Secret/undisclosed commissions...

[42man]

http://www.consumeractiongroup.co.uk/forum/mortgage-companies/151573-sub-prime-mortgages-loans.html#post2469994

[42man]

Excellent Sparkie...thank you for this, I hadn't read that (from Judge Waksman).....

[42man]

It is still a 'secret' commission as it was undisclosed (i.e. you didn't know what the amount was)

[42man]

From what I understand it depends on each individual case with regard to recission of the contract however you would be at least entitled to the secret commission + interest from the date it was paid - Wilson v Hurstanger | OUT-LAW.COM by Pinsent Masons LLP

[42man]

Exactly my way of thinking also F !!!!

[42man]

SKELETON ARGUMENT

 

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1. The pertinent facts of the case are given in the Claimant’s Witness Statement relating to the insurance policies included in the loan agreement (“the Agreement”) between the Defendant and the Claimant.

 

2. The Claimant believes that the Defendant took advantage of her inexperience to pressurise her into buying insurance policies as part of the Agreement with a view to making a profit through commissions.

 

3. Any commissions are hidden/undisclosed commissions as they are not declared in monetary terms on the Agreement.

 

4. Hidden commissions are contrary to Common Law - Wilson & Another –v- Hurstanger Ltd, [2007] EWCA Civ 299 and Imageview Management Ltd –v- Kelvin Jack, [2009] ECA Civ 63 – and render the Agreement void.

 

5. without prejudice to 5, hidden commissions also mean that the terms prescribed under Schedule 1 of the Consumer Credit (Agreements) Regulations – amount of credit, cost of credit and APR – are all mis-stated. This renders the Agreement unenforceable under s61 of the Consumer Credit Act 1974.

 

6. The Claimant has requested information from the Defendant relating to commissions charged or given on the insurance policies which form part of the Agreement. The Defendant has failed to provide such information. Specifically, the Claimant has requested a copy of the underwriting sheet relating to the insurances listed in the Agreement.

 

7. It is likely that Proceedings will be issued between the Defendant and the Claimant relating to the Agreement and the issue of hidden commissions is expected to be a major part of the Claimant’s case against the Defendant. The information requested under this application will have to be disclosed under standard disclosure if proceedings are issued.

 

8. I therefore respectfully request the court to grant an order pursuant to CPR Part 31.16 requiring XXXXX to provide a copy of the underwriting sheet or other such document that details the commission charged or received in relation to the Agreement.

 

Costs

 

9. Costs of this application should be awarded in accordance with Part 48.1 CPR 1998.

Under Part 48.1 (2) the general rule is that the person making the application (in this case the Claimant) pays the costs of the application and of complying with it.

Part 48.1 (3) states that

 

“The court may however make a different order, having regard to all the circumstances, including-

(a) The extent to which it was reasonable for the person against whom the order was sought to oppose the application; and

(b) Whether the parties to the application have complied with any relevant pre-action protocol”

10. The Claimant therefore asks that the court gives consideration to Part 48.1 (3) in relation to costs for the following reasons:

a) The Claimant sent a request of information, including the document that is the subject of this pre-action request disclosure application (date) under s7 of the Data Protection Act 1998.

b) The Defendant replied with a lot of information about the account but not the information requested concerning commissions. The Claimant sent a letter to the defendant on (date) pointing this out. A further letter on (date) again pointed out that this information had not been provided.

c) Prior to the application, the Claimant had already made several requests for the documents that are the subject of this application. This shows the blatant disregard by the Defendant to a reasonable request by one of its customers.

d) All of the requests made under paragraph a) and b) above have been unsuccessful and have directly led to this application being necessary. Had the Defendants complied with the requests then this application would not be proceeding.

e) There is no specific pre-action protocol that applies to this claim but the Claimant acting as litigant in person has tried to act reasonably and give the Defendant adequate time to comply with a reasonable request. The Defendant has not objected to this approach but has still failed to comply.

