Claim Number: OWA01125
BAILII Citation Number: [2012] EW Misc 231 (CC)
IN THE WATFORD COUNTY COURT
Date: 4th April 2012
B e f o r e :
HHJ Simon OLIVER
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	1. MARK FROST 
2. DONNA FROST	
Claimants	
	And		
	BLACK HORSE LIMITED	Defendant	
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John Pugh (instructed by Donns LLP Solicitors, PO Box 41, City Wharf, New Bailey Street, Manchester  M60 1DZ) for the Claimants
Iain MacDonald (instructed by DWF LLP, 1 Scott Place, 2 Hardman Street, Manchester  M3 3AA) for the Defendant 
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JUDGMENT

1.	The Claimants were represented by Mr Pugh of counsel and the Defendant by Mr MacDonald of counsel.  I heard evidence on 9th February 2012 but a number of lengthy care cases and a transfer of courts has led to a delay in handing down this judgment, for which I apologise.

Overview

2.	This claim arises out of a Payment Protection Insurance Policy (PPI) sold as part of a 
loan agreement dated 13th May 2005 entered into between the Claimants and the Defendant (‘the agreement’).  Under the agreement the Claimants borrowed the cash sum of £15,000 and purchased PPI with a premium of £4,933.50.  The loan has not been repaid in full and the Claimants have not made a claim under the PPI Policy. The Claimants make allegations that the PPI was mis-sold to them.

3.	The Claimants bring the following claims against the Defendant arising out of their purchase of the PPI.

4.	Firstly, contrary to the Insurance: Conduct of Business Rule Book (“ICOB”) Rule 2.2 issued by the Financial Services Authority, the Claimants say that the Defendant failed to take reasonable steps to communicate information about the PPI to them in a way that was clear, fair and not misleading.  They also claim that the Claimants were not informed that the PPI was optional and were not informed of the interest that would be charged on the PPI policy.  I was provided in both closing submissions and in the trial bundle with the full text of the rules but I have not quoted them in full in this decision.  I note, where it is relevant, that there is a distinction between a Rule (such as Rule 2.2.3R) which is mandatory and guidance (such as 5.2.13G) which is not.

5.	The Defendant says that the sale of the PPI was fully compliant with the ICOB in that the Defendant assessed the Claimants’ demands and needs; provided the Claimants with an initial disclosure document and a PPI policy; provided the Claimants with full details of the PPI policy and that the seller of the PPI was trained to follow a sales script which made it clear that the PPI was optional and which set out the amount of interest that would be charged on the credit advanced in relation to the PPI.  The Defendant therefore contends that the Claimants were advised of the optional nature of the PPI and the interest that would be charged on the PPI policy at the time of sale of the PPI and subsequently in writing. 

6.	Secondly, contrary to ICOB Rule 4.3, the Claimants say that the Defendant failed to ensure that the PPI policy was suitable for the Claimants’ demands and needs; that the Defendant failed to seek such information about those circumstances and objectives as might be expected to be relevant to identify the Claimants’ requirements and, in assessing suitability, the Defendant failed to take into account the costs of the PPI and the relevance of any conditions of the policy. 

7.	In response, the Defendant contends that the sale of the PPI was fully compliant with the ICOB and that the PPI policy was suitable to the Claimants’ Demands and Needs because a Demands and Needs Questionnaire (DNQ) was completed on the information provided by the Claimants.  The Defendant further states that it was not under any duty or obligation to advise the Claimants as to the cost of the PPI policy when compared to other products in the market and/or on a non comparative basis because it was only selling its own product.

8.	Thirdly, the Claimants contend that an unfair relationship existed pursuant to sections 140A to 140C of the Consumer Credit Act 1974 (as amended).  The Claimants’ case in that respect is that the relationship between the Claimants and the Defendant arising out of the agreement, taken together with the PPI, is unfair because of the cost of the PPI and the commission which was received by the Defendant for the sale of the PPI. 

