Association of Professional Compliance Consultants

The body for compliance consultants who advise firms regulated in the UK.

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Home Forums Current issues you are seeing in the industry Time-barred complaint going straight to Court

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  • #2834

    Hello!
    I have come across a case where an ambulance chaser-type company has avoided taking a complaint to FOS and have gone straight to court – has anyone come across this before?
    The case is an old mortgage – the same adviser had a near identical case from a different ‘solicitor’ which the FOS dismissed under DISP 2.8.
    As well as the case sounding odd from the start, the adviser’s PI firm are dealing with it? I would have expected them to turn around and advise the complainant to go to FOS, or refer them to DISP 2.8?
    Have you come across anything similar?

    #2935
    Avatarinfo@tonycatt.co.uk
    Participant

    I had a case like this.

    The CMC wanted to go to court because they knew how Courts worked. Almost insider knowledge. The PI company wanted to settle due to the expense of a court case – time, solicitor and barrister costs etc.

    I wrote to the client with the FOS leaflet and advising that the FOS was a free service to them. Going to court did not increase their chance of success etc.

    Now that the CMC should be regulated by the FCA perhaps you could raise it with the FCA that the CMC has chosen to go to court rather than FOS. particualrly if the case looks odd. Then the FCA can look into the matter.

    Good luck.
    TC

    #2936

    In the past I have seen this happen on a number of occasions – particularly back in the days of mortgage endowment complaints. It sounds like there are a number of possible issues in the background here (old mortgage case, PI firm dealing with it etc.) and, as with any complaint, what may or may not be appropriate will depend on the circumstances of the individual complaint / case. In general terms, though, if someone believes that they have reason to commence a court action then they are entitled to do so. The law does not insist, as far as I am aware, that any available complaints process must be fully explored and exhausted prior to taking a case to court. The ability to dismiss a complaint (or the ability of FOS not to consider it) that is set out in DISP 2.8 is founded in Statute (Limitations) that would also apply to a Court action. If the complainant or someone acting on their behalf wants to take a case to court, they can do; it is possible that the complainant’s representatives know that FOS will not take the case on so they have simply circumvented that. They should realise, though, that the defendant (the adviser or their PI firm on their behalf) may well also seek to have the action time-barred. Hope this helps.

    #2938

    These responses are great, thank you very much.

    #2940
    Avatarstephena@sacm.co.uk
    Participant

    Hi
    I am working on several different cases like this- 1) There are many interest-only mortgage complaints that are time-barred but the complainants believe the court is more likely to be sympathetic than FOS in allowing the complaint. I am defending several cases and solicitors say there are many others awaiting instructions. 2) Also – There are complaints (often consumer credit) where FOS redress is unlikely to exceed a few hundred pounds, so these are un-commercial for a CMC. If that case is referred directly to the court, avoiding FOS, there is no restriction on the legal fees that can be charged. FOS says that a regulated firm cannot force a complainant to contact them.
    SA.

    #2941

    This is happening in general insurance as well, where the customer knows the case is weak and the FOS would find in favour of the firm they are going to solicitors who know that PI insurers have no appetite for litigation. We believe this is the biggest risk following the FCA BI case decision and that an influx of legal claims which insurers settle out of court could put brokers out of business due to the excess payments under the policy. After all, 20 claimants settled with a £10k excess is £200k a broker will need to find!

    #2943

    Oh, crikey, thank you very much!

    #2947

    Hi Jo – when I worked at FOS one of my cases got withdrawn taken to court (by the complainant) because the complainant got a quicker response from the court!

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