What is BBRS?

BBRS is an industry funded not-for-profit resolution service, for eligible SMEs, who have a dispute with one of the participating banks including:

- Barclays Bank plc and Barclays Bank UK plc

- Danske Bank

- HSBC UK Bank plc

- Lloyds Banking Group (Lloyds Bank plc, Bank of Scotland plc and Lloyds TSB Bank Plc)

- NatWest Group (including The Royal Bank of Scotland Plc, National Westminster Bank plc, Coutts & Company and Ulster Bank Limited (Northern Ireland))

- Santander UK plc

- Virgin Money (including Clydesdale Bank plc and Yorkshire Bank)

 

We take a tailor-made approach to dispute resolution. This might involve conciliation or mediation, adjudication or the parties even settling between themselves.   

 

Dissolved businesses

In certain circumstances, we are able to consider acts or omissions that the bank is alleged to have committed in relation to a business that is now dissolved (whether or not that dissolved business is capable of being restored). There are, of course, complexities here to ensure compliance with the law. We also have to ensure that any outcome is possible on a practical level.

BBRS Scheme Rules enable us to consider eligible complaints made on behalf of dissolved entities under the ‘historical’ scheme (not the ‘contemporary’ scheme). This means that we can find ourselves considering complaints about an act or omission said to have been made between 1 December 2001 and 31 March 2019 by one of our participating banks, in relation to a customer who’s business is now dissolved.

Dissolved Complainant Waivers

Before we can consider a complaint of this type, the Scheme Rules require BBRS to obtain a ‘Dissolved Complainant Waiver’ from a range of individuals associated with the complainant at relevant points in time (directors, shareholders, partners, members, trustees or members of management relevant for the type of Business Organisation). The Scheme Rules also require that we obtain a ‘Dissolved Complainant Waiver’ from any Insolvency Practitioner in office at the time when the Complainant was dissolved.

The key purposes of Scheme Rules requiring us to seek a ‘Dissolved Complainant Waiver’ are to protect the risk to the bank (i) in terms of potential breaches of confidentiality (including data protection rights) and (ii) in relation to any financial awards that may be required to be paid by the bank.

In respect of confidentiality, the bank may need to provide information to BBRS that contains the Insolvency Practitioner’s personal data. The Dissolved Complainant Waiver also seeks, for example, to protect the Bank (and anyone else) from any liability for defamation, in the context of BBRS reviewing the complaint.  

Regarding potential financial awards, there are potential theoretical routes by which former Insolvency Practitioners could take action in respect of dissolved entities. It is important to consider these  routes carefully. Especially so,  when the entities could pose legal risks to banks. (Banks may have paid monies in good faith in one direction which could be challenged by others with interests.)

1.        In relation to potentially restorable entities (broadly speaking those who have been dissolved for less than 6 years):

 

- A former Insolvency Practitioner might have standing (as a liquidator) to apply to the court to restore the entity (s.1029(2)(j) Companies Act 2006). The effect of restoration is that the entity is deemed to have continued in existence as if it had not been dissolved (e.g. s.1032(1) Companies Act 2006). Through this, the Insolvency Practitioner could (albeit under no duty to) continue exercising powers to gather in and distribute monies belonging to that company.

 

- When Insolvency Practitioners’ duties towards the dissolved company come to an end, their powers are not necessarily extinguished. On restoring a company, the court has a wide power (under s.1032(3) Companies Act 2006) to make such provision as necessary for placing the company and all other persons in the same position (as nearly as may be) as if the company had not been dissolved. The potential then arises for powers to be restored to the former Insolvency Practitioner, if necessary.

 

- Any property that would otherwise legally vest in the dissolved business passes to the Crown (as bona vacantia) (s.1012 Companies Act 2006). Where the Insolvency Practitioner acted (in relation to the dissolved business) as liquidator, administrator or company voluntary arrangement supervisor, they may make an application for a discretionary grant from bona vacantia.

 

2.       In relation to entities not capable of being restored:

 

- There is also a discretionary route. This is when an application can be made to take possession of monies that are now bona vacantia. In that case, the monies would have belonged to an entity in which the individual applying had some sort of interest. As with entities that could be restored, it is possible for an Insolvency Practitioner to make an application for funds in bona vacantia to be released for entities that cannot be restored. (Here, the Insolvency Practitioner will be acting as the liquidator, administrator or company voluntary arrangement supervisor.)

 

- If a Bank paid money, in relation to a dissolved business, to a party other than the Crown as bona vacantia, as a result of a BBRS adjudication, a former Insolvency Practitioner might take action based upon loss of a chance to benefit from a payment under the bona vacantia scheme.

 

Conclusion

In this context, it is possible that you will hear from BBRS – or from a party seeking to bring a complaint to BBRS. You may be asked to consider signing a Dissolved Complainant Waiver for this purpose. If that happens and you have any questions or concerns, please do not hesitate to contact us on 03456468825 or at [email protected]

 

If we are unable to secure a signed Dissolved Complainant Waiver from you, where our Scheme Rules require us to have one, then we are unlikely to be able to resolve the dispute in question.

 

 

Our focus is on resolving as many eligible SME/bank disputes fairly and reasonably.