The UK High Court has decided that a party who accepts a FOS determination awarding them the statutory maximum (now £150,000) can thereafter pursue claim for damages above that amount through the courts. The Court concluded the doctrine of merger does not apply to FOS determinations. This ruling is in direct conflict with a previous High Court decision which had held that, once a consumer had accepted a FOS determination, its cause of action merged with that determination and could not be pursued further through the courts.
The firm is seeking permission to appeal this decision and it is therefore possible that it will be overruled by the Court of Appeal on appeal. The decision may encourage potential claimants with claims of over £150,000 to seek to use the FOS process in the first instance as a means of securing an award with which to fund subsequent litigation claiming the balance of their losses. However, assuming the FOS agrees to determine a complaint likely to exceed the statutory maximum award, such claimants would run the risk that if they accept a FOS award and the recent decision is overruled or not followed, they may be barred from claiming the balance of their losses through the courts. To read our fuller briefing on the case, click here.
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