Participation Deed

The Participation Deed forms the legal basis on which the BBRS provides a scheme for the resolution of historical and future disputes between eligible larger SMEs and their banks. It sets out the terms on which the BBRS can resolve complaints and banks will participate in the dispute resolution scheme.

This Deed is made on 2021

By

  1. Business Banking Resolution Service, a company incorporated in England and Wales with registered number 12096333 and having its registered office at Tallis House, 2 Tallis Street, Temple, London EC4Y 0AB (BBRS); and
  2. The persons whose names, registered numbers and addresses are set out in columns 1, 2 and 3 respectively of the table in Schedule 2 (each a Bank and, together, the Banks).

RECITALS

  1. The Company, an independent and not-for-profit organisation, has been established in light of the recommendations of the Walker Review to provide a scheme for the resolution of eligible historical and future disputes between eligible SMEs and the Banks, delivering fair and independent outcomes without the need for litigation.
  2. The Banks have agreed to participate in the Scheme as Respondents to Complaints.
  3. This Deed sets out the terms and conditions upon which:
    1. BBRS will have jurisdiction to resolve certain disputes; and
    2. the Banks will participate in the Scheme as Respondents to Complaints.
  1. Interpretation

    In this Deed, unless inconsistent with the context or otherwise specified:

    1. the definitions in Schedule 1 will apply to this Deed;
    2. references to clauses, the Schedules and the Appendices are to clauses of, Schedules to, and Appendices of, this Deed;
    3. the Schedules form part of this Deed and will have effect as if set out in full in the body of this Deed;
    4. any reference to this Deed includes the Schedules;
    5. references to persons include natural persons, bodies corporate, firms and unincorporated associations (whether or not having separate legal personality);
    6. the singular includes the plural and vice versa;
    7. a reference to one gender will include a reference to the other genders;
    8. clause, Schedule and paragraph headings do not affect the interpretation of this Deed;
    9. unless the context otherwise requires:
      1. a reference to a statute or statutory provision shall be construed as including all subordinate legislation (as defined by section 21 (1) Interpretation Act 1978) made from time to time under that statute or provision; and
      2. a reference to a statute, statutory provision or subordinate legislation (as so defined) will be construed as including a reference to that statute, statutory provision, or subordinate legislation as from time to time modified or consolidated, extended, superseded, re-enacted or replaced;
    10. subject to clause 21, writing or written includes Email and any other form of electronic communication;
    11. any reference to a time of day is to United Kingdom time;
    12. any payment under this Deed, which is due to be made on a day that is not a Business Day will be made on the following Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not);
    13. the words other, otherwise, including, includes, for example and in particular do not limit the generality of any preceding words and any words which follow them will not be construed as being limited in scope to the same class as the preceding words where a wider construction is possible;
    14. any obligation on a person not to do something includes an obligation not to agree to that thing being done;
    15. references to this Deed or any other document are to this Deed or that document as in force for the time being and as amended from time to time in accordance with this Deed or that document (as the case may be); and
    16. if there is any conflict or inconsistency between a term in the body of this Deed and a term in any of the Schedules or other documents referred to in this Deed, the term in the body of this Deed shall take precedence, unless the relevant Schedule or other documents which is referred to in this Deed is expressly stated to take precedence over this Deed; and
    17. Each Bank is liable only for its own warranties and observation and performance of its obligations under this Agreement. Each Bank shall have no responsibility or liability in respect of any warranty given by any other Bank or the observation and performance by any other Bank of such other Bank’s own obligations under this Deed nor shall any breach of warranty or non-performance or non-observance by any one of more Banks in any way increase the obligations or liability of any other Bank, and the term Bank as used in this Deed means and includes each Bank severally on this basis.
  1. Commencement
    This Deed will take effect on the date on which the last of the Parties executes it.
  2. Dispute resolution scheme
    Without prejudice to the generality of clause 5.2, BBRS agrees to use all reasonable care, skill and diligence to deliver a dispute resolution scheme in accordance with and subject to the Company’s Object, the Articles, and the Scheme Rules.
  1. Participation in the Scheme as a Respondent
    1. Without prejudice to the generality of clause 5.2, each Bank agrees to act as Respondent in relation to Complaints which are brought against it (and only it):
      1. subject to and in accordance with this Deed and the Scheme Rules; and
      2. provided that, in relation to identification and verification of a Complainant, a Bank is able to discharge its legal and regulatory duties.
    2. Where a Complaint is registered with BBRS against a legal entity that (i) is not a Party to this Deed, but (ii) is a Relevant Group Entity in relation to a Bank which is (or Banks which are) a Party to this Deed, BBRS will notify the Bank which is (or Banks which are) a Party to this Deed (for the purpose of this clause 4.2, each an Existing Respondent) in writing. In the event that BBRS so notifies an Existing Respondent:
        1. the Existing Respondent may by written notice to BBRS elect to become the Respondent to that Complaint and assume responsibility for it. In this case, upon service of that written notice on BBRS, the Existing Respondent shall become the Respondent to (and, in this Deed, the Bank relevant for) that Complaint for all purposes under this Deed and the Scheme Rules on the same terms as if the Complaint had been brought against it directly (however, any such election must be made for an individual Complaint, and a Bank’s election to become the Respondent in relation to one Complaint will not be deemed as an election to become the Respondent in relation to any other Complaint or class of them); or
        2. the Relevant Group Entity may seek admission to the Scheme in accordance with clause 10, such that the Relevant Group Entity adheres to this Deed and becomes the Respondent for that Complaint in its own right,

      provided that if there is no Respondent for that Complaint by a date falling 6 calendar months from (but excluding) the date on which the Complaint was registered with BBRS, BBRS shall decline to consider it and shall notify the Complainant accordingly.

