Awards

Assessing Fair Compensation

AW 1
AW 1 :

In reaching a view about what would be fair compensation for the Complainant’s loss and damage, the Chief Adjudicator (or as the case may be, the Appeal Panel) must:

  1. make an assessment, using all of the available evidence, of the loss and damage the Complainant is more likely than not to have suffered;
  2. take into account relevant legal principles, in particular:
    1. the legal principle of putting the Complainant back in the position in which they would have been but for the Respondent’s act or omission causing the loss and damage;
    2. the nature of the legal relationship between the Complainant and the Respondent out of which the subject matter of the Complaint arose; and
    3. the general legal principles of causation, remoteness, mitigation and recoverability;
  3. give reasons in the relevant Determination or Final Determination where the Chief Adjudicator (or as the case may be, the Appeal Panel) determines to depart from legal principles; and
  4. ensure that all calculations are fair to both the Complainant and Respondent and, in particular, take into account any previous redress the Respondent has paid to the Complainant in respect of the Complaint, and do not otherwise result in double recovery for a Complainant or double liability for a Respondent.

Awards

AW 2
AW 2 :

An Award in a Determination or a Final Determination may comprise one or more of the following four elements:

  1. a Money Award (calculated in accordance with AW 6 to AW 10);
  2. a Costs Award (calculated in accordance with AW 12 to AW 13);
  3. an Interest Award (calculated in accordance with AW 14); and/or
  4. a Direction (in accordance with AW 15),

up to but not exceeding the relevant Award Limit applied in accordance with AW 3 and AW 4.

Award Limits

AW 3
AW 3 :

The Award Limits are as follows:

  1. for a Complaint which meets the Historical Scheme Conditions: £350,000.
  2. for a Complaint which meets the Contemporary Scheme Conditions: £600,000.
  3. for a Complaint brought by a Guarantor, the lower of the amount of the relevant guarantee, or the applicable limit in (1) or (2).
AW 4
AW 4 :

The Chief Adjudicator (or as the case may be, the Appeal Panel) will apply the Award Limits using these rules:

  1. Where the Complaint meets the Historical Scheme Conditions, any Money Award, Costs Award, Interest Award and Direction elements of an Award must not (individually or in aggregate) exceed the Award Limit.
  2. Where the Complaint meets the Contemporary Scheme Conditions, any Money Award element and Direction element of an Award must not (individually or in aggregate) exceed the Award Limit. The Chief Adjudicator may also make a Costs Award and/or Interest Award as part of the same Award, but these will not count towards the Award Limit.
  3. Where the Chief Adjudicator has determined to proceed by way of a Split Determination in accordance with DT 2, one single Award Limit will apply to all Awards made in favour of the Complainant in both the Determination of the first stage and the Determination of the second stage. In practice this means that Money Awards to a Complainant for direct loss and consequential loss will always count towards the same Award Limit, even if there is a Split Determination.
  4. Where the Complaint is a Group Complaint, one single Award must be made against the Respondent in respect of all matters raised by all Complainants in that Group Complaint, and one single Award Limit will apply to the Group Complaint (and not to each Complaint or Complainant making up the Group Complaint). That single Award must be structured in favour of one or more Complainants in the Group, to reflect the assessment of each Complainant’s loss and damage. Where one single Award is made in a Group Complaint in this way, that Award will be allocated to the relevant Complainants on a pro-rated basis to reflect each Respondents’ relevant loss and damage. Following resolution of a Group Complaint, the Chief Adjudicator will also reduce the Award Limit for later Complaints relating to it in the way set out in SC 8(4).

Recommendations above the Award Limit

AW 5
AW 5 :
  1. Where the Chief Adjudicator (or as the case may be, the Appeal Panel) considers that fair compensation requires a Money Award, Costs Award or Interest Award to the Complainant of an amount (individually or in aggregate) exceeding the relevant Award Limit, they may include in the relevant Determination or Final Determination a recommendation that the Respondent pays the Complainant the balance. They will refer in the Determination or the Final Determination to the balance (i.e. the difference between (i) the sum of any Money Award, Costs Award and Interest Award and (ii) the overall amount of money that the Chief Adjudicator (or as the case may be, the Appeal Panel) considers would be fair compensation) as the Recommended Amount.
  2. Where the Chief Adjudicator (or as the case may be, the Appeal Panel) considers that it would be appropriate to make a Direction, but is prevented from doing so by AW 4(1) or (2), the Chief Adjudicator may nevertheless include in the relevant Determination or Final Determination a recommendation that the Respondent should take steps that the Chief Adjudicator considers just and appropriate. They will refer to any such step in the Determination or Final Determination as a Recommended Action.
  3. Subject to (4), when a Determination or Final Determination becomes binding on the Respondent in accordance with DT 16 or AP 10, the Respondent shall, subject to and in accordance with the Participation Deed, be bound to:
    1. pay the Complainant the sum of any Money Award, Costs Award and Interest Award, but not the Recommended Amount; and
    2. follow any Direction, but not any Recommended Action.
  4. If the Respondent has notified the Chief Adjudicator and the Complainant in writing in accordance with DT 14 (or as the case may be, with AP 9) that it agrees to pay the Recommended Amount (or any part of it), or to carry out a Recommended Action, the Respondent shall, subject to and in accordance with the Participation Deed, also be bound to pay the Complainant the Recommended Amount (or the relevant part of it), and/or to carry out the relevant Recommended Action.

