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The Business Banking Resolution Service Goes Live

  • United Kingdom
  • Financial services disputes and investigations
  • Litigation and dispute management
  • Financial services

18-02-2021

The Business Banking Resolution Service (BBRS) launched on Monday (15 February 2021) after more than 2 years in the making. This development, slightly later than the intended launch in early 2020, is no doubt welcome news to larger Small and Medium Enterprises (SMEs) who are not eligible to complain to the Financial Ombudsman Service (FOS) and who may otherwise need to resort to litigation to resolve a dispute with a bank.

Background

In 2018 UK Finance commissioned an independent review chaired by Simon Walker, former Director General of the Institute of Directors, focussing on complaints resolution services available to SMEs for complaints against banks (the Review). At the time the FCA was also proposing to extend the remit of the FOS to include complaints from SMEs with a maximum of £6.5m in annual turnover - a proposal that was ultimately adopted by the FOS in its largescale reforms that took effect on 1 April 2019.

The Review, which supported the FCA’s proposals, also highlighted that the expansion to the remit of the FOS would leave historical complaints and larger SMEs without an equivalent complaint service and called for banks to establish and fund a voluntarily ‘ombudsman’ service to plug this gap.

In response a working group of SMEs and banks established the BBRS in 2018, which has since been run under a pilot scheme which involved 40 cases. The BBRS has now officially launched as an independent review service.

What is it for?

The BBRS is available to SMEs where they have:

  • ‘historical’ complaints from between 1 December 2001 and 31 March 2019 where the SME has a maximum turnover of up to £6.5 per annum and total assets up to £5m[1]; and
  • ‘contemporary’ complaints arising after 1 April 2019 where the SME has a turnover of no more than £10m per annum and total assets up to £7.5m[2].

To be eligible the complaint must be one that the FOS is unable to consider, the SME must have complained to the bank within 6 years of the act complained of (or 3 years if they discovered it later) and, in the case of contemporary complaints, within 6 months of the bank’s complaint response.

Notably, the eligibility criteria for contemporary complaints (i.e. those arising from 1 April 2019 onwards) is broadly aligned to the requirements for qualifying complaints under the DISP Rules. The DISP Rules require a complainant to complain to the business within 6 years of the act and 3 years of discovery, and to the FOS within 6 months of the complaint response.

However, submission to the BBRS’ jurisdiction is voluntary and requires banks to sign up to the BBRS’ Participation Deed. So far, 7 banks have signed up including Barclays, Danske Bank, HSBC, Natwest, Santander and Virgin Money (together with their subsidiaries).

How will it resolve disputes?

Much like the FOS, complaints are considered on the papers, although the BBRS says it can investigate disputes. The BBRS will issue ‘Determinations’ on the basis of what it considers ‘fair and reasonable’ in all of the circumstances having regard to, among other things, the law, industry standards, the regulatory framework and codes of practice. It also has the power to make both financial (up to £350,000 for contemporary complaints and up to £600,000 for historical complaints) and non-financial awards and any appeals are considered by the Chief Adjudicator, currently Deputy High Court Judge Alexandra Marks.

In helping to resolve disputes, the BBRS intends to use a range of ADR techniques including settlement, conciliation, mediation and ultimately adjudication.

Comment

The BBRS looks likely to be a welcome addition to the dispute resolution landscape providing a low cost, practical and time efficient means of resolving disputes. For SMEs not previously eligible to complain to the FOS it provides access to a decision from a body independent of a bank which they may otherwise have needed to resort to litigation.

The All Party Parliamentary Group on Fair Business Banking, which sat on the committee in setting up the BBRS, released a statement confirming their sign off of the scheme is  conditional due to concerns they hold on member banks’ commitment to resolving historical complaints. A post-implementation review of the efficacy of the BBRS is to be carried out, and the APPG reserves judgment pending the outcome of that review.

There are a number of aspects of the scheme to watch in the early stages:

1.   eligibility: eligibility for complaints to the FOS has always proven to be a contentious area. It is likely to be more complex for the BBRS, particularly for the historical scheme.

2.   the caseload of the scheme: the BBRS was designed before the Coronavirus pandemic and the BBRS anticipate seeing complaints relating to the pandemic. The timing of these complaints are likely to land at the same time as the peak of complaints for the historical scheme (which is to run until 14 February 2023 and estimated by the BBRS to be in the region of 5,000-6,000). It will be interesting to see how the caseload of the scheme develops in the short term and how this is managed;

3.   which ‘boundary cases’ the BBRS will determine should be considered: cases or complaints which have been the subject of certain prior independent reviews are expressly excluded from consideration by the BBRS. However, the APPG encourage what they call ‘boundary cases’ to pursue complaints with the BBRS. These are cases where the complainants consider there is material evidence which was not ‘properly considered’ in the prior independent review.

We intend to run an event together with representatives of the BBRS to provide our clients with greater insight into this new organisation. Please register your interest here if you would be interested in attending.


[1]    https://thebbrs.org/general-criteria/historical-scheme/

[2]    https://thebbrs.org/general-criteria/contemporary-scheme/