    3. Without prejudice to the generality of this Deed and the Scheme Rules, each Bank agrees in good faith to consider a request from a Complainant or BBRS for that Bank:
      1. to delay or forbear from commencing any legal proceedings of any kind against the Complainant in respect of the same matters that are the subject of a Complaint, pending consideration by BBRS of that Complaint;
      2. to forbear from obstructing or preventing an insolvency practitioner from assigning any claim belonging to an insolvent business to an assignee who is able under the Scheme Rules to bring a complaint to BBRS;
      3. to enter into a ‘standstill’ agreement in respect of a legal claim a Complainant has against the Bank arising from the subject matter of a Complaint, such that the Complainant’s general ability to commence legal proceedings in respect of that claim will not be prejudiced by the operation of the Limitation Act 1980.

      Concessionary cases

    4. Where:
        1. BBRS has received a Complaint and determined that it does not meet the Eligibility Conditions solely because of Scheme Rule EL 2(1)(d) or EL 4(1)(d); and
        2. either:
          1. the relevant Complainant considers they have new evidence that was not considered in the Excluded Scheme and, had it been considered, would have materially changed the outcome they received from it; or
          2. the relevant Complainant did not have, nor could reasonably be expected to have had, notice of the Excluded Scheme,

      BBRS will refer that Complaint to the relevant Bank.

    5. Each Bank agrees that upon receipt of a Complaint referred from BBRS under clause 4.4, it will:
      1. consider that referral in good faith to decide whether or not to reconsider the Complaint;
      2. if the Bank decides to reconsider the Complaint:
        1. where the relevant Excluded Scheme is still open, it will take steps to arrange for the Complaint to be reconsidered under that Scheme; or
        2. where the relevant Excluded Scheme is no longer open, reconsider the Complaint reasonably and in good faith applying the same principles that were used by the relevant Excluded Scheme, including by reviewing any evidence the Complainant considers to be new. (For the avoidance of doubt, however, the Bank would not be required to reconstitute a closed scheme to effect the reconsideration); and in the case of either (i) or (ii) above, once the reconsideration is complete, provide to BBRS and the relevant Complainant a written explanation in sufficient detail to enable BBRS to explain it to the relevant Complainant;
      3. if the Bank decides not to reconsider the Complaint, it will provide a written explanation to BBRS and the Complainant clearly setting out its reasons for not doing so;
      4. in the case of either (b) or (c), the Bank will:
        1. answer any reasonable follow up questions that BBRS might have about the written explanation; and
        2. not raise any objection to BBRS discussing the written explanation with the Complainant, and helping the Complainant to understand it.
    6. Where:
        1. BBRS has received a Complaint and determined that it does not meet the Eligibility Conditions for any reason, including for reasons falling under clause 4.4(a); and
        2. BBRS considers that it should be able to consider that Complaint,

      BBRS will:

        1. seek the written consent of the relevant Bank to admit the Complaint to the Scheme pursuant to Scheme Rule SC 21; and
        2. provide to the relevant Bank at the same time as the request for consent an explanation of why BBRS considers that it should be able to consider that Complaint,

      (save that, in relation to any Complaint which falls within clauses 4.4 and 4.5, this clause 4.6 shall only apply to that Complaint once BBRS has finished dealing with it under those clauses, to the extent it has not already been resolved).

    7. Each Bank agrees that upon receipt of a request and explanation from BBRS under clause 4.6, it will:
      1. consider BBRS’ request and explanation, acting reasonably and in good faith; and
      2. in the event the relevant Bank declines to give consent under Scheme Rule SC 21, give its reasons for doing so to BBRS and the Complainant.
    8. Recommended Amounts and Recommended Actions

    9. Each Bank acknowledges that there is an expectation that it will:
      1. pay a Recommended Amount; and/or
      2. take a Recommended Action;

      which, in either case, BBRS has set out in a Determination or Final Determination. When deciding, pursuant to the Scheme Rules, whether or not it will meet such a recommendation, it will make its decision acting reasonably and in good faith. Where a Bank declines to pay a Recommended Amount or take Recommended Action (in whole or in part), it will provide its reasons to BBRS and the Complainant.