9.	The Defendant denies that the relationship between the parties was unfair because the Defendant complied fully with ICOB.  The Defendant also says that the cost of the PPI and the commission received are no longer relevant following the Judgments of His Honour Judge Waksman QC in Shelley Barnes and Darren Barnes -v- Black Horse Limited [2011] EWHC 1416 (QB) and Harrison & Anor -v- Black Horse Limited [2011] EWCA Civ 1128. 

10.	The remedy sought by the Claimants is damages representing the cost of the PPI premiums and the interest they have paid thereon, amounting to £7,654.80 and/or relief under Section 140B of the CCA.  The Defendant denies that the Claimants are entitled to the damages sought or at all. 

Ground 1: 

11.	The Claimants case is that this is a PPI mis-selling case arising from a credit agreement secured on the Claimant’s house, made on 13th May 2005.  The PPI policy was of the advance payment type (single premium). The agreement provides for a cash loan of £15,000 and a further advance of £4,933.50 to buy the policy.  The repayment period for both was 120 months and the APR is stated as 9.9%.  The total cost of the cash element of the loan is £23,271.60. The total cost of the PPI element of the loan is £7,854.80.  The repayments of the cash loan come to £193.93 a month. The repayments of the PPI loan come to £63.79 giving a total monthly payment of £257.72 

12.	In broad outline the Claimants say that the PPI was sold to them by communications which were not clear, fair and non-misleading in particular so far as the optional nature of the policy was concerned and that the PPI which was sold to them was not suitable for their demands and needs.

Breach of ICOB 2.2.2R – communications not fair clear and non –misleading

13.	It is said by the Claimants that the PPI is optional but was not sold as such.  The selling was a two part process. Instead of raising PPI on the first occasion so that C could spend time between part 1 and part 2 reading literature about PPI, the Claimants say that the PPI “hard sell” was postponed to the second part.  The Claimants say that they were left after Part 1 to take in the fact that their loan was “under consideration” and were not warned about the PPI selling to come. 

14.	It is said that this is borne out by the Defendant’s diary notes which show that originally the Claimants asked for a £15,000 loan over 120 months.  There was no question of PPI but the loan was “subject to face to face interview”.  It is contended by the Claimants that there is no reason not to send the pre-prepared information about PPI out at that stage so that they could read it before they went for the interview.   They say that would be fair, clear and avoid misleading, but to keep back the information until the loan was signed for with PPI in it was not fair, not clear and was misleading.

15.	The Claimants also say that when Part 2 of the process starts in the Branch the loan is approved - but with PPI inserted into it at the last minute – yet all the literature containing all the information still kept back.  It is only released after the agreement is signed. This defeats the object.  The Claimants say that this is how the Defendant operated its PPI sales in this case.  The Claimants say that they were never once told that the policy was optional in the sense that it was a free choice before the decision had to be made by them.

16. 	It is the Claimants’ case that this breaches ICOB 5.2.12R which requires the Defendant to produce relevant information in relation to the PPI ‘in good time’ and also ignores the guidance given in ICOB 5.2.13G.  The Claimants say that this emphasises that the insurance intermediary should consider the importance of the information to be given to the customer in helping him to decide whether the contract meets his demands and needs and the point in the sales process at which the information may be most useful.  Further, say the Claimants, the documentation the Defendant relies on in its defence was all produced after the agreement had been made and not at the time it would have been useful, i.e. when the decision making process was being undergone.  In this context the Claimants rely on the judgment of David Steel J in Jones v Environcom [2010] EWHC 759 (Comm) and also to ICOB 5.3.1R both of which stress the need for the information to be produced fairly and at a time it will be of use and not as a sheaf of impenetrable documents after the deal is done.

17.	The Claimants say that a £15,000 loan had been requested with no mention of PPI but at the interview a £19,933 loan was offered (the PPI inflating it along with commission).
 
18.	The Claimants say that the agreement itself does not state that the PPI is optional on its face in a way which stands out. According to the Claimants it is buried in a mass of small print.  It is also stated in paragraph 6 of the Terms and Conditions.  This, it is submitted by the Claimants, is not communication of the optional nature of the PPI in a way which is fair, clear and not misleading.  By the time the Claimants see this they have already consented to the PPI and the agreement is completed with PPI included and it is not possible to sign the agreement without signing for the PPI.

