The Foskett Panel

Updates

Update from the Panel – August 2022

The changes to the Re-Review process referred in our updates in June and July are now ‘live’.

These new arrangements are based on the discussions with the APPG on Fair Business Banking, the SME Alliance and the Bank undertaken over several months. They are designed to speed up the overall Re-Review process for all Customers and improve their experience during their involvement in it.

As you will be aware from our previous updates, the changes that are now ‘live’ include:

  1. The introduction of Victim Status Decisions (‘VSD’) in cases where we are able to determine that an individual Customer was a victim of the IAR Fraud (as defined here. The Bank will be able to challenge these decisions only on the basis of an obvious error on the face of the decision itself. They will not be able to challenge the merits of the decision.

    Please note that not every Customer will receive a VSD. We must be able to conclude that a Customer was potentially affected by the fraudulent actions of the fraudsters. As Sir Ross Cranston explained, this was not the case for every Customer who went through the Customer Review. Where on the information we have been able to obtain (including information from the Customer), we still cannot issue a VSD, we will issue a ‘Minded-to’ Decision (‘MTD’) recording our provisional view on victim status. This will then be open to challenge by the Customer.

    Please read our updated Scope and Methodology Statement for more information, as well as the Customer Journey diagram.

  2. The Fixed Sum Award (‘FSA’) option will now be available to Customers who receive a VSD. It will mean choosing between (i) remaining in the Re-Review and our undertaking a detailed analysis of the Customer’s D&C losses (if any) OR (ii) accepting the FSA of £3million net of tax and exiting the Re-Review within a short period thereafter. Customers who receive a VSD will have a one-month decision window in which to notify us of their choice.

    Please read our new guidance on the FSA for more information.

  3. Introduction of a non-refundable £250,000 interim payment for Customers who receive a Victim Status Decision and stay in the Re-Review process.
  4. An increase in the interim payment a Customer may receive following a ‘minded-to’ decision to 40% of the award proposed in the MTD if we are able to conclude that quantifiable financial loses for the Customer arose.

    Please read our new guidance on interim payments for more information.

  5. Changes to the arrangements for professional fees with £15,000 being available without prior approval from Peter Hurst.

    Please read our guidance on professional fees for more information.

The above summarises the main changes to the Re-Review process, but we encourage all Customers and professional advisers to read through the revised website.

In particular, please consider the FAQs, which have been updated following the changes, and cover a number of important topics.

Next Steps

We are continuing to work through cases in priority order, which means continuing to work on the most urgent cases, taking into account serious physical illness, chronic or acute mental ill health, severe financial distress and advanced age, first. We ask to always be kept updated if there are any changes to your personal circumstances.

As explained in our last update, there will not be an immediate block issue of VSDs and the Panel will be in contact with Customers before we issue any decisions.

We again would like to emphasise that there is no need for Customers or their representatives to contact the Panel beforehand. We will keep Customers updated as we make progress with the new arrangements.

We do wish to assure everyone that we and our teams are working through the outstanding cases just as quickly as we can. For reasons we have given in previous updates, the whole process to date has been more complex and time-consuming than originally anticipated. However, we believe that the new arrangements can make a significant difference to the pace of the Re-Review. We do ask for the cooperation of all Customers and their advisers when their case comes to be considered and for their continued patience whilst progress with the new arrangements is made.

After the new process is live and in full operation, we will provide regular updates on progress. In our update in June, we said that Customers would be told the details of the new arrangements “before any of the changes has a practical impact on them” and that remains the position.

Kind regards,

David Foskett
Philippa Hill
Andrew Hildebrand



Update from the Panel – July 2022

Since our update in June, we have received questions from a number of Customers who understandably wish to know when full details of the changes to the Re-Review process will be announced.

We understand fully the desire of everyone to know more about what is to happen and indeed we wish to give those details just as soon as we can. We do have to emphasise that it took 3 months of intensive discussions for us to secure agreement in principle on the overall structure of the new arrangements and there were inevitably details (including the taxation issues, the arrangements for the provision of support and guidance for Customers and other matters) that it has been necessary to address since then to ensure that a comprehensive ‘package’ of measures can be put in place.

We hope to be able to make an announcement on all this soon and are currently working towards the end of this month to ‘go live’ with the information.

Victim Status Decisions (‘VSDs’)

One question that has been raised is about how and when Victim Status Decisions (‘VSDs’) will be issued in those cases where we can conclude that the Customer was a “victim of the IAR Fraud” as defined on our website.

We must emphasise that a VSD will only be issued where we can conclude that someone was a victim of the IAR Fraud as defined. As we have always made clear on our website (for example see paragraph 7, Quantifying D&C Losses) if you took part in the Customer Review and received Distress & Inconvenience compensation it does not necessarily lead to that conclusion.

As under the current Re-Review process, we will continue to consider each individual Customer’s case carefully based on the information available. If we reach the stage where we are able to conclude a Customer is a victim as defined, we will issue a VSD at that point. We may be able to conclude this based solely on the information that the Customer presented in the Customer Review and the Bank documents alone. In other cases, we may have questions for the Customer and we may request more information. In cases where we cannot conclude a Customer is a victim we will issue a Minded to Decision (‘MTD’) that the Customer can challenge. We will consider that challenge before reaching a Final Decision.

We also want to make clear that once the new process goes live there will not be an immediate block issue of VSDs. We will continue to work through cases in priority order.

Our Case Managers will be in contact with Customers prior to issuing any decisions. There is no need for Customers or their representatives to contact the Panel beforehand.

After the new process is live and in full operation, we will provide regular updates on progress. In our update in June, we said that Customers would be told the details of the new arrangements “before any of the changes has a practical impact on them” and that remains the position.



Update from the Panel – June 2022

Introduction to the changes being made to the Re-review

In our March 2022 update, we highlighted the urgent need to speed up the Re-Review for the benefit of all Customers. We were particularly concerned about Customers who were elderly or unwell having to wait a long time for an assessment of their claim and the length of time that some parts of the process inevitably take.