f) If the Claimant has to pay the costs of this application then it will send a message to the Defendants that they can ignore reasonable requests for documents from Claimants and more importantly breach their statutory obligations and be awarded their costs for doing so. The court must surely discourage this behaviour and by awarding the Claimant her costs of making this application it will send out a strong message to the Defendant that non-compliance with reasonable requests will not be tolerated.

g) If the Claimant is awarded costs then on the next occasion that the Defendant receives a similar request the Defendant is more likely to comply in a timely and cost effective manor.

h) The Defendant has provided no good explanation for the failure to disclose document at this stage which will have to be disclosed under standard disclosure if proceedings are issued.

 

11. The documents requested go directly to liability and quantum of the claimant case. In accordance with the guidance given by Lord Justice Rix in Black and others v Sumitomo and others [2001] EWCA Civ 1819 (and in particular para. 72 of his judgment) care has been taken to ensure that the disclosure request is narrow and that the documents requested are determinative of the dispute between the parties. At paragraph 88 of his judgement Rix LJ states that when determining whether to grant an application for pre-action discovery the court will consider “the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure”.

 

12. In this particular case, the Claimant is seeking a copy of the underwriting sheet pertaining to the (loans/insurances) sold to her at the time the Defendant arranged a loan for her. The underwriting sheet gives information that shows whether the Defendant benefited from hidden commissions relating to this insurance. If the Defendant did so benefit, the Claimant has a strong claim against the Defendant. Without sight of the document, the Claimant is left facing undisclosed commissions which is unfair.

 

I believe that the contents of this Skeleton Argument are true.

 

 

Signed:

[42man]

CLAIMANT’S SKELETON ARGUMENT IN SUPPORT OF APPLICATION FOR PRE-ACTION DISCLOSURE

 

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Introduction

1. The pleadings in this case are reasonably straightforward. The Claimant contends that the Defendant has acted unlawfully and unfairly in relation to undisclosed commissions

This application notice

2. The Claimant’s Application Notice is dated XXXX. Application is made to the court under CPR Part 31.16 for disclosure of documents relating to likely future proceedings between the Claimant and the Defendant.

3. Disclosure of the specified document(s) before proceedings have commenced will have the effect of promoting resolution of the dispute without proceedings or, if proceedings are issued, of disposing of the proceedings fairly.

4. Disclosure of the specified document(s) before proceedings have been issued will also have the effect of informing the Claimant’s case, clarifying the issues in dispute and promoting the overriding objective.

Evidence

5. The Claimant relies upon the witness statement of XXXX dated

XXXXX, which is admissible as evidence pursuant to CPR 32.6(1).

6. The Defendant has failed to serve any witness statements or other evidence in opposition to the application.

Reasons for disclosure

7. The Claimant believes that the Defendant took advantage of her inexperience to pressurise her into buying insurance policies as part of the Agreement with a view to making a profit through commissions.

8. Any commissions are hidden commissions as they are not declared on the Agreement and were not (and have not been) otherwise disclosed to the Claimant.

9. The normal relationship between the Claimant and the Defendant is that of creditor and debtor. However, in the matter of the loan and insurance policies, the Defendant acted as agent or broker. As such, the Defendant was in a position of trust. Hidden commissions constitute a breach of that trust and are unlawful at Common Law.

10. Information relating to commissions are normally contained in a document known as the underwriting sheet.

11. The Claimant has reasonable grounds to suspect that the Defendant has applied hidden commissions to the Agreement. Sight of the underwriting sheet corresponding to the Agreement would show immediately and unequivocally whether hidden commissions had been applied to the Agreement or not.

12. The Defendant’s continued refusal to disclose this document merely serves to confirm the Claimant’s belief that hidden commissions were applied to the Agreement. If the Defendant has acted fairly and lawfully in this matter, it would have nothing to lose by disclosing the information requested.