    10. Dissolved Complainants

    11. The parties acknowledge that providing dispute resolution in relation to Dissolved Complainants, and achieving a mechanism to bring about fair and reasonable outcomes that is compatible with the law, is challenging. In particular, there is a need to recognise that Awards made by BBRS may not vest in former directors or shareholders who experienced the conduct giving rise to Complaints. To support the resolution of Complaints from Dissolved Complainants, each Bank will act reasonably and in good faith when:
      1. responding to a request from BBRS pursuant to Scheme Rule SC 17 for its written consent to consider a Dissolved Complaint. Where a Bank declines to give its written consent, it will provide its reasons to BBRS and the person representing the Dissolved Complainant;
      2. engaging with BBRS, and/or the Recognised Individual, to support the resolution of the Complaint.
  1. Scheme Rules, Customer Agreement and Settlement Document
    1. BBRS covenants and undertakes to each Bank:
      1. to adopt on the date on which this Deed becomes effective in accordance with clause Error! Reference source not found.:
        1. the Scheme Rules in the form set out in Appendix A; and
        2. the forms of Customer Agreement and Settlement Document set out in Appendix B;
      2. to implement, operationalise and administer, with effect from the date on which this Deed becomes effective in accordance with clause Error! Reference source not found.:
        1. the Scheme Rules; and
        2. the Customer Agreement and Settlement Document; and
      3. subject to (d), not to vary or purport to vary the Scheme Rules or the Customer Agreement except with the prior written consent of the Bank Appointed Member;
      4. BBRS and any Respondent may from time to time agree in writing to supplement (but not otherwise to vary) the list of Excluded Schemes contained in the definition of Excluded Scheme in the Scheme Rules, by adding a scheme that relates only to that particular Respondent. In this case, BBRS will give the Bank Appointed Member 20 Business Days’ written notice of the supplemented definition of Excluded Scheme before it takes effect, and will then notify the supplemented list of Excluded Schemes on its website in accordance with the Scheme Rules. Any other variation of the definition of Excluded Scheme shall require the prior written consent of the Bank Appointed Member in accordance with clause 5.1(c).
    2. Each of the Parties covenants and undertakes as a condition of this Deed to comply with the Scheme Rules at all times.
    3. BBRS covenants and undertakes to each Bank to provide on its website notice of any changes to the Scheme Rules which are due to come into force, in good time before such changes actually come into force.
    4. BBRS undertakes to publish on its website a statement concerning concessionary cases in the form set out at Appendix C.
  1. Provision of documents to BBRS by a Bank
    1. Without prejudice to the generality of clause 5.2, and subject to clauses 6.2 and 6.3, each Bank shall comply with a request for documentary evidence validly made of it by BBRS in accordance with the Scheme Rules (including but not limited to Scheme Rule SC 14 and Scheme Rule CD 12) by providing that documentary evidence to BBRS in the manner and within the timeframe provided for by the Scheme Rules.
    2. No Bank shall be under an obligation pursuant to clause 6.1 to provide any of the following types of evidence to BBRS:
        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; or
        2. evidence which that person is prevented from disclosing because of Applicable Law and Regulation. For the avoidance of doubt, this shall include, but not be limited to, (i) any evidence relating to financial crime matters which cannot be disclosed because to do so would 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; and (ii) any evidence which cannot be disclosed as a result of Regulation (EU) 2016/679 (the General Data Protection Regulation) or the Data Protection Act 2018, or any similar or successor legislation in force from time to time; or
        3. evidence which cannot be identified during a reasonable and proportionate search in accordance with Scheme Rule CD 14(1);

      provided that such Bank shall (to the extent that it is able to do so and not prevented by Applicable Law and Regulation) explain in writing in reasonable detail to BBRS the reasons why it is not complying with a request for evidence pursuant to this clause 6.

    3. A Bank shall not be liable in any way for any non-compliance with a request for documentary evidence made by BBRS where the channel agreed with the Chief Adjudicator for submission of the relevant documents pursuant to Scheme Rule CD 14(1)(d) is a computer or other electronic case management system controlled or managed by BBRS, and the non-compliance is due to the unavailability or technical failure of the relevant computer or electronic case management system.
  1. Enforceability of a Determination and a Final Determination against a Bank
    1. Without prejudice to the generality of clause 5.2, but subject to clauses 7.6 and 7.7, each Bank agrees, for the benefit of:
      1. BBRS; and
      2. a Complainant named in a Determination or a Final Determination in respect of whose Complaint such Bank is Respondent,

      (and for the benefit of those persons only) that:

      1. (1) in respect of a Determination: once that Determination has become capable of acceptance, and the relevant Complainant has accepted it in accordance with the Scheme Rules, and that Determination has become binding on the Respondent under Scheme Rule DT 16 or as the case may be Scheme Rule DT 19, that Bank will comply with the terms of the Determination with effect from the relevant Enforcement Date set out in Scheme Rule DT 16 or as the case may be Scheme Rule DT 19;
      2. (2) in respect of a Final Determination: once that Final Determination has become capable of acceptance, and the Complainant has accepted it in accordance with Scheme Rule AP 10 and that Final Determination has become binding on the Respondent under Scheme Rule AP 10, that Bank will comply with the terms of the Final Determination with effect from the Enforcement Date set out in Scheme Rule AP 10.
    2. The obligations of each Bank under clause 7.1 shall be limited to:
      1. the payment in accordance with the terms of the relevant Determination or Final Determination of:
        1. any Award; and
        2. any Recommended Amount the Respondent has expressly confirmed, pursuant to rule DT 14 or as the case may be rule AP 9, to pay; and
      2. using its reasonable endeavours to comply with:
        1. any lawful Direction in favour of the Complainant set out in the relevant Determination or Final Determination; and
        2. any Recommended Action the Respondent has expressly confirmed, pursuant to rule DT 14 or as the case may be rule AP 9, it will take.
    3. A Complainant named in a Determination or a Final Determination issued in accordance with the Scheme Rules shall, as a third party to this Deed, have the right to enforce the terms of this clause 7 and clause 28 (and those clauses only) against a Bank named as Respondent in that Determination or Final Determination (but not against BBRS). In the case of a Bank’s obligation under clause 7.2(a), the relevant sum shall be enforceable as a debt owed by such Bank to the Complainant named in the relevant Determination or Final Determination.
    4. A copy of any Determination or Final Determination, in each case which appears to have been signed on behalf of BBRS in accordance with the Scheme Rules, will be accepted by a Bank named as Respondent in such Determination or Final Determination as evidence for the purposes of any proceedings that such Determination or Final Determination was made by BBRS, unless the contrary is shown.
    5. The Parties agree that rights created under this clause 7 will:
      1. survive any termination of this Deed; and
      2. not be affected in any way by:
        1. the winding up of BBRS; or
        2. the cessation for any other reason of the Scheme, including the Scheme being passed to another body.
    6. Clauses 7.1 to 7.5 above will not apply where a binding settlement agreement has been entered into to give effect to a Determination or Final Determination in place of a deed in the form prescribed by BBRS, in accordance with Scheme Rule DT 15 (or as the case may be Scheme Rule AP 10) and the definition of Settlement Document in the Scheme Rules.
    7. Nothing in this clause 7 or the Scheme Rules shall require a Bank to make any payment to any person where:
      1. it is prevented from making the payment by Applicable Law or Regulation; or
      2. save in the case of a Recognised Assignee, the recipient of the payment would not be the person who suffered the loss in respect of which the Award (including any agreed Recommended Amount) in the Determination or Final Determination is made; or
      3. the recipient of the payment would not be able to provide to the Bank good receipt for the payment as a matter of insolvency law or regulation.
  1. Set off
    1. Where a Bank owes a sum of money to a Complainant pursuant to clause 7.1, without prejudice to any other right or remedy the Bank may have, the Bank may at its sole discretion set off against that sum any other amount (an Other Amount) which is payable by that Complainant to the Bank (in whatever amount, and in whatever currency, and whether or not arising under this Deed). To the extent that the Bank sets off an Other Amount, the Bank will notify the relevant Complainant within a reasonable time period.
    2. Where a right of set off in (a) is used, and BBRS has recommended as part of a Determination or Final Determination that the Bank not use any right of set off, the Bank will provide written reasons to BBRS and Complainant explaining why it has used the right, and provide reasonable assistance to facilitate BBRS discussing that explanation with the Complainant.
  1. Release of claims as between the Banks
    Without prejudice to clause 1.17, each Bank irrevocably and unconditionally waives any claim or right of action it may have under this Deed (whether in respect of any breach of contract, monies due to it or on any account whatsoever) against any other Bank and agrees to release and discharge them from any liability whatsoever in respect of such claim or right of action by it.

