Enforcing An FOS decision using Form N322B

[AndyOrch]

Most if not all applications to set a side a judgment require a hearing...in person or remotely...it is important that you submit a statement in response stating your reasons why its irrelevant they didn't have chance to respond as the judgment was awarded as enforcement only pursuant to the FOS award.

[SJS1926]

Main job tomorrow. 

[SJS1926]

I've heard from the Company Lawyers. They have managed to get the Courts to agree to a hearing in July. They have suggested do we want to settle. 

 

As interest will roll on up to Settlement and the Enforcement notice will remain live I can see why. In their usual aggressive manner they are saying they will charge me costs for setting aside the Enforcement. 

 

Suggestions on my reply over and above the full settlement of what I'm owed plus interest? 

 

In July it'll be 2 years since the FOS found in my favour. A real nightmare. 

[AndyOrch]

A copy of your statement in objection would be helpful.

[BankFodder]

And it would still be useful to have the name of the company and the name of the solicitors.

These are public documents so if you simply post up the document with their identities not redacted – there is no problem. You really shouldn't be fazed by these people. You are doing very well

[SJS1926]

Hi everyone

It's Court time on Monday, I'm very nervous and feel quite sick. I've prepared an 8 page Witness Statement with 14 addendums. I hope the Judge will see there is no reason to set aside the Enforcement N322 of 19 January especially as this company has reduced the FOS agreed compensation by over £4,000.

 

Their Lawyers asked the Courts for a face to face hearing as appose to over the phone. As I live in the North and the hearing is in London I guess it was a way to restrict my input. The Courts refused and citing their reasons for a face to face that "it's very complex" the Courts refused by sating "it is not complex at all". 

 

One slight victory prior to Monday. I feel this company and their Lawyers are still agreived with the FOS Decision. As chance would have it, another decision from the FOS has not gone their way recently too for more than twice what my claim was for. 

 

Anyway, please wish me luck. I'm happy to send anything (witness statement etc) to a private email but I'm too intimidated to post on here. 

 

If this N322 fails, there is little hope that if consumers come across a company like this one, there will be no support from the Courts. My local Court cannot understand how London are even allowing a hearing, they say the Enforcement would and should stand if they were the Court dealing with this. 

 

 

[BankFodder]

Please will you send it to our admin email address in confidence

[BankFodder]

 

[SJS1926]

Just received this email from the Lawyers......... Comments anyone? 

In terms of the decision by FOS, the agreed compensation, and, the pre-requisite of making payment, that you sign undertakings, our client has set up everything properly.  

Your application to court was inappropriate and unjustifiable, and that mistake was compounded by the processes, or lack of due process, that followed, leading to an improper judgment, that you have declined to agree to set aside, and caused considerable, regrettable and avoidable costs to be incurred, which will be met by you, if our client’s application is successful, of which we are confident, and no doubt was explained to you by your solicitor,. 

 The undertaking (incorporated into a settlement agreement) defines your obligations post the payment of compensation in relation to the relevant  investments that you will still hold, binding you to make payments of any sums etc received, hold the assets to our client’s benefit, assign all rights to our client, and other obligations in relation to documentation, for example.  Your refusal to sign the undertaking, which accords with the Agreement of 6 August 2020, has the effect that payment cannot be made. 

 Subject to any tweaks, your issue is not about the terms of the undertaking but your view of what you have agreed under the Agreement of 6 August 2020, in relation to the cash element of your portfolio.  

The consequence of the way in which your compensation is structured by the FOS decision is that our client pays the agreed compensation and simultaneously steps in to your shoes in respect of the whole portfolio, as defined in the table in the Agreement of 6 August 2020 as having 5 elements, the 4 funds and the cash element of £4018.82, all of which formed part of the calculation for compensation, as specifically stipulated by FOS.  Like the funds, that cash element of the portfolio belongs to our client as part of the compensation process.

 Therefore, in terms of the Agreement of 6 August 2020, our client has abided by its obligations, and you have made an erroneous application to court.  Your challenge about the net amount payable in respect of your compensation and your “handing over” of the portfolio, including the cash element, is without foundation and we urge you to concede to our application (for all the other reasons too) and agree to sign the undertaking to receive the balance of the compensation, net of the £4018.82.

