Berry v Black Horse Limited [2026] EWCC 54
A recent County Court appeal has potentially significant implications for claims brought under sections 140A–C of the Consumer Credit Act 1974, with HHJ Glen concluding that such claims are not governed by the limitation periods contained in the Limitation Act 1980.
The decision in Berry v Black Horse Limited applies the reasoning of the Supreme Court in THG Plc v Zedra Trust Company (Jersey) Ltd [2026] UKSC 6 and challenges what had become a longstanding assumption that a six-year limitation period, commencing at the conclusion of the creditor/debtor relationship, applies where a claimant seeks a financial remedy under the unfair relationship provisions.
The significance of the decision is considerable – but so too is the tension it creates with the way the issue has previously been approached by the higher courts.
The background
The underlying credit agreement dated back to June 2005. Mr Berry purchased a Volkswagen Golf using hire purchase finance provided by Black Horse. The dealer, acting as credit broker, received commission totalling £935.80, including a payment made under a Discretionary Commission Arrangement. There was no evidence that Mr Berry had been informed of either the fact or amount of those payments.
Mr Berry issued proceedings in March 2023, seeking, among other remedies, a declaration that an unfair relationship within section 140A existed and repayment of sums paid under the agreement. At first instance, the District Judge held that a six-year limitation period applied from the end of the parties’ relationship. The claim was therefore held to be time-barred.
Following the Supreme Court’s judgment in THG, however, Mr Berry was permitted to amend his grounds of appeal. The sole issue became whether the Limitation Act 1980 prescribed any limitation period at all for claims under sections 140A–C.
The problem created by THG
THG concerned unfair prejudice petitions under section 994 of the Companies Act 2006 rather than consumer credit.
The Supreme Court held that neither section 8 nor section 9 of the Limitation Act applied to those claims. Of particular importance was the nature of the statutory jurisdiction: the legislation did not create a substantive obligation which the claimant was seeking to enforce. Instead, it enabled the court to consider a state of affairs and exercise a very wide discretion over whether, and how, relief should be granted.
The Supreme Court also rejected the previous “look and see” approach under which the applicable limitation period could depend upon the particular remedy being sought. It concluded that statutory claims conferring a wide discretion as to remedy are not claims to which section 9 applies.
The question in Berry was whether that reasoning should also apply to the unfair relationship regime under the Consumer Credit Act.
HHJ Glen concluded that it should.
What about Smith v RBS?
This is where the decision becomes particularly interesting.
In Smith v Royal Bank of Scotland plc [2023] UKSC 34, the Supreme Court considered when limitation began to run in an unfair relationship claim. The case proceeded on the basis that the six-year period under section 9 of the Limitation Act applied because the claimant was seeking a financial remedy. The Supreme Court held that time ran from the end of the credit relationship.
At first sight, that appears difficult to reconcile with Berry.
But the critical distinction identified by HHJ Glen was that the existence of an applicable limitation period was not itself the issue argued in Smith. The court was being asked when time started to run, rather than whether a statutory limitation period applied in the first place.
That distinction matters in an adversarial system. As HHJ Glen observed, appellate courts decide the issues put before them; the fact that a proposition has been assumed by the parties in previous litigation does not necessarily amount to an authoritative determination of that proposition.
As the judgment puts it, adopting the reasoning in THG:
“A settled practice, or widespread belief, is not the same as an authoritative decision…”
Why did the appeal succeed?
HHJ Glen considered sections 140A–C to be analogous in their essential nature to the statutory jurisdiction considered by the Supreme Court in THG.
Section 140A does not impose a substantive duty on a lender not to create an unfair relationship. Rather, it allows the court to examine the overall relationship between creditor and debtor. If unfairness is established, section 140B gives the court an extremely broad range of remedies.
HHJ Glen characterised section 140A as a “state of affairs” provision: the court determines whether the way in which the debtor has been dealt with gives rise to unfairness and then decides, in the exercise of its discretion, whether and how that unfairness should be remedied.
Applying THG, the Judge therefore concluded that a section 140A claim is neither an action upon a specialty for the purposes of section 8 of the Limitation Act nor an action to recover a sum due by virtue of an enactment for the purposes of section 9.
His conclusion was clear:
claims under section 140A are not governed by the provisions of the Limitation Act 1980.
Does that mean historic claims can simply be brought without limit?
Not quite.
The absence of a statutory limitation period does not mean that delay becomes irrelevant.
HHJ Glen emphasised that the control mechanism instead lies in the court’s broad discretion over relief. A claimant who has known, or ought to have known, of the relevant unfairness but has simply “sat on their hands” cannot necessarily expect the court to exercise that discretion in their favour.
Delay and the equitable doctrine of laches may therefore assume considerably greater importance. The Judge also suggested that the periods contained in the Limitation Act – particularly the six-year period under section 9 – could still provide a useful yardstick in claims which are, in substance, retrospective compensation claims.
So the issue potentially moves from a relatively binary question – is the claim statute-barred? – towards a more fact-sensitive one: what effect should the claimant’s delay have on the court’s exercise of its discretion?
What does Berry mean in practice?
For practitioners dealing with unfair relationship claims, particularly historic consumer credit and commission claims, Berry is plainly significant.
Claims which might previously have been considered outside the primary limitation period may require fresh consideration. Equally, however, the age of a claim, the claimant’s knowledge and the explanation for any delay remain highly relevant to the prospects of obtaining relief.
There is also an important note of caution.
This is a County Court decision and the position is unlikely to end here. HHJ Glen recorded that both parties had made clear their intention to appeal regardless of the outcome and expressed the hope that the issue would receive authoritative consideration at an early stage.
Until then, Berry creates an important new argument on limitation in section 140A claims, but not necessarily the final word.
For claimant firms handling unfair relationship and consumer credit claims, the immediate practical point is to be wary of treating the conventional six-year limitation analysis as determinative without considering Berry, THG and the particular circumstances surrounding any delay.
