West 28th Street letters – When is an update not an update?

We wrote on 22 May with a short update and some observations, the gist of which was “for the present we suggest that we wait”. Since then, and as best as we are aware, no one has received anything further from West 28th Street.

So at present, there is still nothing sent from or action taken by West 28th Street that requires a response, and we suggest that we still …wait.

We are of course aware of what some other firms are doing – including pressing people to sign up now and pay a substantial sum towards unknown future costs, with a recommendation that being proactive and taking the fight to West 28th Street in various different fashions is the better course. We do not know to what extent those firms have properly considered individual circumstances (and see our observations below: our current experience is that there are some sharp distinctions to be drawn between some of you), but they will have their reasons for their approach, just as we do for ours.

We are also aware of the discussions taking place and questions being raised in online forums, some very sensible, some not so much. So a few generalised observations:

– If you feel pressed to join a group, now, and even before any formal demand has been made, then perhaps first consider the perspective of West 28th Street as the potential claimant against you and others and what they might be hoping for: very few claimants would, by choice, issue thousands of claims against thousands of different individuals, with the attendant burden of both the administration and cost of managing such a process, if they have the alternative of the potential defendants first organising themselves into convenient groups for them. So we are not in a hurry to organise any convenient groups for the benefit of West 28th Street until we are confident it is actually in said group’s best interests for us to do so.

– If a claimant is not the original lender but has taken an assignment from a previous company …that also was not the original lender and now (say, hypothetically) cannot find the loan documents for certain of the alleged “borrowers” in the book of loans that they have taken an assignment of, then claims against those alleged borrowers have some evidential difficulties, to say the least.

– And then there is the issue of West 28th Street having to demonstrate that all requirements of the Consumer Credit Act have been complied with, as well as regulatory requirements, as supervised and enforced by the FCA. Or to put this another way: West 28th Street still have hurdles ahead of them before they can hope to pursue anything further. If these “loans” are covered by the Consumer Credit Act – which West 28th Street appears to concede – then there are a host of obligations on the original lender that must be complied with. If they are not, then the probability is that the loans are unenforceable.

– Lastly, and although I fully appreciate many among you have no reason to trust HMRC, what they say – indirectly – about West 28th Street’s position is worth a read: Repaying a disguised remuneration loan to a third party – GOV.UK (for ease, just substitute “West 28th Street” in the link’s article every time it says “third party”).

This is not, obviously, legal advice. As I have said before, until we have onboarded you as a client and issued a letter of engagement, we cannot provide legal advice. But what I also repeat here is that there are certainly defences to be investigated, both as a matter of contract, statute, or the common law.

What about advice right now?

Repeating what we have also said previously: you might not want to wait to take advice on your position as to any exposure to the demand that is anticipated from West 28th Street, and potential defences available. Please contact us if this is the case; we will need to first onboard you as a client, take instructions from you and then review such documents as you are able to provide.

However, this will probably be a more expensive option than if we are, when appropriate, able to advise you as part of a group, so our recommendation remains to wait.

What’s next?

Probably weeks if not months of nothing happening.

We are monitoring developments, just as we expect you are. We will also, on occasion, be contacting Trethowans (the lawyers acting for West 28th Street) and asking if they have progressed their client’s position at all. And if what we see or hear gives us cause to think you should act, then we will be quick to say so.