 

[BankFodder]

I think you have to appreciate that as you have pretty well declined to give us any information about this. We haven't even seen the ombudsman decision as far as I know – let alone your application and the identity of the company you against, we are not really in a position to be able to give any opinions.

I understand that you only found this forum in about March and this was after you began your FOS enforcement action – but still, you could have involved us and we might have been helpful to you.

You kept us in the dark and now you are asking us questions and we have absolutely no information to go on.

They refer to a "settlement agreement" but we have no idea what this is about either.

We have no idea what happened at the initial consideration of the issue by the judge and we haven't seen the judgement.

We haven't seen what evidence you supplied to the judge.

We don't know what the so-called "undertaking" is.

We have no idea how to understand the way in which your application to the court was "erroneous".

Surely you can understand how difficult it is to form any opinion in the face of your refusal to give us any information.

One thing I can say though is that to receive an email like this from the lawyers of the other side so close to the hearing date, suggests to me that they are very anxious to avoid the hearing and so if I were in your shoes, I would feel even more confident about what I was doing.

I'm sure the company does not want a judgement against them like this or any note of it recorded in the public record or on the FOS website and this is maybe what they are in panic about.

However, we have no idea what it's all about and so we don't really know the answer.

A couple of days ago I invited you to send me documents in confidence and we've heard nothing from you. Not only do we have to receive documents, but we then have to read them, understand them, maybe asking further questions and eventually form an opinion.

I don't think you are being realistic with us.

 

On the basis of their email which you have posted above, I would say that you should stick to your guns. You've come this far. You've done very well. It seems to me that they are getting very anxious and they are blinking first.

If it is correct that they haven't implemented the FOS decision – and of course we only got your word for it because we don't know what that decision is, and as you already have a judgement against them, then it seems to me to be very unlikely that a court would award costs against you – but of course it's always a risk.

[SJS1926]

Hi I agree it's very difficult without the FOS Decision and my Witness Statement and for that I apologise, I had it all ready to send via email yesterday and sent a test email to admin to see if the email was correct but didn't get a reply. Do you have my email on record so that I can reply to you with attachments?

 

Thank you for your comments though about "sticking to my guns" I intend to do so and will reply to the email saying I'll let the Judge decide on Monday. 

 

I'm really anxious to send you documentation but continue to struggle..... I tried admin email address

[BankFodder]

Well first of all, you have the right email address I don't understand why you aren't sending things.

Secondly, it makes it clear in the pop-up that we don't publish the address because we get loads of spam – and then you go ahead and publish it.

You seem to be happy to hide your own information from people who want to help you but quite happy to  for ours to go up on the Internet so that we get even more spam and malicious messages than we already do

The attachments have now been passed to the team – but it is clear that the whole thing is very complex.
Your witness statement is very competently drafted and although you say that you are litigant in person – it doesn't particularly give that impression.

I certainly haven't gone into all of it and a lot of it I simply wouldn't understand that I have to say that looking at the points in your witness statement which are stated very clearly as far as I can see, they seem to be very powerful and unless the respondent has equally powerful challenges supported by evidence, then I can certainly understand that they will be worried about this going to court and about the judge finding against them.

I don't think that I'm breaking any confidences when I say that it's extraordinary that apparently they provide you with a draft undertaking which you are required to sign and the figure was simply £XXX – an undisclosed open-ended figure.

I can imagine that the respondent will be hard-pressed to find any sufficient reason for this kind of thing.

I'm afraid that you have left it so late for us to see, that I don't think we will really be able to get a grip on it but I have a sense that you are very much in control and once again, I should stand your ground.

It seems to me that there must only be interest paid on the money that should have been paid to you back in 2019 and yet is still outstanding.

For the respondent, this is not very serious money – for you it is quite chunk. However, I do hope that if you win, you will be prepared to disclose everything to the people on this forum and elsewhere because based purely on what you have explained, it seems to me that this company has behaved extremely poorly and your judgement against them should serve as a warning to anybody else who wants to do business with them.

Where is their application by the way? I haven't noticed anything.

Also I notice that in one point in your witness statement you say that the FOS decision was that you should be placed into the position that you would have been in if this hadn't happened.

My reading is that they recommended that you will be put into the position that you would have been if the advice had been suitable. In other words the FOS decision was to put you into a future position. You seem to have said that the FOS decision was intended to put you into your starting position

[SJS1926]

Shall I send their witness statement to you? 

