FOS - Accept adjudication or go to court??

[Davew2811]

Hi, after a long standing dispute over some bank charges and broken promises, I was told by Santander (Then Abbey) of their intention to issue a default on my account in May 2009, I contacted them once I had received the notification but they told me it was too late to do anything about it and they defaulted my account in June 2009, I believed they were unfair in the way they had treated me and tried desperately

to have them consider the mitigating circumstances, remove the default and allow me to repay the amount I owed them (Something I have never disputed) l but they chose not to do so.

I tried their complaints team, customer services etc but they all said no and told me to take it to the Ombudsman.

 

I contacted the Ombudsmans office in July 2009, the initial assesment of my case was that Santander had done nothing wrong, I asked for the case to be reviewed and in August 2010 I received an ADJUDICATION which found in MY favour, The Adjudication stated that whilst it could not uphold all of my complaint, it DID find that Santander had treated me unfairly, that they should REMOVE the default and and come to a 'mutually acceptable arrangement' to allow me to repay the outstanding balance of my original current account.

Needless to say, Santander appealed this decision, then to my total surprise I received an email from the Ombudsman stating the Bank would like to make me an 'offer' basically they agreed to remove the overdraft and asked me to repay my account over 12 months. In effect they had accepted the adjudication! I asked the ombudsman about compensation for the almost 2 years of distress this has caused me etc and Santander offered me £150 for my inconvenience! I was asked by the Ombudsman to give reasons why I thought I should recieve more compensation, I told them of the effect this has had on my health, the effect this has had on my ability to obtain credit, the costs in terms of my time in dealing with this, additional stuff like having to rent a car as I'm unable to finance a new one etc. They put this to the bank and yesterday (Friday 18th Feb) I received an email from the Ombudsmans office saying the bank have 'declined' to increase the offer and have said that the case should now go to the official Ombudsman for a final decision.

 

I was given the following alternatives.

 

Dear Mr *****,

 

Further to my previous e-mails, I write to advise you that the bank has declined to increase its offer and has requested that the complaint be reviewed by an ombudsman.

 

As I have previously explained it is my view that an ombudsman is likely to consider the bank's offer as fair and reasonable in the circumstances and a decision is likely to reflect this. You are of course free to ask for an ombudsman's decision, reject it and then take the matter to court, but the decision would of course be part of the record.

 

Alternatively you can withdraw your complaint before a decision is issued and take legal proceedings against the bank.

 

Perhaps you could let me know as soon as possible, but in any event by 4 March 2011 at the latest, whether or not you want an ombudsman to formally review your complaint and issue a decision, or if you wish to withdraw the complaint.

 

I would like to know if you think I should take the case to a court for compensation, what would be my chances (considering the initial adjudication was in my favour)

 

If I do this then I will have to withdraw my case, and considering that it has taken so long to get here I'm rather reluctant to do this.

 

D

Edited February 20, 2011 by Davew2811

[lenny100]

i keep on the road with the case and if things dont go well and you lose the complant the fact you went through all resnoble actions to settel before you took it to court can only help your case.

[Bupi]

Hi Davew2811,

 

Could I please have an update on your case against Santander and what action (if any) you took against Santander? The reason for which I am asking you is that I am in a similar situation and final decision has been taken by the FOS Ombudsman in my favour but I still lose out. I am desperately trying to work out if I should reject it and take legal action or accept it and then take legal action for my loss.

Thanks

Regards

Bupi

[Davew2811]

The only problem you have (and I had) is that if you accept the adjudication, you can't then take further proceedings against the bank.

 

I had to withdraw my complaint and start court proceedings before the FINAL ombudsmans decision.

 

Hope this helps..

[Bupi]

Thank you

[AuntieP]

You can allow the Ombudsman to make his ruling on the case. I would do that and see what he says. The restriction on going to court is that you cannot go to court once you have accepted the FOS decision. You can see what the FOS Ombudsman says...reject the decision if you disagree with it and still go to court

[Davew2811]

Yes you can do that but if you do not accept the Ombudsman's final decision it is still a matter of record and a court would want to know why I chose not to accept.

 

I have already got an adjudication from the Ombudsman in my favour, Santander initially appealed it then several weeks later came back

with an offer of settlement which I declined. They then decided to let the appeal go ahead and it would have gone for the final 'legally binding'

decision which could have taken several more months.

 

I also have an adjudication from the ICO in my favour so for me the best solution is to take it to court and have them deal with BOTH complaints at the same time.

[Davew2811]

SETTLED !!

 

I took the case to court, Santander had 28 days to lodge their defence, the day before the deadline they contacted me to settle !!!

 

Compensation of £4500.00

Removal of the default on my account

 

PLUS my costs

 

Happy days !!

 

D

[frogdoctor]

Hi Dave

 

Well done!!! really pleased for you. As you can see from my posts I`m in same boat. Did you use a lawyer? any chance you could PM me your P.O.Cs

Cheers

The Dr

[Davew2811]

Hi, no I didn't use a lawyer, I just went via the small claims court.

 

I drew up a list of the amounts I felt I was out of pocket due to the default EG. I've had to rent a car as I couldn't get a new loan, so I claimed the difference between the car hire and what it would have cost to buy the same car, I also claimed £100 per day to cover my costs in dealing with Sanatnder over the last 18 months (I averaged it to 1 day per month).

 

To be honect the figure I ended up with was more than £5000 but I wanted it processed quickly so I used the small claims court and entered 'limited to £5000' in the amount claimed.

 

I'm not savvy on the terminology here so what are the P.O.C's ?

 

D

[frogdoctor]

Hi Thx for reply and again well done. P.O.C are particulars of claim. Enjoy your winnings!

[Bupi]

Well done!! enjoy every penny. It's good to hear you won.

I am away enjoying the sun, but I will look at my claim again and see if I can take further action.

 

Bupi

[AuntieP]

Dave,

 

This is really good news...Well done !

 

Its worth thinking about what has happened in your case

• FOS seem to have changed their 'initial' decision. Who was it that told you initially that the bank had done nothing wrong, was it someone who did not have an adjudicator's qualifications ? Who were they to offer advice ?
  
• The adjudicator was wrong in his assessment of suitable damages, the bank paid 30 times more than he thought was "fair and reasonable". We do not know the adjudicator's qualifications or experience but clearly they were not up to the job.
  
• The adjudicator tried to pre-judge the Ombudsman's decision "an Ombudsman is likely to consider etc. etc.", apparently to try and discourage a referral to an Ombudsman. This has implications for the impartiality of what the FOS consider to be an 'appeal' to an Ombudsman. How did he know what the Ombudsman would think, had they discussed it ?
  
• The bank asked for the matter to be referred to an Ombudsman, they were confident the adjudicator's friendly decision would be confirmed.
  
• The adjudicator did not take the authority to actually SET the compensation at what he thought was a fair figure, he just passed messages back and forth and accepted what the Bank offered. It is one of the prime scandals of the FOS that Adjudicators and Ombudsmen do not usually check or make their own independent calculations of compensation.
  
• The bank caved in when faced with court action with the prospect of a Judge looking at the facts. Perhaps now we see why they were happy to refer it to an Ombudsman
  

You are one of the few people to stand up to FOS, ignore their recommended solution and go to court. I wish I had done the same. I wonder how many other people should be doing the same thing.