19.	The Claimants say they felt “coerced” and “pressurised” into purchasing this “grossly expensive” PPI product.  If that is so then its optional nature has not been communicated to them in a way which accords with ICOB 2.2.2R i.e. in a manner which was clear, fair and non misleading.  They also say that the Defendant’s representative was “quite insistent” and that being insistent is no part of the duty of an insurance intermediary. It is none of their business whether the customer buys or not. Their duty is just to present facts fairly, clearly and without misleading and let the Claimants make their own decision based on the information supplied.  The Claimants say that the Defendant’s representative breached ICOB by pressing them in this way as she was doing what she was told by her employers in her “script”.  The adviser is told by the Defendant:

“Advise customer of the applicable features, benefits and exclusions for each of above and attempt to overcome any objections” (emphasis added by the Claimants)

20.	My attention was also drawn to paragraphs 18 to 24 of the Judgment of Mr Recorder Mark Anderson QC in Goosen v Black Horse (unreported 2010) on the distinction between advising fairly as to whether PPI is optional and just inserting the word somewhere in the script and the Terms and Conditions of the agreement.  It is said that this is a distinction between substance and form. The obligation to communicate in a way which is clear fair and not misleading is a matter of substance.

21.	Further, it is said that it was not explained to the Claimants that they were paying interest on the PPI premium in contravention of ICOB 5.5.14R and well as being not fair clear or non-misleading under ICOB 2.2.2R. They also allege that Ms. Woodward (the Defendant’s representative) asked Mrs Frost how the loan would be repaid if Mr Frost lost his job.  It is said that this caused them to feel coerced into taking the PPI.

22. 	However, the account given in the Claimants’ witness statements is different.  At para 8 of his statement, Mr Frost states that Ms Woodward:

“spoke to my wife and said that it would be beneficially [sic] to take out the PPI policy in case something happened to me, at which point she turned around and looked at my children”.  

He goes on to assert that:

“both myself and my wife felt coerced into taking out the policy as we felt that the Defendant’s representative pressured us by making us feel guilty about not having any security for our children” (para 9).  

Mrs Frost’s statement repeats these assertions verbatim.

23.	The differences between these two accounts of the transaction was explored in evidence.  In the Defendant’s submission the Claimants are wrong about a number of the matters which they set out in their statements, including the contradictions mentioned above and consequently these errors fundamentally call into question the reliability of their recollection of the transaction.

24.	It is not in dispute that the Agreement was secured on the Claimants’ home and that it was regulated by the Consumer Credit Act 1974 (CCA).  The procedure for the execution of a secured loan is strictly prescribed by s.58 of the CCA and requires the lender to provide an advance copy of the prospective agreement to the customer.  The customer then has a period of at least seven days in which to consider the prospective agreement before the signature copy is sent out.  

25.	The Claimants’ account of the transaction contained in their witness statements is that it was conducted over the telephone and they then went to the branch to sign the paperwork.  In their Particulars of Claim, they assert that this visit to the branch took place “on or about 8th May 2005” (para 5(a)), whereas in their witness statements they state it was “on or around 13 May 2005” (para 6).  These dates may have been selected because the Claimants signed the Agreement on 8th May 2005 and it was executed on behalf of the Defendant on 13th May 2005.  However, it is clear from the Defendant’s records that the Claimants did not attend at the Defendant’s premises on either of these dates.

26.	The Defendant relies on the evidence of Sharon Jones.  I did not hear from her as Mr Pugh accepted that because she was not involved in the original sale and was only able to explain how the transaction progressed by examining Defendant’s diary archive record she would not be able to comment what happened at the relevant time.  From the Defendant’s records it can be seen that the Claimants attended an appointment at 4 pm on Wednesday 27th April 2005 and that it was in the course of this visit that PPI was discussed.  The advance copies of the Agreement were sent out on 28th April 2005.  The copies requiring the Claimants’ signature were not sent until 6th May 2005 and the Claimants signed them on 8th May 2005.  The Defendant’s records indicate that the signed Agreement was received back on 10th May 2005 suggesting that they were signed at home, not in the office.  The Agreement was finally executed by the Defendant on 13th May 2005, the delay due to the need to obtain a settlement figure for one of the loans which the Claimants were repaying from the sums advanced under the Agreement.