As we indicated, we convened a series of meetings over the last few months at which the SME Alliance, APPG on Fair Business Banking (‘APPG’) and Lloyds Banking Group (‘LBG’) were invited to consider a range of proposals designed to speed up the Re-Review process and improve the experience for Customers. Some of these meetings were also attended by representatives of the Financial Conduct Authority.

It has taken quite some time, but we are pleased to say agreement has now been reached and that we can announce the key changes, precise details of which will be posted on our website in the coming weeks. The key changes are as follows:

Panel’s interim expedited decision on victim status and limited challenge to that by LBG

Where we are able to conclude that an individual Customer was a victim of the IAR Fraud (as defined here), a ‘Victim Status Decision’ will be issued to that effect. Where we can make such a decision, this will be a new feature in the Re-Review Process and we will not, at this stage, go on to investigate whether the victim also suffered any financial loss as a consequence of the IAR Fraud (or, if so, what the appropriate compensation should be).

Another new feature is that LBG will not be entitled to challenge the merits of the Panel’s decision on Victim Status. LBG will only be permitted to challenge the Victim Status Decision on the basis of an obvious error on the face of the decision itself.

New fixed sum award option for victims of the IAR Fraud

Where we have concluded that a Customer was a victim of the IAR Fraud, that Customer will then be offered the option of:

  1. Exiting the Re-Review at that stage and taking instead a fixed sum award, rather than awaiting our detailed analysis of the financial consequences, if any, on the Customer of the IAR Fraud; or
  2. Remaining in the Re-Review for that detailed analysis to be undertaken.

It is our experience that the analysis of any financial consequences of the IAR Fraud and assessing the appropriate level of compensation have been the most time-consuming parts of the Re-Review process, usually involving (a) consideration of a mass of financial material going back 15-20 years, from which drawing conclusions can often be extremely difficult, and (b) making judgments as to what might have happened in the absence of the fraud.

By accepting the option of the fixed sum award, the Customer will - in addition to avoiding the time it takes to conduct the detailed analysis - also avoid any uncertainty about the eventual financial outcome in their case. That uncertainty is an inherent and unavoidable feature of the Re-Review, as the Customer will only know how much (if anything) they will be awarded at the very end of the Re-Review process in their case when a Final Decision (‘FD’) is issued. Indeed we will not know that until that stage either.

The fixed sum award option will be £3 million, net of any tax payable

This means that, if a Customer accepts this option, the Customer will actually receive £3 million (personally or paid to their estate or trustee if applicable). Any tax payable on receipt of this £3 million will be covered in full by LBG. The sum would be paid shortly after all the relevant formalities (see below) are concluded.

The position of a victim of the IAR Fraud who has been made bankrupt and who chooses the fixed sum award option is more complex and this will the subject of further guidance to be published in due course.

As mentioned above, where a Customer chooses to accept the fixed sum award, no analysis of potential or actual financial losses would be carried out, and no MTD or FD would be produced either.

Acceptance by a Customer of the fixed sum award will be in full and final settlement. It will represent a final and binding conclusion to the issue of any D&C losses arising from the IAR Fraud. There will be no ‘appeal’ process after the fixed sum has been accepted.

As indicated above, this new fixed sum award does not replace a Customer’s current right to have their case considered in the Re-Review process. It is an option meaning that, where we have concluded that the Customer was a victim of the IAR Fraud, the Customer can then choose whether they wish a) to accept the fixed sum award and exit the Re-Review process or b) whether they would prefer instead to remain in the Re-Review process.

If, after we have concluded that a Customer was a victim of the IAR Fraud, the Customer chooses to remain in the Re-Review process, the Customer will then, as is the current position, go on to receive a MTD after we have completed all the work necessary to formulate our decision.

The MTD will then, as it does currently, deal with the question of:

  1. Whether the Customer suffered any financial loss in consequence of the IAR Fraud; and, if so
  2. The appropriate level of compensation (which may be more or less than the £3 million fixed sum award).

The Customer can then challenge the MTD in the normal way. LBG can also challenge the MTD in the normal way except as regards the issue of victim status, as explained above.

Please note that the fixed sum award option is a ‘one time only’ option. Once a Customer has made their decision, they cannot revisit it later.

That means, for instance, that a Customer cannot accept the fixed sum award and then change their mind at a later date or, alternatively, decline the fixed sum award and then change their mind later, such as after the Customer has received a MTD or a FD.

One month ‘Option Window’

Where we have concluded that a Customer was a victim of the IAR Fraud, the Customer will then have a one-month ‘Option Window’ from receiving the Victim Status Decision in which to notify us whether:

  1. They want to accept the fixed sum award; or
  2. They want to have their case considered further in the Re-Review process instead.

If there are exceptional circumstances that a Customer feels will prevent them from making this decision within the Option Window it will be open to the Customer to ask us to extend this period.

Independent support will be made available to Customers who are offered the fixed sum award option

One reason we have been anxious to announce in advance the availability of this option for Customers assessed to have been victims of the IAR Fraud is to give Customers who believe they are likely to fall into this category the opportunity to start considering now whether the fixed sum award option might or might not be attractive to them if they are offered it in due course.

During the Option Window, the Customer will, if they would like it, be entitled to receive additional independent professional support to help them make this decision. This will be provided at no cost to the Customer. That person will likely be an experienced independent mediator or facilitator who can spend time with the Customer, advisers and, if they want, their close family to help them address the important factors from their own perspective. Reasonable funding will also be available for both an independent financial adviser to help Customers assess their personal financial situation and for legal advice on the binding agreement that will need to be signed if the Customer chooses the fixed sum award. More details about this will be provided in due course.

Interim payments for Customers who opt to remain in the Re-Review

For Customers who decide to remain in the Re-Review, the following increased interim payments will now be available:

  • £250,000 (net of any tax payable) if we have concluded that the Customer was a victim. This payment is non-refundable, but will be set off against any final award; and
  • Where we have concluded in a MTD that losses were suffered by the Customer as a result of the IAR Fraud, a sum will then be promptly payable on the issue of the MTD. This sum will be 40% of the amount provisionally awarded in the MTD (as opposed to the current maximum interim payment available of 20%, which is only available in certain circumstances). This 40% sum will be set off against the final award.

