is to ask: does the agreement fall into different and disparate categories? If it does, it will be in different parts in the section 18 sense.
43. He also says that it is wrong to adopt a contractual approach and look at the form of the agreement rather than its substance under the Act.
44. I do not agree with these criticisms. If the Act required the interpreter only to look at the categories, and, having once found different and disparate categories, to treat the categories as separate agreements, it would say so, without reference to the word "part". As it happens, the Act positively requires the interpreter to address the "terms" of the agreement and, by that process (which must be contractual) to identify whether the agreement is in parts and (if so) whether the parts are in different categories, at least one of which must be mentioned in the Act. If all those conditions are satisfied, section 18(1)(a) applies. If not, section 18(1)(b) may still apply, even if the agreement cannot be divided into parts, but with different consequences.
45. The debate is not in my judgment materially advanced by invoking substance over form. As I have mentioned, the substance of any agreement is (in this context as in others) to be determined by an objective analysis as part of the process of construction: compare Watchtower Investments Ltd v Payne [2001] EWCA Civ 1159.
46. Mr Say has also drawn my attention to an article published by Mr Francis Bennion in 1999. Mr Bennion was the draftsman of the Act. That does not, of course, give his article any particular status, as Mr Payton tactfully pointed out. Nonetheless, the arguments it deploys are entitled to be treated with respect.
47. In his article, Mr Bennion discusses what is meant by "category" and "part" in section 18. His conclusion on the first point is that "category" means what the context requires it to mean. List every type of agreement mentioned in the Act, he says. Each one is a category. It follows from this, Mr Bennion accepts, that all regulated agreements are multiple, a conclusion that has surprised other commentators and which surprises me, given the effort that has gone into the section 18 definitions. Mr Bennion goes on to say that the effect is not troublesome, as section 18 has a practical effect only where it needs to. This is an example, he says, of weightless drafting, which I understand to mean that the good drafter declines to waste time on matters that carry no weight.
48. In the course of his article, Mr Bennion gives what he describes as "a worked example" concerning a "Topup Loan", which is not dissimilar from the transaction with which this case is concerned (except that the Respondent is not in a position to claim exemption for any part of the 2002 mortgage, if it is properly to be regarded as divided into parts).
49. Mr Bennion supports Mr Say's approach in this case by concluding that where the borrower would be required by a term of the refinancing agreement to use the refinancing element to pay off the earlier mortgage, that element would be for restricted-use credit, whereas the further advance would be for unrestricted-use credit. In such a case, the refinancing part and the further advance part must (however worded) each be treated for the purposes of the Act as a separate agreement.
50. I follow this argument down to the last sentence, but am left wondering when (if ever) the first part of section 18(1)(b) would apply. This corresponds to Mr Bennion's third class of agreement set out on page 2 of his article, namely an agreement whose terms are such as to place the whole of it within two or more categories mentioned in the Act.
51. Mr Bennion's answer to this is to say that an agreement may fall within his third class as well as being an agreement in different parts, falling within subsection (1)(a).
52. Mr Bennion gives an example on page 5, in considering apportionment under subsection (4). The example he gives is of a personal credit agreement which is also a consumer credit agreement. These are 2 categories which would fall within his class 3, and no apportionment would be required. There is no inconsistency, he says, in concluding that the same agreement (insofar as it embraces other categories) is (as regards those other categories) to be treated as being in different parts.
53. The problem with this analysis is that it appears to deprive the first part of subsection (1)(b) (Mr Bennion's class 3) of all practical effect. The only agreements which can fall within class 3 are not in truth separate categories but sub-divisions of other categories. The drafting of the subsection is therefore more pointless than weightless, as Class 3 embraces (on this example) a category which is merely a sub-division of some other category and from which no consequences follow. Other examples of categorisation in relation to the Topup Loan (on p 15, where Mr Bennion states that such a loan would be wholly within the categories of "personal credit agreement", "fixed-sum credit" and "debtor-creditor agreement") are susceptible to similar comment.
54. It is not clear why section 18 mentions Mr Bennion's class 3 at all. Section 18(1)(b) will, as far as I can see, on this analysis only embrace categories related by subdivision. Where there is no subdivision, the categories will be different and thus (on this approach) amount to separate parts.
55. In my judgment, the reference in section 18 to "categories" in subsection 1(b) is a reference to mutually exclusive categories, and not to cases where one of the 2 (or more) categories is a direct or indirect subdivision of the other or others.
56. Whilst I have made my comments in relation to the first part of subsection 1(b), as that is the part which is germane to the present case, the same conclusion as to the meaning of "categories" applies throughout that subsection.
57. It follows from this that I am unable to accept that an agreement in different categories is necessarily in separate parts. Section 18(1)(b) in my judgment clearly assumes the contrary.
58. In reaching that conclusion, I am conscious that Examples 16 and 18 in Schedule 2 of the Act assume the correctness of what I am unable to accept, but the construction of section 18 is not controlled by those examples. On the contrary, as those examples conflict in my judgment with section 18 on its proper construction, section 18 prevails: see section 188(3). Professor Goode has also expressed the view that these examples are wrong, and I agree with him.
59. I should deal with 2 other authorities, both decided in the County Court. The first is Ocwen v Coxall and Coxall [2004] C.C.L.R. 7, in which Judge Holt, sitting in the Ipswich County Court, preferred the views of Mr Bennion to the views expressed in Professor Goode's Consumer Credit Law and Practice. In reaching this conclusion, he placed particular reliance on the concept of weightless drafting, which I have not found helpful in the same direction as Judge Holt. He also appeared to characterise Lord Hoffmann's observations in Dimond v Lovell as obiter. This is incorrect, though I accept the agreement was very different in that case. Judge Holt concluded that Mr Say's construction (he also appeared for the borrower in that case, and his submissions were similar to what they are in this case) was the preferable one. He thought that construction accorded with the clear meaning of the words used by Parliament. I have reached the opposite conclusion. Judge Holt, consistently with his preference for Mr Say's construction, held that a single loan exceeding the then limit of £15,000 was a multiple agreement within section 18(1)(a) and that the separate parts were all regulated and unenforceable for failure to state the total amount of credit.
60. A similar conclusion was reached by Recorder Flather OBE, QC, in the unreported decision of London North Securities Ltd –v- Williams and Williams, Reading County Court, 9^th September 2005. Mr Say once again appeared for the borrower, and persuaded the Recorder to follow Ocwen in preference to Hannah (which the Recorder distinguished anyway). The Recorder also placed reliance on what he called "the statutory interpretation rule of 'weightlesness'." With respect, to refer to a drafting technique as a rule of interpretation is something of an overstatement. Moreover, my consideration of section 18 in the light of that technique leads me towards the opposite conclusion that, as the drafter must be taken not to have been wasting his time in drafting subsection (1)(b), it must apply to something that matters.
61. The Recorder also rejected Professor Goode's analysis as he relied on non-statutory words to delineate it. I do not accept this as a valid criticism. Professor Goode coined the terms "unitary" and "multi-part" agreement. In doing that, he was merely highlighting what is evident from section 18 itself, namely the apparent distinction between an agreement which as a whole is within more than one category (without being in parts) and an agreement whose parts are within more than one category. The terms he coined were shorthand references to those 2 types of multiple agreements.
62. The Recorder also prayed in aid the statutory purpose, and the need to discourage the avoidance of regulation by skilful drafting. I accept that this is a legitimate consideration, but do not consider the language of section 18, even with that purpose in mind, to be apt to allow an agreement to be transformed into something which it is not. It was open to lenders at the time to avoid regulation, consistently with Parliament's wishes, by lending more than £25,000. That does not justify the Court in treating a loan beyond the limit as one within the limit simply because the loan could have been but was not structured as 2 smaller loans.
63. In similar vein, the Recorder expressed himself to be uncomfortable with Professor Goode's focus on the form of the document rather than the substance of the agreement. As to that, how the "substance" of an agreement is to be ascertained except by a process of construction of the agreement's terms in the light of the material surrounding circumstances was not explained.
64. The Recorder also lost confidence when Professor Goode stated that example 16 in Schedule 2 was erroneous. I do not however think this was a particularly powerful consideration in the light of section 188(3).
65. The Recorder thought that he was looking for a simple and obvious construction of what Mr Bennion spoke of as a "clarifying" provision. I do not however find the construction which commended itself to the Recorder as either simple, obvious or clarifying.
66. It follows from these observations that I am unable to follow the decisions in either Ocwen or London North Securities, which in my judgment were wrongly decided so far as concerns the proper construction of section 18.