 

I'm very flattered by what you say, I've no legal experience at all, I researched the Internet and just spoke the truth. 

 

You've made me feel very confident, thank you! 

 

I've sent their Witness Statement and N244

[BankFodder]

In terms of their application notice, they are asking for the set-aside because they say that the position wasn't properly explained to the court. However it seems to me that the majority the position was stated in the ombudsman's decision.
I suppose the dispute about the undertaking is what it's really all about.

In terms of allowing the defendant an opportunity to respond, as it's an ex parte application – I don't see that they should have an opportunity to respond. The ombudsman's decision is very clear and I'm not aware that there is any procedure which allows it to be set aside. They can't ask for it to be set aside. However, I suppose they can say that you haven't carried out your side of the bargain by cooperating with the undertaking.
This is not at all an area in which I have any experience and so it is really simply a matter for you to feel confident that you are able to counter their arguments in a convincing way and supported by evidence.

In terms of their witness statement, the first 10 statements are simply rehearsing the decision of the FOS. Note that in paragraph 10, it's confirmed once again that the ombudsman ordered that you be put as closely as possible into the position you would now be in if the advice had been suitable. In other words, your future position, not your starting position.
Once again, they are raising questions over the undertaking.
There are also complaining that they weren't served any notice of the proceedings.

Although they are complaining that the undertaking has been signed, I don't particularly see that they are detailing what the dispute over the undertaking is about. Maybe they are – but I don't see it in my very brief scan of it.

Once again, I don't have any experience in this type of finance. I'm sure you are extremely familiar with the arguments and as long as you can present the court with excellent reasons why the undertaking has not been signed then you should be successful.

However, even if the judgements confirmed it seems to me not to change very much because you are still going to have to work out the undertaking. The course will put you in a much stronger moral position but other than that because the whole thing is conditional on an undertaking and the dispute is over the undertaking unless the judge affirms your judgement and also explains what undertaking would be suitable, then I feel that you won't have moved on very much

You said that you are going to rely on your eight-page witness statement.

I would suggest that even that is maybe too long. Judges prefer brevity. You might want to think about having a look at the points and addressing the objections to your judgement very specifically in maybe not more than two sides – and then rely on that.

You could present a copy to the judge and a copy to the other side at the hearing. I think the judge would appreciate it. You really in to keep it short and specifically address the paragraphs relating to the dispute and skirt over the rest of it as quickly as you can if at all

[SJS1926]

"Nothing changes" is why I'm at a loss that we are where we are. The company still owes me the money regardless of Monday. 

 

The Undertaking was and remains incorrect, even the Lawyers last email says it needs "tweaks" but a tweaked undertaking wasn't attached. A big issue on the Undertaking as well as errors, is the FOS Decision says that any Undertaking should make a provision for Tax & Charges to be deducted from any monies that were returned to the company as such funds would need to bee withdrawn from my Pension Fund. Both the Company and it's Lawyers have refused to include this. 

 

The dispute over the £4000 reduction is something that I've explained many times and they remain fudgy over it. The company invested my pension money net of commission of £4000, they tried to use the net amount to calculate the compensation, the FOS corrected them on that and 2 years later have decided to deduct it again it really is like plaiting fog with these people. 

[BankFodder]

As I said, stand your ground.

If there is any hint of a settlement before the court hearing – and it would at all surprise me, then at the very least you should insist on it being put into a Tomlin order including an undertaking as to costs – but frankly I really think that it needs clarity and it should go to the judge to decide rather than just to agree a Tomlin order.

Once again, as long as you have the evidence to support your points and you can explain them clearly and succinctly then you are in a good position.

I should certainly put a summary together – one page – two page maximum

[SJS1926]

Just been sent a new Witness Statement, totally different to the previous and from a Barrister. I've now been told by them that Monday is a Video call but the Courts have not told me. 

 

A lovely email attachment says they will ask for over £21,000 from the Courts in costs against me if they get a set aside. I earn £9,000 pa from a Pension, I'm now terrified! 

 

Apparently both I and the Courts were wrong to allow form N322B, that is just for ACAS awards, the Judge was wrong too to allow it. 

 

I'm going insane with stress

[honeybee13]

There's often posturing leading up to a court date and of course they would prefer you to drop out, wouldn't they? Please hang on for BF, he'll know what to do.

 

HB

[BankFodder]

Make sure that you point out to the judge that they have supplied their with a statement to the last moment.

