People set to receive reduced funding options for litigation following Government reforms in April 2013 could have been handed a lifeline due to a ruling by the High Court last week that means financial advisers can be sued for extra compensation.
The controversial reforms, which arise from the Legal Aid, Sentencing and Public Order Act 2012 (LASPO), will significantly affect consumers’ ability to fund litigation, meaning that court proceedings may be difficult to justify against financial advisers, banks and insurers, even for quite valuable claims.
The decision by Judge Ross Cranston in the case of Clark v In Focus Asset Management & Tax Solutions Ltd (2012) now makes it possible for people to use compensation obtained via the Financial Ombudsman Service (FOS) in high value claims as a “fighting fund” for Court proceedings at exactly the time when their funding options are being limited by the reforms.
Until now, conventional wisdom as expressed in the case of Andrews v SBJ Consultants has been that those wishing to accept a FOS award, who by definition the FOS agrees have been treated unacceptably, have had to give up any rights to compensation over and above a set limit (currently £150,000).
The decision in the Clark case goes against the decision in Andrews and will therefore give people renewed hope of recovering the excess via court proceedings where their true losses are above that amount.
Stephen Searle, Senior Associate at Clarke Willmott LLP, said: “This decision will undoubtedly be welcomed by claimants and concern financial firms.
“Claimants have interesting tactical choices to make though they must keep a close eye on expiring time limits for court proceedings.
Insurers and financial advisers on the other hand should now be thinking carefully about whether some claims, which they thought were long since over as FOS awards had been paid, will now resurface.
Ultimately the Court of Appeal is likely to provide further guidance in due course as although this case considers the earlier decision very carefully and rejects it, it is never really a satisfactory position to have two High Court decisions saying different things without a higher court resolving the issue with certainty.”