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The key question for the court to answer in these cases was set out in paragraph 2 of the judgment: [The] cases raise a point of some importance, namely whether the lender may both (a) consolidate (or, as it is often called, “capitalise”) arrears of monthly instalments with the mortgage balance upon which the instalments are calculated with the effect of increasing the contractual monthly instalments to spread those arrears over the residue of the mortgage term (Emphasis from the judgment).

The Bank of Scotland was found to have consolidated or capitalised arrears on mortgage accounts without the consent of the borrowers, or even assessing whether the borrowers could afford the higher payments– this is known as ‘unilateral consolidation’.

The consultation comes to an end in early January 2017, with a view to the FCA publishing finalised guidance in the first quarter of 2017.

This case and subsequent investigation highlight some of the strengths and challenges associated with strategic litigation.

It is an example that demonstrates public interest cases can be found in the private law (those cases involving individuals or companies) as well as in the public law (cases where a part of the government is involved).

The case itself brought to light a practice of a lender that was technical and complex, but had very real effects and impacts upon borrowers and their families.

The case was initially appealed by the lender, however the bank withdrew its appeal in late 2014.

The renewed importance of the decision relates to the UK’s Financial Conduct Authority (FCA) investigation into the practice which was completed in October 2016.

consolidating mortgage arrears-27

It said that the number of households in arrears by the end of the year is likely to exceed the previous forecast of 170,000.With unemployment rising – Rolls-Royce, BAE Systems and Astra Zeneca, three of the largest companies in the UK, have announced job cuts totalling 3,600 – the number of people falling behind with their mortgage repayments is expected to increase further next year.Yesterday, Granite, a part of Northern Rock, disclosed that mortgage customers were 90 days or more behind with their payments on more than 2pc of £35.5bn of mortgages.The investigation has also led to a consultation on guidance which seeks to rectify the problems caused by unilateral consolidation.The guidance aims to help lenders to identify borrowers affected by the practice; to compensate borrowers appropriately; to recalculate mortgage accounts to ensure they reflect accurately the state of the mortgage; and to stop the practice of unilateral consolidation itself.




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