'Stranded on an island without a canoe'

Common sense may yet prevail at the Court of Appeal in the Clark v In Focus case about whether a complainant can take the maximum award from FOS and sue for the balance of their losses in Court.

Section 228(5) of FSMA says: "If the complainant notifies the ombudsman that he accepts the determination, it is binding on the respondent and the complainant and final. "Notwithstanding, the case so far has been argued by reference to the technicalities of the 'doctrine of merger', with the risk that the jurisprudential debate misses the simple point about the apparently clear terms of the statute underpinning the statutory scheme.

It is reported today that, commenting on submissions in favour of consumers being able to carry on armed with a fighting fund from FOS, Lord Justice Nigel Davis said yesterday: ‘The merits are not in your favour…that leaves the words 'final and binding' stranded on an island without a canoe.’

Firms used to being on the receiving end of FOS decisions will be familiar with creek and paddle metaphors.  Hopefully they can take some comfort in the one about the island and canoe.