Alexandra Marks CBE, chief adjudicator at the Business Banking Resolution Service (BBRS), shares how it works, how and when to use them, and what drew her to work at the service.
Tell us a bit about the Business Banking Resolution Service (BBRS) and what drew you to the service.
The BBRS is a new, free and independent alternative dispute resolution (ADR) service set up to resolve disputes between eligible small and medium-sized enterprises (SMEs) and participating banks, supporting widespread access to justice. It has been established to deliver an accessible and transparent service, giving eligible businesses the opportunity to have their complaint heard and independently reviewed.
For context, we have been established in response to the commitments made by the banking and finance industry following the Simon Walker Review in 2018. This review identified the need for an independent service to resolve eligible historical and contemporary complaints for SMEs that have not previously had access to independent review.
We are confident that our service will make a real difference to businesses with unresolved banking complaints. We have been designed by the participating banks, in partnership with SMEs and UK Finance, to ensure our service meets small business’s needs: we are focused on achieving right and fair outcomes in every case.
Throughout my career I have been interested in the ‘David vs Goliath dynamic’. It was that, coupled with my passion for social justice, that drew me to the BBRS. I’m also an accredited mediator and believe that there are great benefits to the ADR techniques used by the BBRS. I very much hope that we can showcase these benefits over time and encourage the wider use of ADR to resolve this kind of dispute.
Who is eligible for the BBRS?
The BBRS has two schemes, one for contemporary cases and one for historical cases, with slightly different eligibility criteria. Broadly speaking, we are able to assist UK registered businesses, trusts, charities, friendly societies and co-operative societies which have an unresolved complaint against one of our participating banks. A customer must first have complained to their bank and given them the opportunity to resolve the issue prior to registering for the BBRS.
Our contemporary scheme covers cases for the period from 1 April 2019 onwards: it is for businesses with a turnover less than £10m per annum and a balance sheet of less than £7.5m. The complaint must not be, or have been, eligible for the Financial Ombudsman Service.
As we have been carefully designed to dovetail with the Financial Ombudsman Service, there are two slightly different criteria that apply in the historical scheme, depending on when the act or omission on the part of the bank occurred:
- For the period from 1 December 2001 to 31 October 2009: businesses with a turnover of at least £1m but less than £6.5m per annum and a balance sheet of less than £5m may be eligible
- For the period from 1 November 2009 to 31 March 2019: businesses with a turnover of more than €2m but less than £6.5 per annum, and a balance sheet of more than €2 million but less than £5m may be eligible.
As the Financial Ombudsman Service takes employee numbers into account, SMEs who made complaints on or after 1 November 2009 with a turnover and annual balance sheet each of less than €2 million may also be eligible for the BBRS if they employed 10 or more persons.
The BBRS is unique in several ways, but perhaps most interesting is its concessionary case process. This process means that we may, in some circumstances, be able to look at complaints that are ineligible. Broadly speaking, this would apply to cases that fall outside of our eligibility criteria but we consider that we should be able to look at the case and ask for the relevant bank’s consent to do so, or to cases that have already been through independent review schemes but have new evidence which was not previously considered.
Our eligibility criteria are far from straightforward, and we would advise anyone with clients who could be eligible to register them for the service.
How does the service work in practice?
The service has been designed to be easy to access, empathetic and flexible in its approach – each business using the BBRS will be assigned a ‘customer champion’, who will act as a guide to the service and how to use it.
We use a variety of ADR techniques to settle unresolved complaints, including mediation and conciliation as well as full adjudication if necessary. We make decisions based on what is fair and reasonable in the circumstances and seek to inspire confidence through the consistency of our approach. In assessing this, the BBRS will consider all available evidence, taking into account relevant law and regulations; regulators’ rules, guidance and standards; codes of practice; and (where appropriate) what the BBRS considers having been good industry practice at the relevant time.
Our jurisdiction is therefore broader than the courts; this is key, as many of the issues we have seen aren’t complaints about the banks doing something unlawful, but have been about banks treating customers poorly from the perspective of what would have been fair and reasonable.
There are a number of benefits of using ADR. Crucially, ADR focuses on reaching an agreement which both parties are comfortable with – making the BBRS not only a mechanism for dispute resolution, but also for rebuilding trust between banks and businesses. Evidence shows that mediation often offers more satisfactory outcome because the parties are involved in shaping it and can be creative about the solution to their dispute.
What does this new service mean for solicitors? Do you have any practical advice you can share for solicitors supporting clients with claims in this area?
The BBRS offers an alternative to litigation, removing the cost and stress of going to court. My judicial experience has shown me that the fabled ‘day in court’ is often a disappointment for parties hoping to tell their story. We offer a much richer opportunity for individuals to give their account in their own words, which we believe can offer a better route to closure.
Solicitors are valuable intermediaries for us, and we have already seen a number of customers with representation. In terms of practical advice, our scheme rules make clear that we are not looking for pleadings, so lawyers need not provide these for their clients.
How will the service support economic recovery and growth?
We believe that the BBRS has a key role to play in supporting economic growth in the wake of the pandemic: our service will give SMEs added confidence to take out loans and other business banking products knowing that, if something goes wrong, they have a route to independent resolution. This will improve the overall climate for investment, which is much needed for economic recovery.
What does the future look like for the BBRS?
We launched in February 2021 and have been pleased with the response so far. We have engaged the Centre for Effective Dispute Resolution (CEDR) to provide flexible case-handling capacity to support the delivery of the service alongside the BBRS’ own in-house team. At the time of launch, we already had around 500 registered cases.
The focus of the BBRS for the foreseeable future will be on delivering fair and reasonable determinations of these cases. One of the main challenges we face is getting the word out to SMEs, particularly those eligible for our historical scheme, which has a deadline of 14 February 2023 for registrations. We believe there are thousands of such cases out there and encourage any SME businesses with unresolved complaints against their banks to register for our free service. This may include civil litigation firms as partnerships of all kinds as well as companies are eligible for our service, providing they meet our criteria.
Although it’s clear the banks have learnt many lessons from the financial crisis in 2008-09, I suspect we will see a rise in cases for our contemporary scheme over the next few years as the full impact of covid-19 on our economy, and particularly SMEs, emerges.
Now that we have launched our full service, we hope that other banks will be inspired to join the BBRS, enabling us to extend the offer of this crucial service to more SMEs and banks across the UK.