Speeding up MTDs and professional assistance for Customers in the Re-Review

In order to reduce the time a Customer in the Re-Review has to wait to receive an MTD, some limitations will now be placed on the funding for professional support for Customers (legal and financial) during the information-gathering stage of the Re-Review in the run up to the MTD. This change is to avoid some of the duplication of work and some of the delays that we have experienced in dealing with cases so far. As is already the case, a Customer in the Re-Review process will continue to have a full opportunity to challenge a MTD as recommended by Sir Ross Cranston, with reasonable funding underwritten by LBG continuing to be available at that stage, for professional support if the Customer requires it.

Customers in the Re-Review will be entitled to an automatic pre-approved limit of £15,000 (excluding VAT) of funding for professional fees without the need to apply to Peter Hurst (‘PTH’). Any professional fees likely to be incurred above this £15,000 limit will continue to require his prior approval before being incurred in order for that additional funding to be granted.

This website has been updated to explain the changes to funding for professional fees and a copy of the updated policy and guidance note for Customers and their advisers can be found here.

The Bank will continue to pay Compensatory Interest post-MTD on Customer losses that have not been compensated through an interim payment, but a time limit will now ordinarily be imposed to encourage Customers and their advisers to assist us in issuing our FD as quickly as possible. This is for the benefit of all Customers in the Re-review.

Further details of the updated policy will be published in due course.

Cases currently under consideration

We would like to reassure those actively engaged with the Re-Review, whose cases are currently being considered by us, that this work is continuing, as well as preparatory work on other cases.

We will be contacting each Customer whose case is currently being considered to explain the transitional arrangements.

PTH will contact those Customers whose fees application is in progress to explain the position as regards the funding for their case. We would be grateful for your continued patience and forbearance while we contact all affected Customers.

We will ensure that Customers who have been through, or are currently going through, the Re-Review will not be disadvantaged by the changes.

Summary of key changes

  • In each case where the Panel conclude the Customer was a victim of the IAR Fraud for D&C loss purposes, the Panel will issue a Victim Status Decision. The Victim Status Decision will not include an assessment as to whether any financial losses were suffered.
  • LBG will not challenge the merits of the Panel’s conclusion that a Customer was a victim of the IAR Fraud.
  • A Customer concluded to have been a victim of the IAR Fraud will then have a choice between:
    1. accepting a fixed sum award of £3 million (net of all tax payable) in full and final settlement of any losses they may have suffered, and exiting the Re-review; OR
    2. continuing instead with the Re-Review and receiving a non-refundable interim payment of £250,000 (net of tax) while we then go on to assess whether the Customer has suffered any losses and to produce our MTD.
  • Where we have concluded, in our MTD, that losses were suffered by a Customer as a result of the IAR Fraud, an increased interim payment of 40% of the award proposed in the MTD will then be promptly paid to the Customer.
  • The period during which the Bank will pay Compensatory Interest on the losses not already paid out by way of an interim payment will now be limited.
  • Funding for professional assistance pre-MTD will now be more restricted. However, up to £15,000 (excluding VAT) per Customer of costs for professional fees in the Re-Review will be funded without any need for prior approval from PTH.
  • Customers whose cases or fee applications are currently in progress will be contacted directly to explain the transitional arrangements.
  • We will publish on our website full details of these changes to the Re-Review in the coming weeks.

Conclusion

If you have questions or concerns about these changes, we encourage you to contact the Customer representative groups – the SME Alliance and the APPG – who support these changes.

We will not be able to provide more information about the changes before publication of the full details. We can, however, reassure Customers that those details will be made available before any of the changes has a practical impact on them.



Update to policy and guidance - June 2022

The Panel are keen to speed up the process leading to the Customer receiving their Minded to Decision (‘MTD’) and have updated their policy on funding for professional fees in the Review. Their concerns about the speed of progress, the causes of the delays and the attempts to overcome them have been the subject of their updates from April 2021 onwards.

The purpose of the updated guidance is to help Customers understand the updated policy and how best to help the Panel 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 the Panel 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 the Panel 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 it clear, based on the Panel’s recommendations from their 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 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.



Update from the Panel – March 2022

In recent weeks, we have held a series of meetings with the SME Alliance, the APPG on Fair Business Banking and Lloyds Banking Group (LBG) in an effort to identify and agree ways to speed up the Re-Review process.

We recognise entirely that the Re-Review has progressed too slowly. We know this is a source of intense frustration for Customers. It is a source of very considerable frustration for us too, particularly as we have already introduced measures we had hoped would move the Re-Review forward more speedily. We recognise the urgent need to re-address the problem.

Conversations between the parties are continuing. However, there is substantial alignment on the need to redesign some elements of the Re-Review process with the central aim of delivering quicker outcomes and providing the closure for Customers that we know is so vital.

We will announce any changes to the Re-Review as soon as we can. In the meantime, we would like to reassure those currently engaged with the process, whose cases are being reviewed by the Panel, that this work will continue as normal regardless of the ongoing discussions about proposed changes. Preparatory work on other cases continues.



Update from the Panel – October 2021

Progress

Since our last update at the end of July, our focus has continued to be on advancing the first groups of priority cases, as well as setting up the next priority groups by obtaining and indexing materials available from the Customer Review from the Bank so our teams can start their preliminary work. These groups of cases have been selected taking into account the most serious and urgent customer situations (largely based on health-related issues). We have explained on a number of previous occasions how invidious the task of making these choices is.

To provide a snapshot of our current caseload:

  1. We are progressing work on cases for around 20 individual customers towards minded to decisions (‘MTDs’) or final decisions (‘FDs’), which are at varying stages from early in the information gathering stage up to the final analysis prior to issue of an FD.
  2. This has involved working through, with the assistance of our extensive legal and financial teams, over 35,000 documents across those cases.
  3. Our teams are undertaking preliminary investigations into 13 other companies, involving 52 opted in individual customers. This has involved collation and initial consideration of the electronic materials held regarding those cases by Lloyds Banking Group including customer submissions made during the course of the Customer Review, which have been shared with the Panel’s team. That material runs to approximately 33,500 documents.

