COMP 7.3 Automatic subrogation

1The FSCS's powers in this section apply to all claims except those under protected contracts of insurance.

The FSCS's powers in this section may be used:

1. (1)

   separately or in any combination as an alternative and in substitution for the powers and processes elsewhere in this sourcebook;

2. (2)

   [deleted]

3. (3)

   in relation to all or any part of a protected claim or class of protected claim made with respect to the relevant person; and/or

4. (4)

   (where the FSCS uses its powers to administer the payment of compensation on behalf of, or to pay compensation or make a payment on account or an advance and recover from, a Non-UK Scheme or Other Funder (see COMP 15.1.14 R)) in respect of all or part of any protected deposit which is compensatable by and/or recoverable from the Non-UK Scheme or Other Funder, and the FSCS may make different provision for those parts of a protected deposit (and references to paying compensation shall be treated as referring to making a payment, making a payment on account or making an advance as appropriate) (for the purposes of this section the terms "Non-UK Scheme" and "Other Funder" have the same meaning as in COMP 15.1.14 R).

The FSCS may determine that the exercise of any power in this section is subject to such incidental, consequential or supplemental conditions as the FSCS considers appropriate.

1. (1)

   Any power conferred on the FSCS to make determinations under this section is exercisable in writing.

2. (2)

   An instrument by which the FSCS makes the determination must specify the provision under which it is made, the date and time from which it takes effect and the relevant person and protected claims, parts of protected claims and/or classes of protected claims in respect of which it applies.

3. (3)

   The FSCS must take appropriate steps to publish the determination as soon as possible after it is made. Such publication must be accompanied by a statement explaining the effect of COMP 7.4.2 R.

4. (4)

   Failure to comply with any requirement in this rule does not affect the validity of the determination.

5. (5)

   A determination by the FSCS under this section may be amended, remade or revoked at any time and subject to the same conditions.

1. (1)

   The production of a copy of a determination purporting to be made by the FSCS under this section:

   1. (a)

      on which is endorsed a certificate, signed by a member of the FSCS's staff authorised by it for that purpose; and

   2. (b)

      which contains the required statements;

   is evidence (or in Scotland sufficient evidence) of the facts stated in the certificate.

2. (2)

   The required statements are:

   1. (a)

      that the determination was made by the FSCS; and

   2. (b)

      that the copy is a true copy of the determination.

3. (3)

   A certificate purporting to be signed as mentioned in (1) is to be taken to have been properly signed unless the contrary is shown.

4. (4)

   A person who wishes in any legal proceedings to rely on a determination may require the FSCS to endorse a copy of the determination with a certificate of the kind mentioned in (1).

Other provisions in this sourcebook and FEES 6 are modified to the extent necessary to give full effect to the powers provided for in this section.

Other than as expressly provided for, nothing in this section is to be taken as limiting or modifying the rights or obligations of or powers conferred on the FSCS elsewhere in this sourcebook or in FEES 6.

The FSCS may determine that:

1. (1)

   the payment of compensation by the FSCS; and/or

2. (2)

   the following actions by the FSCS (under COMP 15.1.14 R):

   1. (a)

      administering the payment of compensation on behalf of; and/or

   2. (b)

      paying and/or making a payment on account of compensation from;

   a Non-UK Scheme or Other Funder;

3. (3)

   the FSCS shall immediately and automatically be subrogated, subject to such conditions as the FSCS determines are appropriate, to all or any part (as determined by the FSCS) of the rights and claims in the United Kingdom and elsewhere of the claimant against the relevant person and/or any third party (whether such rights are legal, equitable or of any other nature whatsoever and in whatever capacity the relevant person or third party is acting) in respect of or arising out of the claim in respect of which the payment of or on account of compensation was made;

4. (4)

   the FSCS may claim and take legal or any other proceedings or steps in the United Kingdom or elsewhere to enforce such rights in its own name or in the name of, and on behalf of, the claimant or in both names against the relevant person and/or any third party;

5. (5)

   the subrogated rights and claims conferred on the FSCS shall be rights of recovery and claims against the relevant person and/or any third party which are equivalent (including as to amount and priority and whether or not the relevant person is insolvent) to and not exceed the rights and claims that the claimant would have had; and/or

6. (6)

   such rights and/or obligations (as determined by the FSCS) as between the relevant person and the claimant arising out of the protected claim in respect of which the payment was made shall be transferred to, and subsist between, another authorised person with an appropriate permission and the claimant provided that the authorised person has consented (but the transferred rights and/or obligations shall be treated as existing between the relevant person and the FSCS to the extent of any subrogation, transfer or assignment for the purposes of (3) to (5) and COMP 7.3.9 R).

The FSCS may alternatively or additionally make the actions in COMP 7.3.8R (1) and (2) conditional on the claimant assigning or transferring the whole or any part of all such rights as he may have against the relevant person and/or any third party (including, for the avoidance of any doubt, any Non-UK Scheme or Other Funder) on such terms as the FSCS determines are appropriate.

1. (1)

   The FSCS may determine that:

   1. (a)

      if the claimant does not assign or transfer his rights under COMP 7.3.9 R;

   2. (b)

      if it is impractical to obtain such an assignment or transfer; and/or

   3. (c)

      if it is otherwise necessary or desirable in conjunction with the exercise of the FSCS's powers under COMP 7.3.8 R or COMP 7.3.9 R or COMP 15.1.19 R;

   that claimant shall be treated as having irrevocably and unconditionally appointed the chairman of the FSCS for the time being to be his attorney and agent and on his behalf and in his name or otherwise to do such things and execute such deeds and documents as may be required under such laws of the United Kingdom, another EEA State or any other state or law-country to create or give effect to such assignment or transfer or otherwise give full effect to those powers.

2. (2)

   The execution of any deed or document under (1) shall be as effective as if made in writing by the claimant or by his agent lawfully authorised in writing or by will.