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.
Persuade
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.
Persevere
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.
If the ombudsman decides in your favour then you are allowed to pause at this stage for a small celebration, but with one eye on the final ‘P’, which follows.
Prepare
If a claimant does not get the result he wants from the ombudsman, it is open to him to reject the decision and resort to the courts to settle the dispute.
In many cases a claimant would be unwise to do so since the ombudsman applies a less stringent and arguably more ‘claimant-friendly’ approach to complaints than the court will.
Nevertheless advisers and insurers should be aware that what is said in response to the Fos complaint can be used in court proceedings. I have dealt with a number of cases in which my client has produced the first response to Fos in something of a rush. A combination of frustration that the complaint has been made at all, and a desire to move on and deal with profitable work, can mean that the response produced is not as thorough, accurate or useful as it might be.
This can have serious consequences in later litigation, particularly where, during correspondence with Fos, different versions of factual events are advanced to correct earlier mistakes. This can render the adviser an ‘unreliable witness’ in the eyes of the court, and weaken the impact of any evidence he might want to give. I have had to settle cases which might otherwise have been winnable because inconsistencies in early letters written to Fos meant our key witness might not be sufficiently reliable.
James Field is a solicitor at Triton Global