As part of our process, we have also continued to meet with customers (and their professional advisers where they have engaged them) in order to discuss the background to their claims and points arising from their submissions to date. Each meeting has usually been preceded by written questions sent by us or our team to which answers have been provided and the meetings themselves typically have taken a few hours. We have then in most cases followed up on a number of points discussed with further written queries and responses and some sharing of documents, and in some cases, met again with a customer to advance the process further.

Prioritisation

Without wishing to repeat what we have said in our previous updates, we are very conscious of the high number of requests for priority that we have received and the need to advance our work as quickly as we reasonably can. We endeavour to strike a balance between progressing individual priority cases and keeping the pipeline of other cases moving in as efficient a way as possible.

We are grateful to those of you who have come forward to let us know about changes in your circumstances and we will continue to do our best to accommodate those in the most urgent need. However, as regrettably we have to repeat, it is simply impossible to accommodate every request no matter how personally sympathetic we are to the circumstances underlying the request.

Early Engagement

In our July update, under the paragraph headed ‘Early engagement and co-operation: a plea to Customers and your representatives’, we highlighted the importance of ensuring that everything that a Customer would like us to take into account in arriving at the MTD in their case is brought to our attention in advance of our considering the MTD and not leaving it until after the MTD has been issued. We drew attention to the consequences for the whole process of not doing so.

To help this to be achieved in the future, we have now introduced a preliminary stage into our process so that one of the two new senior lawyers in our legal team, Jonathan Bellamy and David Bradly, will be the key point of contact for the customer and will act as their informal ‘case manager’ for pending cases prior to our personal involvement.

Each will be assigned individually to a particular case (essentially the company or business concerned) and will be responsible for the initial engagement with the individuals interested in that case and their professional advisers where applicable. Jonathan and David are already working on a number of cases, which will help to advance those through to an MTD more quickly once we then become involved. There is no need to contact us or them about when you might hear from them. They will make contact with you when they are ready to do so and we respectfully invite you to remember that, as is the case with the members of the Panel, there is a limit to the number of cases that can be progressed at any one time.

Jonathan and David will be able to discuss what is required to enable us to consider your claim, offer practical suggestions on how your claim may be put together and, early in the information-gathering stage, generally help focus on the relevant material to support your claim (i) to have been a victim of the IAR Fraud, (ii) that you suffered financial loss that you would not otherwise have suffered and (iii) the quantification of any loss caused by the fraud. The purpose, as we have said, is to try to ensure that whatever points you wish to make can be assembled in a helpful way from our point of view so that when we, the Panel, come to consider your case, we are in a position to consider every matter you consider to be relevant in an efficient way.

They will have the same access to us as do our teams, but the purpose of their involvement is to relieve us of some of the time-consuming work we currently have to undertake in addition to considering and producing the written decisions and this may include them responding directly to some of the letters we receive from customers. We would just emphasise that the ultimate decision in any case will still be ours and their involvement will essentially be ‘managerial’, as we have indicated.

We cannot, of course, say what the outcome of any particular claim may be and not every claim may give rise to an award, but we remain committed to giving that claim detailed and fair consideration. We will do so in your case when we are able to consider it.

With the permission of the customer concerned, we would like to share that customer’s unprompted message of gratitude received recently:

“At the outset of the review I think it’s fair to say that there was a certain cynicism among the victims of the fraud. Everyone thought it would be the same old whitewash but you (and of course Sir Ross Cranston) have delivered absolutely everything you promised and finally we can all draw a line under everything and move on with our lives.”

In the meantime, we can only thank you for your continued patience, but may we encourage you, please, to engage constructively and positively with Jonathan and David when they get in touch?

Against the background of this new arrangement, we have drawn up some guidelines on how we will approach challenges to an MTD to which we invite your attention and the attention of any professional advisers you may have.

Conclusion

We are completely aware of the desire of everyone that the Re-Review should be completed as quickly as possible. We share that desire. However, to perform our task properly does take time and the complexities of what we and our teams have to do often only becomes apparent when a Customer has actually been through the process. This point has been made to us by a number of Customers whose cases have been completed. Again with the kind permission of the relevant customer, we share this recent unsolicited observation:

“I know there has been frustration with some people about the time it has taken to reach a conclusion but I for one ... believe that your part of the process has been as fast and efficient as possible given the mind boggling amount of information you have had to familiarise yourselves with ...”

Thank you for your continued patience.

David Foskett
Philippa Hill
Andrew Hildebrand



Update from the Panel – July 2021

Progress

Almost all of the cases in the first of our urgent “high priority” groups (which we started considering in November 2020) have now received either their ‘minded to’ decision (‘MTD’) or their Final Decision (‘FD’).

At the same time, we have also started engaging with some of the Customers in the second of our high priority groups. In some of those cases we are working through preliminary issues, in others detailed questions have been sent to Customers and we and our team are working on the replies received to date. Some Customer meetings have already taken place or are being planned and in a number of cases where we are further advanced, we are now firming up our preliminary analysis and conclusions, prior to preparing our MTDs.

Do we wish we were further forward? Yes, we do and we and our teams have been working very long hours to progress our work as quickly as we possibly can.

We certainly hope and believe that the process will speed up, but this will depend on some lessons being learned and applied by everyone concerned.

As a Panel, we have learned (and are continuing to learn) along the journey of this unique and uncharted process. We have a well-resourced team of advisers supporting the three of us, plus a dedicated document management team. Although every case presents new challenges and complexities, we continue to apply knowledge gained from our experiences. For example, we are sometimes able to refine our techniques to enable a more focused approach to be adopted in other cases. Or, where common themes emerge, to apply similar research and analysis methods.

Having said that, we also need everyone engaged in the Re-Review process (not just us and our teams, but Customers, advisers, LBG and the stakeholder groups) to understand the reality of the situation. We will say a bit more about this below.

Your case

The question that many of you will, understandably, want answered is when your case will be reviewed.

Our experience thus far is that whenever we make any kind of a commitment to anyone, our work schedule is interrupted by an unexpected development in another case which, in turn, impacts on timelines. Equally, as we will indicate below, we are receiving increasing numbers of requests for prioritisation over and above those made at the beginning of the Re-Review.

