© 2020 All rights reserved | | Version: 1.0.0.54 | Updated: 10/16/2020 11:16:44 AM
The cut-off date for opting in expired on 4 September 2020. However, it has been extended for Eligible Customers in certain specific circumstances. If you do opt in, it will be on the basis that you accept the scope and methodology set out on this website and that our decision on your claim for D&C Losses will be final and binding on you and the Bank. In accordance with the recommendations of Sir Ross Cranston, it will be necessary to sign an agreement about this with the Bank. If you have not yet opted in and now intend to do so, please contact us at info@foskettpanel.com as soon as possible.
Back To TopThe cut-off date of 4 September 2020 has been extended for Customers in certain specific circumstances, including those still awaiting the final outcome of their claim for de facto director status. They will be able to apply once that status has been confirmed finally if it is. We have to impose a cut-off date for many practical reasons and out of fairness to Customers already committed to our process and we will publish the final deadline once set.
Back To TopMore than 150 individual Customers have indicated that they wish to opt into the Re-Review process. We are aware that it is many years since the IAR Fraud and all customers will have waited a long time and will be keen for us to get to their case as quickly as possible. However, we must prioritise these cases, taking into account those with specific circumstances raised with us such as severe ill health and financial distress. We must also consider the connectivity between certain Customers’ cases and the appropriateness of assessing them at the same time, plus the need to consider a reasonable variety of cases in the first ‘batch’ to allow us to develop a better appreciation of the wider picture of the IAR fraud. We have now decided upon the first group of Customers and are in the process of contacting Customers as the information-gathering stage begins for each case.
Back To TopYes. We are aware that some Customers did not advance a claim for D&C loss during the Customer Review and may now have information that they consider relevant to the Re-Review process that was not advanced at the time of the Customer Review. If you tell us that this is so, we will seek the required information from you at an early stage in our information-gathering phase.
Back To TopWhen you indicate a wish to opt in you can indicate that this is the case and we will decide how best to receive that information in your case. Sir David will ask Customers about this at an early stage in the information-gathering phase.
Back To TopWe recognise that Customers may not hold all the documentation relevant to their claim for D & C losses. We will endeavour to find any relevant documentation that we reasonably can. We understand that, in the circumstances, some documentation may be missing or may misrepresent the true position. We will discuss the available information with customers to identify whether such an issue arises. The more information that is available, the more likely it is that we will be able to quantify any D&C loss suffered. A list of the types of information that would be useful where available can be found here. However, simply because documentation that supports a claim cannot be found does not necessarily mean that the claim cannot succeed. We will try to obtain a full understanding of the position before we reach a decision.
Back To TopWhen we make our ‘minded to’ decision, we will include all the documents that we have relied on in reaching our provisional decision. This will include documents held by the Bank. Where documents are disclosed to us by the Bank following our request that it should do so, we may share those documents with the Customer at an earlier stage in the Re-Review process if the Customer does not have them already.
Back To TopWe (the Panel) are entirely independent and we alone will make the final decision in every case. The Bank, like the Customer, will have the right to review and respond to our ‘minded to’ decision and we will consider all the material and submissions before reaching our final decision.
Back To TopWe are aware that some Customers have expressed deep reservations about the completeness and reliability of documents in the Customer Review File. Sir Ross Cranston also highlighted the importance of taking into account the potential impact of the fraudulent activity on the documentary materials available. We will take all this into account wherever we consider it appropriate and are likely to discuss key documents with Customers in the information-gathering stage and whether documents are missing or documents that are available are misleading. If the Customer considers a document relied upon by us is misleading or fraudulent, and for some reason this has not been identified in the information-gathering stage, the Customer may challenge the minded to decision and explain their position at that stage. Any final decision will take into account the Customer’s views on the documents relied upon by us.
