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COMP 7.2 How does the assignment of rights work?

COMP 7.2.1R

The

may make any payment of compensation to a claimant in respect of a protected claim conditional on the claimant assigning the whole or any part of his rights against the relevant person, or against any third party, or both, to the FSCS on such terms as the FSCS thinks fit.

COMP 7.2.2R

If a claimant assigns the whole or any part of his rights against any person to the FSCS as a condition of payment, the effect of this is that any sum payable in relation to the rights so assigned will be payable to the FSCS and not the claimant.

COMP 7.2.3R
  1. (1)

    Before taking assignment of rights from the claimant under COMP 7.2.1 R, the FSCS must inform the claimant that if, after taking assignment of rights, the FSCS decides not to pursue recoveries using those rights it will, if the claimant so requests in writing, reassign the assigned rights to the claimant. The FSCS must comply with such a request in such circumstances.

  2. (2)

    If the FSCS takes assignment of rights from the claimant under COMP 7.2.1 R, it must pursue all and only such recoveries as it considers are likely to be both reasonably possible and cost effective to pursue.

  3. (3)

    If the FSCS makes recoveries through rights assigned under COMP 7.2.1 R, it may deduct from any recoveries paid over to the claimant under COMP 7.2.4 R part or all of its reasonable costs of recovery and of distribution3 (if any).1

    5
COMP 7.2.4R

Unless compensation was paid under COMP 9.2.3 R, if a claimant agrees to assign his rights to the FSCS and the FSCS subsequently makes recoveries through those rights, those recoveries must be paid to the claimant:

  1. (1)

    to the extent that the amount recovered exceeds the amount of compensation (excluding interest paid under ) received by the claimant in relation to the protected claim; or

  2. (2)

    in circumstances where the amount recovered does not exceed the amount of compensation paid, to the extent that a failure to pay any sums recovered to the claimant would leave a claimant who had promptly accepted an offer of compensation at a disadvantage relative to a claimant who had delayed accepting an offer of compensation (see COMP 7.2.5 R).

COMP 7.2.4AR

For the purpose of COMP 7.2.4 R compensation received by eligible claimants in relation to Lloyd's policies may include payments made from the Central Fund.

COMP 7.2.5R

The FSCS must endeavour to ensure that a claimant will not suffer disadvantage arising solely from his prompt acceptance of the FSCS's offer of compensation compared with what might have been the position had he delayed his acceptance.

COMP 7.2.6G

As an example of the circumstances which COMP 7.2.5 R is designed to address, take two claimants, A and B.

  1. (1)

    Both A and B have a protected investment business claim of £60,000 against a relevant personin default. The FSCS offers both claimants £48,000 compensation (the maximum amount payable for such claims COMP 10.2.3 R). A accepts immediately, and assigns his rights against the relevant person to the FSCS, but B delays accepting the FSCS's offer of compensation.

  2. (2)

    In this example, the liquidator is able to recover assets from the relevant personin default and makes a payment of 50p in the pound to all the relevant person's creditors. If the liquidator made the payment before any offer of compensation from the FSCS had been accepted, A and B would both receive £30,000 each from the liquidator, leaving both with a loss of £30,000 to be met by the FSCS. Both claims would be met in full.

  3. (3)

    However, if the payment were made by the liquidator after A had accepted the FSCS's offer of compensation and assigned his rights to the FSCS, but before B accepted the FSCS offer of compensation, A would be disadvantaged relative to B even though he has received £48,000 compensation from the FSCS. A would be disadvantaged relative to B because he promptly accepted the FSCS's offer and assigned his rights to the FSCS. Because A has assigned his rights to the FSCS, any payment from the liquidator will be made to the FSCS rather than A. In this case the FSCS has paid A more than £30,000, so the £30,000 from the liquidator that would have been payable to A will be payable in full to the FSCS and not to A.

  4. (4)

    B is able to exercise his rights against the liquidator because he delayed accepting the FSCS's offer and receives £30,000 from the liquidator. B can then make a claim for the remaining £30,000 to the FSCS which the FSCS can pay in full (see COMP 10.2.2 G). B therefore suffers no loss whereas A is left with a loss of £12,000, being the difference between his claim of £60,000 and the compensation paid by the FSCS of £48,000.

COMP 7.2.7R
  1. (1)

    2For the purposes of compensation paid under COMP 3.2.4 R, FSCS may require any firm (including, but not limited to, the claimant firm) to assign to FSCS any rights the firm may have to claim against the relevant person in relation to the amount of the shortfall in client money arising out of the failure of the relevant person.

  2. (2)

    A firm required by FSCS to assign its rights in (1), must assign those rights as requested, unless it has a reasonable excuse for not doing so.