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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Shop Direct Finance Company Ltd v The Official Receiver [2022] EWHC 1355 (Comm) (06 June 2022) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2022/1355.html Cite as: [2022] EWHC 1355 (Comm), [2022] Bus LR 871, [2022] WLR(D) 256 |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting as a Deputy Judge of the High Court
____________________
SHOP DIRECT FINANCE COMPANY LIMITED |
Claimant |
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- and - |
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THE OFFICIAL RECEIVER |
Defendant |
____________________
Michael Gibbon QC & Maxim Cardew (instructed by the Legal Services Directorate, Insolvency Service) for the Defendant
Hearing dates: 24, 25 and 26 May 2022
Draft Judgment circulated on 1 June 2022
____________________
Crown Copyright ©
Mr Stephen Houseman QC sitting as a Deputy Judge of the High Court:INTRODUCTION
RELEVANT BACKGROUND & STATUTORY FRAMEWORK
DISP 2.7.1 R
A complaint may only be dealt with under the Financial Ombudsman Service if it is brought by or on behalf of an eligible complainant.
DISP 2.7.2 R
A complaint may be brought on behalf of an eligible complainant (or a deceased person who would have been an eligible complainant) by a person authorised by the eligible complainant or authorised by law. It is immaterial whether the person authorised to act on behalf of an eligible complainant is himself an eligible complainant.
(Bold emphasis added by me and explained in paragraph 19 below.)
DISP 2.7.3 R
An eligible complainant must be a person that is:
(1) a consumer; or
[…]
(4) a trustee of a trust which has a net asset value of less than £5 million at the time the complainant refers the complaint to the respondent…
DISP 2.7.6 R
To be an eligible complainant a person must also have a complaint which arises from matters relevant to one or more of the following relationships with the respondent:
(1) the complainant is (or was) a customer, payment service user or electronic money holder of the respondent;
[…]
(5) the complainant is a person for whose benefit a contract of insurance was taken out or was intended to be taken out with or through the respondent;
(6) the complainant is a person on whom the legal right to benefit from a claim against the respondent under a contract of insurance has been devolved by contract, assignment, subrogation or legislation (save the European Community (Rights against Insurers) Regulations 2002);
[…]
DISP 2.8.2R
The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service:
(1) more than six months after the date on which the respondent sent the complainant its final response, redress determination or summary resolution communication; or
(2) more than:
(a) six years after the event complained of; or (if later)
(b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint;
unless the complainant referred the complaint to the respondent or to the Ombudsman within that period and has a written acknowledgement or some other record of the complaint having been received;
unless:
(3) in the view of the Ombudsman, the failure to comply with the time limits … was as a result of exceptional circumstances; or
[…]
(5) the respondent has consented to the Ombudsman considering the complaint where the time limits … have expired…
(a) "eligible complainant" is defined as: "a person eligible to have a complaint considered under the Financial Ombudsman Service, as defined in DISP 2.7 (Is the complainant eligible?)"
(b) "complaint" is materially defined as: "…any oral or written expression of dissatisfaction … from, or on behalf of, a person about the provision of, or failure to provide, a financial service … which: (a) alleges that the complainant has suffered (or may suffer) financial loss, material distress or material inconvenience; and (b) relates to an activity of that respondent, or of any other respondent with whom that respondent has some connection in marketing or providing financial services or products … under the jurisdiction of the [FOS]"
(For consistency I have highlighted "on behalf of" in bold above.)
PRIMARY DECLARATION: DISP 2.8.2R(2)(b)
DECLARATIONS AS TO ACTUAL OR CONSTRUCTIVE AWARENESS
DISPOSITION
(1) I will grant the declaration sought by SDFC on the primary construction issue to the effect that the "complainant" whose actual or constructive awareness is relevant in DISP 2.8.2R(2)(b) is TOR.
(2) I decline to grant any further declaratory relief.
(3) I will grant permission to appeal in respect of (1) above, if sought by TOR.
(4) I will deal with matters consequential on the handing down of this judgment, including costs reflecting (1) and (2) above.