  2. Admission or withdrawal of a Bank

    Admission

    1. The Parties agree that, subject to clause 10.2, other financial institutions (including Relevant Group Entities) may participate in the Scheme from time to time pursuant to the terms of the Funding and Operation Agreement and, subject to complying with that agreement, may adhere and become a Party to this Deed.
    2. A person may not adhere to this Deed unless either: (a) it is a Funding Party; or (b) an entity in its Group is a Funding Party and has agreed to act as Group Representative in relation to it, in either case for the purposes of the Funding and Operation Agreement.
    3. A person joining the Scheme on the basis that it will not itself become a Funding Party for the purposes of the Funding and Operation Agreement (i.e. on the basis that another Funding Party has agreed to act as Group Representative in relation to it) may adhere to this Deed by executing a Deed of Adherence following such process as BBRS and the relevant Group Representative for that person may agree in writing from time to time.
    4. In this Deed, unless the context requires otherwise or the terms of any Deed of Adherence provide otherwise, the expression Bank includes, with effect from the date of adherence, any party adhering to this Deed as a Bank pursuant to a Deed of Adherence.
    5. Each Bank irrevocably and unconditionally appoints BBRS as its lawful attorney for the purpose of executing and delivering any Deed of Adherence on its behalf, provided that such execution and delivery, and the admission to the Scheme of the Bank to which it relates is in accordance with the terms of this Deed and the Funding and Operation Agreement.
    6. Withdrawal

