PPI GROUP LITIGATION ORDER REFUSED: NO TWO CONSUMER CREDIT CLAIMS ARE TOTALLY ALIKE
Since the Court of Appeal opened the floodgates on hidden commission motor finance claims in Johnson v Firstrand the question has become how the court, litigators, lenders and regulators might approach the millions of claims that are likely to follow. Should the Supreme Court, which heard arguments in Johnson this month, refuse the lenders’ appeal then a plan to avoid a flurry of claims is in the works. The FCA this month announced a plan to allow claims to be redressed on a mass scale without resorting to litigation. The Court for its part appears to have some sympathy with finding a more consolidated approach with Mr Justice Ritchie’s decision in Stuart Angel & 1379 others v Black Horse [2025] EWHC 490 giving approval to the use of omnibus claim forms in a series of motor finance claims.
However, disposing of these claims in bulk seems unlikely. Previous efforts to consolidate mass consumer actions against lenders have met with little success. For evidence of this, one need only turn to the continuing fallout over PPI. The 2000s insurance scandal rumbles on in its latter form the, so called, Plevin claim which, like Johnson represents claims of contractual unfairness relating to unknown commission. The similarities between the two are clear, and as financial lenders enter their third decade of litigation the motor finance industry will be desperate to avoid that eventuality.
Plevin claims also provide a clear cautionary tale in looking to dispose of such claims in one go. This was reinforced in a just published County Court decision which had seen litigators attempt to do just that. In Abernethy & Others v Barclays Bank UK PLC & Others [2025] EWCC 1, HHJ Kelly has refused a Group Litigation Order (‘GLO’) and will require individual claim forms be issued for each Claimant. Based on the litigators estimates this could mean as many as 100,000 fresh Plevin claims entering the Court system a decade after the Supreme Court’s decision greenlighting such actions.
It seems bizarre that generic claims cannot be straightforwardly disposed of in this way. Even the Judge here couldn’t resist the intrinsic allure of such an approach. They seemed intent on leaving the door open to future GLOs in Plevin cases citing the obvious attractiveness of dealing with these claims in bulk. Like in Angel the Court appears to recognise that the possibility of dealing with many thousands of claims together seems preferable. It must be said this case was not the perfect example of a class action. The issues in Abernathy ranged from the problematic, in that one lender complained barely a fifth of the potential Claimant’s even had a PPI policy with them, to the downright ridiculous as Darth Vader and Mickey Mouse appeared to seek redress for their credit card policies.
However, when one takes a step back and reads the judgment carefully it becomes clear why the application was refused. In fact, it seems doubtful that any grouping of Plevin cases could overcome the more serious legal issues that the Judge raised. These cases contain a litany of factual questions which each individual Claimant would have a different answer to. Questions such as: when a Claimant became aware of their cause of action, what they might have done had the commission been disclosed to them, and the impact of them being without funds, may be generic questions, but they will not have generic answers. Fundamentally, while the legal underpinnings of the claims were similar, any claim that invokes section 140A of the Consumer Credit Act, will involve an assessment of the circumstances of the agreement. Unfairness is a fact sensitive concept. Plevin claims remain like snowflakes, however similar they may look, factually they are all unique. This was remarked upon by Lord Sumption in Plevin back in 2014 and despite repeated narrowing of the scope for legal argument by successive higher court decisions, the factual disputes of these claims remain as alive as ever.
It is difficult to see how a group approach for motor finance claims would fair any better. It appears unlikely that the Court will relent and permit substantive group litigation where these issues are live. The parties to these claims cannot even seem to agree on a sensible bulk approach. Lenders opposed the consolidation attempts in both Angel and Abernathy. In Abernathy the GLO approach was opposed by several of the large-scale litigators who dominate the Plevin claims marketplace. The FCA may believe it can head off these claims, but it is worth noting that Plevin claims were subject to an FCA redress scheme back in 2017 which appears ultimately to have done little to stem the avalanche of litigation that continues to fill the Courts. Angel appears to stake a middle ground in omnibus claim forms. While this may assist in narrowing issues of law in what remains a fairly novel cause of action this alone is unlikely to stop the deluge of individual factual cases that will keep the court busy for years to come.
Anyone who has ever dealt with a Plevin or motor finance claim will empathise with the belief that there must be a way of dealing with these claims at scale. The goal may be an admirable one, particular given the clear impact that millions of motor finance claims would have on an overburdened, underfunded civil court system. However, those looking for a quick one size fits all solution must learn the lessons of the PPI compensations schemes, or they will be doomed to repeat them.