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29th Aug 2019

Plevin & FCA Ruling

The PPI ‘scandal’ has been making waves in the financial sphere for a long while now, but the Financial Conduct Authority (FCA), the primary financial regulator in the UK, has recently revealed its Policy Statement and Guidance in its attempts to put an end to the long-running saga.

The FCA and Plevin Ruling

This case has widespread implications for both consumers and lenders and eventually led to an FCA decision to implement further rules in cases similar to Mrs Plevin’s. The FCA came to the conclusion that unfair relationships are caused by non-disclosure of commission, but the organisation has gone to great lengths to insist that anything introduced should not be considered a form of mandatory redress.

Following this, the FCA has intervened in the handling of PPI complaints in the future and has introduced a number of key rules.

The FCA: The PPI Deadline

The FCA has announced the implementation of a deadline for PPI complaints to be raised by consumers. The regulator has decided that any further complaints must be raised by 29 August 2019, and consumers will lose their right to complain should they try to do so after this point.

This deadline will follow a communications campaign from the FCA, with this campaign intended to inform consumers of their rights. The campaign will be funded by lenders.

This deadline only applies to any complaints made directly to the lenders or referred to the Financial Ombudsman Service (FOS), so PPI complaints can still be submitted through Court proceedings. However, complaints made via Court proceedings will incur a cost, unlike the free service provided by the FOS.

The implementation of a deadline will inevitably cause a large number of new claims, as consumers fight to ensure their complaint is settled before it’s too late.

The FCA: Level Of Redress

The FCA has also introduced a “50 percent presumptive tipping point”, which means that a failure to disclose commission totalling 50 per cent or higher would represent an unfair relationship under s.140.

In any cases where this is found to be true, the relevant level of redress would be the difference between the rate of commission and the 50 percent threshold. This means that, taking the Plevin case as an example, since the threshold is 50 percent and Mrs Plevin’s commission was 71.8 percent, the level of redress would be 21.8 per cent. On top of this figure would be any historic interest and annual simple interest at 8 percent.

The FCA has also gone much further, creating rules regarding profit share. Under these rules, consumers are not only entitled to demand compensation for the ‘tipping point’ part of the PPI premium but can also seek any of the profit share applied to the PPI premium.

This has proven to be more difficult than first planned, with the FCA acknowledging that the majority of lenders did not record profit share on individual PPI policies. In order to apply profit share for the purpose of redress, a ‘broad-brush’ approach is required. This means the redress will be based on an estimate rather than a specific amount that would have been contributed as part of a PPI premium.

There had been arguments from consumers that the non-disclosure of commission should result in the full premium being returned. The FCA, however, has made clear that this would not represent appropriate levels of redress, and that doing so would give excessive redress.

The FCA also believe that returning all of the commission would provide a level of compensation that would be unfair to lenders.

The FCA: Double Recovery

Should a consumer have previously made a complaint and won compensation for a mis-sale, they will not be eligible to claim under the unfair relationship clause. This applies to cases in which the consumer did not receive full redress.

Conclusion

These new rules came into effect on 29 August 2017 and are expected to cause a rise in the number of PPI claims being submitted to lenders or FOS. However, it is also possible that, due to the limited nature of the redress proposed in the Guidance, many consumers will continue to use Court proceedings in order to claim.

While the implementation of the FCA’s Guidance will add an element of certainty to proceedings, there is set to be tension between the Guidance and the approach that can be taken by the courts. One facet of this is that the Guidance is considered to be too ‘lender-friendly’ and will lead to unfairness in the treatment of consumers.

Critics of the Guidance believe that it allows claims to be settled at the lowest possible cost and as quick as possible.

While the PPI mis-selling saga is being brought to a close, it is clear that there is still a long way to go.

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