    7. A Bank which is a Funding Party for the purposes of the Funding and Operation Agreement may withdraw from the Scheme (and accordingly cease to be a Party to this Deed) pursuant to the terms of the Funding and Operation Agreement.
    8. A Bank which is not a Funding Party for the purposes of the Funding and Operation Agreement may withdraw from the Scheme (and accordingly cease to be a Party to this Deed) following such withdrawal process as BBRS and the Group Representative for that Bank may agree from time to time pursuant to the Funding and Operation Agreement. Such withdrawal process must provide at least for the BBRS to complete adjudication of any Complaint against that Bank that was registered with BBRS as at the date the BBRS was notified of that Bank’s intention to withdraw.
  1. Termination of this Deed
    1. Subject to clause 11.2, this Deed (except for the Continuing Provisions) will cease, determine and be of no further effect in respect of the rights and obligations of a Bank after, as the case may be:
      1. a Final Exit Date has occurred in relation to that Bank under the Funding and Operation Agreement; or
      2. following completion of an agreed withdrawal process referred to in clause 10.7; or
      3. a Scheme Closure Date has occurred under the Funding and Operation Agreement (in relation to the closure of the Scheme).
    2. Any cessation or determination pursuant to clause 11.1 shall be without prejudice to the rights, obligations or liabilities of any Party which shall have accrued or arisen prior to such cessation and determination.
    3. The Continuing Provisions shall survive the termination of this Deed.
  2. Termination of this Deed
    1. This Deed may be binding on and shall enure for the benefit of each Party’s successors.
    2. Except as permitted by the Funding and Operation Agreement, no Party will assign or novate any of its rights and obligations under this Deed to any person or otherwise transfer any of its rights and obligations under this Deed to another person.
  1. Liability
    1. Without prejudice to clause 13.5, unless it can be shown that BBRS acted in bad faith, BBRS will not be liable to any Bank in damages for anything done or omitted in the discharge or purported discharge of any of its obligations under this Deed pertaining to the function of providing the dispute resolution scheme under clause 3.
    2. No individual, including the Chief Adjudicator, any member of BBRS’s governing body, any other BBRS member of staff, or member of staff of any organisation providing services to BBRS, shall be liable to any Bank in damages or otherwise for anything done or omitted in the discharge or purported discharge of any obligation pertaining to the provision of the dispute resolution scheme under clause 3.
    3. Without prejudice to clause 13.5, unless it can be shown that a Bank acted in bad faith, it will not be liable to BBRS in damages for anything done or omitted in the discharge or purported discharge of any of its obligations under this Deed.
    4. No individual, including but not limited to a member of a Bank’s governing body, or a member of its staff, or member of staff of any organisation providing services to a Bank, shall be liable to BBRS in damages for anything done or omitted in the discharge or purported discharge of any obligation under this Deed.
    5. The Parties acknowledge and agree that in the event of a breach of the terms of this Deed or the Scheme Rules, monetary damages will not be an adequate remedy.
    6. In the event of any actual or threatened breach of this Deed or the Scheme Rules, BBRS (in the case of an actual or threatened breach by a Bank) or each Bank (in the case of an actual or threatened breach by BBRS) shall have the right to seek at the discretion of the relevant court specific performance and injunctive or other equitable relief of its rights under this Deed or the Scheme Rules, in addition to any and all other rights and remedies at law or in equity, and all such rights shall be cumulative. The Parties agree that this clause 13 represents a fair and equitable position.
    7. Notwithstanding any other provision of this Deed, BBRS acknowledges and agrees that the only financial liability or obligation that each Bank shall have to BBRS under or in connection with this Deed shall be as expressly set out in the Funding and Operation Agreement.
    8. No Party seeks to exclude any liability for any matter which cannot lawfully be excluded.
    9. Nothing in this clause 13 shall in any way reduce or affect each Party’s general duty at law to mitigate loss suffered by it.
    10. Any individual mentioned in clauses 13.2 and 13.4 may rely on that clause as a third party to this Deed insofar as they seek to enforce its provisions in defence of a claim brought against them.
  1. DefamationEach Party agrees that, for the purposes of the law relating to defamation, proceedings in relation to the resolution of a Complaint by BBRS pursuant to this Deed and the Scheme Rules are to be treated as if they were proceedings before a court.
  2. Force majeure
    1. Provided it notifies the other Parties as soon as reasonably practicable with details of the likely duration and effect of the Force Majeure Event, to the extent that a Party is prevented, hindered or delayed in or from performing any of its obligations under this Deed as a direct result of a Force Majeure Event (Affected Party), the Affected Party will not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations.
    2. The Affected Party will use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations. The time for performance of such obligations will be extended for the period that the relevant Force Majeure Event subsists.
  3. Third Party Rights
    The Parties agree that, except as expressly provided under clauses 7 and 13.10 of this Deed:

    1. a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or enjoy the benefit of any term of this Deed; and
    2. notwithstanding any term of this Deed, the consent of any person who is not a Party is not required to rescind or vary this Deed at any time.
  4. Further assurance
    Each Party shall, and shall use all its reasonable endeavours to procure that any relevant third party shall, execute such documents and do such acts and things, reasonably requested of it by another Party to implement and give full effect to the terms of this Deed.
  1. Entire agreement and acknowledgment
    1. This Deed (with the other documents referred to in it) sets out the entire agreement and understanding between the Parties in connection with its subject matter (but not the funding of BBRS), and supersedes all proposals and prior agreements, arrangements and understandings between the Parties, relating to the subject matter of this Agreement all of which proposals, prior agreements, arrangements and understandings are hereby terminated by mutual consent.
    2. Each Party acknowledges that in agreeing to enter into this Deed it does not rely on any implied terms nor on any representation, warranty, representation, collateral contract or other assurance of any person (whether a Party to this Deed or not) which is not expressly set out in this Deed (and the other documents referred to in it). Each Party waives all rights and remedies which, but for this clause 18.2, might otherwise be available to it in respect of any such implied term, representation, warranty, collateral contract or other assurance. The only remedy available to any Party in respect of any representation, warranty, term, collateral contract or other assurance expressly set out in this Deed (or any document referred to in it) is as provided for under the terms of this Deed (or any document referred to in it). Nothing in this Deed will, however, limit or exclude any liability for fraudulent misrepresentation or fraudulent misstatement.
  2. Costs
    Except as otherwise stated in this Deed or as provided for in the Funding and Operation Agreement and the Scheme Rules, each Party will bear their own costs, charges and expenses incurred in connection with the preparation, negotiation, completion and implementation of this Deed and all ancillary documents to be entered into by some or all of the Parties pursuant to this Deed.
  3. Waiver and rights cumulative
    1. Subject to the Scheme Rules, delay by any Party in exercising, or failure to exercise, any right or remedy in connection with this Deed will not operate as a waiver of that right or remedy. The waiver of a right to require compliance with any provision of this Deed in any instance will not operate as a waiver of any further exercise or enforcement of that right and the waiver of any one breach will not operate as a waiver of any other or subsequent breach. No waiver in connection with this Deed will, in any event, be effective unless it is in writing, refers expressly to this clause 20.1, is duly signed by or on behalf of the Party granting it and is communicated to the other Parties in accordance with clause 21.
    2. The rights and remedies of the Parties in connection with this Deed are cumulative and, except as expressly stated in this Deed, are not exclusive of any other rights or remedies provided by law or equity or otherwise. Except as expressly stated in this Deed (or at law or in equity in the case of rights and remedies provided by law or equity) any right or remedy may be exercised (wholly or partially) from time to time.
  1. Notices
    1. Any notice or formal communication to be made under or in connection with this Deed (excluding, for the avoidance of doubt, any communication required under the Scheme Rules, in respect of which Scheme Rule GPR 4 will apply) must be in writing and must be delivered or sent by post to the other party (with a copy sent by Email, but which shall not, by itself, constitute valid notice for the purposes of this Deed), in accordance with the details specified in this clause 21.
    2. The Email and postal address (and the department or officer, if any, for whose attention the communication is to be addressed) of each Party for any communication to be made or delivered in connection with this Deed is:
      1. in the case of each Bank, that Email, and postal address, and FAO details shown opposite its name in schedule 2; and
      2. in the case of BBRS:
          1. Email: [email address]
          2. Address: Tallis House
            2 Tallis Street
            Temple
            EC4Y 0AB
          3. FAO: Director of Legal and Policy

        or any substitute Email or postal address or FAO details as any Party may notify to the other Parties from time to time for this purpose in accordance with this clause 21.

