Welcome judgment for lenders dealing with section 75 cases

On 25 November 2022, the Court of Appeal handed down judgment in Cooper v The Freedom Travel Group and Bank of Scotland Plc (trading as Halifax) [2022] EWCA Civ 1557. In a unanimous judgment, the Court of Appeal dismissed the claimant’s appeal in which she sought to argue that the meaning of “debtor” under the Consumer Credit Act 1974 (CCA) should be extended to cover third party beneficiaries of credit. This will be a welcome judgment for lenders facing claims under section 75 of the CCA (Section 75). Read our summary below.

Background

• Mr Cooper (the claimant’s husband) held a credit card agreement (the Credit Agreement) with Bank of Scotland plc t/a Halifax (the Bank). The Credit Agreement was regulated by the CCA. Mr Cooper was the only card holder under the Credit Agreement.
• In October 2014, Mr Cooper entered into a contract with the Freedom Travel Group Ltd (the Tour Operator) for a package holiday to Greece (the Holiday). The Tour Operator was a wholly owned subsidiary of Thomas Cook. Mr Cooper used the credit card to pay the deposit for the Holiday – the balance was paid by other means. The invoice for the Holiday was addressed to Mr Cooper; Mrs Cooper (the claimant) was named as the “other passenger”.
• During the Holiday, Mrs Cooper fell and fractured her leg. She brought a claim against the Tour Operator under the Package Travel, Package Holidays and Package Tours Regulations 1992 (the Regulations).
• Mrs Cooper relied on regulation 15(2) which says: “the [holiday company] is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract….”. The definition of a “consumer” in Regulation 2(2) of the Regulations includes both the “principal contractor” and “any person on whose behalf the principal contractor agrees to purchase the package”. Mrs Cooper argued that the Tour Operator was the organiser and/or retailer of the Holiday and that Mrs Cooper was the consumer and/or beneficiary.
• On 2 February 2018, Mrs Cooper accepted an offer from the Tour Operator to compromise liability on the basis of a 70:30 apportionment in her favour and so a quantum only trial was due to take place in November 2019. However, the Tour Operator entered into administration in September 2019.
• Mrs Cooper applied to add the Bank to the proceedings arguing that it was jointly and severally liable with the Tour Operator for breach of contract under Section 75 of the CCA (the Application). The Application was dismissed and it was held that Mrs Cooper could not bring a claim under Section 75 as she was not the “debtor”.

The First Appeal

Mrs Cooper’s primary ground of appeal was that the judge was wrong in law to find that she had no claim under Section 75 of the CCA.

By a judgment dated 1 September 2021, HHJ Simpkiss dismissed the appeal. It was held that Mrs Cooper could not be a “debtor” within the meaning of the CCA. Mrs Cooper then appealed to the Court of Appeal.

The Court of Appeal

The key arguments

Mrs Cooper said:

• She accepted she was not a party to the Credit Agreement but argued she was a “debtor” within the meaning of the CCA. She argued that the effect of Section 75 is to override privity of contract.
• If Section 75 had intended to exclude people in Mrs Cooper’s position it could have stated that it is only a contractual debtor who obtains the benefit of a credit agreement.

She had a claim in contract against the Tour Operator under the Regulations as she is a “consumer” in accordance with Regulation 2(2) and was named on the invoice for the Holiday.

The Bank said:

• “Debtor” is a defined term in the CCA. It has a plain and unambiguous meaning being the contractual debtor and it is clear that Parliament did not intend that definition to include third party beneficiaries of credit.
• The only person who could be viewed as receiving credit under the Credit Agreement was Mr Cooper. Further, Mrs Cooper did not have a contract with the Tour Operator (as the supply contract was with Mr Cooper) and so, whilst she might have a claim against the Tour Operator under the Regulations, she did not have a claim for breach of contract.

Judgment

Lady Justice Nicola Davies gave the leading judgment dismissing the appeal and holding:

• “Debtor” is expressly defined in section 189 of the CCA. The interpretation of “debtor” under the CCA (and therefore Section 75) has a plain and unambiguous meaning - namely the contractual debtor.
• There is nothing in Section 75 which indicates an intention to extend this to include third party beneficiaries of credit extended under a credit agreement.
• Mrs Cooper’s argument that the effect of Section 75 is to override privity of contract was not accepted.

Comment

The claimant’s arguments in this case were an attempt to extend the protection offered to consumers under Section 75 to cover third party beneficiaries of credit. The Court of Appeal has taken a sensible (and correct) view of who a “debtor” is and therefore who can bring a claim under Section 75. Any decision to widen this could have had wide reaching consequences, given the importance of the term in the CCA generally.

The Court of Appeal rejected the claimant’s argument that Section 75 had the effect of overriding privity of contract. Any claim under Section 75 is limited to a claim for breach of contract (or misrepresentation) which the contractual debtor (under the credit agreement) has against the supplier (and only in relation to a transaction financed by the credit agreement).

This is another welcome judgment for lenders, following the recent High Court case of Steiner v National Westminster Bank plc (see our article here). In Steiner, the Court took a narrow interpretation of what “arrangements” would fall under Section 75 (or section 56) where the recipient of the credit payment is different to the “supplier” of goods and services. Together, the two judgments show the Courts are reluctant to widen the already extensive connected lender liability consumer protections provided under the CCA.