Fos previous case law20 Mar 2026 07:04
Why the scheme cannot reverse court decisions
The proposed s.404 FSMA redress scheme (CP25/27, October 2025) is a regulatory mechanism, not a judicial one. It cannot override or reopen final court judgments. UK law protects the finality of court decisions through the doctrines of res judicata and issue estoppel: once a court has decided a claim on its merits, the same parties cannot relitigate it.
The FCA explicitly respects this:
• The scheme excludes any consumer who “had a case decided by the Court, prior to the scheme effective date, that related to the subject matter of the scheme, regardless of the outcome” (CP25/27, para 4.40).
• This applies whether the consumer won or lost in court.
• Consumers who accepted a full-and-final settlement of a prior complaint or claim are also excluded.
What about FOS decisions or firm-rejected complaints?
Different rules apply here:
• If a consumer lost at the FOS but did not accept any redress offer, they can still participate in the scheme (FOS decisions are not legally binding in the same way as court judgments).
• Consumers who complained to their lender/broker and had the complaint rejected (the vast majority — over 99% pre-scheme) are included and will be contacted by the lender.
• Live FOS complaints are handled by the FOS, not the scheme (unless all parties agree otherwise).
So the scheme does provide redress to many consumers who previously “lost” at firm or FOS level — but not to those with prior court judgments.