    3. Without prejudice to clause 21.1, any notice or communication made or delivered by one person to another under or in connection with this Deed will be effective only:
      1. if sent by Email, when received in legible form by at least one of the relevant email addresses of the person(s) to whom the communication is made;
      2. if sent by letter; and:
        1. hand delivered to a Party between 9.00 am and 5.00 pm on a Business Day (Business Hours), when so delivered (and if delivered by hand outside Business Hours, the notice shall be treated as having been received at the start of Business Hours on the following Business Day); and
        2. using pre-paid first class recorded delivery post, when received by the addressee; and
      3. if a particular department or officer is specified in a Party’s FAO details, if addressed for the attention of that department or officer.
    4. In proving that a communication has been given by hand delivery or by first class post, it will be sufficient to prove that delivery was made or (as the case may be) that the envelope containing the notice was properly addressed and posted by recorded delivery with the correct postage prepaid.
    5. In proving that a communication has been given by Email it will be sufficient to prove that it was sent to the correct Email address(es) expressly marked for the attention of the correct department or officer.
    6. Promptly upon changing its postal address or email address or FAO details, the relevant Party shall notify the other Parties.
  1. Alteration
    1. No amendment of this Deed shall be binding on the Parties unless set out in writing, expressed to amend this Deed and signed by or on behalf of each of the Parties.
    2. Without prejudice to the generality of clause 22.1, the Parties acknowledge that following this Deed coming into force:
      1. there may be changes to Applicable Law and Regulation (including as a result of changes to the legal or regulatory system) which:
          1. apply to BBRS, the Scheme, a Bank or any other person participating in the Scheme; and
          2. are inconsistent with this Deed, or provide mandatory supplementary requirements,

        which a Party reasonably considers need to be reflected in this Deed to reflect Applicable Law and Regulation (or changes to the legal or regulatory system); or

      2. a Party may consider that the operation of this Deed (or any similar agreement entered into between BBRS and each Bank) gives rise to practical issues which need to be rectified (not being issues arising from the changes referred to in (a) above).
    3. In the event that either clause 22.2(a) or clause 22.2(b) applies and provided that BBRS, acting reasonably, considers that there is a good reason for this Deed to be amended, BBRS shall give each Bank notice in writing of the issues which have arisen and the changes proposed by BBRS to rectify such issues.
    4. Following receipt by each Bank of a notice under clause 22.3, each Bank shall:
      1. consider and use all reasonable endeavours to co-operate with, and discuss with BBRS the changes proposed in order to reach collective agreement with BBRS on the necessary amendments to this Deed; and
      2. use all reasonable endeavours to confirm such agreement to BBRS within thirty (30) Business Days of receipt of notice from BBRS of the proposed amendments. Following such confirmation each Bank and BBRS will execute the agreed amendments to this Deed as soon as reasonably possible and in any event within twenty (20) Business Days.
  1. Illegality, invalidity, etc of a provision
    1. The Parties intend that each provision of this Deed is to be severable and distinct from the others. If a provision of this Deed is held to be illegal, invalid or unenforceable, in whole or in part, the Parties intend that the legality, validity and enforceability of the remainder of this Deed will not be affected.
  2. Counterparts
    1. This Deed may be executed in any number of counterparts, and by the Parties on separate counterparts, all of which taken together when duly executed by one or more of the Parties will constitute one and the same instrument.
  3. No partnership or agency
    1. Each of the Banks and BBRS are associated together only for the purposes of the dispute resolution scheme which BBRS is required to deliver pursuant to clause 3. It is understood by the Parties that no relationship will subsist between them which would be regarded as a partnership within the meaning of the Partnership Act 1890 such that, in accordance with section 1(5) of such Act, the law relating to partnerships will not apply to this Agreement or to BBRS. No Party will make any statement or representation to any third party that there is any relationship between the Parties which would be regarded as such a partnership or that any Party has authority to act as agent for any other Party.
  4. Several liability
    1. Unless expressly provided otherwise, obligations expressed in this Deed to be assumed by, or covenants, warranties, representations or undertakings expressed in this Deed to be given by two or more persons shall in each case be construed as if expressed to be given severally (and not jointly nor jointly and severally).
  5. Dispute resolution at a meeting of the Parties
    1. Without prejudice to clauses 13 and 28, if from time to time BBRS or a Bank forms the view that a Bank (in the case of BBRS) or BBRS (in the case of a Bank) has failed to comply with any of its obligations under this Deed or the Scheme Rules, such Party shall have the right to request and attend a meeting with the other Party to discuss the subject matter of such alleged failure and such other Party will in good faith attend such meeting within 30 days and discuss such alleged failure. A Party shall have reasonable regard for any request by the Party that has requested such meeting in respect of such alleged failure and the relevant Parties shall use reasonable endeavours to reach agreement between themselves on a mutually acceptable outcome to the dispute and, where relevant, remedy for the alleged failure.
  1. Governing law and jurisdiction
    1. This Deed and any disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature, including claims in tort, for breach of statute or regulation or otherwise) shall be governed by and interpreted in accordance with English law.
    2. Subject to clause 28.3, all disputes and claims between the Parties arising out of or relating to this Deed shall be subject to the exclusive jurisdiction of the courts of England and Wales to which the Parties irrevocably submit.
    3. In the event any dispute arises between a Bank and a Complainant (as a third party to this Deed) arising out of or relating to such Bank’s failure or alleged failure to comply with clause 7, such dispute shall be subject to the exclusive jurisdiction of:
      1. where the Complainant is domiciled in England or Wales, the courts of England and Wales;
      2. where the Complainant is domiciled in Scotland, the courts of Scotland; and
      3. where the Complainant is domiciled in Northern Ireland, the courts of Northern Ireland,

