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Pluck runs out

Last week, the second series of the TV drama Heroes came to an end on BBC2.

For those of you who have not seen it, the basic story line is about a group of disparate individuals, each with a unique superhuman power, coming together to battle against evil.

What makes it all the more compelling is the unlikely nature of each hero, like Japanese office worker Hiro Nakamura, who slays a serial killer bent on blowing up New York.

The ending of this series left me meditating about the potential within each of us to emerge as heroes, to lead others to victory or, as sometimes happens, down a blind alley.

Take, for example, Gareth Fatchett, a solicitor at Birmingham firm Shakespeare Putsman.

Fatchett was the legal hero who represented Chippenham IFA Heather Moor & Edgecomb in their battle against the Financial Ombudsman Service. The firm objected to being asked to pay case fees for four endowment-related complaints to the FOS by their clients, as a result of which they were landed with a bill for £1,440, even though they won the cases.

In February, Judge Mark Rutherford at Trowbridge county court ruled that the FOS’s practice of charging firms for the cost of dealing with rejected complaints was “unfair in principle and in practice”.

The ruling attracted a massive amount of attention by the IFA media, much of which was presented as some sort of David and Goliath battle, casting Heather Moor & Edgecomb in the pluckier of the two roles.

The usual suspects were quick to point out the implications of this epic victory. Alan Lakey of Highclere Financial Services opined: “I am sure that all advisers and rational bystanders will applaud Brian and Dolly Pickering [the IFA couple who went to court] for standing up to the FOS.”

The FOS was under fire to the extent that even the way it had managed its own legal case came in for ridicule, for example, over allegedly wasting a May 2007 court date after it failed to disclose documents in sufficient time.

Compliance consultant Adam Samuel noted: “I doubt the FOS will be able to secure an emergency hearing in the Court of Appeal.”

As for our legal hero, Fatchett felt emboldened enough by his victory to recommend “IFA firms who are being asked to pay the case fee to refuse and ask for the matter to be referred to court”.

The argument was over the way in which scores of IFAs were being hit disproportionately hard by fees levied by the FOS.

I pointed out at the time that the FOS already operates a system whereby the first two complaints against an IFA that are rejected are “free”. This means that 95 per cent of IFAs who face a complaint against them which is then turned down pay no fee at all.

This has now changed to three complaints a year. Based on current complaint statistics, Heather Moor & Edgecomb was among the 0.5 per cent of cases where more than three complaints have been made unsuccessfully against a firm.

Meanwhile, some of us were left wondering at the way a district judge could reach a decision, at least in part, because he found it significant that “there is a body of opinion in the industry aggrieved at the fee, including the IFAs’ representative body Aifa”.

In other words, the judge appeared to be saying that if Aifa does not particularly like an aspect of financial services and market regulation, the court should find in its favour – an interesting new take on how our legal system works.

To anyone with half a brain who looked at the original court ruling, this was clearly an aberrant judgment likely to be overturned rather quickly – always assuming that Samuel was wrong about the FOS’s inability to take the case speedily to the Court of Appeal.

Which, as it turned out, he was. The case was heard at the end of April and the Court of Appeal ruling published on June 11.

For some reason, it has failed to receive the same amount of publicity or create similar excitement.

Allow me, therefore, to enlighten you. Basically, in each of the key questions related to the case, the Court of Appeal found in favour of the FOS.

Incidentally, the fact that Aifa does not like the current FOS fee system was found to be irrelevant.

The IFA firm will now have to pay the £1,440 it owed the FOS and, presumably, a massive legal bill costing many times that amount for pursuing the case this far.

Hopefully, the Pickerings will have enough money left over after paying their FOS fees to meet Fatchett’s legal bill.

Nic Cicutti can be contacted at nic@inspiredmoney.co.uk

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