Back To TopNo. In order for your case to be considered, you simply need to opt into the Re-Review. If you do not wish to submit any further information or meet with us, you will not be obliged to do so. We will undertake the work on your behalf based on the information you submitted to the Customer Review and any other information that we consider relevant. We may contact you to ask for your help on information we have gathered, but it will be up to you to decide whether and, if so, how you wish to respond. We will issue a ‘minded to’ decision for your consideration, based on the information available to us.
Back To TopYes. The opportunity for a “virtual” meeting will be offered to all Customers. We are hoping that it may also be possible to arrange meetings in person for those Customers who wish to meet us face-to-face. Additionally, we will be prepared to travel to see a Customer if we reasonably can, where requested. However, that will depend on the extent of the restrictions arising from the Covid-19 pandemic.
Back To TopYes. Regardless of whether a Trustee in Bankruptcy is involved or not, we would still like to meet with you and hear what you say about your D&C loss claim should you wish to do so.
Back To TopNo. We can only consider a D&C loss claim.
Back To TopNo. No financial limits have been set on any award we can make for a D&C loss.
Back To TopYes. The Bank, like the Customer, will have the right to review and respond to our ‘minded to’ decision and we will consider all the material and submissions before reaching our final decision. The final decision will be final and binding on the Bank as well as the Customer.
Back To TopThis follows from the recommendations of Sir Ross Cranston. For most Customers, you will need to do so because you have already signed a settlement agreement with the Bank as part of the Customer Review. If you have, this will need to be varied to release you from certain existing obligations so that you can have your claim for D & C losses re-reviewed by us. We are not privy to whatever arrangements you may have reached with the Bank during the Customer Review, but we understand that the Bank will be contacting Customers about this once the Customer has indicated to us an intention to opt in to the Re-Review process. Even for a Customer who has no existing settlement agreement with the Bank, an agreement would need to be signed between you and the Bank when you opt in, to confirm the joint agreement between you and the Bank to abide by our processes and to be bound by our final decision. All Customers must sign an agreement if they wish to opt in to ensure fairness as between all those participating in the Re-Review.
Back To TopEligibility for the Re-Review does not hinge on whether or not you were offered any compensation in the Customer Review or whether or not you accepted an offer that the Bank made through that process. Some Customers may be eligible to apply even if they did not participate in the Customer Review, namely, those who have had their eligibility re-assessed since the Customer Review and have been accepted as a de facto director. The eligibility criteria are explained on the page ‘Who can apply to the Re-Review?’. However all Customers must sign an agreement with the Bank in order to complete the opt in formalities, as recommended by Sir Ross Cranston.
Back To TopYes, you would be eligible for the Re-Review if you were a shareholder in a company that was included in the Customer Review and you sought to make a claim for D & C losses in the course of the Customer Review or were entitled to do so.
Back To TopIf you meet the eligibility criteria set out on the ‘Who can apply to the Re-Review’ page, and you choose to opt in to the Re-Review, then your case will be considered by us. The way we will approach our assessment of the extent to which you were financially impacted by the IAR Fraud is set out in ‘IAR Fraud and the Causation of Loss’. Whether or not you had any direct involvement with the convicted individuals, it will be important to establish a link between the fraudulent activity and a financial impact on you/your business, as explained in ‘IAR Fraud and the Causation of Loss’.
Back To TopNo, not necessarily. As Sir Ross identified in his report, the Panel will enquire about other financial aspects, such as what alternative earnings you might have made if the IAR Fraud had never happened, and should we identify losses like these, we should still be able to make an appropriate award.
Back To TopThe Causation of Loss and Quantifying D&C Losses
Our task is to assess whether you and/or your Company were ‘financial victims’ of the IAR Fraud. Our approach is set out in ‘IAR Fraud and the Causation of Loss’. To consider this, we will need to understand what influence or involvement the convicted criminals had on you and your Company. We will look at all the circumstances, particularly the extent to which the actions, inactions or influence of Lynden Scourfield or Mark Dobson or any of the other convicted individuals affected the Customer whether directly or indirectly (including by directing others acting at their behest).
