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Case determination

Dispute Resolution Method

CD 1
CD 1 :

Where the Chief Adjudicator has accepted a Complaint for determination in accordance with SC 18(6), or the Appeal Panel has determined that the Complaint meets the Eligibility Conditions pursuant to SC 19(4), the Chief Adjudicator will attempt to resolve it at the earliest possible stage.

CD 2
CD 2 :
  1. The Chief Adjudicator will use investigative adjudication under these Scheme Rules as the default method for resolving Complaints.
  2. If it appears to the Chief Adjudicator that a resolution of a Complaint might be most effectively brought about using an alternative dispute resolution method other than investigative adjudication under these Scheme Rules (for example, informal mediation), and the Complainant and Respondent agree to pursue that method, the Chief Adjudicator: (i) need not commence investigative adjudication of the Complaint under these Scheme Rules immediately; or (ii) may pause investigative adjudication under these Scheme Rules at any time, in either case to enable that alternative method to be pursued.
  3. Where an alternative method is pursued under (2), these Scheme Rules will not apply to that alternative dispute resolution method.
  4. If, following pursuit of an alternative method under (2), the Chief Adjudicator is satisfied (on evidence such as a settlement agreement), that the Complaint is resolved between the parties, the Chief Adjudicator will:
    1. cease to consider the Complaint further; and
    2. not issue any Provisional Determination, Determination or Final Determination under these Scheme Rules.
  5. If at any time an alternative dispute resolution method (other than investigative adjudication) is attempted but the Chief Adjudicator is not satisfied that the Complaint is resolved between the parties, or is satisfied that it is unlikely to be resolved, or is notified that it will not be resolved, within what the Chief Adjudicator considers a reasonable time frame, the Chief Adjudicator will commence or continue with investigative adjudication of that Complaint under these Scheme Rules.

Respondent’s Relevant Documents and Optional Position Statement

CD 3
CD 3 :
  1. To commence investigation of the Complaint, the Chief Adjudicator will:
    1. require the Respondent to provide relevant documents relating to the Respondent’s previous consideration of the Complaint; and
    2. invite the Respondent (if it wishes to do so) to provide a Respondent’s Position Statement responding to the Complaint;

    within a reasonable period set in accordance with SC 2. The Chief Adjudicator will, when setting the period under this rule, take into account in particular the nature of the Complaint in issue, its complexity, the extent to which the Complaint as presented to BBRS differs in form or detail from the complaint as previously presented to the Respondent, and any representations a Respondent makes to the Chief Adjudicator about the time it needs to prepare any Respondent’s Position Statement.

  2. The purpose of a Respondent’s Position Statement is to enable the Respondent to set out its position in response to the Complaint, and in particular to respond to any additional details that the Complainant has raised during the process of referring the Complaint to BBRS that were not raised in previous correspondence before the BBRS process began.
  3. A Respondent should prepare any Respondent’s Position Statement concisely and in clear, intelligible language. It must identify within it any documents which the Respondent considers are key. It should not take the form of a traditional legal pleading.
CD 4
CD 4 :

If a Respondent decides not to provide a Respondent’s Position Statement to the Chief Adjudicator, or does not provide one within the time period specified, the Chief Adjudicator will proceed to determine the Complaint without a Respondent’s Position Statement.

Initial exchange of documents and Respondent’s Position Statement

CD 5
CD 5 :

Subject to CD 27, the Chief Adjudicator will then:

  1. provide to the Complainant a copy of any Respondent’s Position Statement, and any documents BBRS has obtained from the Respondent under CD 3(1)(a);
  2. at the same time, provide to the Respondent any documents provided by the Complainant under SC 5(2)(b)(ii) that have not already been provided to the Respondent in connection with the Chief Adjudicator’s assessment of whether or not the Complaint met the Eligibility Conditions; and
  3. set a reasonable time frame by which the Complainant and the Respondent will have the opportunity to review the information presented by the other and, if they wish to do so, provide further submissions and/or documents to the Chief Adjudicator.

Investigation of Complaints

CD 6
CD 6 :

Following the initial exchanges provided for in CD 5, the Chief Adjudicator will investigate the Complaint.

CD 7
CD 7 :

The Chief Adjudicator will conduct a collaborative process throughout the investigation.

