From: James Lee <james.lee@kcl.ac.uk>

Sent: Friday 1 August 2025 17:35

To: obligations

Subject: UK Supreme Court on Fiduciaries (Again)

Dear Colleagues,

The UK Supreme Court has just given judgment in the high-profile car finance decision of Hopcraft v Close Brothers/Wrench v FirstRand Bank/Johnson v FirstRand Bank [2025] UKSC 33 https://supremecourt.uk/uploads/uksc_2024_0157_0158_0159_judgment_2bb00f4f49.pdf. Judgment was given after 4:30 on a Friday afternoon because there was concern that the decision might have an effect on markets. The Court of Appeal had held that care dealers were liable to customers in respect of undisclosed commissions they would receive from lenders when the customer agreed to a product presented to them by the dealer. The Supreme Court allows the appeals and holds that the majority of the claims fail.

The judgment (interestingly attributed to all five Justices hearing the appeal) runs to 340 paragraphs, so I can only speak briefly to it - but the Court reaffirms the existence of the tort of bribery (though holding that it can only be established, whether at common law or equity, in the context of a fiduciary relationship); it also holds that there was no fiduciary duty owed by the dealers because they were always acting, and understood to be acting, in their own commercial interest. On the claim under the Consumer Credit Act in respect of one claimant, Mr Johnson, the Court allows the appeal but then holds in his favour for different reasons and on different terms.

But there are range of issues considered and engaged (and some resolved in fairly short order); with disapproval of some longstanding authorities, some citation of ODG colleagues' work, and all in all as broad a sweep of issues considered as I can recall in a UKSC private law judgment over the last few years.

This will, I suspect, be a controversial judgment, but fits the trend of UK Supreme Court recent jurisprudence on equity in supposedly proceeding from (contestable) first principles and reaching what is thought to be a commercially pragmatic result.

Best wishes,

James

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James Lee

Professor of English Law 

The Dickson Poon School of Law

Somerset House East Wing

King's College London

Strand

London WC2R 2LS

E-mail: james.lee@kcl.ac.uk

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