Would she win at Small Claims Court?

GenieAllergy

I really am asking for a friend!  In February 2023, she lost £3,800 to a fraudster and the bank refused to refund it.  She referred it to the Financial Ombudsman who upheld her claim but the bank still didn't pay.  They also haven't paid after an Adjudicator was appointed who also upheld the claim.  The CAB put her in touch with a solicitor who got a court date in December, but just before they were due in court the bank's solicitor fell ill (!!!).  No new date has been set.  My friend is getting pretty desperate to get her money back, so we wondered whether she stands a good chance at Small Claims Court - given the increase in fees she can't afford to lose any more.  I think she has a pretty good case.

Alderbank

The best, indeed the only person who can advise your friend about her chances is her solicitor who she is paying to plead her case.
Unlike us, he knows all the circumstances of the case.

The Ombudsman is not bound by the law so can come to a different decision from the court. 

Undervalued

Alderbank said:

The best, indeed the only person who can advise your friend about her chances is her solicitor who she is paying to plead her case.
Unlike us, he knows all the circumstances of the case.

The Ombudsman is not bound by the law so can come to a different decision from the court. 

I thought the FOS final decision was legally binding on the bank although the consumer sill had the option of going to court if they weren't happy?

From the FOS website.....

Once a final decision is issued, you will be asked to confirm by a specified date whether you accept or reject it. If you accept the ombudsman's decision, the business has to do what the ombudsman has told them to do.

Alderbank

Also from the FOS website...

If a consumer has lost out financially, we’ll aim to put them back in the position they would have been in if the financial business complained about hadn’t made a mistake.

We can ask a financial business to pay compensation, and we might decide they should also pay costs and interest on top of this.

There’s a limit to how much we can tell a business to pay. If we think  compensation should be higher than our award limit, we can recommend that the financial business pays more. But we can’t make them pay anything over the limit. It is up to them whether they pay any extra or not.

eskbanker

GenieAllergy said:

I really am asking for a friend!  In February 2023, she lost £3,800 to a fraudster and the bank refused to refund it.  She referred it to the Financial Ombudsman who upheld her claim but the bank still didn't pay.  They also haven't paid after an Adjudicator was appointed who also upheld the claim.

Just to be clear, was this escalated to an ombudsman after going through the initial FOS process with a case handler?  As above, once an ombudsman has made a decision, this is legally binding on the financial institution - all such decisions are published, with a Decision Reference Number, so if it's got that far, can you share the DRN?

Undervalued

Alderbank said:

Also from the FOS website...

If a consumer has lost out financially, we’ll aim to put them back in the position they would have been in if the financial business complained about hadn’t made a mistake.

We can ask a financial business to pay compensation, and we might decide they should also pay costs and interest on top of this.

There’s a limit to how much we can tell a business to pay. If we think  compensation should be higher than our award limit, we can recommend that the financial business pays more. But we can’t make them pay anything over the limit. It is up to them whether they pay any extra or not.

The OP says £3800 was lost.

As far as I know the FOS award limits are way, way above that sort of figure.

I think some important details must be missing here? 

eskbanker

Alderbank said:

Also from the FOS website...

If a consumer has lost out financially, we’ll aim to put them back in the position they would have been in if the financial business complained about hadn’t made a mistake.

We can ask a financial business to pay compensation, and we might decide they should also pay costs and interest on top of this.

There’s a limit to how much we can tell a business to pay. If we think  compensation should be higher than our award limit, we can recommend that the financial business pays more. But we can’t make them pay anything over the limit. It is up to them whether they pay any extra or not.

That limit being £415K, i.e. over a hundred times the size of the claim here!  

elsien

GenieAllergy said:

I really am asking for a friend!  In February 2023, she lost £3,800 to a fraudster and the bank refused to refund it.  She referred it to the Financial Ombudsman who upheld her claim but the bank still didn't pay.  They also haven't paid after an Adjudicator was appointed who also upheld the claim.  The CAB put her in touch with a solicitor who got a court date in December, but just before they were due in court the bank's solicitor fell ill (!!!).  No new date has been set.  My friend is getting pretty desperate to get her money back, so we wondered whether she stands a good chance at Small Claims Court - given the increase in fees she can't afford to lose any more.  I think she has a pretty good case.

