Financial ombudsman

[Fenderman]

Hi
the financial ombudsman has recently awarded me compensation decision against my financial advisor for miss selling me several SIPP funds

The ombudsman gave the advisor 28 days to pay, and they have not paid.

The financial advisor keeps making excuses and delay tactics.
I have written a letter of intention, stating I will go to small claims, if they don't pay within next 7 days

I believe I must go to small claims court, even though the ombudsman decision was legally binding.

Not too sure how to initiate the small claims process I hear conflicting info as to which form to complete

I feel lost as what I need to do

Any help would be much appreciated

Thanks

[stuartb3502]

You could ask the FOS if they will chase up the firm. They may help, but will not enforce.

You should research “letter before claim”. Even if you have exchanged emails etc, it is usually better/safer to send a signed for letter setting out that you intend to claim. Summarise the situation for the defendant but with an eye towards this being a record of your efforts trying to resolve the matter before going to court.

In your case this is probably a simple letter as you can refer to the FOS decision. I would include a timeline in the letter of your efforts to have the business comply with the FOS decision and their responses.

Say what tou want to happen (including amount to pay) and give then a reasonable time to respond (14 days usually considered the reasonable minimum).

Your “letter of intention” may already have covered this. If it has and it’s been at least 14 days since you sent that (and assuming you have proof of receipt by the defendant), you could go ahead. If not, I would suggest it is safer to do it again. In my amateur view, it is preferable to do everything as correctly as possible both to avoid any potential issues later, but also to demonstrate to the defendant that you are serious and know what you’re about.

If they do not pay or respond and assuming it’s under the small claims limit of £25,000 go to https://www.moneyclaim.gov.uk/web/mcol/welcome

You will need to register and then can create a claim. You’ll need to provide a brief summary of why you’re claiming and how much. You will need the exact legal name and correct address for the defendant. You will pay a fee based on the amount you are claiming.

I am not legally trained or qualified. The above is based on fairly extensive experience of complaints through the FOS and unrelated experience of bringing claims via money claims on a personal basis.

good luck,
Stuart

[des8]

Assuming this was the FOS final decision and you want the court order to enforce it you need to use form N322A
https://assets.publishing.service.go...0-eng-save.pdf

[Fenderman]

Thankyou Stuart and Des8 great help
I gave them 7 days to respond, given they already had 28 days from the ombudsman which has now expired
I sent a detailed email and uploaded to their secure server too.

[des8]

Besides Court action, have you reported the non compliance to FoS & asked for their assistance?
If that fails you can also report to FCA (but that will be very slow!)

[Fenderman]

Hi DESB
thanks for your reply,

Believe it or not the FOS said nothing they can or will do, as far as they are concerned they made a decision and now it's closed.......staggering response they make decisions but don't make sure they are implemented
So pretty useless IMO

FCA
Listened to my story, said thankyou for letting us know, but we won't be able to speak with you to update you on what we are doing or going to do, other than to investigate, and they won't act to force the IFA to pay

After another morning of research and phone calls to county court it would appear an N322A or N322B form is required, but the N322B seems to be the one as the ombudsman issued a formula for calculating interest

I believe these forms are geared for situations where a court hearing is not required, in my case decision already made by ombudsman, so it just needs enforcing

The fee is £47

So just trying to ensure I choose correct form now
Otherwise a judge might strike it off, from what I am told.

[R0b]

Hi Fenderman,

Before you rush into anything, I suggest you take a step back and make sure all of your ducks are in a row. Let me give you a few thoughts of my own:

- Form N322A is used where the court's permission is required whereas form N322B is used in situations where the court's permission is not required. The main difference between the two is that Form N322B is the equivalent effect of a court order. FOS awards are not the equivalent of a court order as you the law requires you to ask the court to give effect to the Ombudsman's decision, albeit that it should be a formality but nonetheless, Form N322A is the way to go as you still require the court's permission to turn the award into an enforceable court order. If you decide to use Form N322B then you will fail on a procedural level if the other side pick that up.

- FCA have a habit of not informing you of the outcome so as to not jeopardise their investigations. You will generally find out when the FCA takes action or publishes the enforcement action against that party.

- As mentioned above, the right to enforce the Ombudsman decision is and should be a mere formality since it is legally binding once you accept their decision (unless the respondent issues a judicial review application to appeal the decision). Since there are no disputed facts involved, proceedings should be issued under Part 8 proceedings, which is the alternative procedure for claims where there is not a substantial dispute about the facts or liabilities - just as an FYI, Part 7 proceedings are proceedings involving disputes around the facts and evidence and these proceedings are the kinds you may be used to such as Money Claims Online.

- Not many judges (and I would not be surprised if someone told me the number was less than 100) are aware of the procedure or have even heard about the procedure for enforcing FOS awards. I have seen on several occasions, judges incorrectly striking out applications as not having any merit or explaining that they have no authority or jurisdiction to hear the application.

How do you get around this then? The simple answer is to handhold the court. As part of your application, you should always make a reference to the relevant law that basically sets out the right for individuals to enforce FOS awards and turn them into court orders. The relevant references are:

(i) Section 228(5) FSMA which enables awards to be final and legally binding.
(ii) Paragraph 16 of Schedule 17 FSMA which describes the right for individuals to go to court and ask the court to grant an order that the FOS decision and award be enforceable as if the award were an order of the court. That means you can then exercise all of the enforcement actions that you would normally have if you went to court in the first place e.g. using bailiffs to take control of goods.

[Fenderman]

Many thanks Rob for such an in depth valuable response I really appreciate the advice.

I will read and fully digest what you have posted.

I may have a question or two afterwards if that's ok?

Kind tegards