Despite the deadline for bringing FOS claims for mis sold PPI having passed in August 2019, PPI litigation has continued unabated.
The Supreme Court decision in Plevin v Paragon Personal Finance Ltd and another UKSC 61 relies upon the unfair relationship provisions as set out in the Consumer Credit Act 1974 (CCA), which is the basis of much of the litigation. Many litigants have already been compensated for undisclosed PPI in accordance with the FCA’s redress scheme. The basis of these additional claims lies in the unfairness of the relationship as the lender did not disclose the commission. As such the main argument is that the claimant should receive further compensation under S140B of the CCA.
There is no automatic right to receive further compensation and as time passes there are many legal challenges to these claims, which are keeping both the Courts and lawyers busy.
One of the main issues is Limitation. Following the decision of Patel v Patel  EWHC 3264 (QB) most decisions on limitation issues are favourable to claimants, however, are still very case specific. This is a continued battleground for claimants and lenders. In early 2021 the Court of Appeal will consider whether extending limitation under S32 of the Limitation Act 1980 should be applied to unfair relationship claims based on undisclosed commissions, in the case of Canada Square Operations Ltd v Potter  EWHC 672 (QB). Decisions in the lower courts have gone in Ms Potter’s favour so the outcome here will be closely monitored by both sides.
Ongoing arguments relate to whether claims have already been compromised under the FCA repayment scheme. Many lenders argue that acceptance of the compensation under the scheme in “full and final settlement” compromises the claim and it is an abuse of process for claimants to have a second chance at compensation. This was accepted by HHJ Belcher when he upheld such a decision in the unreported case of Taylor v GE Money Consumer Lending Limited (Leeds County Court 20 July 2020). Each case turns on its own facts though and the wording of all communication between the parties, whether the claimants had representation and evidence of understanding of what was being accepted are all relevant.
Valuing any potential unfair relationship remains a challenge. Lenders argue that the FCA scheme adequately compensated claimants. Claimants argue that had they been provided with all the facts and costs that they would not have purchased the PPI. Additionally, there is the argument that the FCA scheme did not compensate for the unfairness of the relationship. There are a wide variety of decisions being made in the County Court, ranging from ordering the return of all the PPI and associated charges and interest, minus the amounts already paid, to no further award, on the grounds that the FCA redress was sufficient. Assessment is case specific, with discretion granted to the court under s140B of the CCA and therefore it is not unsurprising that there is no uniformity of approach across the County Court.
Given the above issues, as well as many more it is unsurprising that claims remain subject to ongoing litigation.
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