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

Delay in determining a complaint under the Financial Ombudsman Service procedure must be assessed by reference to the proceedings as a whole and all the circumstances. Relevant matters include complexity, the claimant’s conduct and the manner in which the authority dealt with the case. A party cannot rely on delay substantially caused by procedural objections or requests to suspend the process.

An oral hearing is required only where fairness makes it necessary. A disputed factual issue does not automatically require oral evidence if a hearing is unlikely materially to assist its resolution. A complaint solicited by the Ombudsman Service does not invalidate the resulting decision where the customer genuinely wished to pursue redress.

The claimant, an independent financial adviser, sought judicial review of a final decision by the Financial Ombudsman Service upholding a customer’s complaint about unsuitable pension advice and ordering compensation. He alleged unreasonable delay contrary to common law and Article 6 of the European Convention on Human Rights, failure to hold an oral hearing despite a disputed issue of fact, and overall unfairness arising from those matters and the alleged solicitation of the complaint.

The Ombudsman Service accepted that some stages had taken too long but argued that the claimant’s extensive jurisdictional and procedural objections had caused most of the delay. The central issues were whether the proceedings had exceeded a reasonable time, whether fairness required an oral hearing, and whether the investigation was thereby rendered unlawful.

1. Delay. The principles in Porter v Magill [2001] UKHL 67, [2002] 2 AC 537 required consideration of the complexity of the case, the claimant’s conduct and the manner in which the relevant authority dealt with the proceedings. The merits of the pension complaint were straightforward, but the claimant’s jurisdictional objections, complaints about the Ombudsman Service, repeated requests for suspension, threats of proceedings and extensive correspondence substantially increased the complexity and duration.
2. The Ombudsman Service was responsible for excessive delay while the jurisdiction issue was before the Ombudsman between November 2007 and October 2009. Nevertheless, the proceedings had to be viewed as a whole. The claimant had repeatedly insisted that the merits should not progress and had maintained that delay caused no prejudice. In those circumstances, the overall period did not infringe Article 6. The delay claim was dismissed.
3. Applying R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673, no damages were warranted in any event. No pecuniary loss or lost opportunity had been shown, and any anxiety or frustration arose from the existence of the complaints rather than the time taken to decide them.
4. Oral hearing. The governing principle, explained in R (Heather Moor & Edgecomb Ltd) v Financial Ombudsman Service [2008] EWCA Civ 642 and supported by R (Thompson) v The Law Society [2004] EWCA Civ 167, [2004] 1 WLR 2522, was that an oral hearing is required only where fairness requires it. A disputed issue of fact is insufficient by itself; the question is whether it can fairly be resolved without oral evidence.
5. That threshold was not met. The evidence and inherent probabilities supported the conclusion that advice had been sought. The adviser had no precise recollection, was not proposed as an oral witness and was too unwell to attend. Whether suitable advice required joining the occupational pension scheme was principally an objective evaluative issue. The Ombudsman could fairly decide the matter on the papers.
6. The Strasbourg decision in Heather Moor & Edgecomb Ltd v United Kingdom (2011) 53 EHRR SE 18 was noted as declaring the subsequent claim inadmissible. The alleged solicitation of the complaint did not make the decision unlawful because the customer had genuinely wished to seek redress. Quashing the decision would in any event have been disproportionate. The judicial review claim was dismissed.

First-instance judicial review proceedings in the Administrative Court. The claim challenged the Financial Ombudsman Service’s final decision dated 23 February 2012.