Money Awards

AW 6
AW 6 :

The Chief Adjudicator (or as the case may be, the Appeal Panel) may make a Money Award in respect of one or more of the following:

  1. Direct Financial Loss;
  2. Consequential Financial Loss; and
  3. Distress and Inconvenience.
AW 7
AW 7 :

The Chief Adjudicator (or as the case may be, the Appeal Panel) may make a Money Award in respect of Direct Financial Loss for losses that the Claimant suffers which arise naturally in the normal course of events from a Respondent’s wrongful act or omission.  Examples might be additional fees and charges the Complainant had to pay, and profits, business or goodwill that the Complainant lost.

AW 8
AW 8 :

The Chief Adjudicator (or as the case may be, the Appeal Panel) may make a Money Award in respect of Consequential Financial Loss for losses that arise from a Respondent’s wrongful act or omission and that the Complainant suffers indirectly due to their individual circumstances.  Consequential Financial Loss will only be part of fair compensation where the Respondent knew, or should acting reasonably have known, the individual circumstances of the Complainant that meant the Complainant was likely to suffer them.

AW 9
AW 9 :

When considering Consequential Financial Loss, the Chief Adjudicator (or as the case may be, the Appeal Panel) will consider in particular:

  1. losses the Complainant suffered indirectly due to their individual circumstances;
  2. the information that the Respondent had, or should acting reasonably have had, about the Complainant and its individual circumstances, including for example any business plans or projections or accounting records;
  3. what is more likely than not to have happened to the Complainant had the Respondent not committed the wrongful act or omission; and
  4. the extent to which relevant matters were or were not in the control of the Complainant or Respondent, including whether any third parties acted reasonably.
AW 10
AW 10 :

The Chief Adjudicator (or as the case may be, the Appeal Panel) may make a Money Award in respect of Distress and Inconvenience that the Chief Adjudicator finds the Complainant has suffered.

  1. Distress may include for example embarrassment or anxiety suffered by a Complainant who is a sole trader. A Complainant which is a Business Organisation is unlikely to suffer distress, but it may suffer inconvenience.
  2. Inconvenience may include any additional expenditure of the Complainant’s time and effort as a result of the Respondent’s wrongful act or omission.
AW 11
AW 11 :

When considering a Dissolved Complainant, without prejudice to the generality of the provisions AW 6 to AW 10 and the Chief Adjudicator’s general ability to make a Recommended Amount or Recommended Action, the Chief Adjudicator will:

  1. assess fair compensation for loss suffered by the Dissolved Complainant by reference to the point in time just prior to the date of the dissolution;
  2. apply:
    1. any right of set off which would have arisen had it been made prior to the dissolution of the Dissolved Complainant; or
    2. if no such right of set off did arise, any lending loss suffered by the Respondent.

Costs Awards

AW 12
AW 12 :

The Chief Adjudicator (or as the case may be, the Appeal Panel) may make a Costs Award of such amount as they consider to be fair to cover any reasonable legal and other professional costs which were necessarily incurred by the Complainant in bringing the Complaint.

AW 13
AW 13 :

When making any Costs Award, the Chief Adjudicator will take into account that BBRS has been designed so that in most cases, Complainants do not need to have legal or other professional advisers to bring Complaints to BBRS, so Costs Awards are unlikely to be common.  In particular, the BBRS’ case determination procedure at CD 24 means that BBRS will control the use of expert evidence and obtain its own expert evidence at its own cost where the Chief Adjudicator considers this necessary.  Complainants should not need to obtain expert evidence of their own in order to make a Complaint to BBRS and are unlikely to recover the costs of such evidence if they do so.

Interest Awards

AW 14
AW 14 :
  1. Where the Complainant has been deprived of money which is to be compensated by a Money Award and/or a Costs Award, the Chief Adjudicator (or as the case may be, the Appeal Panel) may in addition make an award of interest on that Money Award and/or Costs Award, calculated from the date the relevant loss was incurred, at a simple rate of interest that the Chief Adjudicator (or as the case may be, the Appeal Panel) shall determine is fair for a particular Complaint, taking into account the Complainant’s individual circumstances. For the purposes of these Scheme Rules this is an Interest Award.
  2. An Interest Award under (1) is the only type of interest award that the Chief Adjudicator may make under these Scheme Rules. In particular, subject to DT 21, the Chief Adjudicator will not award interest on the amount of an Award in respect of the period between the date of a Determination and the date the Respondent makes any required payment to the Complainant.

Directions

AW 15
AW 15 :

The Chief Adjudicator (or as the case may be, the Appeal Panel) may direct that the Respondent take such steps in relation to the Complainant as the Chief Adjudicator considers just and appropriate (whether or not a Court could order those steps to be taken).  For the purposes of these Scheme Rules this is a Direction.

Additional tax liability for a Complainant as a result of a Determination or Final Determination

AW 15
AW 15 :

The Chief Adjudicator (or as the case may be, the Appeal Panel) will, when there is or may be an additional tax liability on the Complainant as a result of the Determination, consider whether that matter can fairly be dealt with as Consequential Financial Loss or by way of a Direction.

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