A recent case issues a timely reminder that when there are alternative courses of action available in pursuing a claim for damages, you cannot hedge your bets by taking both.

This is particularly relevant at present in relation to claims for the misselling of endowment policies, which may involve the investment of quite large sums. In such cases, the claimant has the choice of proceeding in court or using the Financial Ombudsman Service (FOS)..

One of the advantages of using the FOS for obtaining recompense for negligent financial advice is that it is a relatively simple and inexpensive procedure compared with formal litigation. However, the FOS currently allows a maximum payment of £100,000 to be paid to a claimant in respect of any one claim, although it can recommend that a higher payment is made. Where the estimated loss is larger, there may be a temptation to try to use the FOS for the first £100,000 of the claim and the courts for any excess. This strategy is unlikely to work and indeed, the FOS has confirmed that its awards are final and binding on both parties to the dispute.

An employment dispute illustrated the principle that the same matter cannot be litigated twice. A man commenced proceedings for unfair dismissal and wrongful dismissal in the Employment Tribunal, which is not allowed to award more than £25,000 in cases of wrongful dismissal, however great the loss suffered. He had tried to reserve the right to pursue any additional sum in the High Court. The Tribunal examined both claims and found that he had been unfairly and wrongfully dismissed. Damages for breach of contract were assessed at over £80,000 and consequently the maximum amount of £25,000 was awarded. When he sought to claim the balance in the High Court, his claim was struck out.