Determination of the application by the Panel
1. Subject to any directions or other orders made by the Panel, the Panel shall determine the application and decide the entitlement of the applicant to compensation under the scheme and for that purpose determine, where necessary, in accordance with [3. below], the net liability of the underwriting agent in respect of which the applicant is entitled to compensation (the ‘‘net liability’’).
2. A decision of the Panel that an applicant should be paid compensation is subject always to a decision of Council, made by special resolution, that the payment is in the interests of the Society.
Net liability
3. In determining the net liability the Panel shall take into account –
(a) either –
(i) the principal sum and interest awarded in the judgment; or
(ii) where a request for application without judgment is made and the Panel is satisfied that exceptional circumstances exist that cause it to agree that it is appropriate for an application to be made without a judgment as required by 2. Members’ Compensation Scheme: Eligibility for compensation, the principal sum and any interest that the Panel is satisfied that a court or tribunal would have awarded if a judgment had been obtained;
(b) the applicant’s rights in respect of the underwriting agent’s liabilities to him;
(c) any compromise of those liabilities;
(d) any security available to the applicant in respect of those liabilities;
(e) any right of set-off available to the applicant or the underwriting agent in relation to those liabilities;
(f) the applicant’s ability, if any, to recover in respect of the same loss or the same moneys or other property from any third party; and
(g) any other means whereby the applicant has, or has had, or might have, an opportunity of recovering in respect of the loss or the moneys or other property including any means of so recovering from the underwriting agent.
Amount of compensation payment
4. Subject to [5. and 6.] below, where the Panel decides that the applicant is entitled to compensation under the scheme the net liability of the underwriting agent in respect of which the applicant is entitled to compensation shall not exceed £75,000.
5. Notwithstanding [4.] above, where an applicant has successfully obtained a judgment in accordance with 2. in Members’ Compensation Scheme: Eligibility for compensation the Panel shall permit that applicant to claim under the scheme any legal costs awarded by the Court or tribunal in favour of the applicant but which are unrecovered (“unrecovered legal costs”).
6. The net liability of the underwriting agent in respect of which the applicant is entitled to compensation, plus the unrecovered legal costs which may be awarded by the Panel pursuant to [5.] above, together constitute the “compensation payment”. The applicant may not recover any sums under the scheme, including by way of costs or interest, other than the compensation payment.
Annual aggregate limit
7. The amount paid by way of compensation payments shall not exceed £50,000,000 in aggregate in relation to all applications for compensation under the scheme determined in a calendar year.
8. Where , but for [7.] above, the compensation payments to which members would be entitled in respect of applications determined in a calendar year exceed £50,000,000 in aggregate the compensation payment payable to each such member shall be of an amount decided by the Panel to be fair and appropriate.
Payment of compensation
9. Where the Panel decides that the applicant is entitled to compensation under the scheme the compensation payment shall be paid by applying moneys or assets from the New Central Fund in accordance with paragraph 8(2)(d) of the New Central Fund Byelaw (No. 23 of 1996).
10. Where the Panel decides that the applicant is entitled to compensation under the scheme the compensation payment shall be paid within 28 days of the Council decision by special resolution, pursuant to [2.] above, that the payment is in the interests of the Society.