13. If hidden commissions were applied to the Agreement, this would form a major part of the Claimant’s case in any future proceedings. Disclosure of the underwriting sheet is vital to the disposition of such future proceedings, even to the extent of determining if they would be issued or not.

14. It is therefore completely consistent with the overriding objective to order disclosure now rather than waiting for standard disclosure or an application under CPR Parts 18 or 31 once proceedings have commenced.

Costs

15. Costs of this application should be awarded in accordance with CPR Part 48.1. Under Part 48.1 (2) the general rule is that the person making the application (in this case the Claimant) pays the costs of the application and of complying with it. However, Part 48.1 (3) states that

“The court may however make a different order, having regard to all the circumstances, including-

(a) The extent to which it was reasonable for the person against whom the order was sought to oppose the application…l”

16. The Claimant therefore asks that the court gives consideration to Part 48.1 (3) in relation to costs for the following reasons:

a) The Claimant made a number of requests to the Defendant for the information that is the subject of this pre-action disclosure application, but the Defendant has ignored all such requests. This has led directly to this application being necessary. Had the Defendant complied with the requests then this application would not be proceeding.

b) If the Defendant has acted fairly and lawfully in this matter, it has nothing to lose by disclosing the information requested.

 

c) The Defendant has provided no good explanation for the failure to disclose the requested document despite being given ample opportunity to do so.

d) There is no specific pre-action protocol that applies to this claim but the Claimant acting as litigant in person has tried to act reasonably and give the Defendant adequate time to comply with a reasonable request. The Defendant has not objected to this approach but has still failed to comply.

e) If the Claimant has to pay the costs of this application then it will send a message to the Defendants that they can ignore reasonable requests for documents from Claimants and more importantly breach their obligations and be awarded their costs for doing so. The court must surely discourage this behaviour and by awarding the Claimant her costs of making this application it will send out a strong message to the Defendant that non-compliance with reasonable requests will not be tolerated.

f) If the Claimant is awarded costs then on the next occasion that the Defendant receives a similar request the Defendant is more likely to comply in a timely and cost effective manor.

Conclusion

17. The documents requested go directly to liability and quantum of the Claimant’s case. In accordance with the guidance given by Lord Justice Rix in Black and others v Sumitomo and others [2001] EWCA Civ 1819 (and in particular para. 72 of his judgment) care has been taken to ensure that the disclosure request is narrow and that the documents requested are determinative of the dispute between the parties. At paragraph 88 of his judgement Rix LJ states that when determining whether to grant an application for pre-action discovery the court will consider “the nature of the injury or loss complained of; the clarity and identification of the issues raised by the complaint; the nature of the documents requested; the relevance of any protocol or pre-action inquiries; and the opportunity which the complainant has to make his case without pre-action disclosure”.

 

18. In this particular case, the Claimant is seeking a copy of the underwriting sheet pertaining to the undisclosed commissions to XXX under the Agreement. The underwriting sheet gives information that shows whether the Defendant benefited from hidden commissions relating to this insurance. If the Defendant did so benefit, the Claimant has a strong claim against the Defendant. Without sight of the document, the Claimant is left facing undisclosed commissions which is unfair and unlawful.

19. The Claimant therefore respectfully requests the court to grant this application.

 

Signed:

 

Dated this day of 2010.

[42man]

I think it explains it fully....they have had EVERY opportunity to show the undisclosed commissions before going to court to avoid any type of costs....bear in mind the underwriting sheet, and requesting it under CPR31.16 is for an intention of legal action, for you to assess, whether or not you have a case in court for them to refund this as they had a fidiciary duty, at the follow on case where the undisclosed commission is paid back then THAT is for a judge to decide.....

[42man]

Any more news on undisclosed commissions as yet ?

[42man]

Interesting article here on a recent case - Yates vs Nemo http://www.i-m-a.me.uk/QuarterlyAccount/magazines/174/174%2029.pdf