27.	This chronology shows, in the Defendant’s submission, that the Claimants are mistaken as to the manner in which the transaction took place.  Their mistakes are not simply as to a matter of a few days here and there – the account they give is of being coerced into signing there and then, whereas in fact they had ten days after the meeting in which to consider the advance copy of the Agreement and the documentation that was sent with it.

28.	The Defendant also says that the Claimants also make no mention of the decision which they took, again evidenced by the diary archive and the contemporaneous documents, to reject Ms. Woodward’s recommendation as to the appropriate level of PPI cover and to take a different level instead.  The Defendant’s procedures required its employee to complete a DNQ when carrying out a sale of PPI.  This document was in the bundle and shows that Ms. Woodward recommended Joint Life, Accident, Sickness and Critical Illness (“LASCI”) cover.  The Claimants instead opted for LASCI cover for Mr Frost and Life cover only for Mrs Frost.

29.	The Defendant says, therefore, that these documents conflict with the Claimants’ assertion that they were “coerced” into taking PPI cover.  They suggest that, far from being coerced, the Claimants took an informed decision about the level of cover which was appropriate for them. 
 
30.	In his evidence to me, Mr Frost accepted in cross-examination that the timetable for the meetings, posting of documents and return of the signed forms were as set out in paragraph 26 above and that, as a result, in both the Particulars of Claim and his statement he was wrong in his memory of what happened.  He also told me that “I already knew that the payment protection plan was optional but we felt pressurised to take it out”.

31.	Mr Frost also acknowledged that there was a fair amount of the detail (as evidenced by the Defendant’s records) that he had not remembered.  He also said that he felt pressurised into accepting the PPI then and there, notwithstanding the 10 days he had to look at the documents.

32.	Mr Frost was clear in his evidence on a number of occasions that “I knew that it was our choice whether or not to have PPI.  I knew that we could get life insurance elsewhere” and “I am not arguing whether or not we had a choice to take out the PPI but I felt pressured and missold.”

33.	This is not a case where there was not possibility of the policy benefitting Mr Frost. He also accepted that it was not a case where he was suggesting that the Defendant’s representative was making up anything in the records.  In her evidence Mrs Frost accepted that she could not remember what happened a month ago let alone 6 or 7 years ago.

34.	I note that the Claimants are behind in their payments and that as at 22/3/10 they were £2700 odd in arrears and not even paying all of the £193.93 loan repayment costs let alone the PPI loan repayment sum.  In addition Mr Frost told me that he was only aware and became concerned that they might have been missold the policy when the whole PPI issue blew up in the media.  Whilst I do not conclude that these are the reasons that the Claimants have brought this claim, I do think that they might have influenced their thinking to see matters more starkly than the documents suggest.

35.	Putting all these matters together, I find as facts: Mr and Mrs Frost knew that the PPI was optional and they could get insurance elsewhere; that the chronology of events is not as suggested by Mr and Mrs Frost but as recorded in the Defendant’s records and set out at paragraph 26 above; that they consciously did not select what was offered by the agent (the LASCI policy) for Mrs Frost thereby making a conscious decision to take a different level of cover; that there was a gap between the meeting when the DNQ discussion took place, the time they had to sign the documents and the time they had to return the signed paperwork; that, consequently, they had the time and opportunity to read in detail the documents at home before signing them; that MS Woodward did nothing improper in selling the policy and did not apply pressure by referring to the children during the meeting  and that, therefore, they were not pressurised into signing the agreement.

36.	In those circumstances, I conclude that the policy was not missold to the Claimants.  They knew they had a choice, they clearly exercised that choice, they had time to study the details of the documents and so made a free and conscious decision to sign up for the PPI.  Having found that the policy was not missold, I believe that it is not necessary for me to consider the other elements of the claims made by the Claimants. However, for the sake of completeness I will.