In extreme circumstances, we have had to make changes to our planned schedule to accommodate requests from customers with urgent health issues.

We were told by the stakeholder groups when we were appointed that Customers felt they had been let down by promises made in the past and hence we do not want to add to that feeling by making commitments that prove impossible to meet. That is why we have made the decision not to give any indications of when any individual case will be considered.

We recognise fully that this may be frustrating from your perspective, but we have no realistic alternative. We will continue to provide regular updates so that you know of the general progress being made.

You can be wholly assured that when we are close to beginning the work on your case, we will let you know. As mentioned below, we are looking at ways in which we may be able to invite you to engage with our team at an earlier stage than would be the case at present which we hope may help to move things forward in a positive way.

Decisions so far

In some of the cases we have dealt with so far, we have been able to conclude:

  1. that the Customer was a victim of the IAR Fraud (as defined),
  2. that financial loss was occasioned as a result, and
  3. a value has been put on that loss.

In certain cases, we have decided that a substantial award should be paid. We should perhaps issue a word of caution here, which is that clearly until we have analysed someone’s individual case we have no way of knowing what the outcome might be. Sir Ross Cranston was anxious that false expectations were not created. We agree.

Unravelling what happened for affected businesses and their owners/managers during the years in which the fraud took place has been proving extremely challenging, especially given the time that has elapsed. Also, where the plans that individual Customers had at the time were frustrated by the involvement of the fraud, we have had to ascertain what those plans were, establish what the chances of those plans (or maybe some other alternative plans) being implemented were and, where applicable, what the likely financial results would have been, had those plans materialised.

As we have always made clear, there is inevitably a degree of speculation about the outcome and we have to make these judgments as best we can from the information available to us. We adopt a generous approach, as our remit provides, but people may disagree about what “generous” means. In responses to some of our MTDs, LBG has suggested we have been too generous, while at the same time, customers in those cases have said we have not been generous enough.

Our continued approach

The substantive reasoned decisions given so far have been lengthy (often around 100 pages of highly detailed analysis, not dissimilar to a judgment in a highly complex court case) and represent the result of a huge amount of investigative work and detailed analysis by us and our teams.

We are saying this because otherwise we appreciate it must be hard to understand how much work is actually involved. If you compare what we are doing with a typical court process, Sir David’s view is that the cases we have dealt with so far would, had they gone to court, have each taken at least 3-4 years to get there, with both sides investing a great deal of time and cost in marshalling evidence, expert and otherwise. The trial would have taken 1-2 weeks with Counsel engaged and with the judge then taking another 2-3 months to produce a detailed judgment. As you know, we are dealing with several cases at the same time, on top of which, unlike a judge in a court case, the Panel is also leading the inquisitorial process that constitutes the Re-Review.

In approaching matters fairly, it remains our objective to take a more generous approach than a court would take in the circumstances at the same time as adopting a balanced and realistic assessment of the relevant factors.

Early engagement and co-operation: a plea to Customers and your representatives

Inevitably, not everyone will agree with our decisions. The right to challenge our MTD is an essential check built into the Re-Review process to ensure we have not missed key information or misunderstood something important before making a final award.

As we said in our April video update, we try to ensure we arrive at a MTD having taken everything into account. It can, therefore, be dispiriting to be told by a Customer or their representatives after they have received the MTD that there is now new information they would like to introduce that puts a different complexion on things.

Substantive new information provided at a late stage, let alone after we have issued an MTD, can mean time spent analysing information originally provided is wasted. It also tends to disrupt the process and lengthens the time to finalise a decision. That in turn can affect other customers who are waiting patiently for their case to be dealt with.

All efforts should, please, be made to ensure that everything that you would like us to take into account in making our MTD decision is brought to our attention in advance during the information-gathering stage.

Professional fees where a Customer has professional support (legal and/or financial)

The new arrangements which we have managed to introduce over recent months concerning professional fees (see here on the Foskett Panel website) are important. If you would like to receive professional support before the information-gathering stage, please apply to Peter Hurst to sanction payment by LBG for a reasonable amount of fees for advisers to help you collate and present any new information needed for your claim that was not presented to the Customer Review. If you do this, it should mean that, when we are ready to start the information-gathering stage in your case, you will already have put together what you would like us to consider into good order which will make our work more efficient.

Under our current arrangements, because of the pressures on our time, we have tended not to engage with the Customer and the Customer’s advisers until we, the Panel members, are ready to start our part of the information-gathering stage. What we are thinking about introducing over the next few months, is some earlier engagement with our teams (i.e. before we, personally, get actively involved) so that some preliminary or practical issues may be dealt with, or at least clarified, at a slightly earlier stage. We anticipate being able to give more information about this in due course.

Customers who do not want professional support at this stage but would prefer us and our teams to get on with considering your claim

As we have emphasised throughout, having professional support is not vital to having your claim considered properly by us. We will still do that anyway. We are, however, also going to be reviewing how we liaise with Customers who do not have professional support to ensure you are comfortable with our proposed working arrangements with you too.

Prioritisation

As we have said before, one of the most difficult and, at times, distressing tasks we have to perform is prioritising Customers’ cases. We continue to receive numerous requests to prioritise cases on the grounds of serious health issues, advancing years, or a combination of both. It is unfortunately simply not possible to grant every request. We will continue to do our best, but every time we change the order, someone else has to wait longer and it creates inefficiencies to stop and start complex cases.

As noted above, we are working through the second of several groups of high priority customers and we are aware that many more customers are also deserving of priority status. We are doing our best to balance speed overall with the need for proper and conscientious enquiry into each case.

Many of you contact us, expressing your understanding of the situation, and we really do appreciate that. Others occasionally express greater frustration and sometimes question our motivation. Let us assure you that our overriding objective is to provide customers with the rigorous, independent assessment of their case which we hope will help them to achieve closure.

Whilst we understand that the history is such that some people may see things in a negative or cynical light, not helped by the Bank’s former Chief Executive promising “swift” outcomes on our behalf before we had even been appointed, we do want to emphasise as strongly as we can that we are completely dedicated to achieving a fair outcome for every single Customer, as quickly as we can reasonably achieve it, via a truly independent process.

