SVS Securities - shut down?

eskbanker

johnburman said:

look up 

AXA INSURANCE UK PLC

- and -

CUNNINGHAM LINDSEY UNITED KINGDOM (an unlimited company) Neutral Citation Number: [2007] EWHC 3023 (TCC) which shows you can get damages for inconvenience as a matter of principle, but they are not generous

There's no point in simply repeating your reference to that case - you asserted that it was relevant a few posts back but then failed to engage when that interpretation was challenged by myself and @IanManc immediately afterwards, as per the 13 May posts on page 616.  To repeat one of the rebuttals there, nobody is saying that it isn't possible for a court to award damages for physical inconvenience, but this isn't applicable to this (financial services) type of contract, as highlighted in Watts v Morrow, so it's not a matter of principle but of relevance....

RasputinB

eskbanker said:

1."I was asking if you'd found any precedent for a separate claim for complaint handling (as an incremental award over and above the subject of the complaint, resulting in a higher compensation total than the norm) but, as pointed out in previous posts, the FOS cases you cited don't seem to identify anything relevant, or have you found others that you feel support your contention?" 
2. "What's your conclusion from that case?" 

1. In my view it is relevant if a FOS case shows that the ombudsman has not rejected a claim for complaint handling as this shows inconsistency. In some ombudsman cases (including one of mine) the ombudsman stated that 'complaint handling isn't a regulated activity' (or words to that effect). I intend making a claim for the complaint handling aspect and that might be considered as an aggravating factor, and thus influence the amount offered for Distress & Inconvenience, or it could be turned down. If the latter then I'd expect to be given a reason and then I'll do more research if I am not happy with that reason. I note your view that the FOS cases previously cited don't seem to identify anything relevant.
It is quite possible that my initial thoughts relating to a separate claim for complaint handling weren't realistic and I will certainly consider the need for further evidence if my case goes to an ombudsman.
2. "What's your conclusion from that case?" -
I thought that the arbitrator explained clearly that as a matter of public policy, damages are not available purely for inconvenience, annoyance or mental distress and referred to Watts v. Morrow 1991 1WLR 1421. Therefore I don't think that the argument of johnburman has any merit (unless there is a more recent legal case that is relevant). As the FOS does make awards for Distress & Inconvenience this legal case isn't necessarily relevant to point 1 above.

coyrls

RasputinB said:

eskbanker said:

1."I was asking if you'd found any precedent for a separate claim for complaint handling (as an incremental award over and above the subject of the complaint, resulting in a higher compensation total than the norm) but, as pointed out in previous posts, the FOS cases you cited don't seem to identify anything relevant, or have you found others that you feel support your contention?" 
2. "What's your conclusion from that case?" 

 I will certainly consider the need for further evidence if my case goes to an ombudsman.

I don't understand this, you need to refer your complaint to the FOS, there is no other route for it to go to an ombudsman.

RasputinB

coyrls said:

RasputinB said:

eskbanker said:

1."I was asking if you'd found any precedent for a separate claim for complaint handling (as an incremental award over and above the subject of the complaint, resulting in a higher compensation total than the norm) but, as pointed out in previous posts, the FOS cases you cited don't seem to identify anything relevant, or have you found others that you feel support your contention?" 
2. "What's your conclusion from that case?" 

 I will certainly consider the need for further evidence if my case goes to an ombudsman.

I don't understand this, you need to refer your complaint to the FOS, there is no other route for it to go to an ombudsman.

If my case goes to an ombudsman = if it is not settled by the company / FOS adjudicator and is escalated to an FOS ombudsman.

eskbanker

RasputinB said:
In some ombudsman cases (including one of mine) the ombudsman stated that 'complaint handling isn't a regulated activity' (or words to that effect).

I just searched on those terms and can now understand what they mean by that - https://www.financial-ombudsman.org.uk/decision/DRN1808361.pdf, for example, explains their rationale:

The handling of complaints is not itself a regulated activity. It’s something that the regulator – the Financial Conduct Authority (FCA) – requires financial businesses to do. But that isn’t enough to make it a “regulated activity” within the meaning of the rule – that is, one of the list of activities set out in the legislation from which we derive our powers. 

and that list of regulated activities is indeed prescribed at https://www.handbook.fca.org.uk/handbook/glossary/G974.html

So, even though complaint handling is an activity directed by the regulator, from a technicality point of view it's not a regulated activity as such!  Therefore the FOS assert that they don't need to consider complaints relating to complaint handling....

RasputinB

eskbanker said:

RasputinB said:
In some ombudsman cases (including one of mine) the ombudsman stated that 'complaint handling isn't a regulated activity' (or words to that effect).