Ground 2: Unsuitability of policy in respect of cost and Limitations  

37.	On the question of costs, it is said by the Claimants that the purpose of the loan was consolidation of existing debts in order to raise a balance to finance a wedding although Mr Frost accepted that he may not have raised this in discussion.  It is said that consolidation in this way has only one purpose, which is to reduce outgoings at the expense of increase in length of term.  So, say the Claimants, the Defendant knew very well that cost was relevant to their demands and needs.  According to the Claimants, one of the mysteries of the case is how the Defendant thinks that adding 25% to the monthly repayment plan satisfied the Claimant’s demands and needs for reduced monthly repayments. 

38.	Mr Pugh on behalf of the Claimants asked me to take into account the DISP calculations of insurance costs.  Appendix 3.7.13 of DISP shows that monthly PPI (i.e. without the unnecessary advance payment and the ten years of interest on it), would have cost £9 per £100 of benefits payable.  In this case that is 9 times the monthly cost of the £15000 cash loan (i.e. £193.93) times the number of months (i.e. 120). This comes to £2,095.20.   The monthly cost would only have been £17.46. On that basis, Mr Pugh asks why advise someone trying to keep his monthly payments down to pay in advance for 10 years PPI when he does not need to and pay interest on the advance payment by borrowing it when he does not need to?  In terms of the language of the rules, Mr Pugh says that it certainly did not satisfy the Claimants demands and needs.  The Claimants certainly never demanded it – they didn’t want PPI either according to their witness statements he says and nor did they need this type of PPI when the purpose was to reduce monthly payments as much as possible.   They may have had a need for monthly paid PPI but that is not what was sold to them.  I am not able to consider what may be a possible cost using the DISP calculations as that is not what was on offer here and to make a comparison is meaningless.

39.	The Claimants say that to the extent that using a single premium policy was not necessary, ICOB 4.3.3R expressly required the Defendant to inform the Claimants that this policy did not match their demands and needs in that respect.  It is said that ICOB 4.3.3R is omitted from the training given to the Defendant’s staff. It is said that the proviso to paragraph 1 of the training deals with ICOB 4.3.1R (3) in part by telling the sales operative that she can recommend an insurance contract that does not meet all of the customer’s demands and needs provided that:

“There is not another insurance contract within our scope that meets all of the customer’s demands and needs”

But the manual completely omit the second part of the proviso in ICOB 4.3.1R (3) which reads:

“and the insurance intermediary identifies to the customer, at the point at which the personal recommendation is made, the demands and needs which are not met by the contract that it personally recommends”

40.	It is the Claimants case that they were not so informed but that is hardly surprising given that the Defendant, contrary to ICOB 4.3.1R (3), does not teach its operative to provide such information.

41.	The Claimants argue that it is not as if cost was not relevant to their demands and needs for the purposes of ICOB 4.3.6R (2).  The only reason for consolidation of earlier loans, they say, was to reduce monthly cost knowing it will be more expensive in the end due to the increased term.  So, as far as cost goes, the PPI is obviously unsuitable for the demands and needs of the Claimants and they were not so informed. 

42.	It is said on behalf of the Claimants that had they been informed of the costs they would never have agreed to the PPI.  Further, it is said, the policy terms in Section 2 C show that unemployment benefits pay out only for 12 months and Section B shows that disability benefits pay out only for 2 years.  Mr Pugh calculated that 2 years benefits are £257.72 times 24 i.e. £6,185.28. but the cost of that ‘benefit’ to the Claimants was £7,854.80.  Insurance is supposed to involve some ‘risk’ for the insurer says Mr Pugh.  It is argued that although it is true that life cover was included, the Claimants already had life cover and, in any event, it can be obtained separately and cheaply.  This is all evidence says Mr Pugh that shows that this policy does not cover the Claimants demands and needs as to cost and that because the Defendant’s advisor failed to inform them of that (because the Defendant neglected to inform her of her duty under the proviso to ICOB 4.3.1R3 to do so in her training), this leads to and is evidence of the mis-selling.

