Multi-party Claims: Court Of Appeal Upholds Decision Allowing Over 5,000 Motor Finance Claims To Be Brought Together

The Court of Appeal has dismissed an appeal against the High Court's decision that some 5,800 claims relating to motor finance discretionary commission arrangements could be brought together using "omnibus" claim forms, contrary to the district judge's decision which would have required each claim to be brought separately: Black Horse Ltd v Angel [2026] EWCA Civ 831.

The court emphasised the fact-specific nature of claims alleging an unfair relationship under s.140A of the Consumer Credit Act 1974 (CCA), commenting that there can be no doubt that s.140A requires a “broad and holistic enquiry, with no limit on the factors that may be relevant to the question of the fairness of the relationship”. It also confirmed that there can be no question of any common issue that addresses unfairness in principle, without regard to the facts. It noted, however, that identification of a common issue does not necessarily mean that a decision on that issue must be binding in all of the claims. That would be "too narrow an approach".

In the present case, the court was “sceptical about the utility of the common issues identified”. However, there is a high bar for any appeal against a case management decision, and the court could not go so far as to say the High Court was “wrong” to conclude that there were some common issues, and that that was relevant in considering whether the claims could conveniently be disposed of for the purposes of the CPR 7.3 test for issuing a single claim form. 

In future cases, defendants may have better prospects of arguing that the convenience test is not satisfied because there are limited common issues of law and fact at play in s.140A claims. That said, the Court of Appeal considered that the potential for trying lead cases which would be "commercially persuasive" and facilitate settlement – regardless of whether they would be binding in other cases – was also a relevant factor in assessing convenience. 

It is worth noting the Court of Appeal's comment that this was "very much a decision on its own facts", which was subject to important limitations because of the limited grounds on which permission to appeal was granted and the high bar for overturning a case management decision. It was therefore not intended to be extrapolated out to other cases, but the court's comments on the factors that may be relevant in assessing convenience under CPR 7.3 are likely to be of interest nonetheless. 

Also of interest is the Court of Appeal's comment that a review of CPR 7.3 by the Civil Procedure Rules Committee is now back on the radar – despite it having rejected calls for such a review two years ago. The court noted the "vast increase in these types of claims over the intervening period" and observed that this is a topic "well worth their reconsideration".

In terms of the impact on motor finance commission disputes, the Court of Appeal referred to the FCA’s redress scheme. Since judgment was handed down, the scheme has been partially suspended by the Upper Tribunal until it has heard the legal challenges brought by some lenders and a consumer group. Even if the scheme goes ahead, the court was clear that this is a separate scheme, which operates on a different basis to civil claims brought via the courts – in particular because it operates on the basis (which the law does not) that non-disclosure of commission creates a rebuttable presumption of an entitlement to compensation. Accordingly, litigation risk remains in respect of consumers who have signed up to use a claims management company (CMC) or law firm to pursue claims, who are dissatisfied with their prospects of recovery under the FCA’s scheme, or who are not eligible to participate in the scheme.

The Court of Appeal also made some more general comments, which will be of interest to those defending motor finance disputes brought under s.140A CCA. In particular:

1. It highlighted that the precise remedy available under s.140A CCA for successful claimants should approximate, as closely as possible, the overall position that would have applied had the matters giving rise to the perceived unfairness not taken place (citing Farol Holdings Ltd v Clydesdale Bank PLC [2024] EWHC 593 (Ch)). This can be contrasted with the approach taken by the majority of claimants in these cases, who generally seek recovery of a full refund of commission paid to the motor finance broker dealer.
2. In the view of the Court of Appeal, there has been no determinative and binding decision as to whether the relevant regulatory rules required disclosure of the nature of the discretionary arrangements, ie the meaning of the FCA’s Consumer Credit Sourcebook (CONC) 4.5.3R, and whether it was wide enough to require disclosure of more than the bare fact that commission was payable. It referred to the decision in R (Clydesdale Financial Services Ltd) v Financial Ombudsman Service Ltd [2014] EWHC 3237 (Admin), in which Kerr J said CONC 4.5.3R would apply “in some cases”. The Court of Appeal commented that Kerr J deliberately left the position open ended, and it is open to defendants to argue that the decision does not apply on the facts of any individual case.

Background 

The claimants are over 5,000 individuals who purchased motor vehicles over a period spanning approximately 14 years, each entering into credit agreements with one of eight motor finance companies (the defendants) to finance their purchases. The claimants allege that, unbeknown to them, the defendants had entered into commission arrangements with the car dealers under which the dealers could set the interest rate on the credit agreement within agreed parameters and received commission linked to the rate set: the discretionary commission arrangements. 

At the heart of the claims is the defendants' alleged failure to make sufficient or any disclosure to the claimants of the discretionary commission arrangements, in breach of the Financial Conduct Authority's Consumer Credit Sourcebook (CONC). The claimants seek repayment under s.140B(1)(a) of the CCA on the basis that the relationship between each claimant and the relevant defendant was unfair within the meaning of s.140A.

County Court judgment

In November 2022, the claimants issued eight multi-party claim forms in the Birmingham County Court, one against each defendant, and served a single, generic, particulars of claim. No individual facts were pleaded. 

The claims were case managed by HHJ Worster, who concluded that the convenience test under CPR 7.3 was not met and ordered the claims to be disaggregated into over 5,000 separate claim forms. In reaching that conclusion, the circuit judge found that the common issues proposed by the claimants were of insufficient significance and that a formalised sampling process was not the appropriate way forward.

