The Foskett Panel

About The Re-Review


Who can apply to the Re-Review Panel?


PLEASE NOTE THAT THE RE-REVIEW IS CLOSED TO NEW APPLICANTS.

For completeness the eligibility criteria for the Re-Review are provided below.

Customers (directors or de facto directors or persons sufficiently actively involved in running the business or shareholders of corporate customers affected by the IAR Fraud) may apply to have their or their company’s D & C losses assessed by the Panel if any of the following circumstances apply:

  1. you went through the Customer Review (set up by the Bank in February 2017) and you accepted an offer from the Bank under a settlement agreement within that process; or
  2. you went through the Customer Review, but you were either not offered any compensation or you declined the offer that the Bank made through that process. (We would add that the Bank has notified us that customers in this category will be able to apply to the Panel, on conditions to be agreed between the Bank and the Customer.); or
  3. you were accepted by the Bank as eligible to be included in the Customer Review, but you reached a settlement with the Bank outside of the Customer Review; or
  4. you would have been eligible for the Customer Review had you applied at the time, and the Bank has since made you an offer of payment for Distress & Inconvenience which you have accepted; or
  5. you were excluded from the Customer Review at the time because you were said by the Bank not to be a de facto director or sufficiently actively involved in the running of the business, but the Bank has now determined (or Rory Phillips QC decided following an appeal) that you were eligible for the Customer Review, and the Bank has since made you an offer of payment for Distress & Inconvenience which you have accepted; or
  6. 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.

In all cases where a settlement agreement has been entered into between the Customer and the Bank, the Bank has notified us that you will be required to enter a release agreement with the Bank covering the terms of your Opt-in to the Re-review, including release from the relevant provisions of your Settlement Agreement.



Professional Advisers and Their Fees


Approach to professional advice and fees in the Re-Review

We wish to emphasise that the Re-Review process has been designed, following Sir Ross Cranston’s recommendation to this effect, in a way that lawyers and/or financial experts are not essential during the information gathering stage.

We are confident that, with the assistance of our team of advisers, we can assess a Customer’s case for D&C losses without the assistance of lawyers and/or financial experts engaged by the Customer during the information gathering stage. No Customer should feel obliged to engage such assistance.

However, funding is available to Customers for professional fees in the Re-Review for Customers who would find this helpful. The policy and guidance on how the policy is applied in practice can be found here.

We have also produced FAQs based on Customer queries. They can be found here.

Peter Hurst, the former Senior Costs Judge in England and Wales (‘PTH’), assesses all applications for fees on our behalf. PTH has this role given his expertise and independence, and this enables us to focus on our primary responsibility of assessing cases.

So far as fees of lawyers are concerned, Sir Ross Cranston made it clear that “[only] costs incurred by qualified, practising lawyers will be met”. The fees of Claims Management Companies or other unqualified advisers for this work will not be recommended for payment by LBG in any circumstances. Financial advisers must also be suitably qualified.


Lawyer acting as a ‘Customer Advocate’

A Customer may engage their lawyer to act as a “Customer Advocate” at any meeting as a supportive companion, but also, where the Customer would like it, to act as their advocate at that meeting to relay the Customer’s personal account on their behalf. We regard the role of the lawyer in this capacity as distinct from the role of a lawyer who makes submissions on a Customer’s behalf. The (relatively modest) fees for a lawyer acting as a Customer Advocate would be met by the Bank. Please contact costs@foskettpanel.com for more information.


Financial expertise and advice after the MTD

Sir Ross had recognised that in some cases the provision of financial advice such as forensic accountancy advice after a ‘minded to’ decision “might be appropriate at the Panel’s discretion”. However, Customers who did not use the services of a financial expert at the time of the Customer Review, or who do not do so during our information gathering stage, will not be disadvantaged. We emphasise that:

  1. our financial advisers (FTI Consulting LLP) deploy forensic accountants and valuation experts to analyse and report to us on the Customers’ cases;
  2. one of the Panel members is herself a forensic accountant; and
  3. the other two members of the Panel have experience of receiving and evaluating forensic accountancy and financial expert evidence and opinion.

This means that every Customer who applies to us can be assured that we will consider the approach that a forensic accountant/valuer independently instructed by a Customer would bring to the claim. We will assess the D & C losses on the basis both of optimistic assumptions about what would or might have happened to the business in the absence of the fraudulent activity, as well as more conservative assumptions, in order to reach a balanced view.

As a result, we are confident that a Customer who does not have a forensic accountant or other financial expert helping them will not be disadvantaged.

Where, however, support for the costs of any financial advice is applied for by a Customer, it will be considered by PTH as explained in the policy.


Professional Fees FAQs

Frequently asked questions about professional fees can be found here.


Update to policy and guidance - June 2022

We have been very keen to speed up the process leading to the Customer receiving their 'minded-to' decision (‘MTD’) and we have updated our policy on funding for professional fees in the Re-Review. Our concerns about the speed of progress, the causes of the delays and the attempts to overcome them have been the subject of our updates from April 2021 onwards.

The purpose of the updated guidance (available to read here) is to help Customers understand the updated policy and how best to help us issue a MTD more quickly in their case and thereby increase the rate at which Customers overall receive their MTDs in the Re-Review.

The updated policy and guidance explains the type of professional advice and assistance we are likely to find helpful:

  1. in the information-gathering stage before issue of a MTD; and
  2. after the issue of a MTD.

The intention behind the updated policy is not to restrict the ability of Customers to seek professional advice and assistance, if they choose to do so, but rather to align it more closely with what we need to consider before issuing a MTD and what may be necessary after a MTD. The updated Policy follows closely the recommendations of Sir Ross Cranston in his reports.

The existing process requires PTH to decide whether the work proposed by advisers is ‘reasonably necessary’ when making his recommendation to LBG and his final decision about funding professional fees pre-MTD. The updated policy and guidance makes clear, based on our recommendations from our experience to date, what sort of work will be accepted by him as falling within that definition in the future.

In addition, to help speed up the process of securing and obtaining funding for appropriate professional support and avoid delays, a certain level of professional fees will now automatically be funded by the Bank for each Customer without the need for prior approval from PTH. Any costs exceeding that amount, however, must be approved in advance in order to be funded by LBG and no retrospective applications will be entertained.