Ropaigealach, R (on the application of) v Financial Ombudsman Service

Financial Ombudsman Service complaint time limits are rules of the scheme, not the common-law rules governing accrual and limitation of civil causes of action. The scheme uses the event giving rise to the complaint to identify when time begins. A complaint about the sale of a long-term policy therefore ordinarily runs from the sale, even if the anticipated loss has not yet occurred. Judicial review permission may properly be refused where the Ombudsman has sufficient written material, since there is no general right to an oral hearing, and where a request for internal material is irrelevant or amounts to a fishing exercise.

The applicants complained to Marine and General Life Assurance Society about the sale in 1989 of a 20-year mortgage endowment policy extending into their retirement years. The Financial Ombudsman Service treated the complaint as out of time under its rules and declined jurisdiction. After the Ombudsman’s final decision of 15 September 2003, the applicants unsuccessfully sought judicial review. Sullivan J refused permission and ordered the applicant to pay £2,301 costs; earlier refusals of permission to appeal were later reopened because the applicants had not been notified of an oral renewal hearing before Rix LJ.

By the hearing in the Court of Appeal, Mrs Ropaigealach had died and Mr Ropaigealach no longer relied on any actual loss. The remaining issue was whether time had ever begun to run under the Ombudsman’s rules, so that the Ombudsman retained jurisdiction and the costs order could be challenged.

Application for permission to appeal refused.

1. The applicants’ original complaints disclosed no arguable basis for judicial review. It was sensible for the Financial Ombudsman Service to clarify with the business whether it relied on the time bar, because the point could determine whether the complaint could be considered on its merits.
2. There was no entitlement as of right to an oral hearing. Where the decision-maker had ample documentary material, refusal of an oral hearing was not unlawful. The refusal to obtain an internal memorandum was also unobjectionable where the material was irrelevant to limitation and its production would have been a fishing exercise.
3. The Ombudsman’s rules required a complaint to be made within six years of the event complained of, or within three years after the complainant knew or ought to have known of the grounds for complaint. They did not incorporate the common-law rules governing the running of time or the accrual of a civil cause of action.
4. The reference to a possible negligence claim served only to identify the starting point. The relevant event was the event giving rise to the complaint: the sale of the 20-year endowment policy. The fact that the contingent financial burden feared by the applicants did not later materialise did not prevent the complaint from being time-barred.
5. The Ombudsman found no exceptional circumstances justifying disapplication of the time bar and correctly concluded that she had no jurisdiction. Sullivan J’s refusal of permission and order for costs could not be faulted.

The application was refused in the formal order.

• Court of Appeal (Civil Division): permission to appeal refused.
• High Court, Queen’s Bench Division, Administrative Court: Sullivan J refused permission to apply for judicial review and ordered the applicant to pay £2,301 costs.
• Earlier permission stages: permission was refused on paper and at an oral renewal before Rix LJ; the matter was reopened because the applicants had not been notified of the oral hearing.