Ropaigealach v Financial Ombudsman Service Ltd

An application for permission to appeal should be dismissed where the proposed challenge to an ombudsman’s decision has no real prospect of success. A complaint about a long-term financial product may be time barred where the relevant risk was known when the product was taken out and no exceptional circumstances exist. The ombudsman then lacks jurisdiction. Procedural fairness does not generally require an oral hearing where the procedure is explained, further representations are permitted and an alternative means of presenting submissions is offered. A request for material made only after the final decision cannot ordinarily establish procedural unfairness.

The applicants sought permission to appeal from Sullivan J’s refusal, on 27 April 2004, of permission to bring judicial review proceedings against the Financial Ombudsman Service. Their complaint concerned the sale of a 20-year endowment policy extending into retirement. The ombudsman treated the complaint as time barred and found no exceptional circumstances, while also rejecting alleged procedural unfairness concerning the time-bar issue, the refusal of an oral hearing and the production of internal guidance. The central question was whether any proposed appeal had a real prospect of success.

1. Disposition. Lord Justice Rix dismissed the application because none of the proposed grounds had a real prospect of success.
2. Time bar and jurisdiction. The applicants’ central complaint concerned the risk that the endowment policy would extend into their retirement. That risk was known when the package was taken out. The ombudsman was entitled to conclude that the complaint was time barred, at latest six years later, and that there were no exceptional circumstances. The effect was that the ombudsman lacked jurisdiction. The judge below was right to find no error of law.
3. Time-bar issue. It was not unfair for the Financial Ombudsman Service to ask the firm whether it wished to rely on a time-bar point. The applicable rules meant that the Service had no jurisdiction to accept a time-barred complaint, making clarification of the issue appropriate.
4. Oral hearing. Refusal of an oral hearing was not unfair. The ombudsman explained the decision, allowed further representations and offered the applicants the opportunity to submit a recording of their submissions.
5. Internal guidance. The complaint that the firm should have produced internal guidance could not succeed. The request was made after the final decision had been issued and was therefore too late.

• High Court, Administrative Court: Sullivan J refused permission on 27 April 2004 to bring judicial review proceedings against the Financial Ombudsman Service.
• Court of Appeal (Civil Division): Lord Justice Rix dismissed the application for permission to appeal.