Financial Ombudsman Service
South Quay Plaza
183 Marsh Wall
Our Ref: CHL/MRB
10th January 2005
Dear Mr Merricks
I refer to your letter dated 17th December.
Some years ago FOS stated in writing to a complainant, when declining their claim, that you followed the legal maxim “he who asserts must prove”. Also that an IFA was innocent until proven guilty. Based on current cases, like that of Fling, it is clear the FOS no longer follow these basic principles of common law (a point you agreed when we talked by telephone some months ago).
Furthermore, your usually unqualified adjudicators now decide (with the benefit of hindsight) the risk of a product , and whether it ‘fits’ with the complainants original attitude to risk, as stated by them now to you (as opposed to believing what was stated by them to us on our factfind at the time of the sale).
In addition, we have in writing from the FSA that an IFA is entitled to describe the risk of a product, as they honestly see fit. So how can you now legitimately disagree with how we described a product? e.g. ‘relatively low risk’ in the case of Fling. This was our honest opinion at the time of the sale, so it is totally unfair for you to now find against us due to this.
In the case of Grigg you have the irrefutable evidence that the complainant lied to you at least twice in order to claim compensation. This is surely fraud which is a criminal act? If FOS continue to uphold the complaint, irrespective of whether the lies would have altered your decision or not, you are condoning a criminal act. I cannot believe this is what the Treasury, the Public, or our Industry expect from the FOS.
The end result of these unjust and currently unchallengeable decisions emanating from FOS is that more and more IFAs will simply refuse to pay the compensation you set. I understand there are already numerous cases where this is happening.
When IFAs agreed to be bound by your decisions we naturally expected to be treated impartially, fairly, and as per common law.
The pendulum needs to swing back so cases are viewed by FOS using accepted legal principles e.g he who asserts must prove.