DISP 3.3 Dismissal without consideration of the merits and test cases

Where the Ombudsman considers that the complaint may be one which should be dismissed without consideration of the merits, he will give the complainant an opportunity to make representations before he decides.29

Where the Ombudsman then decides that the complaint should be dismissed without consideration of the merits, he will give reasons to the complainant for that decision and inform the respondent.29

The Ombudsman may dismiss a complaint 413referred to the Financial Ombudsman Service before 9 July 2015 413without considering its merits if 413the Ombudsman 413considers that:

1. (1)

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

2. (2)

   the complaint is frivolous or vexatious; or

3. (3)

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

4. (4)

   the respondent has already made an offer of compensation (or a goodwill payment) which is:

   1. (a)

      fair and reasonable in relation to the circumstances alleged by the complainant; and

   2. (b)

      still open for acceptance; or

5. (5)

   the respondent has reviewed the subject matter of the complaint in accordance with:

   1. (a)

      the regulatory standards for the review of such transactions prevailing at the time of the review; or

   2. (b)

      [deleted]11

      11
   3. (c)

      any formal regulatory requirement, standard or guidance published by the FCA 12 or other regulator in respect of that type of complaint;

      12

   (including, if appropriate, making an offer of redress to the complainant), unless he considers that they did not address the particular circumstances of the case; or

6. (5A)

   the respondent has reviewed the subject matter of the complaint and issued a redress determination in accordance with the terms of a consumer redress scheme; or11

7. (6)

   the subject matter of the complaint has previously been considered or excluded under the Financial Ombudsman Service, or a former scheme (unless material new evidence which the Ombudsman considers likely to affect the outcome has subsequently become available to the complainant); or

8. (7)

   the subject matter of the complaint has been dealt with, or is being dealt with, by a comparable independent complaints scheme or dispute-resolution process; or

9. (8)

   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)

    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) so 413that the matter may be considered by 413the Financial Ombudsman Service; or

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11. (10)

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

12. (11)

    it is a complaint about the legitimate exercise of a respondent's commercial judgment; or

13. (12)

    it is a complaint about employment matters from an employee or employees of a respondent; or

14. (13)

    it is a complaint about investment performance; or

15. (14)

    it is a complaint about a respondent's decision when exercising a discretion under a will or private trust; or

16. (15)

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

17. (16)

    it is a complaint which:

    1. (a)

       involves (or might involve) more than one eligible complainant; and

    2. (b)

       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. (16A) 310

    it is a complaint about a pure landlord and tenant issue arising out of a regulated sale and rent back agreement; or

19. (17)

    there are other compelling reasons why it is inappropriate for the complaint to be dealt with under the Financial Ombudsman Service.29

413The Ombudsman may dismiss a complaint referred to the Financial Ombudsman Service on or after 9 July 2015 without considering its merits if the Ombudsman considers that:

1. (1)

   the complaint is frivolous or vexatious; or

2. (2)

   the subject matter of the complaint has been dealt with, or is being dealt with, by a comparable ADR entity; or

3. (3)

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

4. (4)

   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) so that the matter may be considered by the Financial Ombudsman Service; or

5. (5)

   dealing with such a type of complaint would otherwise seriously impair the effective operation of the Financial Ombudsman Service.