Appeals

AP 1
AP 1 :
  1. A Complainant or Respondent may appeal against.
    1. all or any part of a Determination; or
    2. pursuant to SC 18, a decision made concerning Eligibility Conditions.
  2. Appeals will be considered and determined by the Appeal Panel. No other appeal shall be possible.
AP 2
AP 2 :

The party bringing the appeal will be referred to as the Appellant.

The Appeal Notice

AP 3
AP 3 :
  1. An Appellant who wishes to appeal in accordance with AP 1 must have sent an Appeal Notice to the Chief Adjudicator and not have withdrawn that Appeal Notice before the Appeal Deadline set out in the Determination, or the end of the period set under SC 19(2), as the case may be.
  2. The Appeal Notice should:
    1. specify one or more grounds of appeal set out in AP 4 below;
    2. provide an explanation of why the Appellant considers that appeal ground is made out;
    3. not be in the form of a traditional legal pleading; and
    4. be accompanied by any document relied on by the Appellant to support their appeal.

The grounds of appeal

AP 4
AP 4 :
  1. An appeal may only be brought on one or more of the following grounds:
    1. (a) Clear error (of fact or law): BBRS has made a clear error of fact or law on the face of the Determination or decision on Eligibility Conditions, for example a fact stated is in explicit conflict with the factual evidence provided to BBRS during the investigation.
    2. New evidence or information: a party has identified, since the issuing of the Provisional Determination (other than appeals under SC 18), new material evidence or information which was not available to BBRS during the investigation (other than as a result of exclusion for late disclosure in accordance with CD 15) and that party has reasonable grounds for not having provided the evidence or information prior to the original Determination.
    3. Material failure to comply with the Scheme Rules. BBRS has not complied in a material respect with the Scheme Rules and, had it fully complied with them, that would have materially changed all or part of the outcome of the Complaint. This ground of appeal includes where the Eligibility Conditions have been incorrectly applied.

Notification of Appeals

AP 5
AP 5 :
  1. Upon receipt of an Appeal Notice, the Chief Adjudicator must:
    1. notify all parties to the Complaint (other than the Appellant) within 7 days; and
    2. provide them with a copy of the Appeal Notice and any documents accompanying it.
  2. Subject to (4), the Chief Adjudicator must, by that notification:
    1. invite any party to the Complaint (other than the Appellant) to submit a response to the Appeal Notice if that party wishes to do so; and
    2. allow a reasonable period of not less than 28 days for any response to be submitted.
  3. Any responses received will be shared by the Chief Adjudicator with all of the parties to the Complaint, and a reasonable period will then be specified by the Chief Adjudicator for further responses to be submitted.
  4. Where the Chief Adjudicator is satisfied that it is manifestly clear in all the circumstances that there is no possibility of the appeal succeeding, the steps in (2)(a) and (b) need not be followed, and the Chief Adjudicator may proceed in accordance with AP 6(2).

Appeals with no real prospect of success

AP 6
AP 6 :
  1. Following the expiration of the period in AP 5(2)(b), the Chief Adjudicator will:
    1. consider all Appeal Notices relating to that Determination and any responses received in relation to them;
    2. make a decision as to whether it appears that there is a real prospect of the appeal (or as the case may be, appeals) succeeding; and
    3. in making the decision in (b), take into account the extent to which any matter has or has not been raised at the Provisional Determination stage, whether it would have been reasonable to have raised it if it wasn’t, and the extent to which those matters, if so raised, were addressed in the Determination.
  2. If in the Chief Adjudicator’s view there is no real prospect of the appeal (or as the case may be, appeals) succeeding, then the Chief Adjudicator will dismiss it (or them), and:
    1. provide all parties to the Complaint with written notice of that (a Declined Appeal Notice);
    2. set out in the Declined Appeal Notice a new reasonable date by which the Complainant must accept the Determination that was being appealed, if the Complainant still wishes to accept it (the Revised Acceptance Deadline). This must be not less than 28 calendar days and not more than 56 calendar days from but excluding the date the Chief Adjudicator gives the written notice mentioned in para (a). Before setting the Revised Acceptance Deadline, the Chief Adjudicator must consider the amount of time the Complainant is likely to need to decide whether or not to accept the Determination. Once set, a Revised Acceptance Deadline may not be changed or extended under any circumstances, however DT 19 makes provision for where a Complainant accepts a Determination late because of exceptional circumstances; and
    3. the Complainant may then accept the Determination before the Revised Acceptance Deadline in accordance with DT 15, and it will become binding on the Respondent in accordance with DT 16 and DT 17.
  3. If in the Chief Adjudicator’s view there is a real prospect of an appeal in an Appeal Notice (or any part of one) succeeding, the Appeals Panel will proceed to determine it in accordance with AP 7.

