Issued Discretionary Commission Arrangement claims

The issued group claims are currently stayed pending appeals of judgments on procedural points. Those points are the ‘Jurisdiction Issue’ and the ‘Severance Issue’ which, in short, concern whether these claims can be heard in the High Court as well as whether the claims can be brought on one claim form alongside those other claims issued against each lender.

These claims were originally stayed pending judgment being handed down in Morris and others v Williams & Co Solicitors (a firm) [2024] EWCA Civ 376 (‘Morris’). The dates for these appeals have now been confirmed as February 18 and 19, 2025. We explained to the court that we wanted this hearing to take place in June or July 2024. However, the defendants each explained that they would not be available for the hearing until 2025. As a result, the court set the start date for the hearing as February 18, 2025.

There are a number of other applications being made by both the Appellants and Respondents which are likely to be heard before February and should narrow the issues in time for those appeal hearings.

Progressing DCA Complaints at the FOS:

For the vast bulk of the non-issued discretionary commission arrangement claims we have been reformulating these claims as complaints, under dispute resolution (DISP) guidelines.

This appears to be a viable route for success. The Financial Ombudsman Service (FOS) have published decisions where they uphold these complaints and lenders are now confirming whether these commission arrangements applied or not.

This should give greater predictability as there appears to be a streamlined approach starting to be adopted at the FOS. Whilst it is true that one of two decisions published by the FOS (resulting in the FCA investigating) is being judicially reviewed by the at-fault lender, Barclays Partner Finance (‘Barclays’), we still anticipate the eagerly-awaited statement that is to be published by the FCA on or around September 25, 2024.

Bribery/Breach of Fiduciary Duty claims

The firm has now employed two solicitors to manage and issue these claims. Collectively the solicitors have experience on Plevin Unfair Relationship Claims as well as diesel emission group actions. Their combined experience should greatly assist the progression of these claims.

The firm still intends to issue these claims in groups, with multiple claims issued on one claim form, pursuant to CPR 7.3. With the delays of the appeals in the issued claims, the firm must now look to other judgments to support our proposed method for how these claims will be issued. Fortunately, such a judgment exists, being the appeal decision in Morris (referenced above). We believe this judgment will support our intended approach of issuing multiple claims on one claim form, with a more straightforward test now being in place, per the judgment.

The appeals of the Wrench, Johnson and Hopcroft judgments are each to be collectively heard in the Court of Appeal this month. These appeals will become the leading authority on bribery and breach of fiduciary motor finance claims.

Barings Law is continuing to recover thousands of pounds in compensation for clients who struggled to make payments toward their car finance agreements.  

All car finance providers are legally required to carry out proportional credit and affordability checks prior to entering into an agreement with a consumer. This means reviewing both the client credit record and the income and expenses of a consumer to ensure they can afford to make payments.

In 2019 the FCA said the following:

“We are not satisfied that all lenders we surveyed were complying with FCA rules on assessing creditworthiness, including affordability. Some seemed to focus unduly on credit risk rather than affordability.”

If a lender failed to carry out sufficient credit and affordability checks, this may lead to our clients falling behind on other commitments or having to borrow money to ensure they keep up with their monthly repayments.

Hundreds of our clients have stated that they felt pressured into accepting the finance and the car finance agreements affected their mental wellbeing and quality of life as it added a huge amount of pressure, not only to their finances but also to their personal lives.

We have successfully recovered thousands of pounds in compensation for our clients and the average refund is more than £5,000*!

If an affordability complaint is successful, we recover all the interest from the agreement. If the loan is still running, your balance will be reduced.

* figure based on the total settlement amount divided by the number of clients we have won compensation for. Figure is before deduction for legal fees/disbursements

Capita

We have issued proceedings on behalf of nearly 7,000 claimants affected by the Capita data breach from March 2023, with more coming on board. We are currently in discussions with TLT, who have been nominated as Capita’s third-party legal representatives. TLT are due to file their defence this month, after which we will resume Court proceedings.

Further to the initial breach, it has come to our attention that more data was exfiltrated. We have written to several pension providers, as well as the Information Commissioner’s Office (ICO), and we are now expecting a response from them detailing the findings of their forensic investigations. 

We are also still onboarding new clients who will be added to a second cohort of Claimants, some of whom have only recently been notified more than 12 months after the data breach.

South Staffs Water

After admission of liability by SSW, we have sent their legal representatives (DWF) a letter before claim and a schedule of 756 Claimants, detailing how the data breach impacted them.

We are in the process of chasing a response to our letter sent on April 5, 2024, which they have acknowledged pending further investigations.

