RE: City watchdog ‘nakedly’ siding with lenders4 Nov 2025 03:13
1. Deliberate Concealment
• Definition and Elements: This involves an active, intentional suppression of the truth or “active concealment of the reality” about material facts relevant to the transaction. It requires knowledge and purpose on the part of the concealer (e.g., the lender or broker) to hide information that could influence the consumer’s decision. The Court emphasized that it goes beyond mere omission—it is a “suppression” that exploits the consumer’s lack of awareness, often amounting to dishonesty or a breach of fiduciary duty.
• Context in the Judgment: In Johnson, the lender’s failure to disclose the commercial tie between itself and the dealer (i.e., the dealer was effectively an extension of the lender’s business) was held to be deliberate concealment. This was attributable to the lender, as it knew of the tie but did not reveal it, creating a hidden conflict. Similarly, in cases of fully secret commissions (as in Hopcraft), the total non-disclosure was treated as deliberate concealment, potentially constituting a bribe at common law or in equity.
• Legal Consequences:
• Contributes strongly to finding an “unfair relationship” under s.140A CCA, especially when combined with other factors like high commission rates.
• Triggers accessory liability for the lender (as in Johnson, where the lender was liable for procuring the broker’s breach).
• Tolls the limitation period under s.32(1)(b) Limitation Act if the concealment prevents the claimant from discovering the right of action with reasonable diligence (cross-referencing Canada Square Operations Ltd v Potter [2023] UKSC 41, which requires intent for “deliberate” acts).
• Remedies may include rescission, repayment of commissions, or equitable compensation.
• Threshold: High—requires evidence of intent or recklessness tantamount to intent. Mere routine non-disclosure (e.g., industry-standard practices) does not suffice.
2. Inadequate Concealment (or Inadequate Disclosure)
• Definition and Elements: This refers to a passive failure to provide clear, prominent, and sufficient information about key aspects of the arrangement, such as the existence, amount, or basis of a commission. It does not require intent to hide; it is simply a shortfall in transparency that leaves the consumer uninformed. The Court noted that partial disclosures (e.g., buried in small print under generic headings like “General”) often qualify as inadequate, as they do not secure “fully informed consent.”
• Context in the Judgment: In Johnson, the partial disclosure of the commission possibility (mentioned vaguely in terms and conditions) was inadequate because it did not explain material details like the commission’s size (10.5% of the loan) or how it influenced pricing. However, the Court stressed this alone was not sufficient to make the relationship unfair—it was the combination with deliberate concealment of the commercial
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