Sheriff Appeal Court rejects defence based on car sales commission in consumer credit agreement dispute

About this case:

• Citation:
  [2026] SAC (Civ) 21
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Appeal Sheriff Brian Mohan

Anthony Gladwin, the defender in an action raised by Moneybarn No.1 Ltd seeking payment of £16,809.87 and recovery of the vehicle, had claimed before the sheriff had the contract was defective and unenforceable because of non-disclosure of the amount of commission awarded to the pursuer. The pursuer and respondent maintained that the sheriff’s determination should be upheld, as no plea-in-law had been advanced to support the defender’s propositions.

The appeal was heard by Appeal Sheriff Brian Mohan, with the defender and appellant appearing as a party litigant and the pursuer and respondent represented by McClymont, solicitor.

Trying to re-argue

In June 2023 the parties entered into a contract whereby the defender purchased a Volvo motor vehicle from the pursuer under a conditional sale agreement regulated by the Consumer Credit Act 1974. The total price of the vehicle was to be £17,821.33 payable by instalments. In March 2024 the pursuers served a default notice on the defender claiming that he was in arrears of payments and raised the present proceedings.

Initially the action was undefended and the pursuer obtained decree. The defender reponed successfully and defences were lodged. The defender challenged the jurisdiction of the court because he no longer resided within the territory of that sheriff court. In terms of the contract between the parties, the defender accepted that the agreement was entered into and that he took possession of the vehicle, but denied all other claims made by the defender. The pursuer sought summary decree on the basis that the defences presented were not valid in law.

It was determined by the sheriff that the defender’s claims regarding commission were neither relevant nor specific, and there was no application under section 140B to set aside the contract. The defender further relied on the decision of the Court of Appeal in Hopcraft & another v Close Brothers (2024), which was later appealed to the Supreme Court conjoined with other similar cases. On appeal, the appellant argued that his case was similar to that of one of the litigants in the four cases reported collectively as Hopcraft & Others (2025), Mr Johnson, and as a result of that decision his contract should be cancelled.

For the pursuer and respondent, it was submitted that the appellant was now trying to re-argue his case. The Hopcraft case related to commission paid in car sales and could not support the proposition that a consumer credit agreement was void or voidable on the basis of commission. In any event, no specifics were raised in proceedings concerning any commission that may have been paid.

Did not affect ownership

In his decision, Appeal Sheriff Mohan began by noting: “The sheriff took the view that no defence was revealed in the Answers. At this appeal the appellant had no argument to demonstrate that the sheriff was not entitled to reach that view. He offered no argument that the sheriff’s decision was wrong in law. In paras [51] to [53] the sheriff explains his application of the summary decree test. He has applied the test appropriately.”

Turning to the relevance of Hopcraft, the Appeal Sheriff said: “As a matter of law the Supreme Court - in relation to the case of Mr Johnson, one of the four litigants in the Supreme Court decision - did not decide that the contract between those parties was ‘cancelled’, void or otherwise unenforceable. The case brought by Mr Johnson concerned commission paid where a car was purchased on credit. In that particular case, the ‘hidden commission’ amounted to approximately 25% of the sums due to be paid under the contract.”

He added: “Contrary to the assertion made the appellant in this case, the decision of that court on Mr Johnson’s circumstances did not affect the ownership of the vehicle nor the party’s requirement to repay the credit. It did not render that part of the contract unenforceable. The Supreme Court did conclude that commission should be repaid to Mr Johnson. But that decision does not provide a blanket ban on commission payments. The decision was made because of circumstances specific to the case before that court. There was nothing to indicate that such circumstances applied to the appellant in the case before me.”

Appeal Sheriff Mohan concluded: “It was not sufficient for the appellant merely to point to the Hopcraft case (or, more specifically, that raised by Mr Johnson) and claim that this provided a defence to the action against him. As the respondents pointed out, the appellant had no crave for declarator to reduce the contract. He had no plea-in-law concerning the Consumer Credit Act 1974. His averments contained no detail about commission. His argument at the appeal gave no detail on how or why the sheriff’s decision was wrong in law. In all the circumstances I therefore find that there is no basis for this appeal.”

The appeal was therefore refused, with expenses as taxed in favour of the respondents.