Customer Agreement stage two: Acceptance of an award as full and final settlement
1) Format of Determination / outcome letter
[Text on complaint/outcome – will need to reflect Scheme Rules provisions
This will include:
- Where appropriate, why the Chief Adjudicator has decided to proceed with Split Determination
- Whether complaint is upheld/rejected
- Reasons for that determination, including assessment of evidence, descriptions and a statement that the PD complies with Scheme Rules
- All assessments relating to loss and damage
- Confidentiality statement
- Whether or not an Award is proposed (and if so, what level), and the nature of any Award and/or Recommended Award
- Any execution conditions
- Text making it clear that this is a Determination under the Scheme Rules]
Appealing this Determination
Under the rules of the BBRS, you may appeal against all or part of this Determination. Should you wish to appeal, please contact your Customer Champion as soon as possible and before [insert Appeal Deadline], after which your ability to appeal will lapse.
You can only appeal on the grounds set out in the Scheme Rules [see annex document].
In summary, the grounds are:
- the BBRS has made a clear error of fact or law, for example a fact stated in the determination directly conflicts with the evidence;
- you have identified new material evidence or information which was not available during the investigation, provided that there were good reasons for it not being provided to the BBRS during the investigation;
- the BBRS has not complied in a material respect with the Scheme Rules and, had it complied with them, that would have materially changed all or part of the outcome of your complaint.
You will need to tell us which of these reasons apply to your appeal and provide any evidence.
The effect of an appeal
Under the Scheme Rules, if either you or your bank appeals this Determination by [insert Appeal Deadline], you will not be able to accept it. However, the BBRS will consider the appeal and let you know the outcome. Your Customer Champion will be able to help you understand next steps.
Accepting this Determination
If you wish to accept this Determination, please read the information below.
How to accept
If neither you nor the bank have appealed the Determination by [insert Appeal Deadline], you can choose whether to accept or reject this Determination.
If you want to accept it, you must sign the attached document – the Settlement Deed – in front of a witness and fill in the information needed. Please then return the Settlement Deed by uploading a scanned copy to the BBRS’ case management system by [Acceptance Deadline].
Your Customer Champion can explain how to do this if you are not sure. [Add alternative method where appropriate/previous communication preferences or reasonable adjustments were agreed.]
What is the effect of accepting?
Signing the Settlement Deed is an important step which you should consider carefully. You are welcome to take legal advice at your own expense if you wish to do so. Signing the Settlement Deed means you have settled your Complaint fully and finally and cannot appeal it or take it any further with the BBRS or anywhere else, including legal proceedings or any sort of alternative dispute resolution, except to enforce the Determination in court should that be necessary.
If you try to make any other sort of further claim arising out of your Complaint, the bank would be able to resist this because of the full and final settlement you have made.
What has my bank agreed to do? Doesn’t my bank need to sign this as well?
Your bank does not need to sign the Settlement Deed because it has already agreed with the BBRS that if you accept this Determination, it will comply with it. If you want to know more about this, please speak to your Customer Champion.
[NOTE: DT 15(1)(c) allows a customer to request early acceptance of a determination, to which the respondent may consent – the wording above will then be aligned where relevant]
Rejecting this Determination
You do not have to accept this Determination if you do not want to. If you do not accept it by [Acceptance Deadline], this Determination will be treated as rejected and will not become binding on you or the bank.
It will no longer be capable of acceptance, save in exceptional circumstances.
If you wish to reject this determination or appeal it, please speak to your Customer Champion.
[NOTE: There will need to be variations in the wording of the covering letter where there is a Split Determination explaining the process regarding the second stage, assessment of Consequential Financial Loss]
2) Format of Complainant’s Settlement Deed
THIS IS A DEED MADE ON THIS [ ] day of [ ] in the year [ ].
BY: [ ] (the “Complainant“)
IN FAVOUR OF:
(1) the Business Banking Resolution Service, a company registered in England and Wales with number 12096333 (the “BBRS“); and
(2) the bank named as respondent in the Determination (as defined below) (the “Bank“).
FULL AND FINAL SETTLEMENT
The Complainant agrees, irrevocably and for the benefit of the BBRS and the Bank, that:
- Words with capital letters used below but not otherwise defined will have the same meanings as in the BBRS’ scheme rules as published on its website as at the date of the Determination (the “Scheme Rules“).