So what court was the solicitor going through,  because you’re talking about the small claims court as though it’s a new and separate process? 

But if she has a solicitor she is already paying for advice, they would seem best placed to answer her questions.

Exodi

GenieAllergy said:

I really am asking for a friend!  In February 2023, she lost £3,800 to a fraudster and the bank refused to refund it.  She referred it to the Financial Ombudsman who upheld her claim but the bank still didn't pay.  They also haven't paid after an Adjudicator was appointed who also upheld the claim.  The CAB put her in touch with a solicitor who got a court date in December, but just before they were due in court the bank's solicitor fell ill (!!!).  No new date has been set.  My friend is getting pretty desperate to get her money back, so we wondered whether she stands a good chance at Small Claims Court - given the increase in fees she can't afford to lose any more.  I think she has a pretty good case.

I think there is a lot of detail missing as it doesn't make much sense how it is written here.

Friend lost £3,800 to a scammer and she alleges it was the banks fault - the bank disagreed.

The friend escalated it to the FOS who uphold her complaint and awarded her compensation.

The bank ignores the decision.

Now this is where I get a bit lost. You mention an adjudicator was appointed who also upheld the claim - do you mean a second adjudicator then? That also works for the FOS? I guess it's not too important, the takeaway is that the FOS upheld the complaint.

You then say CAB put her in touch with a solicitor... why did your friend approach CAB? The FOS is considered by many the final recourse against financial institutions, in my opinion it would be going backwards to then talk to an advice service made up of volunteers. In my opinion it's then a giant leap backwards to start litigation when you already have a binding decision in hand from the ombudsman.

Has she mentioned to the FOS that the bank has not complied with their decision? This would be the only thing I would focus on.

Undervalued

Exodi said:

GenieAllergy said:

I really am asking for a friend!  In February 2023, she lost £3,800 to a fraudster and the bank refused to refund it.  She referred it to the Financial Ombudsman who upheld her claim but the bank still didn't pay.  They also haven't paid after an Adjudicator was appointed who also upheld the claim.  The CAB put her in touch with a solicitor who got a court date in December, but just before they were due in court the bank's solicitor fell ill (!!!).  No new date has been set.  My friend is getting pretty desperate to get her money back, so we wondered whether she stands a good chance at Small Claims Court - given the increase in fees she can't afford to lose any more.  I think she has a pretty good case.

I think there is a lot of detail missing as it doesn't make much sense how it is written here.

Friend lost £3,800 to a scammer and she alleges it was the banks fault - the bank disagreed.

The friend escalated it to the FOS who uphold her complaint and awarded her compensation.

The bank ignores the decision.

Now this is where I get a bit lost. You mention an adjudicator was appointed who also upheld the claim - do you mean a second adjudicator then? That also works for the FOS? I guess it's not too important, the takeaway is that the FOS upheld the complaint.

You then say CAB put her in touch with a solicitor... why did your friend approach CAB? The FOS is considered by many the final recourse against financial institutions, in my opinion it would be going backwards to then talk to an advice service made up of volunteers. In my opinion it's then a giant leap backwards to start litigation when you already have a binding decision in hand from the ombudsman.

Has she mentioned to the FOS that the bank has not complied with their decision? This would be the only thing I would focus on.

I think there is a confusion of terms here.

The FOS decision, which is initially made by an "adjudicator"  is only binding on the bank once it has been upheld by an actual Ombudsman. So the bank can effectively appeal the adjudicator's decision, within the FOS, if it so chooses. What the bank cannot do is ignore an actual Ombudsman's ruling.

What is not clear from the OP is if this has happened? 

I agree with the your comments about the CAB who may have muddied the waters.

This is also the problem when people seek advice on behalf of a friend rather than hearing direct from the "horse's mouth"! 

Okell

"Send three and fourpence.  We're going to a dance..."

This thread amply demonstrates why it's usually a waste of time even attempting to answer questions which actually are "being asked for a friend".

The person starting the thread seldom knows the full story and can only drip feed the details as they act as the go between twixt the "friend" and the thread.

As Andy Foster usually says on Pepipoo:  "Tell your friend to start their own thread".  That way you might get the full story from the outset rather than back and forth.