FSA and the Limitation Act 1980, as amended

I understand the FSA is unlikely to change its policy with regard to the 15-year long stop. Apparently it says it has "not been able to find the case" where the benefits to advisers of a time limit outweigh the disadvantages to consumers.

When legislators produced the Limitation Act 1980 and judges acted upon it, they sought to balance the effect on both parties to any action and came up with a 15-year period which, whilst giving protection to a litigant, also provided for the defendant not to be put into the position of defending 'stale claims' without access to the evidence.

This is what the FSA are deliberating on and they appear to be reaching a difference conclusion to that reached by parliament and the judiciary with regard to limitation. The fact that there is no mention of the 15 year limitation in the FSMA 2000 is no defence because that legislation has not replaced any passed previously that the financial services wishes to use as a legitimate legal defence. How can their opinion override existing legislation which was passed by an elected parliament?

If they are acting as a consumer body then they cannot be allowed to make such judgements as they are by definition putting the interest of one group above that of another and then allowing an arbitrary Ombudsman to conjure up a reason to uphold a complaint which would not succeed in a court of law.

The law and natural justice requires balance and provides for it, outside financial services, and that is what we want from the FSA, if however the FSA are still unwilling to allow a 15 year long stop the they should impose restrictions on the FOS which will find against an adviser who has no file despite the fact that the claimant cannot supply documentary evidence to prove that he/she was misled by some sort of implication that a long term contract might be guaranteed in some way.

For stale claims the FOS should place the burden of proof on the complainant and if no documentary evidence is produced, for example a written promise that a mortgage endowment would repay the loan then the case should be dismissed without any investigation or resulting fee.

When I asked David Kenmir if the FSA could override statute he was very quick to put it in writing that it couldn't and neither could anyone else, or any other body, that means the regulators and the Ombudsman cannot ignore the 15 year long-stop, however, we would be happy to come to an arrangement where the complainant's evidence makes it clear that there should be no time limit because the firm has made a contractual warranty.

Until this is resolved we will continue to have this heated debate about something which is patently unjust and damages the advice sector without any fair and reasonable benefit for consumers.