A recent case confirms the willingness of the Courts to allow consumers to follow their preferred route of complaining to the FOS, even where legal proceedings had already been issued
Some consumers choose litigation to progress unresolved complaints against financial institutions. However court proceedings can be lengthy, costly and usually require evidence to be given on oath at a hearing. In contrast, a complaint to the FOS is not constrained by detailed rules of procedure and hearings are rarely held.
In Templars Estates Limited and Others v National Westminster Bank the consumers spent some years attempting to resolve their complaints (which arose out of relatively complex financial transactions) through correspondence with the Bank. Whilst this correspondence continued, the Bank was happy to sign standstill agreements which extended the deadline for issuing proceedings. After investigating the complaints the Bank rejected them, but continued to remind the consumers of their right to complain to the FOS.
As the protracted correspondence did not resolve matters, the consumers issued court proceedings in order to preserve the claim. They then lodged a complaint with the FOS. However, under the rules, FOS cannot consider a complaint which is the subject of existing court proceedings unless those proceedings are formally stayed. Preferring their complaint to be dealt with by the FOS, the consumers were therefore forced to apply for a stay of their own court claim which they had only just issued.
The Bank resisted the stay. It argued the claim was now “stale”- (the advice complained about was given some years earlier ) and that having issued the claim the consumers should “put up or shut up”. The Court disagreed. Having entered into detailed correspondence about their complaints the consumers were not at fault for the delay – “there has been no sitting on hands”. As both sides had fully investigated the complaint they were already prepared for a court hearing should one be necessary. By agreeing to standstill agreements the Bank had implicitly accepted the possibility that proceedings could be delayed.
The consumers undertook they would discontinue the court proceedings in the event the FOS made an award in their favour. On that basis the Judge allowed the stay as the consumers ought not to be “prevented from pursuing their chosen route of complaint to the FOS”. Similar to the obligation on litigating parties to consider mediation, this ruling reflects the courts' desire that , wherever possible , disputes should be resolved outside of the courtroom.