East Anglia Branch Annual Seminar Downing College, Cambridge 14 June 2013 The Man* in the Middle...

East Anglia Branch Annual SeminarDowning College, Cambridge14 June 2013

The Man* in the Middle

*The masculine gender shall include the feminine

The Role of an Ombudsman

Chris Gilbert LLB, MSc (Construction Law and Arbitration) Chartered Arbitrator, solicitorombudsman, Financial Ombudsman Service

• What does an ombudsman do?• Points of interest to arbitrators, construction contract

adjudicators and mediators?• Points of interest to anyone with Insurance, Investments,

Pensions or Banking?

• Set up by law as an independent public body • Financial Services and Markets Act 2000• Consumer Credit Act 2006

• Payment Protection Insurance mis-selling• The largest ombudsman service in the world

The Regulators

• Financial Conduct Authority (formerly Financial Services Authority)• Office of Fair Trading

Financial Ombudsman Service

• “Our job is to help settle individual disputes between consumers and businesses providing financial services – fairly, reasonably, quickly and informally.”

Funding• Levy and case fees paid by the businesses• Free service for consumers and micro-enterprises*

*less than 2 million Euros turnover and 10 employees

Jurisdiction• “We do not have a free hand to consider every complaint that

is referred to us. The rules for bringing claims are set by the Financial Conduct Authority’s dispute resolution rules (DISP), which we are required by law to follow.”

Time Limits• “DISP 2.8.2R says that we cannot consider a complaint which a

complainant refers to us more than six years after the event complained of, or (if later) more than three years after the complainant ought reasonably to have been aware that he had cause for complaint and where the bank objects to our considering it.”

Crystallising the dispute• The eight - week rule • the business’s final response

Complaint form

• “The bank put a default on my credit file when I was up to date with payments.”

• “The building society should pay me the £20,000 in my late mother’s passbook in 1993.”

• “The car was un-driveable. It was on a conditional sale agreement.”

Mediation, Conciliation• We will first try to settle the dispute informally

Documents – only Procedure• We generally settle complaints on the basis of the paperwork

Approach• Our approach is “inquisitorial”- we can ask questions

Representation• Consumers do not need professional help to bring a complaint

Scope

• Unlike the courts, we are not limited to looking only at the issues the consumer has highlighted in their complaint

Hear Both Sides

• We do not automatically copy to both sides all the information we have on a case

• We may ask you to comment specifically on what the other party has told us

What is Fair and Reasonable

• Taking into account:• the law, rules, codes and good practice• that applied at the time

• “I have considered all the available evidence and arguments to decide what is fair and reasonable in the circumstances of this complaint.”

Balance of Probabilities

• “Where the evidence is incomplete, inconclusive or contradictory (as some of it is here), I reach my decision on the balance of probabilities – in other words, what I consider is most likely to have happened in light of the available evidence and the wider circumstances.”

Adjudication – the “View”

• This will give the adjudicator’s opinion of the case and set out how, in the adjudicator’s view, the case should be resolved

• Either party may ask for a review and final decision by an ombudsman

Publication of Decisions

• “This final decision is issued by me, Christopher Gilbert, an ombudsman with the Financial Ombudsman Service. It sets out my conclusions on the dispute between Mr Bloggs and Barclays. Final decisions will be published. To prevent Mr Bloggs being identified, he will be referred to as “Mr C”.”

Redress

• Maximum financial award £150,000• Distress and Inconvenience

• The ombudsman can direct a business to take appropriate action

• such as to apologise or correct records

Consumer may reject the decision

• The consumer may reject the decision• If so the consumer remains free to take court proceedings• And the business is not bound by the decision

Consumer may accept the decision

• If the consumer accepts the decision both he and the business are bound by it

• And the courts will enforce the ombudsman’s decision

Questions?

• chris.gilbert@final-arbitration.co.uk