Also it's a shame about the judge's reliance upon the ombudsman's decision.
The ombudsman's remit is apparently to arrive at a solution which is "fair to both sides". However if you look at all the FCA regulations, they talk about – treating the customers fairly – communicating with the customers fairly – having the customers interests in mind when making a decision. In other words, in my view, the ombudsman remit is at odds with the statutory duties of banks and financial firms generally.
If we had thought about this, we could have briefed you on it and you could have raised this is an objection to the judge. The judge really had no business following the ombudsman's decision. The judge was bound by the regulations set up by the FCA under the Financial Services and Markets Act 2000 – but who knew?
Thanks BF, that was basically what the Judge said to the Solicitor who was caught unawares that I would be on to it, so yes its very good advice.
Its not unlike the bank charges fiasco, we know we are all right but the Judges will always fall back on the law rather than try and change it in my opinion.
By the way, if they referred to their contractual term in respect of costs in any future hearing, I think that your proper response is to point out to the judge that this contractual term seeks to undermine or usurp the authority or discretion of the court to award or not award costs and in that respect it is completely unenforceable. Tell the judge that effectively they are trying to force the judge to make an award of costs
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