To put this another way – what is wrong with discretionary commissions (DCAs)? In answering this question below, we are not giving legal advice but are providing our view on the situation in general. Nor are we saying that all claims will succeed (albeit that in the redress scheme context, any claim that falls into one of the three categories selected by the FCA should qualify for redress). Each claim will turn on its own facts.
With these caveats, the essence of these claims is that the lender should take responsibility for having established a scheme of payment of commissions which disadvantages the customer.
If a secret ‘Difference In Charge’ commission, or 'Discretionary Commission Arrangement' was associated with a consumer’s credit agreement, parallel and overlapping claims in law / regulatory complaints arise.
There are two routes to liability in relation to DCAs, now that the Supreme Court has confirmed, in its judgment handed down on 1 August 2025 in Hopcraft, Johnson and Wrench that there is no claim for breach of fiduciary / disinterested duties.
- Financial Services Regulations (the Financial Services and Markets Act 2000 / the Financial Services Handbook, and in particular, CONC, the Consumer Credit Sourcebook. These, in combination, create a direct claim against the lender on the part of a consumer.
(It is not necessary in our view to look further than here when considering a discretionary commission claim.) - The Consumer Credit Act 1974, in particular ss140 A and B, which set out provisions to rectify unfairness in the relationship between borrower and lender.
(The Supreme Court upheld Mr Johnson’s claim under this limb of his claim.)
Financial Services Regulations
The Judge in R (Clydesdale Financial Services Ltd) v Financial Ombudsman Service Ltd [2024] EWHC 3237 (Admin) quotes a decision of the Financial Ombudsman:
The discretionary commission model Barclays PF used in Miss L's case, created an inherent conflict between the interests of the Broker and the interests of Miss L, as it gave the Broker an incentive to set a higher interest rate than Barclays PF would have accepted so that the Broker could receive more commission.
In introducing and operating the discretionary commission arrangement with the Broker on the terms it did, Barclays PF acted contrary to the guidance at CONC 4.5.2G and failed to have due regard to Miss L's interests and treat her fairly as required by Principle 6 of the Financial Conduct Authority's ("FCA") Principles for Businesses (the "Principles").
This expresses the lender’s conduct in terms of a breach of investment Principles and ‘Guidance’ (denoted by ‘G’). The regulator is able to impose sanctions on regulated firms for breach of Principles and Guidance. In order to bring a claim under s138D of FSMA, a consumer needs to show a breach of a ‘rule’ (denoted by ‘R’) in the Handbook.
In the FCA’s published findings in its investigation of the motor finance sector (published in March 2019), the FCA found that the way in which commission arrangements operate might be leading to consumer harm on a potentially significant scale (see the FCA Review Findings, Executive Summary, p.4).
In the paragraphs below, we pick through the various ways in which the lenders’ conduct in a paradigm motor finance case offends against the regulatory framework in which they were supposed to operate.
PRIN requires lenders and their agents to adhere to eleven principles of business (the ‘Principles’) in their dealings with consumers. By secretly operating a discretionary commission model, to a consumer’s detriment, a lender will be taken knowingly to have incentivised the dealership to act against consumers’ best interests. It will therefore have breached the Principles in at least the following ways.
It will have:
- failed to act with integrity in accordance with Principle 1;
- failed to observe proper standards or market conduct in accordance with Principle 5;
- failed to pay due regard to the interest of customers and treat them fairly in accordance with Principle 6;
- failed to pay due regard for the information needs of customers and to ensure that any information was communicated to them in a way that is clear, fair and not misleading in accordance with Principle 7;
- failed to manage the conflict of interest between it and its customers fairly in accordance with Principle 8; and
- failed to take reasonable care to ensure the suitability of its advice and discretionary decisions to any customers who are entitled to rely upon its judgment in accordance with Principle 9.
The relevant Rules are:
- CONC 1.2.2R. By virtue of this rule, a lender was required to ensure that its agents complied with CONC and to take reasonable steps to ensure such compliance by others acting on its behalf. On the basis, therefore, that a) the dealer in fixing the interest rate (where there was a discretionary commission arrangement) was acting on the lender’s behalf and was its agent, and b) the dealership’s non-disclosure of the commission arrangements was a breach of CONC, the lender was also in breach, having failed take to take reasonable steps to ensure the necessary disclosure.
- CONC 2.5.3R - A firm must … explain the key features of a regulated credit agreement to enable the customer to make an informed choice as required by CONC 4.2.5[R].
- CONC 3.3.1R - A firm must ensure that a communication or a financial promotion is clear, fair, and not misleading.
…
(1A) A firm must ensure that each communication … (e) does not disguise, omit, diminish or obscure important information - CONC 3.7.3R - A firm must, in a financial promotion or a document which is intended for individuals which relates to its credit broking, indicate the extent of its powers and in particular whether it works exclusively with one or more lenders or works independently.