The result

67. In my judgment the 2002 mortgage was not a multiple agreement within section 18(1)(a). It is therefore enforceable.
68. In the light of that conclusion, the appeal from the possession orders is dismissed. I shall consider with Counsel when handing this judgment down whether the proceedings should now be retransferred to Worksop for enforcement purposes.

Postscript

69. I mention one final point. I have assumed that the 2002 mortgage may have been an agreement falling in more than one category within section 18(1)(b). This, however, assumes that section 11(3) does not apply.
70. Section 11(3) provides that an agreement does not fall within subsection (1) if the credit is in fact provided in such a way as to leave the debtor free to use it as he chooses, even though certain uses would contravene that or any other agreement. If it does not fall within subsection (1), it is to be characterised as an agreement for unrestricted-use credit within section 11(2)
71. The money was advanced to the Appellant's solicitors (who were also the lender's solicitors). She chose, understandably, to pay off the previous mortgage, as she was contractually obliged to do. Yet she could (in theory) have broken her contract or paid the mortgage off from other resources, had she had them. In those circumstances, it might have been argued that section 11(3) applied, a conclusion that commended itself to Judge Mellor in the Hannah case, so that this never was an agreement falling within 2 different categories, but an agreement which, as a whole, was for unrestricted-use credit. The fact that the previous mortgage was deducted from the advance by the solicitors is irrelevant, as they were by that stage acting as her solicitors, so that the provision of funds to the solicitors was the equivalent of the provision of funds to her. Those solicitors gave in their Certificate of Title immediately before completion of the mortgage a series of undertakings to the lender which defined and limited the extent of their duty. They were wide-ranging and not always easy to follow. They did not however undertake to pay off the existing mortgage. In those circumstances, the monies might be said to have been provided to the Appellant via her solicitors as her agent in a way which left her free to use them as she chose, so that the whole of the borrowing was unrestricted-use credit as a result of section 11(3). I need not, however, reach a final view on this point as it is not necessary for my decision and was not fully developed in argument.