Part of the individual review we carry out for each case involves identifying the most appropriate dispute resolution options available and working with our clients to put in place a strategy best placed to achieve success. This involves consideration of the legal merits of cases, the cost of various options, any time restraints, our clients’ financial resources and attitude to risk and other relevant commercial factors unique to each situation.
Information about some of the options we use regularly are set out below:
Financial Ombudsman Service (FOS)
The FOS is an independent organisation which can be used to resolve many claims by individuals and small businesses against financial services businesses such as banks, insurance companies, IFAs and insurance brokers. The FOS website is a useful source of information: www.financial-ombudsman.org.uk
The FOS has the power to award up to £355,000 compensation in binding awards depending on the circumstances of a complaint, can recommend that a business makes a higher payment and can also make “directions”, requiring a business to take a particular step or to stop doing something. A complainant can choose whether to accept or reject an FOS decision and if accepted it binds the business complained about and themselves. If a decision is rejected, a complainant remains able to use another option, such as litigation.
The FOS encourages people to use their service personally, without engaging a professional adviser. The FOS very rarely makes awards of costs for representation; usually both sides pay their own costs incurred in relation to a complaint. We always advise that it is possible to approach the FOS direct, but many of our clients choose to instruct us to represent them, for the following reasons:
- Lack of time. CCL deal with the time consuming process of collating relevant evidence and documentation and preparing a well presented submission document for consideration by the FOS, followed by any further communications with the allocated adjudicator and Ombudsman.
- Legal / regulatory input. Many complaints benefit from our input on alleged breaches of legal or regulatory rules such as the COBS (Conduct of Business Sourcebook) on investment issues, ICOBS on insurance issues and MCOBS on mortage issues.
- Complexity. CCL has considerable experience of analysing complex financial documents; insurance policies, medical records and similar. This is often required to present a concise complaint; from a large amount of information we draw out the most relevant points.
- Discretionary element of decisions. Many FOS decisions hinge on a judgment call by an adjudicator or Ombudsman as to what is “reasonable” or how a person would have acted in hypothetical circumstances. In the light of this, it is our experience that different decisions can be reached on similar facts. A full and accurate initial presentation and an ability to challenge an adjudicator’s preliminary decision with incisive and relevant arguments if necessary, provided by CCL may increase the likelihood of success of complaints of this nature.
- Partial representation. We can also assist in drafting a complaint or advising on the prospects of success in circumstances where people wish to pursue a complaint in their own names.
Litigation involves issuing Court proceedings against an opponent and preparation for a Court trial. It is a powerful option for resolving disputes, but involves complex strategic and financial issues to get the best out of the process whilst minimising the risks involved. The basic rule in litigation is that the loser pays the winner’s costs. For a dispute involving complex factual and legal issues, as many financial services and insurance cases are, this creates a substantial level of financial risk, created by the process itself.
CCL has experience of a wide variety of litigated disputes and in line with our bespoke approach we work with our clients to produce a strategic and financial plan. We have access to After the Event Legal Expenses Insurers and Litigation Funders who are able to assist in insuring against the financial risks of potentially losing a case, and providing funding for meritorious cases.
On relatively low value claims our input may be limited to cost capped guidance behind the scenes with our client running the claim themselves as a litigant in person. On more substantial disputes we provide full representation through to trial, working with specialist barristers and experts as appropriate.
We regularly organise and represent our clients in mediations. A mediation involves a full day meeting between both parties to a dispute and their representatives, but crucially also involves an entirely independent person, the mediator, whose role is to work with the parties to try to achieve an agreed settlement. The focus of the day, therefore, moves away from who is right or wrong on particular facts or issues towards strenuous efforts to reach a resolution.
Mediation can be extremely effective and can be used in conjunction with other options, for example a mediation often takes place part way through the litigation process. Knowing the right time to suggest mediation and how to prepare properly to get the best out of the day is crucial and CCL has the experience to guide our clients through the process. We have recently achieved successful outcomes at mediation on a number of interest rate hedging disputes and a high value portfolio investment dispute.
We have been heavily involved in providing representation for clients within the FCA led Review into Interest Rate Hedging Products. In the early stages of the Review, this involved collating evidence and documentation and presenting our clients’ cases by way of written submissions. Subsequently, we have dealt with challenges to initial decisions through meetings and further submissions resulting in a number of significantly improved basic redress decisions.
We have also dealt with, and continue to represent clients in on-going consequential loss claims. We have experience of the Review across all major banks. Where appropriate, we have used other dispute resolution methods in conjunction with the Review; for example, FOS referrals in tandem with or after basic redress decisions and /or litigation, where appropriate.
In appropriate cases, there are a number of other options which we use, either instead of or in conjunction with the above. Most methods require both parties to a dispute to take a sensible and relatively conciliatory approach to the dispute, perhaps to preserve an existing relationship or to avoid the stress or cost of litigation. Where an opponent is willing to consider such an approach, CCL works proactively to achieve good results.
We often engage in without prejudice discussions or correspondence which enable parties to exchange views and settlement ideas without the risk that comments made during those discussions could be referred to at any subsequent trial.
Where a dispute involves an important point of law or an issue which turns on an expert’s involvement, it is possible to agree for an independent “expert” to be appointed to resolve that issue.
In other cases, there may be specific, additional complaints schemes which can be used. For example, we have experience of referrals to the Legal Ombudsman in relation to complaints against solicitors and for insurance policies arranged through Lloyds of London, a separate complaints scheme exists which can be used prior to a referral to the FOS or litigation.