News

UK Financial Ombudsman Partially Upholds Complaint Against Aviva Pensions

Readers of this website may recall a previous story relating to certain Jersey Pensions run by Aviva and its failure to administer its charges correctly. The UK Financial Ombudsman has recently ruled that Aviva is entitled to take charges going back several years & that it had overlooked to take at the time, & despite the fact that the annual pension statements supplied to customers would therefore have been incorrect. The Financial Ombudsman does, however, find fault in the way that Aviva handled the issue with customers and specifically the way in which it communicated its remedial measures. You can read the adjudication here: http://www.ombudsman-decisions.org.uk/viewPDF.aspx?FileID=131601

Faced with justified consumer complaints about the issue, it is a shame that Aviva was not a little more pragmatic at the outset and did not offer any compromise to affected clients. It has now been found wanting and has done little to inspire client loyalty.

 

Triumph of Open Justice – Live Link to The Supreme Court

Between 5th-8th December, 2016 there has been live coverage of the Supreme Court sitting with its full panel of 11 judges hearing the appeal in respect of whether the UK can exit the EU under prerogative power rather than by an Act of Parliament. In fact, cases routinely can be viewed live by the following link: https://www.supremecourt.uk/live/court-01.html

The ability of the general public to view these proceedings in particular, is a triumph of open Justice and I hope will lessen the inaccurate media coverage that has surrounded this controversial topic.

On my analysis of the various arguments and the mood of the hearing, I am predicting that the Government’s appeal will be defeated! Given the legal & administrative costs involved & that will ultimately come from public funds- running to £millions– it is a shame that such monies could not have been better spent on the NHS say.

What I found comforting is that no matter how high the Court or senior the lawyer, Court bundles are always a nightmare and the slightest pagination variation can cause all sorts of problems. In addition, feeling interrogated by a panel of intelligent judges is an experience that befalls all lawyers inhabiting the higher levels of Court. It was nice to see judges like Lord Sumption or Lord Hodge (who have sat in Jersey in our Court of Appeal) displaying their intellect.

In the face of some poor media coverage, well done to The Supreme Court and those administrative staff that keep the live link working.

“Enemies of the People” v Independence of the Judiciary

The High Court’s decision on the triggering method for leaving the EU has caused a media storm. In fact, at the English bar there has been a debate going on for months as to what has to happen legally because there are respectable arguments either way. Certain newspapers have condemned the three man decision of the High Court with headlines such as “Enemies of the People” with biographical details given of the judges concerned. Several politicians clamour that attacking the independence of the judiciary is wrong and asking the government to stand up for the judges. For the public, listening to interviews on Newsnight, with commentators talking over each other, or some other poorly presented newscasts, it can be difficult to follow the competing arguments. Quite often there is a great deal of “dumbing down” with shades of grey presented as black and white truths.

The judges concerned are unlikely to be pleased with the coverage but they are robust individuals who will not be overly worried by a few headlines. Just as the newspapers will be pleased at having got attention, one cannot help thinking that politicians clamouring for support of the judges are enjoying their media attention too.

The reality is that the judiciary are, on the most part, from a selective background and do not reflect the great diversity of British society. Professor Griffiths wrote about this in his 1970s book called “The Politics of the Judiciary.” Even judges are aware of the potential problem. In an address delivered to the University of Cambridge Law Society on 18th November, 1920 Lord Justice Scrutton accepted: “The habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgements as you would wish.

It was this concern about ensuring the diversity of the judiciary that led to criticism that it was “male, pale, and stale.” The rise of women and ethnic minorities in the judiciary has, for example, come quite late in the day. Even in 2004, Lord Falconer said that “a more diverse judiciary is essential if the public’s confidence in its judges is to be maintained and strengthened.”

In reading the judgement of the High Court, it is very difficult to see where the judges’ private views, personalities or background will have had any effect on the result in this case. Certain of the headlines are really pandering to bigotry and prejudice therefore. But it is right to say that in very exceptional cases that the background of the judge(s) hearing a case can play a part in a finely balanced decision. I recall being a law student and taught by a very good lecturer in this area called Dr Hungerford. She had a big pamphlet of materials entitled “Legal Method & Materials” (that I still have) and one of the topics that we discussed and learnt about was analysing historic cases where the selective background of the judiciary very likely did result in a particular judgement. It is fair to say that the majority of such cases we looked at were in the 19th and early 20th centuries. However, it is naive to believe that the judiciary are never affected by their own upbringing, education and beliefs. It’s just that I can’t see how it played out in this case.

