The Foskett Panel

Updates

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