PPI limitation appeal – deliberate concealment

Jonathan Butters appeared in Canada Square Operations Limited v Potter [2020] EWHC 672 (QB) arguing that a PPI claim brought in 2019 was still in time despite relating to a 2006-2010 contract.  Mr Justice Jay decided a point of “general importance” in relation to the application of limitation periods to consumer credit claims for PPI mis-selling about which he said there was “a diversity of first-instance opinion”.

The High Court upheld the judgment of Recorder Rosen QC in which he found that Mrs Potter’s PPI claim, which was time barred under the primary limitation period, had been brought in time further to section 32 of the Limitation Act 1980 (deliberate concealment of facts relevant to the right of action).   The High Court found this on two grounds. 

  • First, the unfair relationship (for the purpose of sections 140A-C of the Consumer Credit Act 1974) which arose from the lender’s continued non-disclosure of the excessive commission it received constituted a ‘breach of duty’ for the purpose of section 32(2) of the Limitation Act, in line with the interpretation placed on that phrase by the Court of Appeal in Giles v Rhind (No 2) [2009] Ch. 191, per Arden LJ at [36-39]. 
  • Secondly, the Recorder was correct to find that the lender’s breach of duty was deliberate between April 2007, when sections 140A-C came into force, until March 2010, when the loan ended.  During this period the lender had to be taken to have known that it was under a duty to act fairly, and to have decided that the commission would not be disclosed. There was “some degree of blameworthiness”, and “unconscionable conduct” to that decision.  The lender had to be treated as apprehending that there was a risk that legal wrongdoing would be found by the court.

You can read the full judgment here

Jonathan appeared on behalf of the successful respondent, instructed by Kevin Durkin of HD Law.

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