Thank you for your continued patience.

David Foskett
Philippa Hill
Andrew Hildebrand



Video Update from Sir David Foskett – April 2021




For the videos referenced in the above update, please see below.

Video Part 1 – Progress to Date




Video Part 2 – Panel Process





Update from Sir David Foskett – March 2021

Progress

In the last few weeks the Panel have issued their first minded-to decisions. The first cases have enabled us to appreciate more fully the practical realities of the process and we are hopeful that these early experiences will enable us to improve the rate at which we are able to progress through cases as we move forward. We do need to emphasise, however, that some of the cases we have been considering so far have been particularly complex and have taken considerable time and effort to deal with. Not all cases may be so complex, but not knowing until we get to a case makes predicting a timetable extremely difficult.

Timetable

Our expectation is to begin work on some of the cases in the second priority group later this month. In my last update, I suggested that the third group of cases would begin around April/May 2021. It is now our view that the third group is more likely to commence in July, but that will also depend on the challenges we receive to our minded-to decisions and how long it takes to respond to these.

We are in regular contact with individual customers and the stakeholder groups about the progression of the Re-Review and know that there are concerns that the process is not moving forward quickly enough. We are fully aware of this and, please be assured, we are as anxious as anyone to move the Re-Review forward as quickly as possible.

However, we very much remain of the view, as was the view of Sir Ross Cranston, that proper closure can only come from Customers knowing that their cases have been independently, rigorously examined and assessed, which in order to be carried out properly takes time. We have already had expressions of gratitude from some Customers for our approach in this regard.

We have already taken on some extra resources within our teams to help us to be well-prepared when we get to your case. However, as I said in our update in December last year “since the three of us on the Panel have the responsibility for making the decisions, the major constraint on our progress is the time it takes us to pursue, digest, examine and analyse all the information, documentary and otherwise, we receive during the process.”

Prioritisation

As you will be aware, we have a prioritisation strategy in place which aims to ensure that those with the most urgent needs have their cases reviewed earlier in the process.

As things stand, there are in the region of 175 individual Customers whose cases we have to consider. Approximately one-third of that number have asked to be prioritised applying the grounds we identified in my update in September last year. Whilst we endeavour to get to priority cases as soon as possible, we simply cannot start assessing the case of everyone who has requested prioritisation as soon as they (and indeed we) perhaps might wish. I would also mention that when an individual’s personal circumstances change such that they need to be urgently prioritised, that invariably involves moving someone else further down in the queue – this is a difficult and sometimes impossible decision for the Panel, and it is also one of the main reasons why we have been forced to push back our time table somewhat.

We do ask that, if your personal circumstances do change, you contact us so that we can update our records accordingly. However, we cannot guarantee that we can change the order in which cases are to be considered as this could disrupt the process and create delays, inefficiencies and disappointment for other Customers.

Communications

The Panel wish to remain open and available to Customers and address concerns and queries that may arise. Indeed, we recognise that at this stage, with the Re-Review fully underway, it is natural that you may have questions about the process that you would like the Panel to answer. We are receiving a significant volume of communications which at times can detract from our primary task of considering customers’ cases.

Therefore, in order to help answer some of your questions, it is our intention to produce a further video for the Foskett Panel website, aimed particularly at those Customers who have not yet been contacted about their own case. We will also update the Frequently Asked Questions on the website and will point Customers to this when individual queries arise so that others may also see our responses. We would like to invite you to submit any questions that you have about the overall process to us by email at info@foskettpanel.com by no later than Monday 8th March. These questions will then be answered by the Panel in a video message or in the FAQs.

We hope this update helps give a clearer picture of where we are at in the process and we look forward to receiving your questions. Your continued patience is greatly appreciated.

David Foskett

Sir David Foskett
Chair of the Re-review Panel



Update from Sir David Foskett – December 2020

Some weeks ago, after widening our approach to ensure that we no longer have to focus solely on the involvement of QCS when considering “the IAR Fraud” and its impact, we started work on cases in the first priority group.

That has involved (in all the cases so far) considering very considerable documentation going back many years, discussing it in (virtual) meetings with the Customer, exchanging queries and responses by email, and considering additional material the Customer has wanted us to take into account. Customers have been extremely helpful in providing us with a better understanding of their cases for D&C losses, and hearing first-hand accounts of the effect of what occurred has been very valuable.

We are acutely aware of how frustrating and painful it is (in many cases for the third or fourth time) to have to recollect and piece together what happened so long ago, but I cannot stress enough how important it is for us to have as much help as a Customer is able to give. We are grateful for the patience and goodwill that those Customers who have met us already have shown and we remain grateful to those who, whilst anxious to proceed as soon as possible, have expressed understanding of the challenges of our task.

I have emphasised before that until we receive information from the Customer and from the Bank, it is not possible for us to gain a proper appreciation of the complexity of the issues involved in a Customer’s case. That is why we find it so difficult to give an accurate prediction of how long the whole Re-Review process might take. We understand completely the desire of everyone finally to draw a line under this entire affair. While we have absolutely no wish for there to be unreasonable delays, we remain committed to carrying out a careful and conscientious review of every Customer’s case and that does unfortunately take time.

Next steps

Our current expectation is that our work on the second group of urgent priority cases is likely to commence around February of next year, and the third group around April/May. It is our intention to write to individual Customers in the second group early next year to give them notice when we are preparing to review their case.

Our approach is designed to ensure that the most urgent cases are assessed earlier in the process. This does mean that those not in the highest priority groups may not hear from us in relation to their case until later next year. We appreciate that this may be unwelcome news, but we have endeavoured to explain the reasons why. It is quite possible that, once we have dealt with the first group of priority cases, we will have developed a momentum that may speed up the process for subsequent cases.

We have had several questions asking whether the Panel has adequate resources at our disposal and whether increasing our resources would speed up the Panel’s work. Our current assessment is that we do have adequate resources to assist us with the task (though we can increase them if necessary), but since the three of us on the Panel have the responsibility for making the decisions, the major constraint on our progress is the time it takes us to pursue, digest, examine and analyse all the information, documentary and otherwise, we receive during the process.

