Regulation 100 Functions of the Complaints Commissioner
Subject to the following provisions of this regulation, the Complaints Commissioner shall investigate any complaint made to him in writing by or on behalf of, or the successor in title to, any investor claiming to have suffered in that capacity loss to which paragraph (2) applies in consequence of a failure on the part of any person to perform his functions under these Regulations (other than any functions within regulation 116(2)).
This paragraph applies to loss which in the opinion of the Complaints Commissioner would on the balance of probabilities be the subject of a successful claim before a civil court, being loss which consists of lost units, new units or lost benefits, or which flows from such loss.
A complaint under paragraph (1) need not identify the person alleged to have caused the loss but must contain sufficient particulars for the Complaints Commissioner to form a view as to whether there is sufficient likelihood that any loss was in consequence of such a failure as is mentioned in paragraph (1) to warrant investigation under this Part.
Before considering a complaint, the Complaints Commissioner may in his discretion require that the person making the complaint refer it to the person who is the subject of it, and that the latter have a specified period in which to respond to the complainant.
The Complaints Commissioner may suspend or terminate his investigation without making a report if litigation is commenced, or is in prospect, whether in the United Kingdom or elsewhere, which, in his opinion, relates to the same or substantially the same matters as he is investigating, and if he does so he shall inform the Secretary of State, the Operator, the complainant and any person against whom allegations have been made, giving his reasons.
The Complaints Commissioner may decline to carry out an investigation or may limit or terminate an investigation he is carrying out, if it appears to him that the complaint, wholly or in part:
raises issues of fact or law which should more properly be dealt with by a court;
imputes criminal conduct which he considers it would be inappropriate for him to investigate; or
is not appropriate for him to investigate bearing in mind the amount of the apparent loss and the resources of the complainant.
If he does so decline, limit or terminate an investigation the Complaints Commissioner shall inform the Secretary of State, the Operator, the complainant, and any other person against whom allegations have been made, giving his reasons. The Complaints Commissioner may exercise his discretion under this paragraph in relation to part only of a complaint.
The Complaints Commissioner may co-ordinate the conduct of his investigation with that of any other relevant regulatory enquiry.
Subject only to regulation 113(1), it shall be the duty of the Operator, any participant within the meaning of regulation 97(4), and any company whose securities are involved (including the agents of such persons and any person acting as an insolvency practitioner in relation to any of them) to co-operate with the Complaints Commissioner and to provide him with such information, access to records and other assistance as he may reasonably require.
The Complaints Commissioner shall afford any person against whom allegations are made in the complaint, and any other person whom he is disposed to conclude may have been at fault, an opportunity to comment on the allegations or, as the case may be, the conclusion he is disposed to reach.
The Complaints Commissioner shall carry out his investigation as expeditiously as possible and on completion of his investigation shall make a report which he shall send to the complainant, any person whose conduct is referred to adversely in the report, any person against whom any allegations have been made, the Operator and the Secretary of State.
The report produced under paragraph (10) shall state whether, in the opinion of the Complaints Commissioner, the complainant (or any person on whose behalf the complaint was made) has suffered loss within paragraphs (1) and (2) in consequence of such a failure as is mentioned in paragraph (1), and, if so, to such extent as he is able to do so, state what in his opinion was the nature and amount of the loss and the identity of any person whose act or omission caused or contributed to the loss and may also, having regard to any election made under regulation 104, include a recommendation as to what in his view would be the appropriate remedy (if any).
In forming an opinion on the identity of persons responsible for loss, in accordance with paragraph (11), the Complaints Commissioner may regard as relevant any failure to co-operate in accordance with paragraph (8).
If the Complaints Commissioner is unavailable, and at other times with the approval of the Secretary of State, the function of making a report may be performed by an Assistant Commissioner, and any other function may be performed by an Assistant Commissioner, or with the authority of the Complaints Commissioner or an Assistant Commissioner by any member of the Complaints Commissioner’s staff.