43.	The Claimants say that it is not denied in the Defence that cost was relevant to their demands and needs the court is invited to make an elementary cost benefit analysis of the policy.

44.	In respect of limitations, the Claimants say that ICOB 4.3.6 (3) is engaged.  It is argued that another respect in which it is submitted that no insurance intermediary would ever have advised the Claimants to take this PPI policy is that having “unnecessarily paid up front” for the policy they cannot get a pro rata rebate if the loan was paid off early.  It is contended that any insurance intermediary advising a satisfactory policy would have known that first the Claimants had a history of early settlement of loan agreements – that is what they were doing by this consolidation.  Further ICOB 4.3.2R (1) places on the insurance intermediary a positive duty to enquire and second, this is a secured loan so if the house is sold for whatever reason the loan will be paid off and the penalty incurred.  It is said that selling advance payment PPI for long term loans is poor practice when, as here, it is unnecessary and counter to the customer’s demands and needs but when the loan is also secured it is bad advice.  If such a decision was to be made it should have been the Claimants not the Defendant’s. 

45.	How does the Defendant respond to this ask the Claimants?  It says In paragraphs
6 and 7 of the defence that the rebate is explained in the policy.  The Claimants retort that they will have bought the policy by then so it is too late and contrary to the ICOB requirement that information be given in good time before the conclusion of the contract (ICOB 5.3.1R).

46.	In all the circumstances, it is submitted by the Claimants that the PPI was not sold in accord with ICOB and that the breaches of ICOB give rise to a remedy under S 150 of the Financial Market and Services Act.

47.	In response the Defendant says in respect of the elements of cost, the terms of the rebate on cancellation and the fact that the Claimants were in secure employment and benefited from a sick pay scheme as follows:

48. 	The Defendant says that the first contention, in relation to cost, is flawed, for the reasons set out by HHJ Waksman QC in Harrison v. Black Horse [2010] EWHC 3152 (QB).  In that case, in which expert evidence was given as to the cost of comparable policies, the fact that such a policy may be expensive was not found to be a breach of ICOB Rule 4.3 (see paragraphs 23-27 of the judgment).  I agree.

49.	As to the terms of the rebate, the Defendant says that these were clearly set out in the documents provided by it.  Moreover, there was no indication that the Claimants required flexibility in the policy – to date they have not sought to cancel the Policy or to settle the Agreement.  

50.	Finally, the fact that the Claimants were in secure employment is not relevant – they indicated on the DNQ that they did not want unemployment cover and the recommendation made did not include such cover.  No evidence has been put forward as to their entitlement to sick pay.  Their answers to the DNQ do not indicate that they felt that they were already sufficiently covered in the event of sickness. Accordingly, in relation to these points it is submitted that there is no basis for the claim that the Defendant has breached the ICOB Rules.

51.	I conclude that the issue of cost is not one I can consider given the judgment of HHJ Waksman QC.  Although I am not necessarily bound by it, his conclusion that however expensive a policy may be, that is not in breach of ICOB Rule 4.3 is unassailable and I adopt it.  As to the rebate, I agree with the Defendant’s submissions that the terms were clear on the policy documents.

Ground 3: The allegation of unfair relationship

52.	The Claimants state that the relationship between them and the Defendant to be unfair, the PPI to be a related agreement to the main loan agreement (admitted in the Defence), and so they request relief from the obligation to make further payments in respect of PPI.

53.	The Claimants rely on essentially the same points made above in this regard, with the additional allegation that the Defendant received a commission from the insurer which it did not disclose to the Claimants.  The Defendant argues that this last point is not sustainable following the decision of the Court of Appeal in Harrison v. Black Horse Ltd [2011] EWCA Civ 1128.  In that case, the Court concluded that there was no obligation to disclose commission under the ICOB Rules and failure to disclose did not give rise to an unfair relationship.  I am bound by that case and accept, therefore, that the failure to disclose that a commission was payable does not make the relationship unfair.

