April 5
The claimant financial services company was alleged to have mis-sold payment protection insurance to consumers. Since they had taken out contracts of insurance with the claimant, the consumers were “eligible complainants” for the purposes of the dispute resolution and complaints part of the FCA Handbook, i e they were persons eligible to have a complaint considered under the Financial Ombudsman Service scheme. The Official Receiver, in whom the estates of bankrupt consumers vested and who was, for the purpose of DISP 2.7.2R of the Handbook, a person authorised by law to bring a complaint on the bankrupt consumers’ behalf, notified the claimant of a bulk complaint. The claimant invoked the rule which allowed it, as respondent, to reject any complaint without considering the merits if it was received outside the time limits in DISP 2.8.2R for referral to the Financial Ombudsman Service. By DISP 2.8.2R(2)(b), there was a three-year time limit from the date on which “the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint”. On the claimant’s claim for declaratory relief as to the construction of DISP 2.8.2R(2)(b) and the timing of actual or constructive awareness, the issue arose whether the “complainant” with “cause for complaint” was the bankrupt, as the eligible complainant, or the Official Receiver, as a person authorised by law to bring the complaint. The claim was allowed in part and the judge granted a declaration that the relevant awareness for the purposes of DISP 2.8.2R(2)(b) was that of the Official Receiver. The Official Receiver appealed on the ground that the judge should have concluded that thee word “complainant” in DISP 2.8.2R meant the bankrupt, rather than the trustee in bankruptcy.
On the appeal—
Held, appeal allowed. (Per Singh and Carr LJJ; Nugee LJ concurring in the result) on a true construction of DISP 2.8.2R(2)(b), it was not the case that the relevant awareness for limitation purposes on a claim brought by the Official Receiver was that of the Official Receiver and not that of the bankrupt. In particular (i) there was considerable force in the contention that the overall thrust of DISP was that the subject matter of a complaint focused on the underlying consumer who bought the PPI policy, and although the word “complainant” was not defined in the Glossary, it was clear that it was used on numerous occasions to refer to the consumer, even where it was expressly stated that someone else was making the complaint on that person’s behalf, (ii) DISP was intended to create a relatively informal and simple scheme for and on behalf of consumers, as reflected in the drafting style employed, and was not intended for respondents to have to deal with highly complicated legal concepts, (iii) it was possible to interpret the phrase “on behalf of” in the present context as simply meaning “in place of” and so avoid having to consider the entire body of insolvency law and (iv) the interpretation favoured by the judge would have absurd consequences, particularly in a situation where the bankrupt had had the relevant awareness for a period of time before the bankruptcy. Accordingly the declaration granted by the judge would be set aside. However, it did not necessarily follow that the relevant awareness was simply that of the bankrupt and in the absence of relevant findings of fact, it would not be appropriate to make any further declaration (paras 31, 37, 43, 65–70, 72, 90–93, 96–99, 100–104, 105, 109).
Per Nugee LJ. The person whose awareness is relevant for the purposes of DISP 2.8.2R(2)(b) is the person who for the time being has both the right to bring a complaint and an interest in doing so. So long as the consumer is alive and solvent that is him; if he dies or becomes bankrupt without time starting to run, it is his personal representatives or trustee in bankruptcy. The question of who “the complainant” refers to in any particular provision depends on the date which the rule in question requires one to consider Since the relevant date for the purposes of DISP 2.8.2R(2)(b) is the date when the complainant first became aware, the complainant means the person who has the right to complain and interest in complaining at any putative date (paras 170, 171).
Michael Gibbon KC and Maxim Cardew (instructed by Legal Services Directorate, Insolvency Service) for the Official Receiver.
Javan Herberg KC and Oliver Assersohn (instructed by Weil, Gotshal & Manges (London) LLP) for the claimant.