Heather Moor and Edgecomb Ltd, R (on the application of) v The Financial Ombudsman Service Ltd & Anor

On judicial review of a decision not to hold an oral hearing, the court considers whether the procedure was unfair or the decision unreasonable. It does not reconsider the substantive outcome of the underlying complaint. A renewed application for permission will fail where the proposed grounds disclose no arguable procedural error. An assertion that the relationship between the Financial Ombudsman Service and the Financial Services Authority prevents an independent and impartial tribunal under Article 6 must disclose an arguable basis; a bare allegation of institutional closeness is insufficient.

HME, an independent financial adviser, sought judicial review of two matters arising from Financial Ombudsman proceedings about its pension-transfer advice to a former airline pilot. The Ombudsman had declined to grant an oral hearing and subsequently made a formal decision.

HME also alleged that the Financial Ombudsman Service lacked the independence and impartiality required by Article 6 of the European Convention on Human Rights, because of its relationship with the Financial Services Authority.

HHJ Davis QC, sitting as a Deputy High Court judge, refused permission for judicial review. Following a paper refusal by Stanley Burnton LJ, HME made this renewed application for permission to appeal.

1. Applications refused. Lord Justice Aikens held that HHJ Davis QC had applied the correct permission test. Although the judge expressed himself by reference to the lack of merit in the applications, his judgment made clear that he considered that neither disclosed an arguable case.
2. The proposed challenge to the refusal of an oral hearing disclosed no arguable ground for judicial review. The relevant question was whether the Ombudsman’s decision was procedurally unfair or unreasonable. Judicial review in the Administrative Court or this court could not be used to investigate the underlying facts afresh, or to reconsider the substantive result of the Ombudsman complaint. The Ombudsman had considered the request, and there was no basis for saying that the refusal of an oral hearing subverted Parliament’s intention.
3. The proposed challenge based on Article 6 of the European Convention on Human Rights was also unarguable. The judge below had understood HME’s written submissions. There was no substance in the allegation that the relationship between the Financial Services Authority and the Financial Ombudsman Service was so close that the latter could not be independent and impartial.

Accordingly, permission to appeal was refused in respect of both proposed judicial-review challenges.

• Court of Appeal (Civil Division): renewed application for permission to appeal refused: [2010] EWCA Civ 401.
• Administrative Court: HHJ Davis QC, sitting as a Deputy High Court judge, refused the two applications for permission for judicial review.
• Court of Appeal: Stanley Burnton LJ had previously refused permission on paper.