We are expecting a response by the end of July. Failure to respond will result in proceedings being issued.

Progress/MOVEit

We have been corresponding with Progress Software since the breach who have denied liability.

We are continuing our correspondence to determine which Company is responsible for the system that was breached. We have drafted letters to be sent out to all the companies involved. However, we are still waiting for their admission of liability before issuing proceedings.

Shared Services Connected Ltd/Ministry of Defence

We are still in the process of onboarding new Claimants who have been affected by the data breach experienced by SSCL, the third-party contractors providing their payroll services to the Ministry of Defence.

We have sent a letter before claim to SSCL with a schedule of more than 2,000 Claimants, all of whom are either volunteers, reservists, serving or veterans in the Armed Forces.

This letter was sent on 19 June and we will await their response before we send a letter of Claim stating our intent to issue court proceedings.

Carphone Warehouse

A case management hearing was heard on June 24, 2024, attended by Barings Law representatives and Counsel. The decision taken by the court was to issue a draft order with a proposal for both parties to enter into Alternative Dispute Resolution (ADR) measures. During this five-month arbitration period, a third party of impartial mediators will look to help the two sides to overcome any issues concerning liability and reach an agreement.

Arnold Clark

We have been corresponding with their legal representatives, who are still denying liability.

We are waiting for their response after the ICO has dismissed the case.

BIC has had a very successful and productive quarter. We recently attended the appeal for the ‘At the Premises’ test case, which was heard over a week-long trial in mid-June. Members of the Business Interruption team attended the Court of Appeal in London to support our clients. We are now awaiting the handing-down of the judgment and we expect that it will bring long-awaited progress for many policyholders with the same or similar wordings. Barings are continuing to ensure all of our clients’ claims who will be affected by the judgement are prepared to advance as swiftly as possible.

For those policies unaffected by the At the Premises appeal and other judgments, we are working hard to ensure cases are equipped to receive the Court’s attention as soon as possible.

Finally, for the policies affected by the FCA test case and other recent judgments, we are seeing increasing settlements and interim payments coming in for clients, which is a very rewarding experience.

The test cases which have been issued are currently progressing through the courts, with several upcoming hearings for which we are preparing. We have retained Counsel Will Hopkin, who successfully represented Mr Pengelley in the Appeal of Wood v Commercial First Business Ltd & ors and Business Mortgage Finance 4 plc v Pengelley [2021] EWCA Civ 471 and we are hopeful of a favourable outcome.

Barings Law are pleased to announce that they have taken over conduct of numerous client case files relating to Castle Trust Management Services, who are based in Gibraltar. In or around 2014, a vast number of individuals received negligent financial advice which resulted in more than £10m of pension benefits being transferred into ‘inappropriate and high-risk’ qualifying recognised overseas pension schemes.

While total losses are still to be determined, it is considered that the minimum level of losses stand at approximately £10m.

Due to the detrimental impact this has had on numerous client retirement provisions, Barings Law are passionate about representing those clients who have received negligent advice in respect of transferring their pension benefits. Our intention is to recover their hard-earned retirement benefits for them.

Barings Law has expanded into representing clients who have fallen victim to bank fraud.

Bank fraud has become a growing concern and the majority of ‘Authorised Push Payment’ (APP) fraud is facilitated via sophisticated scam operations, primarily functioning online.

Our dedicated Banking Claims Department has experienced a vast number of clients engaging our services to represent them in high-value bank fraud cases, involving but not limited to:

· Crypto-Currency Scams

· Romance Scams

· Impersonation Scams

· Purchase Scams

We are continuously exploring ways to outline and bring awareness of sophisticated scam operations and highlight the detrimental financial impact it is having on our clients.

Additionally, we are passionate about educating the public by raising awareness surrounding financial institutions’ (eg banks’) obligations. They have a duty of care to their customers to protect them from fraud and to ensure that they have the relevant fraud prevention measures in place.

We are pleased to announce that our immigration department has achieved a remarkable success rate, of Immigration bail being granted on all the cases we were instructed on, in the last quarter.

One notable case involved an adult client in the UK seeking to remain on the basis of private life. Last year, the Home Office attempted to remove him via charter flight, but we successfully stopped the removal. Recently, we won his case, and he now has the right to remain in the UK on private life basis.

Additionally, we are working on a case of unlawful detention where a client was held for approximately four months after a judge granted bail. Despite the judge’s decision, the Home Office did not release the client immediately. We diligently fought for his release, ensuring justice was served.

Our team continues to work tirelessly to protect the rights of our clients and uphold justice in immigration matters.