A three-day High Court trial was due to begin today with Judge Clive Sheldon QC set to consider whether a borrower on the failed P2P platform Lendy, is liable for over £3m of fees and penalties.
In written filings made to the court prior to today, the borrower was expected to argue that she was improperly induced into the loan and that Lendy sold the property at an under value.
A background to the claim can be read here.
The barrister representing the defendant, Ms Thilaga Srindran, told the court that she had only been instructed the night before – a most unusual occurrence for a three-day High Court trial.
She explained to the court that although the date of this hearing had been fixed in May 2021 “some misfortune in terms of dealing with this file in the [solicitors] office” had led to her application to adjourn.
Ms Srindran explained that the solicitor who was dealing with the case at Woolwich based TolTops Solicitors had left at the end of May/June. We were told the file had been passed onto another solicitor within the firm, who due to a high workload subsequently passed it onto a colleague. That colleague had then taken time off work due to an urgent family matter.
It was only because of a case review undertaken by TolTops in September that it was appreciated that the trial was listed the following month. The court was told enquiries were made to establish whether counsel, Mr Andrew Otchie of 12 Old Square Chambers, who had represented the claimant at a previous hearing was available.
These enquiries were apparently made as recently as September 6th however it was said 12 Old Square Chambers only reverted on October 13th to advise that “despite their best endeavors” no counsel could be provided as Mr Otchie was on holiday.
It was said that the solicitor now dealing with the matter at TolTops, Mr Abayomi Okunowo (SRA 229313), sent an e-mail to the court at 17.34 on Friday 15th October stating “Dear Judge, I refer to the above matter… we regret we are not ready to proceed, I politely request an adjournment.”
We were told a number of chambers had been phoned to see if they could provide counsel to make this application to adjourn rather than continue the trial. This led to Ms Srindran stepping in at the last moment. “In fairness to the defendant and given the seriousness of the issues I would ask you to grant an adjournment” she requested from Judge Clive Sheldon QC.
Barrister Lloyd Maynard, representing the claimant Lendy Ltd, told the court in response that they resisted the adjournment as all the parties had been aware of this trial since May and a proposed “adjournment to December is just unpalatable”. In any event we were told that the court could not accommodate the trial until February 2022.
Mr Maynard explained that Lendy would suffer prejudice as they are “in insolvency and trying to realise assets”. Whilst he wasn’t aware of any deadlines it was “always in the interests of the company to realize assets as quickly as possible”. He added “clearly costs are going to be incurred” and given the defendants apparent limited means there was speculation these couldn’t be met.
In handing down his decision Judge Clive Sheldon QC (Sitting as a Deputy Judge of the High Court) explained he had “not found this an easy decision as there are weighty factors on both sides”.
“The claim is for a very considerable amount of money, it is right the court allocates a significant degree of resources to deal with the claim and counter claim.” Citing too that the defendant is facing bankruptcy “it would be very hard for the defendant to represent herself at trial.”
“The defendant has found herself here as a result of the solicitor’s failure to ensure preferred counsel and to fail to obtain alternative counsel. In my judgment, given the particular facts of the case, not adjourning would be most unfair, given the solicitors actions and omissions”
A review of the trial schedule reduced the time estimate down to 2 days which is expected to be listed before February 2022.
TolTops Solicitors have been approached for comment.
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