High Court judgment

The claimants appealed (see our blog post considering the High Court’s decision). In summary, the High Court held that the circuit judge had erred in applying the test set out in Abbott v Ministry of Defence [2022] EWHC 1807 (KB), which had subsequently been disapproved by the Court of Appeal in Morris v Williams & Co Solicitors [2024] EWCA Civ 376 (considered here). The court therefore re-exercised the discretion, finding that the convenience test was met, and made case management directions requiring the defendants to serve generic defences and to provide disclosure of the discretionary commission arrangements.

The defendants sought permission to appeal. The Court of Appeal refused permission on three of the four proposed grounds but granted permission on the fourth, namely whether the High Court judge had erred in the re-exercise of his discretion under CPR 7.3 and in making the case management directions he did.

Decision

The Court of Appeal dismissed the appeal. Lord Justice Coulson gave the lead judgment, with which Lord Justice Stuart-Smith and the President of the Family Division agreed.

Relevant principles

As the court noted, CPR 7.3 provides that a claimant "may use a single claim to start all claims which can be conveniently disposed of in the same proceedings". CPR 19.1 provides that any number of claimants or defendants may be joined as parties to a claim.

The court referred to the principal authorities, namely Abbott and Morris referred to above. It said it had derived little assistance from the parties' attempts to draw analogies with various first instance decisions, since the question of whether claims can conveniently be disposed of in the same proceedings is fact-specific. It summarised the principles applicable to a consideration of the convenience (or otherwise) of a multi-party claim form under r.7.3 as follows:

1. The burden of demonstrating convenience is on the claimants.
2. The test of convenience requires no elaboration because the word “conveniently” is a simple English word carrying its usual meaning and many matters may be relevant. 
3. Multi-claimant proceedings will probably satisfy the convenience test if there are common issues which will bind all or most of the claimants, but that is not the only factor.
4. A multi-party claim form must be a convenient means by which the proceedings may be disposed of, not the most convenient way. 
5. A single final trial hearing need not be possible or practicable.
6. The test of convenience has to be considered by reference to the interests of all parties, the court and the court system.

The court also noted that there have been numerous judgments emphasising the broad nature of ss.140A and 140B of the CCA and the fact-specific focus of any inquiry into the fairness or otherwise of the relationship, including for example the Supreme Court's decisions in Plevin v Paragon Personal Finance Ltd [2014] UKSC 61 and the case of Johnson decided along with Hopcraft v Close Brothers Ltd [2025] UKSC 33 (considered here). What is needed is a broad and holistic enquiry, with no limit on the factors that may be relevant. 

Relevance of case management in assessing convenience

The Court of Appeal noted that, while the ultimate issue for the court was whether there should be one claim form for all the claims against each defendant, or separate claim forms for each claim, that was in fact too narrow a question. What mattered was whether there was a suitable way of managing the claims through to convenient disposal, "which saved time and costs, and which would promote consistency of decision and allow proper access to justice". If so, then the test of convenience would be made out. 

The court rejected the defendants' argument that, since each of the claims required a separate factual assessment, they could never be conveniently disposed of other than by way of separate claim forms and separate trials. It would be too narrow an approach to say that the test of convenience could not be met if some of the claims could not be disposed of together, eg because findings in one case could not be binding in another. The possibility of efficient case management of multi-claimant claims was clearly a relevant factor when considering the convenience test, although it was not necessarily determinative.

Common issues

The Court of Appeal agreed with the decision of the courts below that, since the unfair nature of the relationship would differ in every case under s.140A, it was impossible to identify a common issue that could deal with unfairness in principle. The High Court judge was therefore wrong in principle to identify what he called cases where there was a "very clear case of unfairness", or to suggest that the size of the commission might itself justify a finding of unfairness. 

However, identifying a common issue of law or fact did not mean that a decision on that issue must bind everyone in a multi-claimant claim, nor did it necessarily exclude issues which require separate assessment. In the present case, on a common sense view, the court considered that since each of the claims involved the CCA, the CONC, the fact of a discretionary commission arrangement and the (alleged) failure to disclose that arrangement in whole or in part, it was difficult to say the claims did not involve common issues of law and fact. 

In particular, although the Court of Appeal was "sceptical" about the utility of the common issues identified by the High Court judge, relating to the alleged breach of the CONC rules and whether the car dealers were the agents of the defendants, it could not be shown that the High Court was wrong to find that there were at least some common issues, and that that was a relevant factor in any consideration of convenient disposal under CPR 7.3.

Lead cases

The Court of Appeal noted that lead cases will usually be identified in multi-claimant or group litigation. The trial of lead cases gives rise to a range of results which can be extrapolated across the other claims to give dividing lines as to which will succeed and which will not, thereby facilitating settlement. 

The court noted that any proposals for lead cases in the present case had been hampered by the claimants' failure to plead their claims on the facts, which had "perhaps obscured the possibility that lead cases were a good way through the morass of the individual claims in this case".

The court rejected the defendants' argument that, because each relationship was fact-specific so that the result in one case would not bind any others, the trial of lead cases would not take the parties further forward. The fact that a decision in one case would not bind another did not mean lead cases were not a convenient solution. Assuming they were carefully chosen to illustrate the differing fact patterns, the results in the lead cases would inevitably be commercially persuasive and would encourage settlement. That was another factor that pointed toward the convenience test being made out.