Supreme Court6 Apr 2025 08:05
Day 3 summary from MILS - https://www.mils.co.uk/news/johnson-v-firstrand-bank-ltd-wrench-v-firstrand-bank-ltd-and-hopcraft-v-close-brothers-ltd-day-three/
In Conclusion
After consideration of all three days, it is our opinion that this case could go either way. Whilst uncomfortable and extreme, Johnson, Wrench and Hopcraft's interpretation of case law and its application to the motor dealer relationship is capable of resulting in a fiduciary relationship being applied. If this is the case, the only way a dealer could have received commissions fairly would have been through informed consent, likely requiring the existence and amount of any commission to be expressly disclosed.
That said, there are some significant difficulties with this approach, not least of which is that all the case law refers to a traditional finance broker role who is not providing any goods. This is a significant factor. After considering the representations and the Court’s approach throughout, we are cautiously optimistic that a fiduciary duty is unlikely.
Most dealers may however still face a duty to provide disinterested advice which would need to be justified on a case-by-case basis. In this scenario we would likely have an FCA redress scheme whereby disclosure of the existence of commission could be all that would be needed to defend against any wrongdoing.
The greatest potential for an upset remains in how the Supreme Court engages with Plevin and the potential for an unfair relationship under s140A.
Either way, as the court has indicated that a judgement may be handed down as early as July, watch this space and we will keep you informed.