Determination of Appeals

AP 7
AP 7 :
  1. In order to determine an appeal, the Appeal Panel must take into account:
    1. the information in the Appeal Notice;
    2. any submissions made in response to it pursuant to AP 5; and
    3. any evidence or submissions that the Chief Adjudicator has gathered from the Complainant and the Respondent during the investigation that led to the Determination under Appeal.
  2. Where the Appeal relates to application of the Eligibility Conditions, the Appeal Panel must re-take the eligibility decision set out in SC 18(4), and then comply with SC 18(5) or SC 18(6) as appropriate. In such cases it will give reasons for its decision in writing to the Complainant and Respondent at the same time, but will not issue a Final Determination.
  3. Where the Appeal relates to any other matter, then to the extent the Appeal Panel determines that the appeal or any part of it should be upheld, within a reasonable time period the Appeal Panel must:
    1. re-determine the Complaint on its merits; and
    2. issue a Final Determination to both parties at the same time.
  4. The Appeal Panel may, where the decision on the appeal requires it, add, amend or remove any Award, Recommended Amount or Recommended Action from a Determination.
  5. For the avoidance of doubt, the power to add, amend or remove an Award, Recommended Amount or Recommended Action will only apply to those parts of a Determination that are appealed.
AP 8
AP 8 :

A Final Determination will:

  1. be in writing;
  2. set out:
    1. the Appeal Panel’s determination of the appeal; and
    2. to the extent the Appeal Panel determines that the appeal or any part of it should be upheld, the Appeal Panel’s determination of Complaint, including any Award;
  3. cover the following matters in a reasonable level of detail:
    1. whether the Appeal Panel upholds or rejects the Appellant’s appeal;
    2. where the Appeal Panel upholds the appeal or any part of it, whether it upholds or rejects the Complainant’s Complaint;
    3. the Appeal Panel’s reasons for those determinations;
    4. the Appeal Panel’s assessment of any loss and damage suffered by the Complainant;
    5. the Appeal Panel’s assessment of whether the loss and damage was caused in whole or in part by the Respondent;
    6. where the Appeal Panel assesses that the loss and damage was caused in whole or in part by the Respondent, what in the Appeal Panel’s view would be fair compensation from the Respondent to the Complainant for that loss and damage;
    7. whether or not the Appeal Panel proposes to make or amend an Award in favour of the Complainant, and the reasons for that;
    8. the Award, any Recommended Amount and any Recommended Action (what these are is explained further in the chapter of these Scheme Rules entitled ‘Awards’);
    9. the following confidentiality statement: “This document is strictly private and confidential and must not be disclosed to any party except: (1) to a professional adviser or other representative in order to obtain advice; (2) where that party is required by law or regulation to disclose it; (3) BBRS and or the Respondent may disclose it voluntarily to the Financial Conduct Authority or other regulator or public authority; and (4) BBRS, the Complainant, or the Respondent may disclose it for the purpose of enforcing it against the Respondent before a court, or in other legal proceedings.”;
    10. any Execution Conditions that must be fulfilled before the Final Determination will become binding. For example, if BBRS reasonably considered that the Complainant and the Respondent should seek to agree a suitable revised loan agreement before the Determination becomes binding, or that the Complainant should provide information to the Respondent about how and where to pay a Money Award, it will specify those as Execution Conditions;
    11. an appropriate explanation to the Complainant of the effect, under AP 10, of accepting a Final Determination;
    12. where the Appeal Panel upholds the Complaint in favour of the Complainant, a reasonable date by which the Complainant must accept the Final Determination if the Complainant wishes to accept it (the Final Determination Acceptance Deadline). This must be at least 28 calendar days from but excluding the date of the Final Determination;
  4. be signed on behalf of BBRS; and
  5. to the extent it differs from the Determination in the same Complaint, in any respect, include written reasons for the change.

