The Foskett Panel

Explanatory Notes


What is an ‘Inquisitorial’ process?


This essentially means that the Panel will be responsible for gathering relevant information and documents, assessing that evidence, reaching conclusions on the basis of that evidence and making a decision. As Sir Ross Cranston said, “there is no onus of proof on the Customer, given that this will be an inquisitorial process where the Panel does the work.” In practice this means the following:

Where we consider that the material in the Customer Review File is deficient, we will seek information and documentation from the Bank and/or the Customer and share it appropriately. We will take account of what is said at the meeting or otherwise contributed by the Customer. We will advance our inquiries in this way in an effort to ensure we have identified the relevant information before producing a ‘minded to’ decision on the award. This approach will provide flexibility for us to deal with each Customer’s case in an appropriate manner. It is designed to minimise the need for legal representation or other professional involvement at the ‘information-gathering’ stage.



Customer Review File


In respect of each of the 71 companies in the Customer Review there is a Customer Review File. This contains electronic versions of documents generated during the Customer Review process, including the Customers’ submissions. In relation to each company there are also Hard Copy Files, comprising hard copy documents for each company or ‘connection’ compiled from LBG’s records, many of which, we understand, run to many hundreds of documents. These Hard Copy Files were assembled in the “file build” process described by Sir Ross in ‘The Cranston Review’ and were, we understand, supplemented by selective searches of the Recommind database (the Bank’s electronic document repository containing in excess of 15 million electronic records). Across the 71 companies, the total number of lever arch files of documents number 967, broken down as follows:

Number of files of documents Number of companies
0-10 48
10-20 12
20-30 4
30-40 4
40-50 2
50 + 1

Sir Ross made significant criticisms of the way the Bank handled issues concerning documents during the Customer Review, particularly in respect of the non-disclosure of documents relied upon, the interpretation of those documents in the file that were prepared by the fraudsters and the significance of the absence of some documents from the file given the fraudulent activity. However, the analysis of the files in the 16 sample cases undertaken by FTI Consulting LLP, on Sir Ross’ behalf, demonstrated that in 14 of those cases there were no material information gaps. In the two cases where gaps were identified, further, more focused, searches did reveal further relevant documentation.

Against that background, Sir Ross has recommended that “the structure of the Re-review Process should be built around the work undertaken for the Customer Review, in particular the Bank’s file build (i.e. the documents collated by the Bank in relation to each Customer Review File) and, importantly, the submissions of Customers.” We have taken those recommendations on board in developing the process we intend to follow.

If the Customer, in responding to an information request, alerts us to the existence of a document or class of documents that we are persuaded is potentially relevant and that is not already referred to in the Customer Review File, we will undertake a reasonable, proportionate and focused search of the Hard Copy Files and the Recommind electronic database provided that sufficiently specific search parameters and directions have been provided by the Customer.

It may be, of course, that none of the requested documentation can be found. Given the background of fraud, we recognise, for example, that taking some documents at face value may not be appropriate. Equally, that the absence of certain documents that one might have expected to be present may not be as relevant as in normal circumstances. We will be alive to issues of this nature when we consider a Customer’s case.



The balance of probabilities


This is the usual test applied by a court in civil proceedings when deciding whether, on the evidence, something in the past happened. If a court concludes that it is more probable than not that the event occurred, the court will conclude that it did occur. It is sometimes said that if the court decides there was more than a 50% prospect that the event occurred, then the event will be held by the court to have occurred. Although the Panel is not acting as a court, Sir Ross has recommended that we should apply this test to the actions that Customers say they would have taken in the Non-Fraudulent Scenario. We will do so, but we will take a generous view of this test, given the background and our general approach.



The chances of third parties’ actions occurring in the Non-Fraudulent Scenario


The chance that a third party, such as a Hypothetical Reasonable Bank, for instance, would have acted in a certain way in the Non-Fraudulent Scenario will be assessed and expressed in percentage terms. This will reflect how likely it is that the third party would have acted in that way. The more likely it is that the third party would have acted in that way, the higher the percentage will be. For example, a 70% chance is higher than a 30% chance, but each is a chance. This means when considering third parties’ actions, the Panel do not need to conclude that there was a greater than 50% chance of the third party acting in certain way in order to take those actions into account. This is different from considering the likelihood of a Customer’s actions in the Non-Fraudulent Scenario. That will be assessed on the basis of whether the Customer’s actions were more likely than not – in other words, is there is a greater than 50% chance that the Customer would have taken those actions? As indicated above, the Panel will take a generous view of that test.



Legal professional privilege


This law allows a client to keep private their communications with lawyers for the purpose of seeking or giving legal advice, whether written or oral, and not to disclose them to anyone else, including a court. The client (but not the lawyer) can “waive” their privilege so that the communications can be revealed.



Confidentiality


In certain circumstances, the law protects private information so as to keep it secret and prevent it from being shared. In order to qualify for legal protection in this way the information: (i) must itself be private or confidential information (e.g. not available in the public domain); and (ii) must have been provided in a way that the person receiving it knew, or ought to have known, that the information was confidential. Almost any type of information can be confidential information if these two conditions apply, including both commercial information and personal information.