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:
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.
If you have not yet been accepted as having been eligible for the Customer Review under category (e), we understand you can still apply to the Bank to have your eligibility re-assessed. Rory Phillips QC is considering appeals from this process (a link to his website is here).
As indicated above, the Bank has notified us that any ‘new’ Customer (e.g. as a result of a revised eligibility assessment or other late entry) will have to accept their award or settlement offer from the Bank other than for D & C losses (e.g. for Distress & Inconvenience) before they may opt in to the Re-Review Panel. The Bank has confirmed that it will not conduct any assessment of D & C losses for ‘new’ Customers. This means that once they have settled with the Bank in other respects, they will be directed to the Re-Review Panel if they want their D & C losses assessed.
Customers who have outstanding claims (other than for D & C losses) with the Bank who intend to opt in to the Re-Review process should let us know once they have resolved those claims with the Bank. This will enable the Panel to ensure that Customers in that category are not excluded from the Re-Review by the cut-off date for opting in that will be set in due course.
If you are uncertain about whether you can apply to the Panel, please send your query to email@example.com and we will help you.
The Panel’s flexible, inquisitorial ‘information-gathering’ role means there should be no need for Customers to have to involve professional advisers before the ‘minded to’ decision is issued (see ‘What is an Inquisitorial process?'). This is particularly so, given the respective professional backgrounds of Panel members and the availability to the Panel of its team of independent legal and financial advisers. The Panel will be approaching its task in relation to each Customer on that basis.
The Panel understands that some Customers engaged lawyers to advance their claims in the original Customer Review. In line with Sir Ross’ recommendations, it is important that the benefit and costs of legal advice already obtained in the Customer Review are not wasted. The Panel will therefore, as part of its information-gathering phase, take fully into account any contributions made previously by legal advisers for the Customer. The Panel sees no need for any repetition of that work and it would not anticipate receiving a fully re-worked new claim. Sir Ross said “if Customers want their lawyers to assist them at this stage, the Panel cannot prevent it”, but that “the process is designed so that lawyers are not essential at this point”.
If a Customer instructs their lawyer at the Panel’s information-gathering stage of the process, the question of whether it is reasonably necessary to do so for the purposes of the Panel’s work will be decided by the Panel. If the Panel decides, exceptionally, that instructing lawyers at this stage is reasonably necessary, it will inform the Customer and the Bank of the nature and scope of work that the Panel considers reasonable for that adviser to undertake for the purposes of the Panel’s information-gathering exercise. The Bank will fund the reasonable costs for this.
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 to the Panel 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 after the Panel’s ‘minded to’ decision has been issued. The (relatively modest) fees for a lawyer acting as a Customer Advocate would be met by the Bank.
Sir Ross recognised that a Customer might, at the stage of reviewing the ‘minded to’ decision, require legal advice. Our approach will be that a Customer who wishes to obtain legal advice at that stage will be entitled to do so. The reasonable fees for this will be funded by the Bank.
The Panel understands that some Customers advanced their claims in the Customer Review using the services of a forensic accountant or other financial expert (such as a valuer). That material will become available to the Panel when the Customer’s prior submissions are examined and the Panel will ask for any additional information if necessary.
Sir Ross recognised that in some cases the provision of financial advice such as forensic accountancy advice after the ‘minded to’ decision “might be appropriate at the Panel’s discretion” . Customers who did not use the services of a financial expert at the time of the Customer Review will not be disadvantaged. The Panel emphasises that:
This means that every Customer who applies to the Panel can be assured that the Panel will consider the approach that a forensic accountant/valuer independently instructed by a Customer would bring to the claim. The Panel will assess the D & C losses on the basis both of optimistic assumptions about what would have happened to the business without the fraudulent activity, as well as more conservative assumptions, in order to reach a balanced view.
As a result, the Panel is confident that a Customer who does not have a forensic accountant or other financial expert helping them will not be disadvantaged. Where any financial advice after the ‘minded to’ decision is applied for by a Customer, the Panel will consider requests for such assistance on a case-by-case basis.
The Bank will fund all reasonable costs of legal and financial support for Customers that the Panel considers is reasonably necessary in each instance. A lawyer who acts as a “Customer Advocate”, as described above, may also be engaged by the Customer to act as an adviser after the ‘minded to’ decision, and their reasonable fees would be agreed separately for each role.
The proposed fees for any professional services approved by the Panel will have to be agreed in advance between the advisers and the Bank. A relevant point of contact within the Bank will be nominated in due course.
If there is any disagreement between the Bank and the advisers as regards the amount of the proposed fees, the Chair of the Panel will ask Mr Peter Hurst, the former Senior Costs Judge of England & Wales, to conduct an informal assessment and decide on the amount that is reasonable to charge for the services approved by the Panel. His decision on costs will be final.