RE: Provision adequacy31 Mar 2026 10:48
From the Supreme Court judgement from August 2025:
“The application of the test [of unfairness] in each case will, inevitably, be a highly fact-sensitive exercise” (297).
“The relationship [between Mr Johnson and FirstRand ] was unfair within the meaning of section 140A of the CCA, by reason in particular of the size of the commission, the failure to disclose the commission, and the concealment of the commercial tie between the dealer and FirstRand” (340);
"The mere fact that there has been no disclosure of the commission, or only partial disclosure, will not necessarily suffice of itself to make the relationship between lender and customer unfair… It is a factor to be taken into account in the overall balancing exercise required under section 140A” (320).
Within this context, the FCA scheme announced yesterday looks to be illegal.