When it’s not fair, it’s not time-barred: Berry v Black Horse

Are consumer credit claims subject to a limitation period? Contrary to perceived wisdom, the answer is possibly not.

In Christopher Berry v Black Horse Limited [2026] EWCC 54, Judge Glen (hearing a county court appeal) considered this fundamental question. While judgments abound on the postponement of limitation for fraud, concealment or mistake, in this case the court concluded that no statutory limitation period applies at all to consumer credit claims under sections 140A-C of the Consumer Credit Act 1974 (CCA). Pending an (anticipated) appeal to the Court of Appeal, this decision is likely to have significant consequences for consumer credit litigation. While not creating binding precedent, if followed it may pave the way for future claims arising from historic consumer credit agreements.

Why did the court find no limitation period applies?

The basis for this finding was the Supreme Court’s ruling in THG plc v Zedra Trust (itself a pivotal ruling), that no statutory time limit applies to claims for unfair prejudice under section 994 of the Companies Act 2006. In Zedra, the court held the legislation does not create a substantive obligation to which a limitation applies. Instead, it exists to provide relief in respect of an unfair ‘state of affairs’. The court has the discretion to remedy the ‘unfair’ state of affairs and in exercising that discretion is not constrained by the Limitation Act 1980.

Despite dire warnings against reaching a similar conclusion on the application of the CCA, Judge Glen found, in a carefully reasoned decision, that the unfair relationship jurisdiction in the CCA mirrors the unfair prejudice regime under company law. This article considers how that analysis may impact the future of consumer credit litigation, including motor finance commission claims, the FCA’s consumer redress scheme, and the treatment of historic consumer complaints more generally.

From conduct to a state of affairs

This appeal (from the decision of a district judge in the county court) arose from a familiar motor finance scenario. Mr Berry entered into a hire purchase agreement in 2005. The dealer received multiple commissions from the lender, including a payment under a discretionary commission arrangement. The claim was issued almost 18 years later, seeking relief under section 140A on the basis that the undisclosed commissions rendered the relationship unfair.

Historically, credit claims for monetary relief have been treated as falling within the six-year period in section 9 of the Limitation Act 1980. The main debate on limitation has focused largely on postponement under section 32 for deliberate concealment. Indeed, this was the issue considered by the Supreme Court in both Potter v Canada Square Operations Ltd and Smith v Royal Bank of Scotland plc.

Judge Glen concluded, however, that those cases assumed rather than decided the existence of a limitation period. This assumption was, of course, the same one that the Supreme Court recently considered to have been wrongly held in THG v Zedra. In that case, considering unfair prejudice petitions under sections 994-996 of the Companies Act 2006, the Supreme Court held that such claims are not actions upon a specialty and are not claims to recover sums recoverable by statute. Instead, they seek relief in relation to a ‘state of affairs’ which the court, exercising a broad discretion, considers unfair.

Judge Glen considered that the same reasoning applies to sections 140A-C. Like unfair prejudice, the unfair relationship jurisdiction does not impose substantive obligations. Nor does it entitle a claimant to any particular remedy. Instead, it empowers the court to examine the overall relationship and decide whether it has become unfair and, if so, what remedy should be granted.

Unfair parallels

A striking aspect of the analysis is the express comparison between unfair relationship claims and unfair prejudice petitions.

Both regimes are concerned with unfairness rather than breach of duty. In unfair prejudice cases, relief may be granted where there has been no breach of an enforceable legal obligation. The complaint is that a state of affairs exists which unfairly prejudices a shareholder’s interests. The court has a wide remedial discretion to correct that unfairness.

Judge Glen considered that section 140A operates in the same essential way. A consumer need not identify a breach of contract, tort or statutory duty. The question is whether the relationship itself is unfair. Because of the wide-ranging analysis the court must conduct, its range of remedies is also wide.

Limitation

Traditional limitation periods assume a cause of action that accrues when a legal wrong occurs. Section 140A is different. The courts have repeatedly emphasised that unfair relationships must be assessed holistically, with the court retaining the broadest possible remedial discretion.

The principal reason for this different approach is that the ‘state of affairs’ or unfairness may not become apparent until years later. For example, in secret commission cases, consumers often had no knowledge of the existence, nature or scale of lender-dealer commission arrangements.

In Berry, the court determined that delay should be addressed through discretion rather than rigid statutory bars. Just as unfair prejudice petitions are controlled by equitable considerations rather than limitation periods, stale consumer claims could be managed through the court’s discretion under section 140B.

Of course, this would not lead to very old claims automatically succeeding. Delay remains highly relevant. A claimant who knowingly sits on their rights may find the court unwilling to grant relief. The control mechanism simply shifts from statutory limitation to judicial discretion and principles analogous to laches. The court observed that Limitation Act periods may still provide a useful yardstick, particularly where a claim is, in substance, one for retrospective compensation.

Implications for the FCA motor finance redress scheme

The decision in Berry is particularly significant, given the issues facing the FCA’s proposed motor finance redress scheme.

The FCA’s approach has largely assumed the existing understanding of limitation. If Berry is ultimately upheld by the appellate courts, however, the pool of potentially eligible claims could be considerably wider than previously anticipated. Claims regarded as prima facie time-barred may instead require an assessment of whether relief should be granted despite the passage of time.

That would align with the consumer-protection rationale underpinning both section 140A and the FCA’s intervention in the motor finance market. The objective is not simply to compensate for identifiable legal wrongs, but to address relationships distorted by undisclosed commissions and conflicts of interest.

Regulatory divergence

The judgment in Berry is also notable for its reference to the recent Administrative Court decision in R (Barclays Bank UK plc) v FOS [2026] EWHC 1555 (Admin). There, in the context of determining that sections 140A-B CCA do not impose a positive duty on firms to remedy unfairness, the court also concluded that the FOS lacked jurisdiction over historic complaints brought outside of the applicable time-limits. For more information on the impact of that decision, see this article.

The two cases therefore illustrate different institutional responses to historic consumer detriment. The FOS is constrained by its jurisdictional rules. The courts exercising powers under section 140A, may possess a significantly broader remedial discretion.

If the analysis in Berry survives appeal, it could transform the landscape of motor finance litigation. While the political headwinds favour statutory redress schemes, if the courts have a wider discretion than the FOS to remedy historic unfairness, is it fair to constrain consumers to seek relief through a scheme which operates a significantly more restrictive and rigid procedural bar?