So in the current media debate, it would be helpful to have a little more depth and insight in the arguments deployed and the coverage we are receiving. At the end of the day, the poor public is subject to manipulation from a variety of sources that have their own agenda.

A new book for Christmas? Perhaps not, but….

 

A book for Christmas? Perhaps not, but…

In 2009 I was honoured by being invited to present a paper as part of the Rencontre du Droit Normand held in the Royal Court Chamber, Guernsey. My paper explored the role of the Jurats in the Channel Islands who (many will know) perform such an important part in adjudicating in our Courts.

Judges, academics, lawyers, as well as members of the public attended the Rencontre which took place over two days in November. It was a wonderful event that was very informative, and where we were treated to a warm welcome and a fair amount of pomp and ceremony.

The papers have now been published by the Guernsey Bar in a book entitled Paris 1259 and edited by Advocate Gordon Dawes.  Although the title of the book reflects its core focus, it contains an eclectic mix of papers that are unified in exploring our Anglo-Norman ancestry.

I doubt the book will be a bestseller for Christmas but it has been long awaited, and does represent a lovely curio of elements that give an impression as to why the Channel Islands are rather special, and deservedly so.

How about a Poem or two instead, Sir?

While on a literary theme, but taking more of a risk in exposing one’s personal reflections, here are two very short poems that I hope that you might enjoy. The first attempts to capture a wonderful early summer morning walk on the beach with my daughters. In contrast, the second was written shortly after the death of my father but in the sadness of that event, comfort is found in the thought of renewal.  Don’t get in contact if you don’t like them (!) but it just seemed a shame if they remained hidden on a computer word document.

A New Day

The slow pendulum of the sea
Soothes in the morning.
Weak sunlight glints across the surface,
As small jewels of white and brown are
Squeezed between my toes.

The air is crisp, the nearby village quite still.
Distant birds find comfort in songs
Reflected back between the trees,
As my two little ones, giggle out to me.

How I love this moment.
A new day; endless possibilities.

***

Soft Drops of Rain

Soft drops of rain smooth away the summer dust,

Cleansing and comforting all that they bless.

And I think of you; a life captured now in fragments,

Shared amongst others, in photos and in print.

Your strong presence has yielded to time and an illness.

Your book is unfinished and so much is unsaid.

And I think of my children, your kindness and strength,

Accepting the rain now, but loving you yet more.

 

 

Timothy Hanson

 

 

 

Aviva’s Misleading Jersey Pension Charges

The charging structure to Aviva’s Optimiser/Lifestyler Jersey Pensions has baffled even Aviva who recently discovered that they could have levied more charges to customers than they actually did. This may not be too much of a surprise because even the information supplied to their customers on their charges was far from clear.

Aside from an annual management charge, an administration charge and certain other charges, Aviva discovered that an extra plan management charge could also have been levied on their Optimiser product. However, for several years, going back to at least 2010, the annual plan management charge of 0.375% of these pension funds was not taken by Aviva, although their “mistake” was actually discovered in 2012.

Instead, in a belated billing bonanza, Aviva have simply written to affected customers recently notifying them that their accounts were being debited with the extra charges, basically as some fait accompli.
In any other business, I can’t believe that telling a customer years down the line that an earlier bill was wrong because more might have been charged, and here’s the extra bill, would be tolerated.

Unfortunately, Aviva’s annual pension statements, covering this period of incompetence, will have been relied upon by customers as being accurate. Further, in recouping these late charges, Aviva is in breach of its own contract to take its charges annually. At the very least, you might have expected some reduction in the belated charges just out of recognition for the distress caused to customers by virtue of Aviva’s own internal errors. However this has not happened.

Aviva state that they referred their intention to make these belated charges to the FCA – although they have not made the relevant correspondence available. The matter has now been referred to the UK Financial Ombudsman who, one hopes, will expect high standards of care from pension providers both in the clarity of information provided to consumers and in the application of charges.

A rather sickening experience

This article concerns the need for a small claims court in Jersey with cost shields and that, by not having one, consumers will not have adequate access to the court. To illustrate the point, I need to tell a little story as to what happened when I cooked dinner!

Recently I went to the Co-Op Grand Marché store in Jersey and purchased food for a dinner I was cooking as a treat for my elderly mother who I was visiting that evening. She had been widowed a few years ago, and deserved some TLC.

