R (on the application of Bankole) v the Financial Ombudsman Service

The claimant sought judicial review of the Financial Ombudsman Service's decision to treat his complaint about Lloyds TSB as out of time under the FOS time‑limit rules. The court held that (i) the determination of whether a complaint was referred to the FOS within the six month period in DISP 2.8 is primarily for the ombudsman under the statutory scheme (Part XVI and Schedule 17 of the Financial Services and Markets Act 2000 and the DISP rules); (ii) the ombudsman’s finding of fact that the bank had issued a "final response" on 25 June 2008 and that the claimant had received it was open to him, supported by evidence and not irrational; (iii) the ombudsman’s procedure was fair and the definition of "final response" in the FSA Handbook applied; and (iv) although an ombudsman may sometimes consider exceptional circumstances to extend time, no such circumstances were shown here. The claimant's application for judicial review was dismissed and a summary costs order was made against him.

This was a first instance judicial review challenge to an ombudsman's decision that a consumer complaint was out of time under the Financial Ombudsman Service rules. The claimant (a litigant in person) had complained to Lloyds TSB about a property valuation and received several items of correspondence from the bank, including a letter of 25 June 2008 identified as a "final response" informing him of a six month opportunity to refer to the FOS. The claimant contacted the FOS on 15 January 2009. The FOS investigated and an ombudsman concluded on 5 November 2009 that the complaint had been made out of time because the claimant had received the bank's final response on 25 June 2008. The claimant applied for judicial review seeking to set aside that decision.

Nature of the application: an application for judicial review challenging the FOS decision that the complaint was out of time and seeking the FOS to reconsider the merits.

Issues framed by the court:

• Whether the question of timeliness under the DISP rules is one for the ombudsman or for the court to decide afresh;
• Whether the ombudsman’s factual finding that the claimant received the bank's final response was irrational or unsupported by evidence;
• Whether the FOS procedure in reaching the decision was fair and whether evidence had been unlawfully excluded;
• Whether the ombudsman should have considered extending time for "exceptional circumstances"; and
• Whether the decision involved a misdirection in law or Wednesbury unreasonableness.

Court’s reasoning and outcome: The court set out the statutory framework (Part XVI, ss.225, 226 etc., Schedule 17 and the DISP rules). It concluded that timeliness is primarily for the ombudsman and therefore review is by judicial review standards. The ombudsman's conclusion that the claimant had received the 25 June 2008 final response was properly open to him, supported by the claimant's contemporaneous chronology and the bank's statements; the decision‑making process afforded the claimant fair opportunity to comment; there was no evidence of unlawful exclusion of material; and no exceptional circumstances were made out that would have required the ombudsman to extend time. The judicial review application was dismissed. The court also made a summary assessment of costs in favour of the FOS (£10,650.75) and refused permission to appeal.

Application for judicial review dismissed. The court held that under the Financial Services and Markets Act 2000 and the DISP rules the question of whether a complaint was referred in time is primarily for the ombudsman and is subject to judicial review only on ordinary public law grounds; the ombudsman's factual finding that the claimant had received the respondent's final response on 25 June 2008 was open to him and not irrational; the procedure was fair; exceptional circumstances were not shown; accordingly the FOS decision was lawful. The court ordered the claimant to pay the defendant's costs on summary assessment (£10,650.75) and refused permission to appeal.

Permission stage before Collins J (transcript referred to in the bundle); no appeal or further appellate history recorded in the judgment.