Bluefin Insurance Services Ltd, R (On the Application Of) v Financial Ombudsman Service Ltd

At the permission stage of judicial review, the court should decide only whether the proposed challenge is sufficiently arguable. Where the issues involve the construction of statutory and regulatory material, the proper intensity of review, and the relevant time for assessing jurisdiction, the court may grant permission without resolving the substantive questions. A significant issue which is not suitable for determination in a permissions list should be left for a substantive hearing, particularly where fuller argument and authority would assist.

Bluefin Insurance Services Ltd, an insurance broker, renewed its application for permission to challenge the Financial Ombudsman Service’s decision to accept jurisdiction over a complaint by Mr Lockner. The complaint concerned an alleged failure to notify a claim under a directors and officers liability policy relating to Mr Lockner’s former company.

Permission had been refused on the papers by Lang J. The renewed application raised whether jurisdiction was a question of law or subject only to Wednesbury review, when Mr Lockner’s status as a consumer fell to be assessed, and whether a directors and officers policy could constitute a consumer transaction.

1. Permission granted. The renewed application was sufficiently arguable to justify permission.
2. The court identified three substantive issues requiring determination: the legal standard applicable when reviewing the ombudsman’s jurisdiction; the time at which consumer status should be assessed; and whether a directors and officers policy could be treated as a consumer transaction.
3. The first issue required consideration of statutory and regulatory material, including the FCA Handbook. The parties had advanced detailed arguments and authorities beyond those available to Lang J on the papers.
4. The court declined to determine the substantive issues at the permission hearing. Although the issues were relatively confined, they required fuller consideration than was appropriate in a permissions list. The court considered it wrong and unhelpful to express a concluded view once permission was granted.
5. The parties were directed to agree practical directions, keeping costs to a minimum and listing the substantive hearing reasonably soon. The court noted the concern caused to the interested party by delay.

• High Court (Administrative Court): Lang J refused permission on the papers on 16 September 2013.
• High Court (Administrative Court): On renewal, Blair J granted permission and left the substantive issues for determination at a fuller hearing.