54.	The remaining allegations should, in the Defendant’s submission, fail for the same reasons as are set out above.  There is clear authority that the cost of the policy, even if objectively expensive, does not give rise to an unfair relationship.  The Defendant drew my attention particularly to the case of Harrison at first instance where HHJ Waksman QC addressing this specific issue, (having made a finding of fact, on evidence, that the PPI was expensive in that case) stated at paragraph 60 as follows:

“It is true that the PPI here was objectively expensive, i.e. by reference to other available products. I can well see how that may form part of a cumulative picture leading to unfairness where the customers have through the fault of the Bank (or a third party nonetheless attributed to the Bank as in Yates) had no real opportunity to apply their mind to questions of cost, for example, because they understood that they had no choice.  But it is different where (as here) the Bank induced no such belief.  The Harrisons must in truth have realised that the PPI was optional or if not, this was a mistaken impression of their own making.  They should therefore be treated as having had a real opportunity to consider whether or not to take the PPI. In that context they could consider its cost, relative, for example, to the cost of the main loan.  Here the figures were placed side by side. Moreover, although not determinative, the fact that there was no breach of rule 4.3 in relation to costs (for the reasons given above) counts against unfairness.”

55.	I could not have put it better so adopt the words of the learned judge and for the
Reasons he gives.  I reject the Claimants’ contention that cost made it an unfair relationship.

56.	Even if the Claimants’ account of the transaction is believed, they are not asserting that they “had no choice” as to whether to take PPI.  Their case at its highest is that Ms. Woodward conducted the same in a manner which made them feel that they should take PPI, not that she told them that they must.  Accordingly, they must be taken, as in Harrison, and as I have already found, to have had a real opportunity to consider the cost (which, on the evidence, amounted to a period of ten days).  For these reasons the unfair relationship claim is also dismissed.

57.	I am unaware of any cost applications that might follow as a result of this decision. As I am now based in Reading County Court my direction is that any application for costs shall be made in writing and filed and served by 4pm on 24th April 2012.  Any reply shall be filed and served by 4pm on 8th May 2012.   If the matter cannot be agreed at that point it should be listed before me here in Reading for oral argument on a date convenient for both counsel.  Mr and Mrs Frost do not need to attend any hearing unless they wish to do so.

HHJ Simon Oliver
4th April 2012 

Permission to Appeal

11th April 2012.  
John Pugh, Counsel for the Claimants:
 
1.	I am instructed to make application for permission to appeal on behalf of the Claimants.  I would be grateful if my application, which is copied also to Iain MacDonald, counsel for the Defendant, could be considered by way of e-mail.

2.	I would request permission on the following grounds namely:

“That the learned Judge’s judgment erred on the issue of compliance with ICOB 4.3.1R and unfairness in that:

(i).   The learned trial Judge failed to distinguish between the decision in Harrison v Black Horse where cost was specifically held not to be relevant to demands and needs of the borrowers and a case such as this one where cost was admitted to be relevant to the demands and needs of the borrowers.

(ii)	The learned trial Judge failed to distinguish between an obligation to make a market comparison (which is no part of the Claimant's case) and an obligation to ensure that if the policy being recommended was not of an incorrect type (i.e. in this case one which by reason of advance payment and interest payments increases its monthly cost whereas the demands and needs were for reduced monthly cost).

3.	It will be submitted that when those two distinctions are drawn the PPI sold is unsuitable for the demands and needs of the Claimants as to cost such that ICOB 3.2.1R (3) is breached, giving rise to an entitlement to damages (the cost of the PPI paid to date) under Section 150 of the Financial Services and Markets Act 2000. Further the relationship between the parties was thereby rendered unfair, by reason of the Claimants not being so informed, giving rise to a remedy (cancellation of future PPI payments and contractual interest thereon) under Section 140B of the Consumer Credit Act 1974.”

17th April 2012.	
His Honour Judge Simon Oliver

1.	Your application for permission to appeal is refused.
 
2.	I took the view that the Claimants knew what they were doing and they knew it was optional so there is no basis for me to have considered the matter further.  Currently I have received no other application.
 
Simon Oliver 
His Honour Judge Simon Oliver 
DFJ Reading County Court