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The Business Banking Resolution Service (BBRS) launched on 15 February 2021 providing a new form of alternative dispute resolution for eligible small and medium size enterprises (SMEs) and participating banks to resolve complaints without the need for litigation or external legal support.
Determinations made by the BBRS can be significant as the BBRS can require banks to pay financial and non-financial awards to an eligible SME taking into account all relevant information about the complaint or dispute. Depending on the size of the SME and when the complaint relates to, financial awards can range up to a limit of £350,000 for the historical scheme and £600,000 for the contemporary scheme (see our previous articles on BBRS eligibility).
In this article we provide some insight into what a BBRS determination may mean for complainants and respondent firms and what steps can be taken once a determination by the BBRS has been accepted.
The BBRS Scheme Rules outline how the BBRS approaches complaints. Under the Scheme Rules, a determination is defined as a “decision resolving a Complaint before an appeal”.
DT 12 of the Scheme Rules outlines that each BBRS determination can be appealed by either the SME bringing the claim (the Complainant) or participating bank (the Respondent). Where a determination is not appealed and both parties accept the final outcome, the determination will become binding.
It is important to note that once a determination has been accepted, a Complainant can no longer pursue an identical complaint against the Respondent either at the BBRS or in the traditional course of legal proceedings or any alternative dispute resolution forums except to enforce the determination in court if necessary. Where a Complainant accepts the final determination, DT 20 of the Scheme Rules states that the Complainant will “release and discharge the Respondent and (where the Respondent is part of a group) all members of the Respondent’s group and their current and former employees, from any liability to the Complainant in respect of any matter that is the subject of that complaint”. Additionally, the Complainant will also “not bring any further complaint or claim against the Respondent, any members of the Respondent’s group or their current or former employees in respect of any matter that is the subject of that complaint”. Acceptance into the BBRS complaints process is on the basis that a Complainant agrees to abide by the Scheme Rules.
When bringing a claim to the BBRS, the Complainant must ensure that the claim is not already a subject of litigation proceedings which are either ongoing or have been settled. In short, the complaint brought to the BBRS must not have already been decided by any court. If a complaint is submitted to the BBRS and there are active legal proceedings, then the BBRS will likely decline to review the complaint. However, there have been instances where legal proceedings have been stayed for the purposes of allowing the BBRS to determine a complaint. Whether or not that is appropriate will depend on the facts of each case, but it is option that is open to the parties if they think the issues in dispute in the claim may be resolved or impacted by the BBRS’ review.
Accepting a BBRS determination will mean that a Complainant essentially gives up their right to bring legal proceedings against the Respondent. The discretion to not accept the BBRS determination or withdraw a complaint completely therefore lies with the Complainant meaning they can still look to pursue their complaint elsewhere such as in legal proceedings.
A BBRS determination once accepted by a Complainant will be in full and final settlement. A Complainant can only use the determination reached by the BBRS to enforce the settlement reached in court in the event that the Respondent does not comply with what has been set out in the determination (to this end under GPR5(2) of the Scheme Rules, note that a BBRS determination will be disclosable to the Court if deemed necessary to enforce the determination against the Respondent ). Accepting a BBRS determination therefore means that a Complainant agrees not to pursue any further proceedings identical to that brought to the BBRS.
It is also worth noting that the BBRS may consider complaints brought to the scheme ineligible if a Complainant has brought an identical complaint which has been previously the subject of traditional legal proceedings (whether ongoing or concluded) against the Respondent.
The way in which the Scheme Rules have been crafted should provide some sense of finality to Respondent firms once a Complainant accepts a BBRS determination. This is in contrast to the position historically seen with certain complaints to the Financial Ombudsman Service, where complainants have accepted redress awards following an Ombudsman’s final decision and sought to litigate the same matter for the balance of their alleged loss (although currently the case law does preclude this course of action on a res judicata basis as was held by the Court of Appeal in Clark v In Focus Asset Management  EWCA Civ 118). It also gives a level of certainty to firms around the limits of financial awards they may be required to pay out to BBRS complainants in both the historical and contemporary schemes, which is particularly noteworthy given BBRS complaints are at the larger end of the SME group and tend to have more complex and financially significant complaints.
It is fair to say that the BBRS is still finding its feet in dealing with larger SME banking complaints and there is much uncertainty in the market as to how, longer term, the scheme will play out. The tight rules around the interrelationship between BBRS complaints and court proceedings is therefore a welcome piece of solid ground in a landscape that is otherwise yet to fully solidify.
Although the Scheme Rules say accepting a determination means no further legal proceedings can be brought, some Complainants may still seek to bring proceedings, requiring the Court to look at whether the facts of the claim can be sufficiently differentiated from the facts of the BBRS complaint.
If you would like to discuss dealing with BBRS complaints further, please do not hesitate to contact Jack Hargreaves, Associate, or Dixson Lee, Trainee in TLT’s Financial Services Disputes and Investigations team.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at November 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.
10 November 2021
Insights 16 DECEMBER 2021