A High Court claim against a peer-to-peer lending company and 612 participants in the underlying loans has been given a timetable for trial following a one day hearing.
In 2016, Mr Andrew Jonathan Milne, described in court papers as “an experienced practising solicitor in the City of London”, took out a series of crowd funded loans facilitated by the peer-to-peer lender Open Access Finance Ltd trading as Unbolted.
In 2019 he launched a High Court claim against the platform (and subsequently the investors) alleging, among other things, various technical breaches of the Consumer Credit act and the Financial Services & Markets act.
For those who are really interested further details can be found in paragraphs 8 and 9 of this judgment.
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Reporting by Daniel Cloake.
Procedural Judge Master James Brightwell began the hearing by explaining that this “claim has been pending for a very long time indeed, it really needs listing for trial…whatever happens I’m quite keen for a trial date to be fixed.”
The claim form was filed four years and seven months ago in March 2019.
The court, being held remotely over MS Teams, first heard an application for ‘security for costs’. If successful this would have required the claimant Mr Milne to place a sum of money into the court which would be used in the event he had to pay costs/damages post trial.
An application for security for costs was used in the so-called London Loan which involved the peer-to-peer lending platform Lendy. As can be seen from paragraph 46 of this judgment the claimant in that case was required to place £232k upfront. This didn’t happen and so the claim was prevented from continuing.
Mr Iain MacDonald, the barrister representing both the platform and the investors, drew the courts attention to what he said were problems with Mr Milne’s Witness Statement citing “its lateness, its length and its content“.
Mr MacDonald said the “position is that Mr Milne filed that on Thursday of last week. He has had my clients evidence since May 2023 and one may think there’s an element of brinkmanship filing one day before the deadline“.
Mr MacDonald also drew to the courts attention to the use of Mr Milne’s apparent business address on the statement rather than a personal one.
Mr Richard Roberts, the barrister representing Mr Milne, said “I accept there is a technical breach” but asked the court to consider that this was now the 14th witness statement with this defect. The problem was “minor and should not prevent the hearing continuing” he said.
Mr MacDonald also said the statement contained “scandalous allegations” which were “palpably untrue” and “self-evidently and provably incorrect“. The court should treat the statement with “a very great deal of caution” he said.
“A practicing solicitor, even a semi-retired practicing solicitor, ought to know better” he added.
The “scandalous allegations” made, were in my opinion, astonishing.
The mouseinthecourt has made a request to the court for copies of a document which will enable us to report the matter fully in due course. The parties were given 14 days to object to my request.
Judge Master Brightwell decided to delay hearing the application for security for costs and “direct(ed) that the claimant is to file a witness statement which complies with the practice direction“.
Disclosure
One of the matters which arose was which documents and information the claimant should be required to provide to the defendants.
Mentioning one of those here: Mr MacDonald explained by way of background that Mr Milne says he was “acting as a consumer when he took out loans for sums in excess of £25k“.
It was submitted by Mr MacDonald that “Mr Milne is a professional litigator…he was borrowing to sue us and others“.
The court was asked to order that Mr Milne disclose the litigation he was involved with at the time of the relevant loans. “Who else was he suing, when, and how was he funding it?“
The judge decided that Mr Milne would be required to disclose “what was the purpose of the borrowing of sums in excess of £25k from the defendants platform…if the results reveal more disclosure is necessary then an appropriate application can be made“.
Trial Timetable
Turning to the trial timetable the judge advised the parties that “the current listing windows means it will be well over a year before you get a trial”.
It was indicated that the four-day-trial should take place in-person between 21st October 2024 and the 28th February 2025.
It was ordered that a pre-trial review of 1.5 hours should take place prior to then.
The adjourned application for security of costs was listed to take place in-person on the 5th January 2024 at 10.30am with a time estimate of half a day.
Case History
5th March 2019
Claim Form Issued and an injunction preventing sale of the underlying pledged goods at auction granted
8th March 2019
Mr Justice Nugee discharged the interim injunction by consent
10th April 2019
The Claimant issued an application for specific disclosure (seeking the details of all lenders), relief from sanctions (for non-compliance with the Consumer Credit Act), and an extension of time for service of his Particulars of Claim to 14 days after the provision of lenders’ details.
22nd May 2019
A hearing before Deputy Master Arkush at which the Claimant’s disclosure application was adjourned, and he was ordered to file and serve draft Particulars of Claim by 2 July 2019 “setting out with appropriate particularity his claims against: a. The Defendant; and b. The lenders on whose behalf the Defendant acts as agent, to include all causes of action on which the Claimant relies”.
10th September 2019
The Claimant’s disclosure application came back before the Court. Chief Master Marsh declined to order disclosure of all lenders’ details, and gave permission for Open Access to act as the representative of all the lenders with whom the Claimant had entered into contracts through the Platform. The Court’s judgment on that occasion is reported online. The Court further ordered that the Claimant was to file and serve an Amended Claim Form by 27 September 2019.
27th September 2019
The Claimant filed his Amended Claim Form to name Open Access as the Second Defendant in a representative capacity.
12th March 2020
There was an appeal against the September 2019 order, which came before Mr Justice Fancourt on 12 March 2020. The judgment on that occasion is reported online. The appeal was allowed to the extent that Mr Marek Szymanski was substituted as the representative for the group of lenders, in place of Open Access, and the details of corporate lenders were to be provided to Mr Milne.
24th March 2020
The matter came before Deputy Master Nurse for a Cost and Case Management Conference. The order on that occasion provided for the adjournment of the CCMC to 3 September 2020. It is clear that this adjournment was to provide the Claimant with an opportunity to advance prospective applications to add further parties (i.e., the corporate entities), and to make consequential amendments to his pleaded case.
21st May 2020
The Claimant applied to join eight (corporate) defendants, and for permission to amend the Claim Form and the Particulars of Claim.
7th July 2020
The First Defendant applied for the determination of a preliminary issue. The time estimate provided on the Application Notice was 3 hours.
4th December 2020
The Court ordered by consent and without a hearing that a CCMC listed to be heard on 7 December 2020 was vacated, and that the Claimant’s application dated 10 April 2019 was adjourned generally
31st March 2021
A 1-day hearing was heard remotely before DM Glover seeking to resolve a preliminary issue.
20th January 2022
The Judgment of DM Glover is handed down by the court. Court refuses to consider preliminary issue.
28th November 2022
An application that the eight so-called corporate lenders should be separated out and joined as distinct defendants failed
4th October 2023
Costs and case management conference and application hearing
Before Master Brightwell (Remotely via MS Teams)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Case No: FS-2019-000004
(1) ANDREW JONATHAN MILNE
-v-
(1) OPEN ACCESS FINANCE LIMITED
(2) MR MAREK SZYMANSKI as representative of those lenders who lent to the Claimant under the loans listed in Annex A to the Particulars of Claim
Mouse in the Court 
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