Clark v In Focus – No second bite of the cherry after FOS redress

[Legal Beagles]

In an eagerly awaited appeal Judgment handed down this morning in the Royal Courts of Justice (Clark-v-In Focus Asset Management & Tax Solutions Limited ) and confirms an earlier ruling in the County Court that a claimant who accepts a final decision from the ombudsman is bound by it and cannot subsequently bring a civil claim […]

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[Nibbler]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

That was up quick: http://www.bailii.org/ew/cases/EWCA/Civ/2014/118.html

[CleverClogs]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

It sucks.

Doe to the way the Fobbing Off Service was set up and the inadequate upper limit to compensation payable, the claimant has effectively been robbed of £350,000.

Is it right or just that what seems to have been a delinquent company should use "the finality of the FOS decision" to limit its liability?

[CleverClogs]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

Is this an explanation? :behindsofa:

[CleverClogs]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

The judgement is useful in the precedents cited, which may be of value in other cases.

[Amethyst]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

That was up quick: http://www.bailii.org/ew/cases/EWCA/Civ/2014/118.html

Thank you

Lady Justice Black:

....Although there may, at first sight, appear to be an unfairness in preventing a claimant from taking legal proceedings to recover the balance of his loss over the award made by the ombudsman, it is important to remember that the claimant himself holds many of the cards. He can consider the award issued by the ombudsman and any recommendation that the ombudsman makes for additional compensation and, with the benefit of that independent evaluation of his claim, decide whether to take the award or to reject it. If he rejects it, his right to bring proceedings in the courts is untrammelled. If he takes it, he has benefited from a practical scheme which he has been able to use without risk of costs. .....

[Nibbler]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

Also:

Parliament did not manifest any intention that complainants to the Ombudsman Service should be in any different position from other claimants who have taken their claim for compensation through a tribunal for dispute resolution and obtained a decision, and then sought to litigate the same grievances again in the courts. They are not able to raise the same claims in court proceedings even if they could have recovered more in court proceedings. What they had to do to obtain this higher level of compensation was to reject the award and bring court proceedings for that amount.

And, after all, it had been open to them not to use the ombudsman scheme in the first place and open to them (having used it) to reject the award; thereby on any view preserving their legal rights.

[Amethyst]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

And to be fair the FOS upper limit is known before making a complaint.

The FOS guy did mention there had been 87 cases in the past year involving sums that would have been above the compensation limit for FOS.

Edit: Sorry lady

The witness statement of Ms Caroline Wayman, Principal Ombudsman and Legal Director of the Ombudsman Service, attests to the occurrence of complaints involving claims to compensation in excess of the limit. We are told that in a one year period the Service recorded 87 complaints which could involve such compensation.

She doesn't mention the outcome of those cases although may do in the earlier judgment.

[CleverClogs]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

And to be fair the FOS upper limit is known before making a complaint.

Was the option of rejecting the Fobbing Off Service decision explained to the claimant?

Were the ramifications of accepting the decision explained to the claimant?

[CleverClogs]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

Lady Justice Black:

....Although there may, at first sight, appear to be an unfairness in preventing a claimant from taking legal proceedings to recover the balance of his loss over the award made by the ombudsman, it is important to remember that the claimant himself holds many of the cards. He can consider the award issued by the ombudsman and any recommendation that the ombudsman makes for additional compensation and, with the benefit of that independent evaluation of his claim, decide whether to take the award or to reject it. If he rejects it, his right to bring proceedings in the courts is untrammelled. If he takes it, he has benefited from a practical scheme which he has been able to use without risk of costs. .....

Unless that choice is fully explained to the claimant so that the claimant fully understands that, by accepting the decision, he will still be left out of pocket, then it plainly cannot be just to consider the FOS decision in this way.

I repeat - it sucks!

[EXC]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

I must be the right decision. We'd all complain if our opposition were given two bites of the cherry.

[CleverClogs]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

I must be the right decision. We'd all complain if our opposition were given two bites of the cherry.

If it had been "the right decision", it would also mean that a claimant could not sue a financial organisation if the Fobbing Off Service had dismissed the complaint.

[Amethyst]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

I would hope so, it's been a while since I have seen a FOS upholding complaint offer letter - I assume it is standard text.

[pt2537]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

I would hope so, it's been a while since I have seen a FOS upholding complaint offer letter - I assume it is standard text.

So the reality is if you accept the award then thats it youve had your remedy, if you dont accept then you can still bring a claim through the Courts.

I assume if the ombudsman finds against the customer, then they can still bring a claim? Thats what interests me, i need to reread this judgment to see what the result is in such circumstances.

[Nibbler]

Re: Clark v In Focus – No second bite of the cherry after FOS redress

You would imagine so.

http://www.legislation.gov.uk/ukpga/...-of-complaints

(5)If the complainant notifies the ombudsman that he accepts the determination, it is binding on the respondent and the complainant and final.

(6)If, by the specified date, the complainant has not notified the ombudsman of his acceptance or rejection of the determination he is to be treated as having rejected it.

With the conclusion that if the complainant does not accept the decision then it is not binding on either party or final.