A recent High Court decision in claims brought by thousands of claimants against motor finance providers has reaffirmed the validity of using omnibus claim forms in large-scale consumer litigation. The ruling has implications both for the many motor-finance mis-selling claims pending before the courts and also for mass claims in a variety of other contexts.
Motor finance claims – the current state of play
The prospects of claims against motor finance lenders continues to develop rapidly as courts, the Financial Ombudsman Service, and the FCA continue to grapple with the issues raised by the large volume of cases being initiated. Here’s the current state of play at a glance:
FCA marks principal firms’ homework on appointed representatives – must try harder
The FCA has been focused on appointed representatives (“ARs”) for many years now, dating back to its 2016 and 2019 thematic reviews. It grudgingly accepts that the AR regime has some cost efficiency, competition, and market access benefits. But it sees ARs as high risk, because it perceives that often principal firms undertake inadequate due diligence before appointing ARs and are lax with their ongoing oversight. It rightly observes that the AR regime has evolved from its original use by insurers and other product providers to distribute their products via a network of ARs, to encompass a wide range of models such as regulatory hosting and networks, and products and services ranging from retail and insurance to asset and investment management.
APP fraud – might banks have a “retrieval duty” ?
Following on from our Blog post and article from November of last year that looked at the potential liabilities of banks and related parties in the context of authorised push payment (“APP”) frauds, the recent decision of Master Brown in CCP Graduate School Ltd v National Westminster Bank PLC & Anor [2024] EWHC 581 (KB) has again seen the court grappling with the question of the liability of receiving banks, this time considering the potential existence of a “duty of retrieval”.
Anatomy of a fraud series – Powers afforded by search and imaging orders
Search orders
Search orders are a form of interim, mandatory injunction which require a respondent to allow the applicant’s representatives to enter the respondent’s premises and search for, copy and remove documents or material for the purpose of preserving evidence and/or property which is or may be subject to an action.
Search orders are, therefore, considered to be one of the most draconian orders a court can make, and particularly so as a respondent may be held in contempt of court for failing to comply with this type of order. Accordingly, the court will only grant a search order where it is deemed necessary in the interests of justice, and case law and the Civil Procedure Rules have put in place various safeguards for respondents, including the duty upon the applicant to give full and frank disclosure and a need to give an undertaking in damages.
The Rise of the Pig Butcher
The “pig butchering” scam is not new but has enjoyed a rapid rise in recent years. So much so, that virtually everyone reading this blog will have been an intended mark at some point, probably without knowing it. Indeed, if you have ever received a message from an unknown number with a random message that apparently wasn’t intended for you such as “sorry I missed my appointment” or “Hi mum, this is my new number” then that probably wasn’t an innocent mistake, it was the start of the long con of the 2020s.
WHO PAYS THE PRICE OF AUTHORISED PUSH PAYMENT FRAUD?
Following on from our recent Blog post about UK Finance’s half-yearly fraud update, in an article published today with the International Banker we look at the increasingly common authorised push payment (APP) fraud and consider what can be done and who might be liable?
Too soon to move on? Supreme Court changes limitation in secret commission cases
The Supreme Court has today provided important clarification on when “deliberate concealment” or “deliberate commission of a breach of duty” by a defendant will extend the limitation period for bringing claims.
The decision is bad news for financial services firms affected by PPI mis-selling claims and other claims in which firms are accused of making secret commissions on financial products, such as interest rate swaps and other derivatives.
UK Finance – Fraud Update
UK Finance has recently published its half yearly fraud update for the first half of 2023, its findings are based on data reported to it by its members, which include financial providers, credit, debit and charge card issuers and card payment acquirers.
Opening salvo – enforceability of litigation funding agreements in a post-PACCAR world?
The recent interim judgment of Therium Litigation Funding A IC v Bugsby Property LLC [2023] EWHC 2627 (Comm) appears to give us an early indication of what might become key battlegrounds between Third-Party Funders and certain funded litigants in the wake of the Supreme Court’s impactful determination in R (PACCAR) v Competition Appeal Tribunal [2023] UKSC 28.