      in each case to which the Parties irrevocably submit.

    This document has been executed as a deed and takes effect as set out in clause 2.

Schedule 1

Definitions

Capitalised terms used within this Deed and not otherwise defined shall have the meanings set out below. Where a capitalised term is used without definition in this Deed it shall have the same meaning as in the Scheme Rules, as defined below:

  • Applicable Law and Regulation

    All applicable laws, enactments, regulations, regulatory policies and guidelines, industry codes, stock exchange requirements, regulatory permits and regulatory licences which are in force from time to time.

  • Articles

    The articles of association of BBRS from time to time.

  • Award

    Has the meaning given to it in the Scheme Rules.

  • Bank Appointed Member

    Has the meaning given to it in the Articles.

  • Business Days

    Means any day (other than a Saturday, a Sunday or a bank or public holiday in England, Scotland or Northern Ireland) when banks in London, Edinburgh and Belfast are generally open for business.

  • Chief Adjudicator

    Has the meaning given to it in the Scheme Rules.

  • Company's Object

    Has the meaning set out in Article 2 of the Articles.

  • Complainant

    Has the meaning given to it in the Scheme Rules.

  • Complaint

    Has the meaning given to it in the Scheme Rules.

  • Continuing Provisions

    Means each of:
    (i) clauses 1, 7, 8, 9, 11, 13, 14, 16, and 28 of this Deed; and
    (ii) clause 5.2 of this Deed (covenant to comply with the Scheme Rules) insofar as it concerns Scheme Rules GPR 2 (legal basis of the Scheme), GPR 5 (Confidential Complaint Information), GPR 10 (No arbitration); and
    (iii) clause 5.2 of this Deed (covenant to comply with the Scheme Rules) insofar as it concerns any Rule in the DT, AW and AP chapters of the Scheme Rules governing the acceptance of, and the legally binding effect of, a Determination or Final Determination issued before the termination of this Deed,
    and for the avoidance of doubt the Parties intend all these provisions to survive not only the termination of this Deed but also the winding up of BBRS or the cessation for any other reason of the Scheme, including the Scheme being passed to another body.

  • Customer Agreement

    The pro forma customer agreements set out in Appendix B to this Deed as may be amended from time to time in accordance with clause 5.1(c).

  • Deed of Adherence

    A deed in the form set out in schedule 3 (subject to any variation agreed between BBRS and the Bank Appointed Member).

  • Determination

    Has the meaning given to it in the Scheme Rules.

  • Direction

    Has the meaning given to it in the Scheme Rules.

  • Dissolved Complainant

    Has the meaning given to it in the Scheme Rules.

  • Eligibility Conditions

    Has the meaning given to it in the Scheme Rules.

  • Final Determination

    Has the meaning given to it in the Scheme Rules.

  • Force Majeure Event

    means any circumstance not within a Party’s reasonable control:

    (a) acts of God, flood, drought, earthquake or other natural disaster;

    (b) epidemic or pandemic;

    (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;

    (d) nuclear, chemical or biological contamination or sonic boom;

    (e) any law or any action taken by a government or public authority, including failing to grant a necessary licence or consent for reasons outside the relevant Party’s reasonable control;

    (f) collapse of buildings, fire, explosion or accident;

    (g) any nationwide labour or trade dispute, strike, industrial action or lockout;

    (h) interruption or failure of utility service; or

    (i) non-performance by suppliers or subcontractors but only to the extent still subsisting and directly caused by an event falling under (a) to (h) above that is outside the reasonable control of the relevant party and would be treated as a force majeure event under its contractual agreement with BBRS.

  • Funding and Operation Agreement

    The agreement between BBRS and those parties funding it setting out:

    (a) the terms upon which funding will be provided BBRS; and

    (b) provisions relating to the operations of BBRS and the Scheme.

  • Funding Party

    means, at any relevant time, the persons participating in and funding the Scheme in accordance with the Funding and Operation Agreement, which, at the date of that agreement will consist of the Funding Parties (and Funding Party means any one of them individually);

  • Group

    In relation to a company, that company, any subsidiary or holding company from time to time of that company and any subsidiary from time to time of a holding company of that company.

  • Group Representative

    Where two or more Same Bank Group Undertakings have each entered into this Deed as a Respondent to Complaints in respect of Complaints which are brought against it, but only one of such Same Bank Group Undertakings is party the Funding and Operation Agreement, that latter party is the Group Representative.

  • Other Amount

    Has the meaning given to it in clause 8(a).

  • Party; Parties

    The parties to this Deed from time to time (whether by virtue of having executed and delivered this Deed or having entered into a Deed of Adherence).

  • Recognised Assignee

    Has the meaning given to it in the Scheme Rules.

  • Recommended Action

    Has the meaning given to it in the Scheme Rules.