Also point out to the charge that you are being very badly bullied here with these huge threats.

In terms of the video call, I suggest that you start phoning the courts to find out exactly what is happening. Do I understand that it was meant to be an in-person hearing?

What time on Monday is the hearing scheduled for?

I understand that you only been told about the video hearing from the other side – not from the court.

Maybe you should write to the other side immediately and tell them that you hadn't been told this by the court and can you have a copy of the message they have had from the court informing them that the hearing will be done by video conference.

Send them this today and then call them tomorrow – as well as the courts.

Maybe you would like to email us the new witness statement.

It's not surprising that they are going into complete panic mode. I'm sure it's very stressful for you but I'm afraid that this is probably fairly predictable

[SJS1926]

I sent this to the Lawyers this morning and will spend the rest of this morning on hold to speak to the Courts...... 

........................................................ 

I refer to the Skeleton Argument and cost Schedule attached which I assume were issued to the Courts yesterday. Please confirm that your cost schedule was also sent to Court. 

 

If my assumption is correct why couldn't the emails I requested to be added to the Bundle be sent to Court. 

 

Nevertheless I sent these to Court last night including the relevant emails which make it clear the Undertaking is still not ready for signature as it requires "tweaks". 

 

As you know, correspondence goes to a central email address at the Courts in London and it is unlikely the said correspondence will be put before the Judge in time. 

 

I will be contacting the Courts shortly to discuss this situation of late correspondence and ask if this cannot be put before the judge in time what options are available regarding a delay to proceedings. 

Spoke with the Courts, all correspondence now with the Judge. 

[SJS1926]

I lost. I filled the wrong form in -  should have been N322A and the Proper Person at Court didn't pick it up so Enforcement was set aside. 

I've had £9k fees awarded against me. 

I'll never go to Court ever again to try to obtain compensation. 

[AndyOrch]

Post #54 in the following topic as advised by Bankfodder.

 

 

 

Quote

4.2 An application under rule 70.5(3) for an order to enforce a decision or compromise must be made by filing an application notice in practice form N322A.

 

4.3 The application notice must state –

(a) the name and address of the person against whom the order is sought;

(b) how much remains unpaid or what obligation remains to be performed; and

(c) where the application relates to a conditional compromise, details of what under the compromise the applicant is required to do and has done under the compromise in addition to discontinuing or not starting proceedings.

 

4.4 Where –

(a) the application relates to a conditional compromise; and

(b) the application notice is served by the applicant on the respondent,

the applicant must file a certificate of service with the court within 7 days of service of the application notice.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part70/pd_part70

 

https://www.gov.uk/government/publications/form-n322a-application-to-enforce-an-award

 

 

[BankFodder]

14 minutes ago, SJS1926 said:

I lost. I filled the wrong form in -  should have been N322A and the Proper Person at Court didn't pick it up so Enforcement was set aside. 

 

I've had £9k fees awarded against me. 

 

I'll never go to Court ever again to try to obtain compensation. 

 

I'm totally sorry. I'm sure it was a real blow and totally unexpected.

I have to say that I'm surprised that they only found against you on the basis that you use the wrong form. The Overriding Objective of the courts is to achieve a solution which is in the interests of justice.

If the only basis of the decision against you with that used the wrong form that I don't see how this satisfies the overriding objective.

There must've been other reasons for this.

The award of £9000 is a terrible blow.

What is your next step? Clearly the FOS decision needs to be implemented.

[AndyOrch]

Quote

Alongside the main claim that gets brought to life, an application has to be made to the court to give the FOS decision the effect of the court order. An LIP then gets the joyous task of having to choose the correct form of the near identical N322A or N322B forms, certainly not any easy task, even for many lawyers. In practical terms the N322B is for enforcement of awards which are automatically considered on par with a Court Order.

 

The N322A is for the enforcement of awards where the court’s permission is required to give the effect of a Court Order, which applies to FOS awards as the FOS award does not have the effect of a Court Order until the court so orders. Naturally, I have had clients who (as litigants in person) have fallen at this hurdle, on a procedural difficulty alone.

 

https://www.lawgazette.co.uk/practice-management/enforcing-financial-ombudsman-decisions/5041981.article

 

[BankFodder]

Of course it is a ridiculous and most unfair distinction. It has absolutely no relevance and has nothing to do with justice