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ombudsman news

issue 38

July 2004

ask ombudsman news - your questions answered

taped evidence

I have been told that you sometimes accept as evidence tape recordings made by consumers - without a firm's knowledge - of telephone conversations with a firm. Surely, unless the firm explicitly consented both to the making of the recording and to the consumer sending it to you, this is unlawful and a breach of firms' rights to privacy-

Someone commits an offence if they intentionally, and without lawful authority, intercept a phone conversation between two other people. But, generally speaking, it is not unlawful for someone to record a phone conversation in their own home, provided they are one of the participants and the recording is for their own use. The legal difficulties tend to arise when recordings are disclosed to third parties.

It does not happen often, but firms as well as consumers will sometimes ask us to consider tape recordings. Under our rules, we have a wide power to admit evidence, and are entitled to exclude or include some types of evidence that would otherwise be admissible, or inadmissible, in a court of law.

We look at each individual case on its own merits, and would need to consider the fairness of admitting or excluding the recorded evidence supplied by one of the parties to a dispute. In deciding this, we would look at factors such as the relevance of the evidence on tape, how exactly it was obtained, whether it has breached a party's rights of privacy and whether participants were misled into saying something they would not otherwise have said. Similar considerations apply to video-recorded evidence.

In any case where we decided to admit recorded evidence, we would obviously give the other party a fair chance to consider and respond to the evidence before we reached any conclusions.

time-limit changes

I think I saw somewhere that there are new time limits within which complaints have to be brought to the Financial Ombudsman Service. Is that so - and what are these time limits-

On 1 June 2004, the FSA made changes that will affect the time limits within which customers can make mortgage endowment complaints to firms, and refer them to the ombudsman service. The changes apply only to mortgage endowment complaints that are not already time limited under the old rules. Complaints about matters other than mortgage endowments are unaffected by the changes.

In essence, firms will in future have to send the relevant customers written notice of a final date for making a complaint. Further information is available from the FSA website ( In a future edition of ombudsman news, we will give more details about the new rules, and about the transitional arrangements for mortgage endowment complaints that are already "in the system".

Walter Merricks, chief ombudsman

ombudsman news gives general information on the position at the date of publication. It is not a definitive statement of the law, our approach or our procedure.

The illustrative case studies are based broadly on real-life cases, but are not precedents. Individual cases are decided on their own facts.