(A failure to disclose discretionary commission arrangements in any documents provided by the dealers to customers about their credit-brokering is an obvious breach of this duty.) - CONC 4.2.5R - (1) Before making a regulated credit agreement the firm must … (a) provide the customer with an adequate explanation of … (2)(c) the features of the agreement which may operate in a manner which would have a significant adverse effect on the customer in a way which the customer is unlikely to foresee.
(The key feature of the relevant agreements, being the rate of interest charged, which in the case of a discretionary commission arrangement was the product of the perverse incentive created by the agreement between lender and dealership, operated in a way that was adverse to the interests of clients.) - CONC 4.5.3R required that a credit-broker must disclose the existence of commission, where it might affect their impartiality or have a material impact on the customer’s transactional decision.
This was breached in our view by dealerships, since the commission is secret (it is inconceivable that salespeople might have explained to customers that although the lender was prepared to accept a lower rate of interest, they were proposing a higher one so that they could be paid more). - CONC 4.5.3AR - In circumstances where the credit broker is required to disclose the existence and nature of any commission, fee or other remuneration under CONC 4.5.3R, it must also disclose to the customer, at the same time and with equal prominence, how the existence and nature of this commission, fee or other remuneration may affect the amounts payable by the customer under the relevant credit agreement or consumer hire agreement.
This, again, was in our view clearly breached in arrangements involving a discretionary commission. - CONC 4.5.4R required the lender to disclose to customers, in good time before a regulated credit agreement or a regulated consumer hire agreement was entered into, the amount (or if the precise amount was not known, the likely amount) of any commission or fee or other remuneration payable to the credit broker by the lender or owner or a third party.
Breaches of rules set out in CONC give rise (subject to the limited exceptions listed in Schedule 50) to claims for statutory duty pursuant to section 138D of the Financial Services and Markets Act 2000.
In addition, all of the relevant senior staff who from time to time had managerial responsibility for motor finance were arguably personally in breach of COCON 2.2.3[R]:
SC3: You must take reasonable steps to ensure that any delegation of your responsibilities is to an appropriate person and that you oversee the discharge of the delegated responsibility effectively.
In circumstances in which neither the dealership nor the lender has disclosed the fact of the discretionary commission arrangements, client’s claims under s138D seem to us to be very strong – and this is likely to be the legal justification for the redress scheme.
Unfair relationship claims under the Consumer Credit Act
S.140A sets out what factors a court might consider when seeking to determine whether the relationship between the creditor and the debtor is fair, in relation to a credit agreement:
- any of the terms of the agreement or of any related agreement;
- the way in which the creditor has exercised or enforced any of his rights under the agreement or any related agreement; and
- any other thing done (or not done) by, or on behalf of, the creditor (either before or after the making of the agreement or any related agreement).
Under section 140B the court can require:
- the creditor to repay (in whole or in part) any sum paid by the debtor;
- the creditor to take certain action, cease certain action or prohibit certain action in connection with the agreement;
- reduce or discharge any sum payable by the debtor by virtue of the agreement;
- the return of any property provided by way of security;
- set aside (in whole or in part) any duty imposed on the debtor or on a surety by virtue of the agreement;
- alter the terms of the agreement; or
- direct accounts to be taken, or (in Scotland) an accounting to be made, between any persons.
Guidance illustrating how the court will interpret section 140A was provided in the Supreme Court decision in Plevin v Paragon Personal Finance Limited [2014] UKSC 61 WLR 4222. The key to the unfairness in that case was the degree of inequality of knowledge between the creditor and debtor. Considerations listed in Plevin as being relevant to the fairness in the relationship include: ‘the characteristics of the borrower, her sophistication or vulnerability, the facts which she could reasonably be expected to know or assume, the range of choices available to her, and the degree to which the creditor was or should have been aware of these matters’.
Here, in DCA cases, the factors which confirm that the relationship was unfair are:
- clients’ lack of knowledge of the scale of the commission paid;
- the fact that the dealership had a discretion to set the interest rate, which was influenced by a conflict of interest, in that it was motivated to increase the interest rate charged in order to increase its own commission, and that neither the relationship between the dealer’s rate of commission and the rate of interest under the finance agreement nor the dealer’s power to fix the interest rate were disclosed;
In the Johnson case, the factors that pointed to unfairness included the type of commission, the size of the commission and the tied commercial relationship between dealership and lender. These factors may apply to cases that did not involve a DCA, but which involved a lending arrangement which was arguable otherwise unfair.
The ‘things done or not done’ for the purpose of proving the jurisdictional requirement in respect of causation under s.140A(1)(c) were the non-disclosure by the lender or that by the dealer, on the basis that, in fixing the interest rate, the dealer was acting on behalf of the lender.