Can a complainant who has accepted a Financial Ombudsman Service decision pursue a civil claim?

Posted by Richard Humphreys on
The High Court has recently given guidance on this issue in the case of Clark and another v In Focus Asset Management & Tax Solutions Limited [2012] EWHC 3669 (QB).

In this matter, Mr and Mrs Clark complained to the Financial Ombudsman Service ("FOS") in respect of advice that was provided to them in relation to their investments. At that time, the maximum award that the FOS could make was £100,000.

The FOS found in favour of the Clark's complaint and stated that Focus should compensate them to the effect that they would be put back into the position they would have been had they not received the advice from Focus, an amount which could exceed £100,000.

Mr and Mrs Clark accepted the decision of the FOS and despite this decision being stated to be binding and final, Mr and Mrs Clark, when accepting the decision, noted that they reserved the right to pursue the matter further through the courts. Focus subsequently paid Mr and Mrs Clark the £100,000.

In June 2010, Mr and Mrs Clark issued county court proceedings for their alleged losses in addition to the £100,000 already received. Focus applied and were successful in striking out this claim. The judgment followed the case of Andrews v SBJ Benefit Consultants [2010] EWHC 2875 (Ch) which held that once a complainant accepted the decision of the FOS, the award became binding and prohibited the Defendant from bringing a civil claim through the courts.

On appeal, the court decided that Mr and Mrs Clark were not precluded from claiming damages through court proceedings in addition to receiving amounts received following the acceptance of a FOS decision. Focus are now seeking permission to appeal this decision.

There are now two contradictory High Court authorities as to whether or not a person can accept monies awarded following a decision of the FOS and then issue court proceedings to recover additional amounts. For the time being, it appears that the conclusion of a FOS investigation will not necessarily bring an end to the dispute between the parties.

About the Author

Specialising in CCA compliance and FCA regulatory advice, Richard is a partner in Blake Morgan's Financial Services group.

Richard Humphreys
Email Richard
01865 254243

View Profile