For example, we will consider matters such as whether either Lynden Scourfield or Mark Dobson agreed to, encouraged, or influenced behaviour or actions that that led to the eventual destruction, demise or other damage to your Company, or caused company representatives to take evasive action to their own detriment. In deciding whether you were affected by the IAR Fraud, the Panel will be able to draw inferences from all the material and circumstances available.
These are not the only examples, but the important factor is for the Panel to be able to establish a link between the IAR Fraud and a detrimental financial impact on you/your business.
Back To TopWe can only compensate for D&C losses where we conclude that the IAR Fraud caused financial loss to a Customer and that financial loss is capable of being quantified based on the available information. Our approach to assessing D & C losses as a result of the IAR Fraud is explained in the section ‘Our Assessment Methodology’.
Back To TopThe Re-Review is different from a court process in a number of ways including the following:
The Panel uses these words “fair and generous” with their everyday meaning and not in any technical way.
The Panel will aim to ensure the process used to calculate the D & C losses, and any award which is made for those losses, is fair. This means that the process will be transparent and reasoned. Every case will be unique and considered on its own facts, but the Panel will aim to ensure, so far as possible, a consistency of approach to all Customers’ claims. Explanations will be provided for why decisions have been reached and a Customer will be able to review and comment on all the documents relied upon in coming to a ‘minded to’ decision.
In respect of the award itself, the Panel will aim to ensure that any financial losses suffered by a Customer are fully compensated and the Panel will approach the review generously in respect of the Customer.
The Panel is not bound by strict legal precedent and will approach its task in line with its overriding objective.
The Panel will assess all the evidence as a whole, including your account of what occurred.
The Panel will take into account the fact that Customers have been victims of fraud, that significant time has passed since that fraud occurred and that documentary evidence may well not be available or may be misleading due to the actions of the fraudsters. The Panel will aim to ensure that none of these factors disadvantages a customer.
Back To TopNo. You may have received compensation for ‘Distress and Inconvenience’ from the Bank in the Customer Review. That would have been intended to compensate someone who had suffered distress and inconvenience, irrespective of whether they had also suffered financial losses as a result of the IAR Fraud. Sir Ross commented in ‘The Cranston Review’ that the Bank extended redress under this heading to include customers who had not necessarily been victims of the IAR Fraud, but who had been victims of what he called “bad or aggressive banking practices.” Compensating for “bad or aggressive banking practices” is not within our remit. The D&C losses assessment by the Panel will be made independently of any prior assessment that may have made for Distress and Inconvenience by the Bank.
Back To TopThe Panel’s scope is to assess and award compensation for individuals who suffered financial losses as a result of the IAR fraud and any compensation that the Panel decides to award will be for that reason only, irrespective of whether a customer was also affected by aggressive or bad banking practices.
Back To TopNo and we want to be very clear about this. We will be looking at each Customer’s case afresh. We will not be making any assumptions or presumptions, one way or the other. We will not assume that your Company was in a poor financial position or that it had no prospects simply because it was put into the IAR.
Back To TopNo. You will never be required to return any amount of compensation you have already received from the Bank as a result of our Re-Review. Our process is only intended to assess whether you should receive any additional compensation and, if so, how much.
Back To TopYes, as regards D&C losses arising from the IAR fraud. If you choose to opt into the Re-Review, it will be on the basis that you accept the scope and methodology set out on this website and that you also accept that our decision regarding D&C losses will be final and binding. The Panel is not in a position to advise you about any other potential claims that might be brought against the Bank.
Back To TopProfessional advisers and their fees
Customers can instruct lawyers at any stage in the Re-Review process, but the circumstances in which the Bank will be obliged to meet the reasonable costs is explained on the page ‘Professional advisers and their fees’.
Back To TopA Customer may deploy forensic accountancy expertise and advice if they wish during the Re-Review process, but the circumstances in which the Bank will be required to meet the reasonable costs is explained on the page ‘Professional advisers and their fees’.
Back To Top © 2020 All rights reserved | | Version: 1.0.0.54 | Updated: 10/16/2020 11:16:44 AM