Our approach

Where there are connections between businesses, our general approach is, where possible, to review related cases at a similar time. We are particularly grateful to those Customers who have allowed information about the fraud on their business to be used when considering connected cases.

If you have any questions, please email us at info@foskettpanel.com.

I want to thank you once again for your patience as the Panel progresses with its work and look forward to “meeting” you (if you wish) in due course. In the meantime, on behalf of the Panel and our teams, may I wish you a good Christmas and New Year break in these very unusual and difficult times.

David Foskett

Sir David Foskett
Chair of the Re-review Panel



Update from Sir David Foskett – October 2020

Following discussions between the Panel, LBG, the APPG on Fair Business Banking and the SME Alliance, it has been agreed that the Panel will no longer have to focus solely on the influence or involvement of Quayside Corporate Services and/or its Associates (‘QCS’) when considering whether a Customer was a victim of the IAR Fraud. This has the effect of recognising that financial loss may have been caused to Customers by the actions of Lynden Scourfield or Mark Dobson that did not involve convicted individuals from QCS.

The Panel’s approach will, therefore, be to consider the extent to which the actions, inactions or influence of Scourfield or Dobson affected the Customer whether directly or indirectly (including by directing others acting at their behest). For example, the Panel will consider matters such as whether either Scourfield or Dobson agreed to, encouraged, or influenced behaviour or actions that that led to the eventual destruction, demise or other damage to a company placed in the IAR, or caused the company representatives to take evasive action to their own detriment. In doing so the Panel will be able to draw inferences from all the material and circumstances available.

This means that Customers who were admitted into the Customer Review or have since been accepted into it, but whose businesses were not influenced by or had no involvement with QCS, will, if they have opted in to the Re-Review, have their claims for D&C losses considered in the same way as Customers who did have QCS involved in their case.

This widened approach relates only to the Panel’s decision as to which cases may fall within the definition of “the IAR Fraud” for the purposes of the Re-Review, as described above.

The definition of the IAR Fraud for the purposes of the Re-Review is now as follows (expanded wording is in bold):

“The fraudulent activity perpetrated through the IAR and the company called Quayside Corporate Services Limited (‘QCS’) and/or its Associates, or by Scourfield or Dobson without QCS.”

If the Panel does conclude that a Customer was affected by the IAR Fraud, the Panel will still then have to assess whether the Customer suffered losses that they would not otherwise have suffered and, if so, how much.

David Foskett

Sir David Foskett
Chair of the Re-review Panel



Update from Sir David Foskett – September 2020

Opt In

The time by which to indicate a wish to opt in to the Re-Review process was 4pm on Friday 4th September. Our thanks to all of you who have completed the opt in process. Overall, we have had in the region of 150 individual requests to opt in.

A few Customers have written to us recently to request further time to complete the formalities of the opt in process, namely, to finalise their agreement with the Bank. These extension requests have been granted, as have requests from those who are still going through the de facto director and related processes and are awaiting their completion.

Scope of ‘IAR Fraud’

As you may be aware, the APPG on Fair Business Banking, the SME Alliance and representatives for some Customers, have recently questioned our interpretation of the expression “the IAR fraud” in Sir Ross Cranston’s reports. As stated in our 27 August update, the scope of the IAR fraud as set out in our methodology is as described by Sir Ross Cranston who referred to “the IAR fraud” as that which was the subject of the criminal trial of 2016-17. We are nevertheless looking urgently into the concerns that have been raised, including the risk that certain Customers could be disadvantaged, with a view to recommending a way forward. Opt in periods for Customers who consider they may be affected have also been extended while we explore this.

Our Prioritisation Strategy

We want to reassure Customers who have fully completed their opt in process that we intend to proceed as planned in relation to their cases. We have begun working to determine the order in which cases will be considered. Understandably, everyone wants their case dealt with as soon as possible, not least because the fraud occurred so many years ago and Customers are just wanting finally to draw a line under it. We understand that fully. However, we do need to take into account, in particular, any special circumstances that have been raised with us by Customers, including advanced age, chronic or acute mental ill health, serious physical illness and severe financial distress.

We also have to consider the connectivity between certain Customers’ cases and the benefits of investigating them at the same time. There is also the desirability from our perspective of considering a reasonable variety of cases which will allow us to develop a better appreciation of the wider picture of the IAR fraud than we could from considering cases one at a time in isolation. Our current plan is, therefore, to consider selected cases in batches, which will include Customers with the more urgent special circumstances in the earliest batches.

We will try to reach a balanced view on all these matters. We hope to make a decision on the first group of cases shortly and will contact those Customers as soon as we can. We will provide updates on how our work is progressing and once we have made some headway (and thus have obtained a better understanding of the extent and complexity of the work involved), we will try to provide some guidance on the possible overall timescale of the Re-Review process.

David Foskett

Sir David Foskett
Chair of the Re-review Panel



Foskett Panel Statement – 27 August 2020

Customers may have seen a recent statement by the SME Alliance and APPG on Fair Business Banking, as reported in The Times, expressing concern that a particular aspect of the Panel’s criteria for making an award for D&C loss is “too narrow” and that the Panel has “unilaterally restricted” access to the Re-Review. We strongly reject these assertions. It remains our overriding objective to consider any Customer’s case through a non-legalistic and fair process and to make decisions in a generous, fair and common-sense manner.

Our remit is to implement the recommendations of Sir Ross Cranston as published, and we reject the suggestion that we are interpreting his recommendations in a narrow way. Our role is to re-assess possible direct and consequential losses arising from the IAR fraud. The IAR Fraud, as defined by the FCA and Sir Ross, refers to the fraudulent activity perpetrated through the HBOS Impaired Assets unit based out of Reading and Bishopsgate and Quayside Corporate Services Limited and/or associated companies and individuals as demonstrated in the Criminal Trial in 2016 to 2017. This scope and remit comes directly from the Cranston Review and subsequent Cranston Re-Review Panel Recommendations.

