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Conclusion
Conclusion
The First and Second Defendants are entitled to have the default judgments set aside pursuant to CPR rule 13.2, because the Claimant did not establish that service of process on Law Debenture was validly made on the First and Second Defendants for the following reasons:
The Claimant did not discharge the burden of proving on the balance of probabilities, at this interlocutory stage, that the First and Second Defendants were parties to the Facility Agreement.
In any event, clause 40.2.2 of the Facility Agreement is unfair within the meaning of section 62 of the Consumer Rights Act 2015 and so is not binding on the First and Second Defendants.
As mentioned above, these findings are not intended to restrict the parties’ arguments which might be deployed at trial. They are made to dispose of the application under CPR rule 13.2.
- Heading
- Introduction
- Discussions leading towards the Facility Agreement
- The terms of the Facility Agreement
- The Claimant’s claim under the guarantees
- Legal proceedings brought by the Claimant
- The First and Second Defendants’ Defences
- Entry of Default Judgments
- The Application to set aside the Default Judgments under CPR rule 13.2
- The First and Second Defendants’ submissions
- The Claimant’s submissions
- Determination of the application under CPR rule 13.2
- Are the First and Second Defendants parties to the Facility Agreement?
- Was notification of the appointment of Law Debenture sufficient?
- Is clause 40.2.2 an unfair term under the Consumer Rights Act 2015 ?
- Enforceability under Consumer Credit legislation
- Conclusion
- The Application to set aside the Default Judgments under CPR rule 13.3
- The First and Second Defendants’ submissions
- The Claimant’s submissions
- Determination of the application under CPR rule 13.3
- Do the First and Second Defendants have a real prospect of defending the claim?
- Was the application made promptly?
- The exercise of discretion under CPR rule 13.3
- The Claimant’s application for a conditional order
- Conclusions