SHOP DIRECT FINANCE COMPANY LIMITED v THE OFFICIAL RECEIVER

For limitation purposes under DISP 2.8.2R(2)(b), the relevant “complainant” is the person who refers the complaint with the requisite capacity and holds the statutory right or rights relating to the complaint and any resulting redress. Where a consumer becomes bankrupt, the right to bring a complaint and seek redress under the Financial Ombudsman scheme constitutes property which vests in the trustee in bankruptcy. The trustee’s actual or constructive awareness therefore determines when the limitation period begins. The bankrupt consumer’s awareness ceases to matter after divestment. A court will not ordinarily grant wholesale declarations about actual or constructive awareness under CPR Part 8 where determination requires fact-sensitive inquiry, disclosure and inference.

The claimant sought declarations concerning the limitation regime governing payment protection insurance complaints made to the Financial Ombudsman Service. The Official Receiver had notified bulk complaints on behalf of consumers who had subsequently become bankrupt, whose estates had vested in the Official Receiver by operation of law.

The principal issue was whether “the complainant” in DISP 2.8.2R(2)(b) meant the bankrupt consumer, as the eligible complainant, or the Official Receiver, who had capacity to bring the complaints and held the relevant estate. The claimant also sought declarations concerning the timing of the Official Receiver’s actual or constructive awareness.

1. Primary declaration. The court declared that the “complainant” whose actual or constructive awareness is relevant under DISP 2.8.2R(2)(b) is the Official Receiver.
2. DISP distinguishes between eligibility and capacity. A complaint may be brought on behalf of an eligible complainant by a person authorised by law. The undefined term “complainant” is used flexibly and contextually, and in the limitation provision denotes the person who refers the complaint with the requisite capacity.
3. On bankruptcy, the statutory right to bring a complaint and obtain redress through the Financial Ombudsman scheme constitutes property within the wide definition in section 436(1) of the Insolvency Act 1986. It is a thing in action and/or an interest arising out of or incidental to the relevant policy. The right, whether composite or analysed as separate rights, vests automatically in the Official Receiver under section 306.
4. The statutory right to complain is not personal to the bankrupt merely because the bankrupt satisfies the eligibility requirements in DISP 2.7.3R and DISP 2.7.6R. Eligibility is a precondition to the existence of the right; it does not prevent the right vesting in the trustee.
5. The construction accords with the statutory purpose and practical operation of the Financial Ombudsman scheme. After vesting, the bankrupt has no remaining interest or cause for complaint for the purposes of DISP 2.8.2R(2)(b). The position may differ in genuine agency cases, but the court made no final determination on that situation.
6. The alternative argument that the Official Receiver was itself an eligible complainant was not decided. It appeared technically unattractive and inconsistent with a coherent scheme.
7. Further declarations about the Official Receiver’s actual or constructive awareness were refused. Those issues required granular factual inquiry, disclosure and inference, and were unsuitable for wholesale determination under CPR Part 8. The primary construction declaration was granted, permission to appeal was granted if sought, and consequential matters including costs were reserved.

First-instance decision. The court granted permission to appeal on the primary construction issue if sought by the Official Receiver.