Determinations

The ‘fair and reasonable’ assessment

DT 1
DT 1 :
  1. Once the Chief Adjudicator considers that their investigation of a Complaint in accordance with these Scheme Rules is complete, the Chief Adjudicator will determine the Complaint by reference to what is, in their opinion, fair and reasonable in all the circumstances of the case.
  2. In considering what is fair and reasonable in all the circumstances of the case, the Chief Adjudicator will take into account:
    1. relevant:
      1. law and regulations;
      2. regulators’ rules, guidance and standards;
      3. codes of practice; and
    2. (where appropriate) what the Chief Adjudicator considers to have been good industry practice at the relevant time; and
    3. only where the Complaint relates to an Excluded Scheme and is being looked at by exception pursuant to SC 21, the rules and/or principles of that Excluded Scheme.
  3. Where the Chief Adjudicator determines that the Complaint should be upheld, the Chief Adjudicator must (using all available evidence and in accordance with the chapter of these Scheme Rules entitled ‘Awards’):
    1. assess any loss and damage suffered by the Complainant;
    2. assess whether that loss and damage was caused in whole or in part by the Respondent;
    3. where it assesses the loss and damage was caused in whole or in part by the Respondent, reach a view about what would be fair compensation from the Respondent to the Complainant for that loss and damage;
    4. assess whether it would be fair and reasonable to make an Award in favour of the Complainant against the Respondent in respect of that loss and damage, and if it would, assess that Award, any Recommended Amount and any Recommended Action (what these are is explained further in the chapter of these Scheme Rules entitled ‘Awards’); and
    5. consider whether there should be any Execution Conditions in the Determination for that Complaint. These are explained in DT 8(9).
  4. Following the above, and regardless of whether the Chief Adjudicator determines that the Complaint should be upheld or not upheld, the Chief Adjudicator must prepare a Provisional Determination in accordance with the procedure in DT 8 and DT 9, followed by a Determination in accordance with the procedure in DT 10 to DT 12.

Split Determinations

DT 2
DT 2 :

Where it appears to the Chief Adjudicator that the assessments in DT 1(3)(a) to (d) are likely to take a material amount of time because the assessment of the Complainant’s Consequential Financial Loss is complex, the Chief Adjudicator will proceed in two stages.  This will be known as a Split Determination.

DT 3
DT 3 :

In the first stage, the Chief Adjudicator shall address all matters required by DT 1 save that the Chief Adjudicator’s assessments of loss, damage and fair compensation, and determination of any Award in DT 1(3)(a) to (d), shall cover any loss and damage that the Complainant has suffered except for Consequential Financial Loss.

DT 4
DT 4 :

In the second stage, the Chief Adjudicator shall deal only with the assessments of loss, damage and fair compensation, and determination of an Award in DT 1(3)(a) to (d), in respect of any Consequential Financial Loss that the Complainant has suffered.

DT 5
DT 5 :

At each stage, the Chief Adjudicator will issue a Provisional Determination in respect of that stage in accordance with the procedure in DT 8 and DT 9, followed by a Determination in respect of that stage in accordance with the procedure in DT 10 to DT 12.

DT 6
DT 6 :

Either Determination in a Split Determination will be capable of Appeal in accordance with the chapter of these Scheme Rules entitled ‘Appeals’.

DT 7
DT 7 :

In the event a Determination at the first stage is the subject of an Appeal:

  1. the Chief Adjudicator will not issue any Provisional Determination at the second stage until the Appeal has been determined and, where applicable, any Final Determination at the first stage has been accepted by the Complainant in accordance with the procedure in DT 20; and
  2. where an Appeal at the first stage results in a Final Determination in which the Complaint is not upheld, or the Appeal Panel decides not to make an Award, the Chief Adjudicator will cease to consider the Complaint further and will not issue any Provisional Determination or Determination at the second stage.

Provisional Determinations

DT 8
DT 8 :

A Provisional Determination must be issued to the Complainant and the Respondent at the same time. It must be in writing and set out the Chief Adjudicator’s provisional determination of the Complaint in a reasonable level of detail covering at least the following matters:

  1. where the Chief Adjudicator has decided to proceed by way of a Split Determination, an explanation of why, and to which stage that Provisional Determination relates;
  2. whether the Chief Adjudicator upholds or rejects the Complainant’s Complaint;
  3. the Chief Adjudicator’s reasons for that determination, addressing each aspect of the Complaint, and based on the evidence, including:
    1. the Chief Adjudicator’s assessment of the evidence, including an explanation of all of the Chief Adjudicator’s material findings of fact;
    2. descriptions of any evidence that the Chief Adjudicator has excluded from consideration; and
    3. a statement that the Chief Adjudicator is satisfied the Provisional Determination complies with these Scheme Rules;
  4. all of the Chief Adjudicator’s assessments relating to loss and damage pursuant to DT 1(3)(a) to (d);
  5. whether or not the Chief Adjudicator proposes to make an Award in favour of the Complainant to resolve the Complaint, and the reasons for that;
  6. the nature of any Award, any Recommended Amount and any Recommended Action (what these are is explained further in the chapter of these scheme rules entitled ‘Awards’);
  7. 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 disclosure is required by law or regulation; (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.”;
  8. the following information statement: “This is a Provisional Determination, which under the Scheme Rules is not capable of being accepted or appealed”; and
  9. any Execution Conditions that must be fulfilled before a later 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.
DT 9
DT 9 :
  1. When issuing the Provisional Determination, the Chief Adjudicator must set, in accordance with SC 2, the Provisional Determination Response Deadline by which the Complainant and Respondent may provide to BBRS any responses to the Provisional Determination and/or any further evidence that they wish to provide.
  2. The Chief Adjudicator must inform the parties that any responses or further evidence must be provided by the Provisional Determination Response Deadline, as no further opportunities to provide evidence in relation to matters covered by that Provisional Determination will be given after that.

Determinations

DT 10
DT 10 :

After the Provisional Determination Response Deadline, the Chief Adjudicator must:

  1. consider and take into account any responses and evidence received before the Provisional Determination Response Deadline; and
  2. having taken such responses into account, issue a Determination to both the Complainant and Respondent at the same time.
DT 11
DT 11 :

The Chief Adjudicator may amend or change any part of a Provisional Determination when issuing a Determination.

DT 12
DT 12 :

A Determination must be in writing and must set out the Chief Adjudicator’s determination of the Complaint in a reasonable level of detail. It must contain:

  1. all of the same matters required to be included in a Provisional Determination (as set out in DT 8) except for the information statement at DT 8(8);
  2. a reasonable date by which the Complainant or the Respondent must appeal the Determination if they wish to do so (the Appeal Deadline). This must be not less than 28 calendar days and not more than 56 calendar days from but excluding the date of the Determination. Before setting the Appeal Deadline, the Chief Adjudicator must consider the amount of time the parties are likely to need to decide whether or not to Appeal the Determination. Once set out in a Determination, an Appeal Deadline may not be changed or extended other than where the Chief Adjudicator finds that there are exceptional circumstances justifying doing so and the Determination has not already been accepted;
  3. a reasonable date by which the Complainant must accept the Determination if: (i) the Determination is not Appealed; and (ii) the Complainant wishes to accept it (the Acceptance Deadline). This must be not less than 28 calendar days and not more than 56 calendar days from but excluding the Appeal Deadline (and may be changed or extended where the Appeal Deadline has been changed or extended). Before setting the 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 out in a Determination, an Acceptance Deadline may not be changed or extended, however DT 19 makes provision for where a Complainant accepts a Determination late because of exceptional circumstances;
  4. an appropriate summary of the provisions of these Scheme Rules regarding the processes for appealing or accepting a Determination;
  5. a clear explanation that if the Complainant wishes to accept the Determination in full and final settlement in accordance with DT 20 of these Scheme Rules, it must notify the Chief Adjudicator in writing in accordance with DT 15;
  6. an appropriate explanation to the Complainant of the effect, under DT 20, of accepting a Determination; and
  7. a signature on behalf of BBRS.

Appealing a Determination

DT 13
DT 13 :

A Complainant or a Respondent may appeal a Determination by sending an Appeal Notice to the Chief Adjudicator in accordance with these Scheme Rules. In that regard:

  1. a Complainant or a Respondent may send an Appeal Notice to the Chief Adjudicator, or withdraw an Appeal Notice from the Chief Adjudicator, at any time before the Appeal Deadline; but
  2. where, on the Appeal Deadline, the Chief Adjudicator has received an Appeal Notice that has not been withdrawn, the relevant Determination will not be capable of acceptance by the Complainant, and the Chief Adjudicator will proceed in relation to that Determination in accordance with the chapter of these Scheme Rules entitled ‘Appeals’.

Recommendations above the Award Limit

DT 14
DT 14 :
  1. Where the Chief Adjudicator has, in accordance with AW 5, made a recommendation in a 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 by the Appeal Deadline 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 and the Complainant by the Appeal Deadline, 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 of a Determination