  • Recommended Amount

    Has the meaning given to it in the Scheme Rules.

  • Relevant Group Entity

    means a legal entity which (i) was at the time of the matters set out in the Complaint providing a Banking Service to the Complainant; and (ii) is at the time the Complaint referenced in clause 4.2 is registered with BBRS a group undertaking in the same bank group as a Bank that is a Party to this Deed.

  • Respondent

    Has the meaning given to it in the Scheme Rules, which is, a firm which has agreed with the BBRS to act as Respondent to Complaints under this Participation Deed.

  • Same Bank Group Undertaking

    means two or more group undertakings in the same bank group (and each of them is a Same Bank Group Undertaking) but excludes any undertaking that is not, and has no wish at the time to become, or is not eligible to be, a party to this Deed.

  • Scheme

    The dispute resolution scheme to be established and operated by BBRS in accordance with the terms of this Deed.

  • Scheme Rules

    The scheme rules of BBRS, a copy of which is appended to this Deed as Appendix A, as varied from time to time in accordance with clause 5.

  • Settlement Document

    Has the meaning given to it in the Scheme Rules. A pro forma Settlement Document is set out in Appendix B to this Deed and may be amended from time to time in accordance with clause 5.1(c).

  • SME

    Small and medium-sized enterprises

  • United Kingdom

    England and Wales, Scotland and Northern Ireland (but not the Channel Islands or the Isle of Man).

  • Walker Review

    means the report, published on 23 October 2018 by Simon Walker CBE, on the findings of an independent review into the complaints and alternative dispute resolute landscape for the UK’s SME market.

Schedule 2

The Banks

Name Registered number Registered Office Address
Name :

Bank of Scotland plc

Registered number :

SC327000

Registered Office Address :

The Mound, Edinburgh, EH1 1YZ

Name :

Barclays Bank PLC

Registered number :

01026167

Registered Office Address :

1 Churchill Place, London, E14 5HP

Name :

Barclays Bank UK PLC

Registered number :

09740322

Registered Office Address :

1 Churchill Place, London, E14 5HP

Name :

Clydesdale Bank PLC

Registered number :

SCOO1111

Registered Office Address :

30 St. Vincent Street, Glasgow, G1 2HL

Name :

Coutts & Company

Registered number :

00036695

Registered Office Address :

440 Strand, London, WC2R 0QS

Name :

Northern Bank Limited trading as Danske Bank

Registered number :

R568

Registered Office Address :

Donegall Square West, Belfast BT1 6JS

Name :

HSBC UK Bank plc

Registered number :

9928412

Registered Office Address :

Level 9, 1 Centenary Square, Birmingham, B1 1HQ

Name :

Lloyds Bank plc

Registered number :

2065

Registered Office Address :

25 Gresham Street, London, EC2V 7HN

Name :

National Westminster Bank plc

Registered number :

00929027

Registered Office Address :

250 Bishopsgate, London, England, EC2M 4AA

Name :

NatWest Markets plc

Registered number :

SC090312

Registered Office Address :

36 St Andrew Square, Edinburgh, EH2 2YB

Name :

The Royal Bank of Scotland Plc

Registered number :

SC083026

Registered Office Address :

36 St Andrew Square, Edinburgh, EH2 2YB

Name :

Ulster Bank Limited

Registered number :

R0000733

Registered Office Address :

11-16 Donegall Square East, Belfast BT1 5UB

Schedule 3

Deed of Adherence

This Deed is made on  20
Between

  1. [Person adhering] of  (Adhering Party); and
  2. Business Banking Resolution Service registered in England and Wales with company number 12096333 having its registered office at Tallis House, 2 Tallis Street, Temple, London EC4Y 0AB (BBRS).

Whereas
The Adhering Party intends to participate in the dispute resolution scheme of BBRS and BBRS intends to admit it as a participant in such scheme, subject to the Adhering Party entering into this Deed in favour of BBRS and the persons whose names and addresses are set out in the schedule hereto (the Continuing Parties).

It is agreed as follows:
The parties refer to the Deed to Participate in the BBRS Dispute Resolution Scheme made on  2021 between (1) BBRS, (2) Bank of Scotland plc, (3) Barclays Bank plc, (4) Barclays Bank UK plc, (5) Clydesdale Bank PLC, (6) Coutts & Company, (7) Northern Bank Limited trading as Danske Bank, (8) HSBC UK Bank plc, (9) Lloyds Bank plc, (10) National Westminster Bank plc, (11) NatWest Markets plc, (12) Santander UK plc, (13) The Royal Bank of Scotland plc, and (14) Ulster Bank Limited [as such participation deed has been amended, varied, novated or supplemented prior to the date of this Deed] (a copy of which Deed [as so amended], is attached to this Deed and has been initialled by us for identification) (the Participation Deed).

Words and expressions defined in the Participation Deed will unless the context otherwise requires bear the same meaning in this Deed. BBRS is a party to this Deed on its own behalf and as attorney as contemplated by clause 10.5 of the Participation Deed.

By this Deed the Adhering Party undertakes, with effect from the Admission Date (as defined under the Funding and Operation Agreement) of the Adhering Party and subject only to becoming registered as a member of the Bank Appointed Member, to each Continuing Party to observe and be bound by all the provisions of the Participation Deed (so far as the same remain subsisting and unfulfilled) in all respects as if the Adhering Party were a party to such Participation Deed and named in it as a Bank.

Any Notice to the Adhering Party will be sent to the following [email address or] postal address, or such other address as the Adhering Party may notify to the other Parties from time to time:

[Email Address]
[Postal Address]

Executed and delivered as a deed on the date first above written.

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