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DISP 3.3 Dismissal of complaints without consideration of the merits

DISP 3.3.1RRP

The Ombudsman may dismiss a complaint without considering its merits if he:

  1. (1)

    is satisfied that the complainant has not suffered, or is unlikely to suffer, financial loss, material distress or material inconvenience; or

  2. (2)

    considers the complaint to be frivolous or vexatious; or

  3. (3)

    considers that the complaint clearly does not have any reasonable prospect of success; or

  4. (4)

    is satisfied that the firm or licensee 8has already made an offer of compensation which is fair and reasonable in relation to the circumstances alleged by the complainant and which is still open for acceptance; or

  5. (5)

    is satisfied that the complaint relates to a transaction which the firm or licensee 8in question has reviewed in accordance with the regulatory standards for the review of such transactions prevailing at the time of the review, or in accordance with the terms of a scheme order under section 404 of the Act (Schemes for reviewing past business), including, if appropriate, making an offer of redress to the complainant, unless he is of the opinion that the standards or terms of the scheme order did not address the particular circumstances of the case; or

  6. (5A)

    7is satisfied that the firm or licensee8 in question has reviewed the complaint in accordance with any formal regulatory requirement, standard or guidance published by the FSA or other regulator in respect of that type of complaint, including, if appropriate, making an offer of redress to the complainant, unless he is of the opinion that the terms of the requirement, standard or guidance did not address the particular circumstances of the case; or

  7. (6)

    is satisfied that the matter has previously been considered or excluded under the Financial Ombudsman Service, or a former scheme (unless material new evidence likely to affect the outcome has subsequently become available); or

  8. (7)

    is satisfied that the matter has been dealt with, or is being dealt with, by a comparable independent complaints scheme or dispute resolution process; or

  9. (8)

    is satisfied that the subject matter of the complaint has been the subject of court proceedings where there has been a decision on the merits; or

  10. (9)

    is satisfied that the subject matter of the complaint is the subject of current court proceedings unless proceedings are stayed or sisted (by agreement of all parties or order of the court) in order that the matter may be considered under the Financial Ombudsman Service; or

  11. (10)

    considers that it would be more suitable for the matter to be dealt with by a court, arbitration or another complaints scheme; or

  12. (11)

    is satisfied that it is a complaint about the legitimate exercise of a firm's or licensee's8 commercial judgment; or

  13. (12)

    is satisfied that it is a complaint about employment matters from an employee or employees of a firm or licensee 8; or

  14. (13)

    is satisfied that it is a complaint about investment performance; or

  15. (14)

    is satisfied that it is a complaint about a firm's or licensee's 8decision when exercising a discretion under a will or private trust; or

  16. (15)

    is satisfied that it is a complaint about a firm's or licensee's 8failure to consult beneficiaries before exercising a discretion under a will or private trust, where there is no legal obligation to consult; or

  17. (16)

    is satisfied that a complaint which involves or might involve more than one eligible complainant has been referred without the consent of the other complainant or complainants and the Ombudsman considers that it would be inappropriate to deal with the complaint without that consent; or

  18. (17)

    is satisfied that there are other compelling reasons why it is inappropriate for the complaint to be dealt with under the Financial Ombudsman Service.

DISP 3.3.1AR

7The Ombudsman may dismiss a complaint without considering its merits if:

  1. (1)

    before he has made a determination, he has received in writing from the firmor licensee8:

    1. (a)

      a detailed statement of how and why, in the firm's or licensee's8 opinion, the complaint raises an important or novel point of law with significant consequences; and

    2. (b)

      an undertaking in favour of the complainant that, if the complainant or the firm or the licensee8 commences court proceedings against the other in respect of the complaint in any court in the United Kingdom, within six months of the complaint being dismissed, the firm or licensee8 will: pay the complainant's reasonable costs and disbursements (to be assessed if not agreed on an indemnity basis) in connection with the proceedings at first instance and any subsequent appeal proceedings brought by the firm or licensee8; and make interim payments on account of such costs if and to the extent that it appears reasonable to do so; and

  2. (2)

    the Ombudsman considers that the complaint:

    1. (a)

      raises an important or novel point of law, which has important consequences; and

    2. (b)

      would more suitably be dealt with by a court as a test case.

DISP 3.3.1BG

7Factors the Ombudsman may take into account in considering whether to dismiss under DISP 3.3.1A R include (but are not limited to):

  1. (1)

    whether the point of law is central to the outcome of the dispute;

  2. (2)

    how important or novel the point of law is in the context of the dispute;

  3. (3)

    the significance of the consequences of the dispute for the business of the firm or licensee8 or for its customers;

  4. (4)

    the significance of the consequences of the dispute for the business of firms or licensees8 in that sector or for their customers;

  5. (5)

    the amount at stake in the dispute;

  6. (6)

    the remedies that a court could impose;

  7. (7)

    any representations made by the firm, licensee8 or the complainant; and

  8. (8)

    the stage already reached in consideration of the dispute.

DISP 3.3.2RRP

Under article 5(2)(c) of the Ombudsman Transitional Order, the Ombudsman, in deciding whether a relevant complaint is to be dismissed without consideration of its merits, is to take into account whether an equivalent complaint would have been so dismissed under the former scheme in question, as it had effect immediately before commencement.

DISP 3.3.2AG

1Under article 4(2) of the Mortgage and General Insurance Complaints Transitional Order, the Ombudsman, in deciding whether a relevant transitional complaint is to be dismissed without consideration of its merits, must take into account whether an equivalent complaint would have been so dismissed under the former scheme in question, as it had effect immediately before the relevant commencement date.

DISP 3.3.3GRP

For the purposes of DISP 3.3.1 R (4), offers of compensation include ex gratia payments.

DISP 3.3.4RRP

In DISP 3.3.1 R (5) the transaction could, for example, be a pension transaction which has been reviewed by the firm in accordance with the relevant regulatory standards. The Ombudsman may decide not to proceed with a complaint about the result of that review unless he considers that the standards or guidance published by the regulator did not address the particular circumstances of the case.

DISP 3.3.5R

When deciding if it would be suitable for a complaint to be dealt with outside the Financial Ombudsman Service (DISP 3.3.1 R (10)), the Ombudsman may consider whether, in view of a conflict of evidence, a fair resolution of the complaint could be achieved only through examination of the evidence by the courts.

DISP 3.3.6G

The Ombudsman may decide to proceed with a complaint which would otherwise be dismissed under DISP 3.3.1 R (13), DISP 3.3.1 R (14) or DISP 3.3.1 R (15) if he considers that the complaint involves an allegation of negligence or maladministration.