Recommendations above the Award Limit

AP 9
AP 9 :
  1. Where the Appeal Panel has, in accordance with AW 5, made a recommendation in a Final Determination that the Respondent pay a Recommended Amount, or carry out a Recommended Action, the Respondent must contact the Chief Adjudicator and the Complainant in writing within 14 calendar days from but excluding the date of the Final Determination to confirm whether or not the Respondent will meet these recommendations. The Respondent may decline to meet them (in whole or in part).
  2. In the event that the Respondent does not give any confirmation in writing to the Chief Adjudicator within the time frame set out in (1), the Respondent shall be treated as having declined to pay any of the Recommended Amount and declined to carry out any Recommended Action.

Complainant’s Acceptance or Rejection of a Final Determination

AP 10
AP 10 :
  1. A Complainant may accept a Final Determination by executing a Settlement Document and returning it to the Chief Adjudicator on or before the Final Determination Acceptance Deadline.
  2. A Final Determination will become binding on the Respondent, subject to and in accordance with the Participation Deed, if:
    1. the Chief Adjudicator receives the Complainant’s executed Settlement Document on or before the Final Determination Acceptance Deadline;
    2. the Chief Adjudicator provides a copy of the Complainant’s executed Settlement Document to the Respondent; and
    3. all Execution Conditions in that Final Determination have been satisfied. Otherwise the relevant Settlement Document will have no effect.

    The Final Determination will become binding on the Respondent, subject to and in accordance with the Participation Deed, on the day that all of the conditions in AP 10(2) are satisfied (in this case, the Enforcement Date).

  3. Where a Complainant does not accept a Final Determination in accordance with (1) and (2), then subject to (4) the Complainant will be treated as having rejected the Final Determination and it will not become binding on any person.
  4. Where, following the issue of a Final Determination:
    1. the Complainant does not accept the Final Determination in accordance with (1) and (2);
    2. the Complainant subsequently seeks to accept a Final Determination by executing a Settlement Document and returning it to the Chief Adjudicator after the Final Determination Acceptance Deadline but within one calendar year of it;
    3. the Complainant has not previously notified the Chief Adjudicator of the Complainant’s rejection of the Final Determination; and
    4. the Chief Adjudicator is satisfied that the Complainant’s failure to accept the Final Determination before the Final Determination Acceptance Deadline was as a result of exceptional circumstances,

    the Chief Adjudicator will notify the Respondent, providing a copy of the Settlement Document, and the Final Determination will become binding on the Respondent, subject to and in accordance with the Participation Deed, on the later of: (i) the day the Chief Adjudicator provides a copy of the Settlement Document to the Respondent; and (ii) the day on which all Execution Conditions in that Final Determination have been satisfied (in this case, the Enforcement Date). Otherwise, the relevant Settlement Document will have no effect.

Effect of Accepting a Final Determination: Full and Final Settlement

AP 11
AP 11 :

Where the Complainant accepts a Final Determination in accordance with these Scheme Rules:

  1. the Complaint will be conclusively determined and at an end;
  2. the Complainant (for the benefit of BBRS and the Respondent) and the Respondent (for the benefit of BBRS and the Complainant) will settle the Complaint fully and finally as between one another on the terms of the Final Determination;
  3. the Respondent will comply with the Final Determination including by paying any Award and, where it has agreed to do so in accordance with AP 9 and AW 5, paying a Recommended Amount or carrying out a Recommended Action set out in it; and
  4. the Complainant will:
    1. release and discharge the Respondent, and (where the Respondent is part of a group) all members of the Respondent’s group and their current and former employees, from any liability to the Complainant in respect of any matter that is the subject of that Complaint; and
    2. not bring any further Complaint or Claim against the Respondent, any members of the Respondent’s group or their current or former employees, in respect of any matter that is the subject of that Complaint, except to enforce the Final Determination against the Respondent before a Court in accordance with the Participation Deed.

Execution Conditions

AP 12
AP 12 :

Where the Chief Adjudicator (or as the case may be, the Appeal Panel) has specified Execution Conditions in a Determination or a Final Determination, the Complainant and Respondent shall use reasonable endeavours to satisfy them (and where the Chief Adjudicator has specified a time frame, to satisfy them within that time frame).

Where Execution Conditions are not satisfied

AP 13
AP 13 :

Subject to DT 21, where:

  1. the Chief Adjudicator (or as the case may be, the Appeal Panel) has specified Execution Conditions in a Determination or a Final Determination; and
  2. for any reason those Execution Conditions (or any of them) have not been satisfied within a period of three calendar years from but excluding the date of the relevant Determination or Final Determination,

the relevant Determination or Final Determination shall lapse and shall not be capable of acceptance or enforcement under the Participation Deed in any circumstances.

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