- The Complainant accepts Determination [number [ ]] of [date] (the “Determination“), to take effect in accordance with the Scheme Rules, and agrees that its Complaint[(s)] described in the Determination are at an end, and that it will settle them fully and finally on the terms set out in the Determination.
- The Complainant releases and discharges the Bank, any members of the Bank’s group, and all current and former employees, from any liability in respect of any matter that is the subject of that Complaint [those Complaints] [WHERE RELEVANT: other than in relation to any outstanding calculation of Consequential Financial Loss being assessed pursuant to a Split Determination in accordance with Scheme Rules DT 2 to DT 7] .
- The Complainant will not bring any further complaint or Claim against the Bank, and any members of the Bank’s group, or all current and former employees in respect of any matter that is the subject of that Complaint [those Complaints], except to enforce the Determination against the Bank before a court in accordance with the Participation Deed. In this Settlement Deed, a “Claim” means any claim, potential claim, counterclaim, or similar action, however and whenever arising, and in whatever capacity or country, including without limitation a claim for interest or costs [WHERE RELEVANT: but does not include any outstanding calculation of Consequential Financial Loss being assessed pursuant to a Split Determination in accordance with Scheme Rules DT 2 to DT 7].
- The Complainant agrees that, to the extent there are any Claims ongoing in any forum that have the same subject matter as the Complaint[s], the Claimant will withdraw those Claims or otherwise take all steps that are necessary to bring them to an end [WHERE RELEVANT: other than in relation to any outstanding calculation of Consequential Financial Loss being assessed pursuant to a Split Determination in accordance with Scheme Rules DT 2 to DT 7].
- The Complainant agrees:
- that for the purposes of this agreement, all information, evidence or documents that it received from the BBRS during the process of resolving the complaint, whether it is from the bank or anyone else, is confidential information.
- to keep confidential information confidential at all times, and must only use it for the purposes of the BBRS’s review of the complaint.
- not to publish or disclose any part of any confidential information, but they may discuss their case and any confidential information received with any person assisting them with bringing the complaint to us, but the same rules about confidentiality will apply to that person too.
- that this obligation of confidentiality will continue to apply after the BBRS review comes to an end for whatever reason, but that confidential information can be disclosed by the complainant:
- if required to do so by law, or
- to enforce a BBRS determination in a court, or
- for the purposes of any other legal proceedings between the complainant and the bank in relation to the subject matter of the complaint
- BBRS may publish, for the purpose of informing the public about the nature of its work and likely users of the scheme about its approach:
- aggregate or thematic data about Complaints or their outcomes; or
- summaries of Determinations or Final Determinations, provided that the names of all of the parties to the Complaint, and all of the individuals referenced in the Determination or Final Determination, are anonymised and (to the extent relevant) any other personal data relating to any individual is removed.
- This deed will take effect only in accordance with the Scheme Rules, but once it has taken effect will last indefinitely and in particular will not terminate:
- a) at the end of the Complainant’s dealings with the BBRS; or
- b) once the Bank has complied with the Determination; or
- c) if the BBRS ceases to exist for any reason.
- The BBRS, including any organisation working on its behalf, will not be liable to the Complainant in damages for anything it has done in the course of reviewing the Complaint[(s)], unless the Complainant can show that the BBRS acted in bad faith.
- No individual, including the BBRS’ Chief Adjudicator, any other staff member of the BBRS or any organisation working on Its behalf will be liable to the Complainant in damages or otherwise for anything done in the course of reviewing the Complaint[(s)].
- BBRS proceedings will be treated the same as court proceedings for the purpose of defamation law. No-one will be liable in defamation for things said or written during the course of the BBRS reviewing the Complaint[(s)].
- The Bank and the BBRS may enforce this deed or any part of it against the Complainant, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
- This deed is governed by English law. All disputes and claims arising out of it will be subject to the non-exclusive jurisdiction of the Courts of England and Wales.
EXECUTED AS A DEED by [the Complainant] acting by [insert name of person representing the business]:
[NOTE: this is a template produced for Determinations – the Settlement Document for Final Determinations will be materially the same but with appropriate modifications. The signature block will vary on a case by case basis depending on the circumstances – for example in relation to insolvent complainants, where the text will be varied accordingly]
Signature 1: ___________________
Print name and title: ___________________
Signature 2: ___________________
Print name and title: ___________________
[Each signature] Witnessed by:
Print name, address and title: ___________________