The conventional wisdom in the legal market is that PPI is finished. The FCA's August 2019 deadline passed, the banks provisioned billions, and the claims management industry moved on. That conventional wisdom is wrong. An estimated £60 billion in PPI commission claims remains unclaimed, and two Supreme Court decisions — Plevin v Paragon Personal Finance Ltd [2014] UKSC 61 and Canada Square Operations Ltd v Potter [2023] UKSC 41 — have together created a litigation landscape in which many of those claims are neither time-barred nor resolved. For law firms with the expertise to pursue them, the opportunity is substantial.
Plevin: The Foundation
The Supreme Court's decision in Plevin v Paragon Personal Finance Ltd [2014] UKSC 61 established the legal basis on which undisclosed PPI commission claims now proceed. The court held that the non-disclosure of a very high commission paid to an intermediary on the sale of a PPI policy could render the relationship between the lender and borrower unfair within the meaning of section 140A of the Consumer Credit Act 1974.
Critically, the Plevin test is not about the fact of commission alone. The unfair relationship test under section 140A is triggered where the commission paid to the intermediary exceeded 50% of the premium paid by the consumer for the PPI policy. Where that threshold is met, and the commission was not disclosed to the consumer, the relationship is capable of being found unfair and the consumer is entitled to seek redress in respect of the excess above 50%. Where commission was below that threshold, no unfair relationship arises on this basis.
This threshold test is fundamental to correct eligibility assessment. It is not sufficient to establish simply that commission was paid and undisclosed — the quantum of the commission relative to the premium is the operative question. Expert analysis of the commission rate is therefore the essential first step in any Plevin claim.
Potter: The Limitation Lifeline
The FCA's 2019 deadline applied to complaints made under the FCA's PPI mis-selling redress scheme. It did not extinguish legal claims under section 140A of the Consumer Credit Act. However, lenders have routinely argued that such claims are time-barred under the six-year limitation period in the Limitation Act 1980 — particularly where the credit agreement ended more than six years before proceedings were issued.
The Supreme Court's unanimous decision in Canada Square Operations Ltd v Potter [2023] UKSC 41 fundamentally undermines that limitation defence in many cases. Mrs Potter had taken out a loan with Canada Square in 2006, with a PPI premium of £3,834. Over 95% of that premium — some £3,650 — was paid to Canada Square as commission. She was not told this. The loan ended in 2010. She complained in 2018 and issued proceedings in 2019 — well outside the standard six-year period from the end of the agreement.
Canada Square argued time bar. The Supreme Court dismissed that argument. The court held that where a defendant withholds and keeps secret from the claimant a fact relevant to their right of action — whether by taking active steps to conceal it or simply by failing to disclose it — that constitutes deliberate concealment within the meaning of section 32(1)(b) of the Limitation Act 1980. Crucially, there is no requirement for the defendant to have been under a legal duty to disclose the information, and no requirement for the defendant to have known the concealed fact was relevant to a cause of action. The limitation period does not begin to run until the claimant discovers the concealment, or could with reasonable diligence have discovered it.
Applied to PPI commission claims, Potter means that the limitation clock did not start running for most claimants until they actually found out about the commission — not when the credit agreement ended, and not from the date of the Plevin judgment itself. The effect is that a substantial body of claims previously dismissed as time-barred may properly proceed.
The Limitation Question That Remains
Potter does not make all PPI claims limitation-proof. Lenders will argue — with some justification — that the extensive media coverage of PPI mis-selling in the years following Plevin means that some claimants could, with reasonable diligence, have discovered the commission issue earlier than they did. Where that argument succeeds, time would run from the point of constructive knowledge rather than actual discovery. This will be a case-by-case assessment, and one that requires careful analysis of when the particular claimant could reasonably have been expected to investigate their position.
Lenders may also distinguish claims issued from 2020 onwards on the basis that, six years after the Plevin judgment in 2014, the issue was sufficiently in the public domain that reasonable diligence would have required earlier investigation. That argument has not yet been definitively tested, and the courts are likely to take a fact-specific approach. The point is live and practitioners should be aware of it.
The £60 Billion Opportunity
The total value of undisclaimed PPI commission is estimated at approximately £60 billion. This represents PPI policies sold across the major high street lenders — Barclays, Lloyds, HSBC, NatWest, Santander and others — predominantly between the mid-1990s and 2011. Many of those policies were sold with commissions well in excess of the 50% Plevin threshold: the Potter facts, where commission represented over 95% of premium, were far from unusual. The commission rates on many policies ranged between 60% and 80% of the premium — comfortably above the threshold that establishes unfairness under Plevin.
The combination of Plevin's eligibility framework, Potter's limitation analysis and the sheer volume of policies that were never subject to a commission disclosure creates a litigation pipeline that the legal market has only begun to address.
Implications for Expert Witness Reports
Expert witness involvement in Plevin claims falls into two distinct areas. First, the commission rate analysis: establishing whether the commission paid on a particular policy exceeded the 50% threshold requires access to and analysis of the underlying financial data — premium amounts, commission amounts, the terms of the intermediary agreement, and any partial disclosure made at the point of sale. This is specialist forensic accounting work, not a mechanical calculation.
Second, quantum: where liability is established, the expert must calculate the redress due — the excess commission above 50%, together with interest at the appropriate rate over the period from sale to settlement. This calculation requires careful methodology, particularly where the premium was added to a loan and the consumer paid interest on it over the term.
Reports that do not correctly identify the commission rate, apply the 50% threshold, or calculate quantum by reference to the correct methodology are likely to be challenged. Law firms should ensure that expert reports in Plevin cases are produced by practitioners with the appropriate forensic accounting expertise and familiarity with the relevant case law.
What Law Firms Should Do Now
- Assess the commission rate on each policy against the 50% Plevin threshold before proceeding — eligibility is not automatic
- Consider the limitation position carefully in light of Potter, including when the particular claimant could with reasonable diligence have discovered the commission
- Obtain DSAR data from lenders to establish the commission rate and any disclosure made at point of sale
- Ensure expert reports address both the commission rate analysis and quantum methodology correctly
- Review any existing reports prepared before Potter for limitation analysis and before Plevin's threshold was fully understood for quantum methodology
Rivermead's Approach
The Rivermead Partnership produces expert witness reports in PPI Plevin commission claims covering both liability — commission rate analysis against the Plevin threshold — and quantum, calculated in accordance with the correct methodology for the relevant policy type. We work with law firms acting for claimants and can provide reports suitable for both pre-action correspondence and court proceedings.
If you have PPI Plevin cases you wish to discuss, or instructions to place, please request a call back and we will be happy to advise.