Section 404 challenges - Part 1 - Basics20 Aug 2025 20:29
This might get quite interesting and problematic for the FCA unless the industry agrees to self immolate and hand out money like confetti.
"All elements of the section hinge on failures in these contexts: the scheme can only address non-compliance with requirements linked to such activities, and redress is limited to losses where a legal remedy (e.g., damages or rescission) would be available in court proceedings arising from those failures." (Grok4)
As per section 404 (1) (b) "have suffered (or may suffer) loss or damage in respect of which, if they brought legal proceedings, a remedy or relief would be available in the proceedings" - i.e. they have to be within the law as if being ruled upon by a court.
Reference back to the Supreme Court comment [297] "The application of the test in each case will, inevitably, be a highly fact-sensitive exercise" - which is where the FCA have to be very clearly making that determination on the side that is well defined, in law, otherwise they will be immediately challenged on the legality of any stretch determination and in breach of the FOS who would administer the redress scheme.
Could the FCA rely on possible breaches of CONC rules at the time ? From the Supreme Court ruling as a bit of guidance as to what was referenced :
[259] CONC 3.3.1R - communication “clear, fair and not misleading” - the 'panel of lenders' misleading Johnson hiding the commercial tie first refusal.
[299] CONC 2.5.8R "A firm must not:" ... "(13) give preference to the credit products of a particular lender where the object of doing so is for, or can reasonably be concluded as having been for, the personal gain of the firm or of a person acting on its behalf, rather than in the best interests of the customer;" - the commercial tie reference the FCA will possibly lean on.
Take very particular note of the wording "rather than in the best interests of the customer" - implied fiduciary duty.
However paragraph 4.41k referenced in the handbook states "giving undue preference to the products of particular creditors where the object of doing so is, or can reasonably be concluded as being, for personal gain or advantage rather than in the best interests of the borrower. For example, because the credit broker or intermediary stands to benefit financially if the borrower purchases a product being offered by a particular creditor because of the financial arrangements between the parties."
This particular wording either requires a fiduciary duty or is otherwise conflicting and overruled by the recent car finance Supreme Court ruling that allowed a brokers commercial interests and not "best interests of the customer".
CONC 3.7.4G on disclosure was implemented 28 Jan 2021 and is still only guidance.
CONC breaches on their own are not necessarily enough under CCA as per the SC.
Open to other legal feedback or cases of interest, more to follow.....
Not found 1 popcorn... munch... munch...