Second bite of the cherry?

July 12, 2021
Harriet Swainson


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Fernandes v Bank of Scotland Plc [2021] EWHC 1610 (Ch) (Falk J, 18 May 2021)

The defendant borrower defaulted on a finance agreement with the claimant. The claimant repossessed the subject property and sold it with a shortfall of £128,000.  

The shortfall was reduced by £72,000 further to a successful professional negligence claim against the original valuer. 

The claimant lender pursued the defendant borrower for the remaining outstanding and successfully obtained a charging order over the borrower’s residential home.  The defendant borrower appealed against the charging order nearly two years later and lost.

The defendant borrower, further appealed against the claimant lender for breach of duty for selling the property at an undervalue.  

The courts dismissed the claim on the basis claim had already been considered and the defendant borrower had missed his opportunity to raise that argument.  

The point? You only get one opportunity to raise your arguments. You only get one bite of the cherry.