General provisions about evidence

CD 8
CD 8 :

During the investigation, the Chief Adjudicator, taking into account the information already exchanged and any reasonable comments or suggestions for further disclosure by the Complainant and the Respondent, will decide:

  1. the issues on which other evidence is required;
  2. which kinds of other evidence are likely to be relevant;
  3. the extent to which other evidence should be oral or written; and
  4. the way in which other evidence should be presented.
CD 9
CD 9 :

The Chief Adjudicator may:

  1. exclude evidence that would otherwise be admissible in a court or include evidence that would not be admissible in a court;
  2. reach a decision on the basis of what has been supplied; and
  3. draw adverse inferences from a deliberate failure to provide or disclose requested information on the part of a Complainant or a Respondent without reasonable explanation.
CD 10
CD 10 :

The Chief Adjudicator will consider all available evidence to investigate what happened.  When there is little evidence, or conflicting evidence, the Chief Adjudicator will, when reaching a view as to what is fair and reasonable in all the circumstances of the case, use all available evidence to decide what is more likely than not to have happened.

CD 11
CD 11 :

Where, after a reasonable investigation:

  1. the Chief Adjudicator reaches the view that there is insufficient evidence to enable them to reach any decision about the circumstances of the Complaint which would be fair and reasonable (for example because the Chief Adjudicator has been able to obtain little or no contemporaneous evidence and there is insufficient other reliable evidence about the matters set out in the Complaint, or could only decide a Complaint by making presumptions about the conduct of a Complainant or a Respondent that are not based on any evidence); or
  2. in accordance with their duty of continuous assessment in SC 12, the Chief Adjudicator identifies that a Complaint (contrary to a decision already taken pursuant to SC 18(6) or SC 19(4)) does not in fact meet the Eligibility Conditions, or ought to be dealt with by another dispute resolution scheme or Court, or needs to be dismissed without further consideration;

the Chief Adjudicator will:

  1. advise the Complainant and Respondent of that assessment;
  2. give the Complainant and Respondent an opportunity to make representations;
  3. take any representations made into account; and
  4. if the initial assessment has not changed, notify the Complainant and Respondent accordingly and decline to consider that Complaint further, or
  5. If the initial assessment has changed, notify the Complainant and proceed with consideration of this Complaint in accordance with these Scheme Rules.

Evidence in documents

CD 12
CD 12 :
  1. Subject to CD 13 and CD 26, the Chief Adjudicator may require a Complainant or a Respondent to provide any documentary evidence which:
    1. the Chief Adjudicator reasonably believes is or may be relevant to a Complaint; and
    2. the Chief Adjudicator reasonably requires in order to determine the Complaint.
  2. Before issuing a requirement under (1), the Chief Adjudicator will consult the relevant party and, where the Chief Adjudicator considers a requirement is likely to be substantial, provide a draft of the request.
  3. Where that Complainant or a Respondent is concerned that compliance with a proposed request would:
    1. be impossible; or
    2. take an amount of time or cost which is disproportionate in light of the Complaint (and in particular any loss alleged by the Complainant);
      it must raise those issues with the Chief Adjudicator during the consultation, or (where a requirement has already been issued) as soon as possible.
  4. Where a Complainant or Respondent raises a concern under (3), the Chief Adjudicator will consider any representations received and decide whether to proceed with, amend, or withdraw the requirement. If the Chief Adjudicator is satisfied that a request would be impossible to comply with, or would be disproportionate or otherwise inappropriate, they may decide not to issue it, to amend it, or to withdraw it, and will explain their reasons for so doing in the Provisional Determination.
  5. A requirement to produce documentary evidence must:
    1. be issued in writing;
    2. be proportionate in light of the Complaint;
    3. specify in reasonable detail the document(s) that the party must produce; and
    4. specify a reasonable deadline by which the documents must be produced.
CD 13
CD 13 :

The Chief Adjudicator will not require, or purport to require, any person to produce the following types of evidence:

  1. evidence in respect of which a reasonable claim to legal professional privilege could be maintained in a Court in the United Kingdom, for example confidential legal advice that a Complainant or a Respondent has obtained from a solicitor; and
  2. evidence which that person is prevented from disclosing because of applicable law or regulation. For the avoidance of doubt, this will include but not be limited to any evidence which cannot be disclosed because of applicable data protection laws, and any evidence relating to financial crime matters which cannot be disclosed because to do so would (for example) be contrary to, or would risk the commission of an offence under, the Proceeds of Crime Act 2002 or the Money Laundering, Terrorist Financing, and Transfer of Funds (Information on the Payer) Regulations 2017, or any similar or successor legislation in force from time to time.

Where a Respondent is unable to comply with a requirement for a reason falling under (2), to the extent it is able under applicable law and regulation, the Respondent will explain this in writing to the Chief Adjudicator.

