The Court of Appeal delivered on Thursday 11th March a 60-page judgment of the greatest importance. The case of POTTER was pursued in reliance upon the PLEVIN PPI judgment of the Supreme Court.
Mrs Potter was charged £3,834 for a policy valued by the insurer at just £182.50! Perhaps out of sheer embarrassment the defendant advanced no evidence as to why it had charged so much nor why it had failed to reveal the colossal commission it had pocketed.
Instead, it ran a limitation argument. The relevant agreement ran from 2006 until 2010. Proceedings were commenced in 2019 and so were seemingly out of time.
However, the Court of Appeal was unanimous in deciding that the defendant had deliberately concealed relevant facts which opened the way for the claimant to proceed by virtue of Section 32 of the Limitation Act 1980.
The lender was subject to a duty to act fairly. Breach of that obligation arose because it must have consciously decided to conceal the commission payment.
The Appeal Court was on great form and demonstrated a shrewd awareness of what was going on. “…it is unlikely that Canada Square are pursuing this appeal for the sake of the £7,953 they may owe Mrs Potter “. Precisely! Financial institutions are terrified at the thought of another wave of PPI claims just when they thought that nightmare had gone.
And again “…for Canada Square to suggest that the Supreme Court’s judgment in PLEVIN came to them as a bolt of lightning out of a clear blue sky is very far from a fair portrayal of what took place“ was the wry observation of Rose LJ.
All credit to Rob Weir QC of Devereux Chambers who did the deepest dive in preparing this case with the help of his junior, Jonathan Butters. For example, they located evidence about financial impropriety submitted by the FSA to a Parliamentary Commission!
What next? One suspects that enormous sums are at stake and so the defendant might seek to go to the Supreme Court. Leave must be obtained. The majority of petitions are rejected. It must be said that the lengthy judgment was meticulous and Males LJ added a few supporting thoughts to the substantive work of Rose LJ.
Claimants will be delighted. Anticipate a fresh wave of claims!
Professor Dominic Regan
Special Advisor to Affiniti Finance
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