Ironically (given what eventually happened) my family have all been on a bit of a health drive ensuring we eat lots of fish, fruit and vegetables and avoid saturated fat. This meal was not terribly ambitious: baked potatoes, pre-cooked salmon, chopped crunchy salad, and beetroot. As a dessert I chose a punnet of Jersey produced strawberries to be served plain (wanting to support local produce) although I did chuckle to myself how odd it was that Jersey strawberries were more expensive than the imported strawberries at around £2.20 a box!

I found the Co-Op Grand Marché store to be rather confused as there were building works and renovations going on, and items not in what I recalled to be their normal places.

The meal for that evening was entirely purchased from the Co-Op and was very enjoyable. My elderly mother was very happy that someone had taken the trouble to cook her a healthy meal. We ate no other shop’s food that evening.

Unfortunately, after midnight we both started to feel sick. We tried to sleep it off but by about 2am we both started to be ill over the next few hours. I became really worried for my mother because I was aware that food poisoning could be fatal for the elderly and discussed the possibility of taking my mother down to the hospital, but she insisted on staying put. We eventually got to sleep and felt pretty rotten for the next couple of days.

I phoned the Co-Op Grand Marché on the Sunday because I was worried about other people falling ill. I had to leave a phone message and asked that someone look into whether or not there was an issue about any of the foods, but nobody phoned back.

On Monday afternoon, I therefore wrote by email to the Store’s management and also contacted the Department of Environment to raise my concern who suggested that it sounded like it might be a pesticide on the strawberries that had caused the illnesses. I was assured that the issue would be noted and some inquiries made.

Eventually I received an email response and a phone call from the Co-Op General Manager with an unconvincing apology over the phone and a query whether or not we had seen a doctor. He stated that it seemed to be an isolated case but that the packaging was defective in not advising that the strawberries had to be washed thoroughly but that this would be changed going forwards. (I had in fact given the strawberries a quick rinse.) I was told that the Co-Op took “these matters extremely seriously” and offered a couple of vouchers for £20 each. I have to say that because there was no written apology, and that the food itself -which had all gone down the toilet- had itself cost about £20, that this gesture did not convey an “extremely serious” attitude at all. It wasn’t really the money itself that was important but receiving a genuine apology that we had been made so ill and that an elderly lady had been put at risk. I suggested instead that a donation of £100 to a charity of the Co-Op’s choice should instead be made together with vouchers and a written apology if it really took the matter seriously.

Instead, the Co-Op told me that they did not accept they “had done anything wrong” – where had the limp apology over the phone now gone? – and then placed the matter with its insurers who (when pressed for a response) have stated that they may involve the supplier. The insurers have in fact now instructed local Jersey advocates; the latest email stating that they will defend any claim.

To me, this experience is instructive in a number of respects:

That aggrieved consumers are often more concerned about being taken seriously and for a genuinely intended apology than money compensation;
That clumsy handling of a consumer complaint can escalate the issues wholly unnecessarily;
That it is perverse that businesses or insurers may choose to spend large amounts of money on lawyers than on addressing the consumer’s complaint at the outset which might actually be easily solved;
That without a small claims procedure in Jersey that shields parties from legal costs if you lose, consumer claims are unlikely to be pursued by the average person where the risk is having to face large legal costs if you do lose. The proportion of costs to a small claim itself is disproportionately high and ideally, it would be better for litigants on both sides to be encouraged to act in person in such claims, if a court case just cannot be avoided.
Unfortunately, the current scheme in Jersey is that small claims are dealt with in the Petty Debts Court. If they are defended, there are no protections in the amount of costs that may be awarded, except an assessment or “taxation” process which can still lead to large amounts in costs being awarded. This was, of course, the recent experience of Mr. Darius Pearce in Jersey that some may have heard of in the newspaper.

Similarly, in this particular food poisoning case, were proceedings to be issued in the Petty Debts Court, the insurers of the Co-Op have indicated a desire to join the supplier as a party, and also require experts, so costs could very easily reach £20K if the claim remains contested.

How can this be right when the complaint seems simple enough: “your food made us ill and there is no other reasonable explanation.”

In contrast, in the Jersey Employment & Discrimination Tribunal, you can’t claim costs and there is an advice centre called “JACS” that will help you, not too dissimilar perhaps to the CAB that can provide assistance to someone involved in a court case.

In the Uk, there are (& have been for many years now) various protective cost regimes for small claims, normally provided you do not act unreasonably.

If we take access to justice seriously, I suggest that there should be reforms providing a costs shield in small claims in Jersey, provided you don’t act unreasonably in how you pursue your case.

In the meantime, following this experience, I have unfortunately lapsed back into red meat and saturated fat as some of the foods from that doomed “healthy” meal have unfortunate memories for me.