CD 14
CD 14 :

Where a Complainant or a Respondent receives a requirement from the Chief Adjudicator under CD 12, then, in accordance with the Customer Agreement and the Participation Deed, the Complainant or Respondent must:

  1. make a reasonable and proportionate search for documents set out in the requirement; and
  2. provide to the Chief Adjudicator the documents identified in that search by the deadline the Chief Adjudicator has specified; or
  3. otherwise notify the Chief Adjudicator that a reasonable and proportionate search has been carried out but no relevant documents have been identified; and
  4. submit any documents identified to the Chief Adjudicator via any channel agreed with the Chief Adjudicator.
CD 15
CD 15 :

Where a Complainant or a Respondent provides documents after the deadline specified, but before a Provisional Determination has been issued, the Chief Adjudicator will nevertheless take them into consideration, unless in the view of the Chief Adjudicator it would be unfair and unreasonable in the circumstances to do so.  In these circumstances the Chief Adjudicator will notify the party that provided the documents late and will provide reasons for excluding the documents from consideration, and will include these reasons in the Provisional Determination.

Oral evidence from people (In person testimony)

CD 16
CD 16 :
  1. Subject to CD 13, and CD 17, the Chief Adjudicator may:
    1. request that the Complainant or Respondent make available a person who is a current or former officer or employee of a Complainant or a Respondent to provide oral evidence to the Chief Adjudicator on a voluntary basis; and/or
    2. where a Complainant or a Respondent has requested the opportunity to provide oral evidence to the Chief Adjudicator, allow the requesting party a reasonable opportunity to do so.
CD 17
CD 17 :
  1. Before making a request under CD 16, or responding to a request from a Complainant or Respondent, the Chief Adjudicator must:
    1. reasonably believe the evidence is or may be relevant to a Complaint;
    2. reasonably require the oral evidence in order to determine the Complaint;
    3. consult the relevant Complainant or Respondent as to the availability of the relevant person to provide oral evidence, their suitability to provide it;
    4. consider the passage of time since the events about which the person would be asked to give oral evidence, and the likely usefulness of any oral evidence where substantial time has passed; and
    5. agree with the relevant Complainant or Respondent a reasonable process for contacting the relevant person.
  2. The Chief Adjudicator will take into account information provided under CD 17(1) before deciding whether to proceed with a request.
  3. Any request will be sent in writing to the relevant party, setting out a place and time, or other method, for taking the oral evidence.
  4. Should the person to whom the request is made decline to provide oral evidence, the Chief Adjudicator will continue to investigate the Complaint in accordance with these Scheme Rules taking into account the fact that the relevant person has declined to provide the oral evidence. The Chief Adjudicator shall not however draw any adverse inference against a Complainant or a Respondent solely from the fact that any person does not agree to provide oral evidence.
  5. To the extent that the Chief Adjudicator makes a request for oral evidence, but then decides to amend or withdraw a request, they will explain their reasons for so doing in the Provisional Determination.
CD 18
CD 18 :

The Chief Adjudicator may obtain oral evidence from a person through any reasonable means, including face to face discussion, by telephone, or via video link.

CD 19
CD 19 :

Where a person to whom a request for oral evidence will be made appears to the Chief Adjudicator to be potentially vulnerable, the Chief Adjudicator will conduct a vulnerability assessment and will accommodate any needs identified through that assessment.

CD 20
CD 20 :
  1. Any oral evidence provided by a person will be recorded by way of a written note.
  2. The Chief Adjudicator will provide a draft of the written note to the person who gave the evidence and ask them to correct it, confirm its accuracy, and sign it.
  3. The Chief Adjudicator will then provide a copy of the relevant evidence arising from the oral evidence to the Complainant and the Respondent for reference and, where appropriate, comment.

Hearings and meetings of the parties

CD 21
CD 21 :

The Chief Adjudicator will determine Complaints in accordance with these Scheme Rules without holding formal hearings in the style of a court or tribunal at any time (whether to determine case management matters, to gather oral evidence, to resolve the Complaint, or for any other reason).

CD 22
CD 22 :
  1. The Chief Adjudicator may invite a Complainant and a Respondent to meet jointly with the Chief Adjudicator at any time, if it appears that this will facilitate the investigation of the Complaint.
  2. The Chief Adjudicator will not compel, or purport to compel, a Complainant or a Respondent to attend such a meeting and either party may decline to attend at their discretion.
CD 23
CD 23 :
  1. Before any joint meeting of the parties takes place, the Chief Adjudicator will consult with the parties to assess whether the meeting in question should be held on an ‘open’ or ‘without prejudice’ basis. Where in the reasonable opinion of the Chief Adjudicator the parties genuinely intend to settle the Complaint at the meeting, the Chief Adjudicator may propose that the meeting be held on a ‘without prejudice’ basis.
  2. BBRS will explain to the Complainant what ‘without prejudice’ means in the context of the meeting, in particular that the meeting must be kept strictly confidential to enable the parties to try to settle the Complaint without fear of anything said and done at the meeting being used against them afterwards.
  3. Where the meeting is to be held on a ‘without prejudice’ basis, the Chief Adjudicator will make this clear to both parties in advance of the meeting and again at the start of the meeting.
  4. If the meeting is not to be held on a ‘without prejudice’ basis, then before the meeting takes place, the Chief Adjudicator will explain to the Complainant that the meeting will be held on an ‘open’ basis, in which things said and done during the meeting can (subject to these Scheme Rules) be used by all parties in the future, including in any proceedings outside the BBRS process.
  5. In all cases, the Chief Adjudicator will circulate an agenda and a list of those attending to all parties, a reasonable time before the meeting begins.-