DT 15
DT 15 :
  1. A Determination will not be capable of acceptance by the Complainant during the period up to and including the Appeal Deadline set out in it. However, subject to DT 13, a Complainant may accept a Determination by executing a Settlement Document and returning it to the Chief Adjudicator, subject to the following rules.
    1. Where, on the Appeal Deadline, the Chief Adjudicator has not received any Appeal Notice, or has received any number of them but they all have been withdrawn, the Complainant may accept the Determination after the Appeal Deadline, but on or before the Acceptance Deadline, set out in the relevant Determination.
    2. Where the Chief Adjudicator receives an executed Settlement Document from a Complainant before the Appeal Deadline, subject to paragraph (d), it will not take effect as an acceptance by the Complainant of the Determination unless, on the Appeal Deadline, the Chief Adjudicator has not received any Appeal Notice, or has received any number of them but they have all been withdrawn. If the Chief Adjudicator has received an Appeal Notice on the Appeal Deadline that has not been withdrawn, the relevant Settlement Document will have no effect.
    3. Where on the Appeal Deadline, the Chief Adjudicator has received at least one Appeal Notice that has not been withdrawn, but the Chief Adjudicator subsequently issues a Declined Appeal Notice in accordance with AP 6, the Complainant may accept the Determination after the date of the Declined Appeal Notice, but on or before the Revised Acceptance Deadline set out in that notice.
    4. Where a Complainant has indicated to the Chief Adjudicator that they wish to accept a Determination early, prior to the expiry of the Appeal Deadline, and, having been asked by the Chief Adjudicator to do so, the Respondent has confirmed in writing that it will not appeal the Determination, the Complainant may accept the Determination by executing a Settlement Document and returning it to the Chief Adjudicator after the Chief Adjudicator directs that they can do so (but up to and including the Acceptance Deadline set out in the Determination).
DT 16
DT 16 :

Where a Complainant accepts a Determination in accordance with DT 15, that Determination will become binding on the Respondent, subject to and in accordance with the Participation Deed, when:

  1. the Chief Adjudicator provides an executed copy of the relevant Settlement Document to the Respondent; and
  2. all Execution Conditions in that Determination have been satisfied.
DT 17
DT 17 :

The 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 DT 16(1) and (2) are satisfied (in this case, the Enforcement Date).

Complainant’s Rejection of a Determination

DT 18
DT 18 :

Where, a Complainant does not accept a Determination in accordance with DT 15, then, subject to DT 19, the Complainant will be treated as having rejected the Determination and that Determination will not become binding on any person.

Complainant’s Late Acceptance of a Determination

DT 19
DT 19 :

Where, following the issue of a Determination:

  1. (1) the Complainant does not accept that Determination in accordance with DT 15; and
  2. (2) the Complainant subsequently seeks to accept a Determination by executing a Settlement Document and returning it to the Chief Adjudicator after the Acceptance Deadline but within one calendar year of it (a Late Acceptance); and
  3. (3) the Complainant has not previously notified the Chief Adjudicator that they have rejected the Determination (and for the purposes of this rule DT 19, the issue by the Complainant of an Appeal Notice will not be treated as a rejection by the Complainant of the Determination); and
  4. (4) The Chief Adjudicator is satisfied that the Complainant’s failure to accept the Determination on or before the Acceptance Deadline (or, as the case may be, the Revised Acceptance Deadline) was as a result of exceptional circumstances;

the Chief Adjudicator will provide a copy of the Late Acceptance to the Respondent.  The 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 Late Acceptance to the Respondent; and (ii) the day on which all Execution Conditions in that Determination have been satisfied (in this case, the Enforcement Date).  Otherwise, the relevant Settlement Document will have no effect.

Full and Final Settlement

DT 20
DT 20 :

Where the Complainant accepts a 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 Determination;
  3. the Respondent will comply with the Determination including by paying any Award, and, where it has agreed to do so in accordance with DT 14 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 Determination against the Respondent before a Court in accordance with the Participation Deed.

Undue delay in meeting Execution Conditions or complying with a Determination

DT 22
DT 22 :
  1. Where:
    1. either:
      1. a Determination (or Final Determination) has been accepted by a Complainant but one or more parties has not complied with an Execution Condition in it; or
      2. a Determination (or Final Determination) has become binding on both Complainant and Respondent pursuant to these Scheme Rules and the Participation Deed, but at any time it appears to the Chief Adjudicator that the Respondent has not complied with an Award (or any part of one); and
    2. it is fair and reasonable to have expected the party or parties to have so complied; and
    3. the Determination (or Final Determination) is not subject to enforcement proceedings before a Court;
      the Chief Adjudicator may proceed in accordance with (2).
  2. The Chief Adjudicator may, subject to inviting explanations from the relevant parties and taking into account any such explanation received, vary the Determination (or Final Determination) so as to:
    1. amend the relevant Execution Conditions; and/or
    2. reflect appropriately the impact of any delay on any party by:
      1. amending any Award subject to the relevant Award Limit for that Complaint; and/ or
      2. adding or amending any Recommended Amount or Recommended Action; and/ or
    3. secure timely compliance with the Determination (or Final Determination), including by specifying, in addition to the Award, that simple interest (at a reasonable rather than penal rate) is to apply to any sum outstanding on the Money Award or Costs Award, running from and to dates specified.
  3. Any variation to a Determination made under (2) will become part of that Determination (or Final Determination) and will be enforceable in the same way it would have been had it been incorporated at the time the Determination (or Final Determination) was originally made (save that in the case of a new or varied Recommended Amount or a Recommended Action, before it becomes enforceable the Respondent must confirm to the Chief Adjudicator within a reasonable time whether or not it will meet the recommendation, and if it does not do so, it will be treated as having declined to meet it).
Menu