There is real concern in the financial services industry that the system for redress offered by the financial ombudsman service does not adequately or fairly protect advisers. No doubt there are problems with the current system, and it is worth considering preparation in the context of ‘three Ps’, as below.
However, it is first worth outlining the benefits of having a body such as Fos to adjudicate on client complaints. Fos:
a) unlike the court system, does not allow for the recovery of solicitors’ fees. As such the cost to advisers and their insurers from successful complaints is reduced;
b) undertakes an investigatory and inquisitorial role, unlike judges in the court system. If a client brings a claim through the courts, the adviser – or his solicitors – must carry out all the investigations themselves, and source all the evidence, leaving no stone unturned. Fos will carry out its own investigation to some extent and relieve the burden and cost from the adviser and his insurers;
c) tends to run a quicker process than litigation, allowing certainty to be achieved earlier than otherwise.
We recommend that our clients and their insurers approach complaints made to Fos, as well as other ombudsman services, by observing the three Ps.
First and foremost, responding to a complaint to Fos is an exercise in persuasive writing. In this context, in order to be successful the response must clearly and succinctly put forward any technical or factual misunderstandings in a polite and uncontentious way.
Understandably, emotions can bubble to the surface when one’s professional judgment or conduct is brought into question, but it does the professional no favours in most cases to seek to paint the complainant as a charlatan or a fraud. The response must appear fair and objective.
At risk of being accused of self-interest, we would recommend that in all but the simplest of cases it is advisable to have input from specialist legal advisers when drafting the response.
If, for whatever reason, legal advisers are not involved, at the very least the person preparing the response should be unconnected with the advice in question so that it is seen to be independent, considered and unbiased.
Anecdotally, in my own experience, a great many complaints to Fos which could be considered questionable succeed at the first stage when they are decided by an adjudicator.
This can be very frustrating. However, all is not lost. If you do not agree with the decision, you can reject it and ask an ombudsman to review the case.
The ombudsmen normally have more experience than the adjudicators, and often have greater technical knowledge. It is therefore worth reiterating the points made in the original response and briefly explaining why you consider the adjudicator has either misunderstood your previous submissions or made some other mistake. As always, try to keep your points sharp and snappy. A wall of text is rarely attractive.
If the ombudsman decides against you then his decision is binding if the claimant accepts it. The decision is enforceable by the courts and there are only limited circumstances in which a professional can successfully object to enforcement. Perhaps the small consolation is that it is cheaper and quicker to lose a complaint to Fos than in court.