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How might they have twisted this?
New FOS policy on disclosing client documents
July 2013
http://cclswa.org.au/new-fos-policy-on-disclosing-client-documents/
The Financial Ombudsman Service Ltd (FOS) provides free and independent dispute resolution
services between lenders and consumers. Most of the major banks are members of FOS, and must
therefore participate in FOS dispute resolutions and abide by FOS guidelines. If you have an issue with
a major bank, you can lodge it a complaint at www.fos.org.au.
It is important for consumers to know that generally all documents that they provide to FOS will also be
provided to the lender. Likewise, all documents that the lender supplies will be provided to the consumer. The
reason for this is to allow each party to respond to the other’s claims. FOS will not make a determination
unless both sides have had access to each other’s documents. The only exception to this is where special
circumstances apply.
When will special circumstances apply?
FOS has recently released a new document outlining when special circumstances will apply.
Special circumstances may apply when information in a document may:
- harm or embarrass someone
- endanger a third party
- be commercially sensitive, or
- be more appropriately released at a later stage.
Information that is commercially sensitive, such as a bank’s lending policy may not be provided to the borrower.
What should I do if I think that special circumstances apply?
If you think that special circumstances apply to a document, you need to inform FOS by writing to them and
attach the relevant document. You should also outline how the information in the document could be provided
to the opposing party in another format, for example by deleting certain parts of the document.
If a document that advances your case cannot be provided to the other side, FOS will not take that document
into consideration when making their decision.
For more information and case studies you can access the document at: http://www.fos.org.au/custom/files/docs/fos_approach_special_circumstances.pdf
What about legal professional privilege?
Legal professional privilege protects communication between lawyers and their clients. Claiming legal
professional privilege over a document is not a special circumstance. However, if legal professional privilege is
appropriately claimed over a document, then this document will not be provided to the opposing party.
http://www.fos.org.au/custom/files/docs/fos_approach_special_circumstances.pdf