Under the FCA’s Despite Resolution Complaints Sourcebook (DISP), the ombudsman could only consider a complaint referred within three years from the date on which the complainant became aware, or ought to have become aware, that they had cause for complaint.
The sourcebook did not define who a “complainant” was so a question then arose as to whether, for these purposes, the complainant was the bankrupt, or his trustee in bankruptcy (since the claim vested in the trustee). At first instance, the High Court considered that it was the trustee in bankruptcy and therefore it was his or her knowledge that was relevant for the purposes of the three-year period. This was appealed. On appeal, the Court of Appeal accepted that the answer depended on the facts of each complaint. DISP had to be read as a whole and construed in light of its overall purpose. The general thrust of DISP was that the “complainant” was the person who has suffered financial loss, although it also anticipated that might not necessarily be the person bringing the complaint.
In this case, the Court of Appeal was not prepared to go so far as to declare that it was the awareness of the trustee in bankruptcy that was relevant simply because they were bringing the complaint, or that it was the bankrupt either. If that broad brush position was adopted, it could have the effect of providing for no time limits at all on certain facts, for instance, if the bankrupt had died and the trustee in bankruptcy sat on a complaint, or where a situation arose where the knowledge of the bankrupt ought to be imputed on to his or her trustee such that the three-year time period ran from some earlier point in time.
The Official Receiver v Shop Direct Finance Company Limited [2023] EWCA Civ 367
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