Green, R (on the application of) v Financial Ombudsman Service Ltd & Ors

Judicial review is concerned with the legality of an ombudsman’s decision, not with rearguing the merits. Expert evidence cannot be used to invite the court to substitute its assessment of the underlying dispute for that of the ombudsman. A challenge will not proceed where it discloses no arguable public law error, such as perversity, error of law or unlawful appointment. The court may refuse an adjournment where the claimant’s circumstances are balanced against the interested parties’ entitlement to prompt justice and the claim has no realistic prospect of obtaining permission.

The claimant, a financial consultant, sought permission to challenge two decisions made by an ombudsman within the Financial Ombudsman Service. The decisions upheld complaints by Mr and Mrs Gunner concerning pension investment advice and required the claimant to pay approximately £115,000.

Permission had previously been refused on the papers. The claimant renewed the application and sought a further adjournment because of cognitive and speech impairments following a stroke. The issues were whether an arguable public law challenge arose from the ombudsman’s assessment of the evidence or appointment, and whether the renewal should be adjourned.

1. The application for a further adjournment was refused. The court took account of the claimant’s medical condition, but also considered that the proceedings had been managed by his son, that there was no evidence showing when the claimant might improve, and that the interested parties were awaiting payment under a binding award dating from March 2008. They were entitled to reasonably prompt justice.
2. The proposed challenge based on expert evidence was not arguable. Judicial review could not be used to reargue the merits of the financial advice dispute or to persuade the court that the ombudsman had reached the wrong factual conclusion. Expert evidence was inadmissible for that purpose, for the reasons identified in R (Lynch) v GMC [2004] 1 All ER 1159. Even if admitted, the evidence could not establish perversity or another public law error.
3. The challenge to the appointment and conduct of the ombudsman was also unarguable. The ombudsman had been appointed under the applicable statutory provisions, and no error of law by the defendant or the ombudsman was shown.
4. The renewed application disclosed no arguable ground on which the claim could proceed. Permission was refused and the claim was dismissed. The defendant was awarded the costs of its acknowledgment of service and summary grounds, summarily assessed at £1,751.

Permission to apply for judicial review was refused on the papers by David Elvin QC, sitting as a Deputy High Court Judge, on 15 September 2008. The claimant renewed the application before the Administrative Court, which refused the adjournment and dismissed the application for permission.