Expert evidence

CD 24
CD 24 :
  1. Where it appears to the Chief Adjudicator to be necessary and proportionate to do so in order to investigate and determine a Complaint, including the assessment of fair compensation in accordance with these Scheme Rules, the Chief Adjudicator will seek appropriate expert evidence at BBRS’ cost.
  2. The Chief Adjudicator will use a reasonable process for obtaining such expert evidence and will consult the Complainant and Respondent with respect to the process that they propose to follow. The Chief Adjudicator will take account of any submissions they receive.
  3. The Chief Adjudicator will provide to the Complainant and Respondent at least a copy of the expert’s instructions in draft, and a copy of any report or conclusions produced by the expert pursuant to those instructions and, in accordance with SC 2, set a reasonable time period during which the Complainant and the Respondent may provide submissions in relation to them.
  4. The Chief Adjudicator will control strictly the use and cost of expert evidence in the determination of Complaints. Unless the Chief Adjudicator otherwise agrees in writing, subject to (5) the Complainant and the Respondent should not obtain or provide to the Chief Adjudicator their own expert evidence for use by the Chief Adjudicator in adjudicating the Complaint. Where any party seeks to provide expert evidence to the Chief Adjudicator contrary to this rule, the Chief Adjudicator will exclude it from consideration and will not make any Costs Award in respect of it.
  5. The rule in (4) does not prevent the parties from providing to the Chief Adjudicator copies of any expert evidence which they had obtained in relation to the subject matter of the Complaint at the time their dispute arose and before the Complainant referred the Complaint to BBRS.

Confidentiality and exchange of evidence gathered by the Chief Adjudicator

CD 25
CD 25 :

Subject to rule CD 26 and in the interests of transparency, following the initial exchange of submissions and evidence required by CD 5, all evidence and submissions subsequently obtained by the Chief Adjudicator from one party to a Complaint will be shared with the other party at the point the Chief Adjudicator receives them.

CD 26
CD 26 :

Where a Complainant or a Respondent provides evidence to the Chief Adjudicator (whether under rule CD 14 or otherwise), but requests that due to the confidential nature of it, the evidence is not shared with the other party at all (or is only shared with confidential details redacted) the Chief Adjudicator will assess that evidence, and:

  1. if it appears to the Chief Adjudicator that the nature of the evidence is such that it would be fair and reasonable not to share it, or only to share it in redacted form, inform the parties:
    1. of the category of the evidence if it possible to do so without revealing the confidential details of the evidence;
    2. of the Chief Adjudicator’s reasons for withholding the evidence or sharing it only in redacted form; and
    3. that the Chief Adjudicator will take the evidence into account to the extent that it is relevant; or
  2. if it appears to the Chief Adjudicator that the nature of the evidence is such that it would not be fair and reasonable to withhold the evidence, or only to share it in redacted form:
    1. inform the party providing the evidence of that decision including the reasons why;
    2. agree with that party whether it will withdraw the evidence or allow it to be included in the case determination; and
    3. if the evidence is not withdrawn, share it with the other party in accordance with CD 25; or
    4. if the evidence is withdrawn, the Chief Adjudicator will not share that evidence or take it into account, will not seek to compel it from the relevant party under CD 12 (or by any other means), and will inform the withdrawing party (and only the withdrawing party) accordingly.
CD 27
CD 27 :

Where the Chief Adjudicator decides not to share a document under CD 26, or to share it only in redacted form, they will take account of that evidence to the extent that it is relevant, and will explain how that has been done in the Provisional Determination.

No binding precedent

CD 28
CD 28 :
  1. The Chief Adjudicator investigates and gives Determinations (and where relevant Final Determinations) in individual cases in a way that does not set any binding precedent of any kind.
  2. The Chief Adjudicator will carry out investigations, and issue Determinations (and where relevant Final Determinations), on case by case basis in accordance with the individual facts of each case.
  3. Except where these Scheme Rules specifically provide (in relation to Group Complaints under SC 8) the Chief Adjudicator is not bound by any previous investigation, Determination, or Final Determination.
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