In accordance with Sir Ross’ recommendations and our published Scope and Methodology Statement, we will first assess whether an individual’s case demonstrates evidence of fraudulent activity bearing the hallmarks of the IAR Fraud according to the fact pattern established at the trial and we will then consider whether financial losses arose as a result of that fraudulent activity and would not have arisen otherwise.

A key question for us is this: What would have happened financially to the Customer if the IAR Fraud had never happened?

Our scope and remit is clearly set out in our methodology, which we published on our website in early July, following extensive consultations with both APPG on Fair Business Banking and the SME Alliance. However, we recognise that as a result of these recent developments, some customers may now need more time to consider whether they wish to opt in or to consider the terms of the Bank’s customer agreement. If you do need some more time, the Panel encourages you to get in contact with us as soon as possible by emailing us on info@foskettpanel.com.

We wish to reassure all of you who have opted in and who want to move forward with the process that there will be no delay in our starting the next phase of our work, namely, developing our prioritisation strategy and determining the first cases to be assessed. We know that most of you have been living with the impact of this for many years and want to receive final closure and we would like to reassure you that we want to provide a rigorous, fair and thorough assessment of each case as soon as possible.



Update from Sir David Foskett – August 2020

I am pleased that the Panel has now been able to invite Customers who wish to do so to complete the opt in form. We trust that the questions on the form are self-explanatory, but if you have any queries, please do contact us on info@foskettpanel.com.

I would like to thank everyone for the patience shown whilst we have worked to get the Re-Review process up and running. Customers have until 4pm on Friday 4th September to indicate a wish to opt in to the process by submitting their answers on the website. It would, however, be helpful to us if you are able to complete the opt in form as soon as possible, as it will help the Panel to develop a prioritisation strategy to determine which cases should be looked at first and to carry out some important preliminary work. However, we do understand that some of you may need the full period in order to decide whether to opt in.

In accordance with Sir Ross Cranston’s recommendations, in order to complete the opt in formalities, it will be necessary for any Customer who wishes to opt in to sign an agreement with Lloyds Banking Group whereby the Customer and the Bank agree to be bound by the outcome of the Re-Review process. Once you complete the opt in form, we will inform the Bank, who will then contact you directly concerning this agreement.

I hope all this is clear and we will be in touch with customers again shortly regarding next steps.

David Foskett

Sir David Foskett
Chair of the Re-review Panel



Update from Sir David Foskett – July 2020

In my last update regarding the Re-Review process I said that there were two key parts of our methodology that remained to be published before we would be in a position to invite Customers who wish to do so to opt in to our process. We have now done this and two updates now appear on this website.

One (‘IAR Fraud and the Causation of Loss’) relates to the need for us to see a link between the fraud and an adverse financial impact on the Customer and/or the Customer’s business. The second (‘Quantifying D & C Losses’) concerns the types of financial loss that would qualify for compensation if the link is there and it gives details of the way we will go about valuing any such loss.

I want to reassure you that we will be offering the opportunity to opt in very soon. However, we want to pause for a short while to ensure Customers have time to read these detailed sections of the methodology and ask any questions before deciding whether to opt in to the Re-Review. A further update about the opt in process will be posted shortly.

Thank you again for your continued patience whilst the Re-Review process is put in place.

David Foskett

Sir David Foskett
Chair of the Re-review Panel



Update from Sir David Foskett - June 2020

My initial Statement on this website published at the end of April introduced the Panel and said that we were considering how best to structure the reassessment exercise in the light of Sir Ross Cranston’s recommendations and other matters.

We have now completed that task and the results are available on this website. You may find the flowchart, which provides a simple outline of the Re-Review process from start to finish, a helpful means of identifying the essential features of the process. There are two other updates that remain to be put in place which are referred to in paragraph 6 of the Scope and Methodology Statement. We hope that they will be completed shortly. We will then be in a position to invite Customers who wish to do so to opt in to our process.

We are very grateful to everyone for their patience and understanding whilst we have been working on this. It is not easy when all discussions between the Panel and its team have to be dealt with “virtually”, but we are pleased to be able to have taken a significant step in getting the Re-Review process under way.

We hope to be able to report further progress shortly.

David Foskett

Sir David Foskett
Chair of the Re-review Panel



Update from Sir David Foskett - April 2020

As you will by now be aware, I have been invited recently to chair the independent Panel to reassess the direct and consequential (‘D & C’) losses suffered by victims of the fraud committed at the HBOS Impaired Assets unit based at Reading and Bishopsgate (‘IAR’).

As I said in my email to customers dated 14 April, I am delighted to be joined on the Panel by Philippa Hill and Andrew Hildebrand. Philippa is an experienced forensic accountant and a partner with the well-known firm of accountants, Grant Thornton. She is, however, a member of the panel entirely in her personal capacity. Andrew is a qualified solicitor and was a partner at a leading London firm for some years before becoming in-house counsel at Channel 4 and FilmFour and since 1998 he has worked for a number of SMEs. He now specialises in mediation and dispute resolution.

I believe that between us we will bring the rigour, expertise and fairness required of the Panel. As I have said previously, we bring fresh minds to this task which, I repeat as strongly as I can, will be carried out with complete independence from the Bank. None of us would have accepted the invitation to take part in this process if that had not been the case.

We are currently considering how best to structure the reassessment exercise in the light of Sir Ross Cranston’s suggestions, some representations already made on behalf of the SME Alliance, the APPG on Fair Business Banking and other parties, together with our own perceptions of how best to arrange a non-legalistic process that itself is fair, and will deliver compensation for D & C losses, where it can do so, in a generous, fair and common-sense manner.

You will, perhaps, understand that views can differ about how that might be achieved in an expeditious and efficient manner in this situation and that is why we are taking a little time to consider the best way of going about our task.

We do also appreciate that you will want us to get on with this as soon as possible. We will, but I am sure you understand that getting a major undertaking such as this under way would not be easy at the best of times. The present circumstances make it all the more difficult. We and our support teams are working hard to get the process moving and as soon as we have something concrete to report I will be in touch.

Thank you, in anticipation, for your understanding.

David Foskett

Sir David Foskett
Chair of the Re-review Panel