I just searched on those terms and can now understand what they mean by that - https://www.financial-ombudsman.org.uk/decision/DRN1808361.pdf, for example, explains their rationale:

The handling of complaints is not itself a regulated activity. It’s something that the regulator – the Financial Conduct Authority (FCA) – requires financial businesses to do. But that isn’t enough to make it a “regulated activity” within the meaning of the rule – that is, one of the list of activities set out in the legislation from which we derive our powers. 

and that list of regulated activities is indeed prescribed at https://www.handbook.fca.org.uk/handbook/glossary/G974.html

So, even though complaint handling is an activity directed by the regulator, from a technicality point of view it's not a regulated activity as such!  Therefore the FOS assert that they don't need to consider complaints relating to complaint handling....

Thanks, that does give some clarification. However, the ombudsman, said "I’m able to consider concerns about complaint handling in some limited circumstances. For example, if the complaint handling was ancillary to something I do have the power to consider." 

ancillary = providing necessary support to the primary activities or operation of an organization, system, etc.
I think I'll need to think on this as I have difficulty understanding how the FOS could assert that they don't need to consider complaints relating to complaint handling when the considerable delays in handling complaints have aggravated the Distress & Inconvenience caused by the delays in returning assets etc.
Also, if the FOS don't need to consider complaints relating to complaint handling then why have they done so? (I'll maybe have to check to confirm that they have!)

johnburman

Read para 274 of Axa

A long line of authority has established that a claimant is entitled to general damages for distress, inconvenience and discomfort caused by breaches of contract. Authority for this proposition includes Watts v Morrow [1991] 1 WLR 1421, Ezekiel v McDade [1994] 43 Con LR 45 and Hoadley v Edwards [2001] PNLR 41. 

and 275

1. From the various authorities I draw the following conclusions so far as are material to this case:
(a) General damages will be allowed to each of the claimants for inconvenience, distress and discomfort caused by breaches of contract.(b) The amount allowable for this will be modest.............

eskbanker

RasputinB said:
I think I'll need to think on this as I have difficulty understanding how the FOS could assert that they don't need to consider complaints relating to complaint handling when the considerable delays in handling complaints have aggravated the Distress & Inconvenience caused by the delays in returning assets etc.

If you're seeking to treat complaint handling as an incremental head of damages in that way, are you referring to a scenario where assets were returned (after a delay) and then subsequently a complaint took ages to address, or are these timescales concurrent?

RasputinB said:
Also, if the FOS don't need to consider complaints relating to complaint handling then why have they done so? (I'll maybe have to check to confirm that they have!)

I suspect that it comes down to case-specific context and detail, but that's not to say that they always act in a consistent manner of course!  Perhaps also worth noting that in at least one of the cases you cited, it was the institution that volunteered compensation for poor complaint handling and the FOS simply chose not to go against that rather than actually ruling on it as such.

eskbanker

johnburman said:

Read para 274 of Axa

A long line of authority has established that a claimant is entitled to general damages for distress, inconvenience and discomfort caused by breaches of contract. Authority for this proposition includes Watts v Morrow [1991] 1 WLR 1421, Ezekiel v McDade [1994] 43 Con LR 45 and Hoadley v Edwards [2001] PNLR 41. 

and 275

1. From the various authorities I draw the following conclusions so far as are material to this case:
(a) General damages will be allowed to each of the claimants for inconvenience, distress and discomfort caused by breaches of contract.(b) The amount allowable for this will be modest.............

I've bolded the two critical words that you appear not to have noticed - these cases all relate to building works and entail physical inconvenience such as complainants being unable to occupy their homes.

Although Watts v Morrow was the first of these, the analysis there of types of contracts applies, i.e. these later ones don't set precedents for financial services disputes....

RasputinB

eskbanker said:

RasputinB said:
I think I'll need to think on this as I have difficulty understanding how the FOS could assert that they don't need to consider complaints relating to complaint handling when the considerable delays in handling complaints have aggravated the Distress & Inconvenience caused by the delays in returning assets etc.

If you're seeking to treat complaint handling as an incremental head of damages in that way, are you referring to a scenario where assets were returned (after a delay) and then subsequently a complaint took ages to address, or are these timescales concurrent?

RasputinB said:
Also, if the FOS don't need to consider complaints relating to complaint handling then why have they done so? (I'll maybe have to check to confirm that they have!)

I suspect that it comes down to case-specific context and detail, but that's not to say that they always act in a consistent manner of course!  Perhaps also worth noting that in at least one of the cases you cited, it was the institution that volunteered compensation for poor complaint handling and the FOS simply chose not to go against that rather than actually ruling on it as such.

Very likely that a complaint was raised at the time of delay of return of assets and is ongoing until all assets are returned. In my case ITI have still not provided me with confirmation that they have returned all assets. (Assets include the fruits of assets i.e. dividends, right issues etc. Scenarios could include further complaints relating to those.) 
If I've missed the point that you are making please feel free to elaborate.

Noted that the FOS didn't go against the volunteered compensation in that case. I only had a brief look at the ombudsman decisions so expect to find more relevant ones if I spend some time at it.

I have looked at the list of regulated activities and can't see that the transfer of securities to another broker is included. If that isn't a regulated activity would it mean that the FOS don't need to consider complaints relating to transfers of securities to another broker?