Stuart Binns & Associates v Financial Ombudsman Service

On judicial review of an ombudsman determination, the characterisation of a complaint and the assessment of whether it is out of time are generally evaluative judgments for the Financial Ombudsman Service, reviewable on conventional public law grounds rather than for correctness. Where the Ombudsman has faithfully applied lawful FCA limitation rules, it need not separately justify a departure from common law or statutory limitation periods. Delay considerations may in principle be relevant to the merits assessment of what is fair and reasonable, but they need not be addressed separately unless they are clearly legally relevant. Judicial review does not provide an appeal on the merits of an evaluative determination.

The claimant sought judicial review of a determination by the Financial Ombudsman Service which upheld a complaint concerning pension investments and attributed responsibility to the claimant. The complaint was made in December 2015, following an earlier verbal complaint in October 2010. The claimant challenged the determination on limitation, the treatment of delay and prejudice, the alleged need to explain departure from ordinary limitation law, and the finding that a later investment manager had not assumed responsibility before the relevant loss.

The application was renewed after HHJ Gosnell refused permission on the papers. The central questions were whether the proposed grounds were reasonably arguable and whether permission should be granted to amend them.

1. Permission to amend. Permission to amend the judicial review grounds was granted. The refinements were closely aligned with the existing grounds, the defendant had suffered no material prejudice, and there had been a fair opportunity to respond. The court’s discretion was guided by the interests of justice, public interest, prejudice and good administration.
2. Characterisation and limitation. The Ombudsman had expressly considered whether the October 2010 verbal complaint raised the same substantive concerns as the later complaint. The finding that it did was plainly justified on the documents. The characterisation of a complaint was an evaluative question for the Ombudsman, subject to conventional judicial review, rather than an objective question for the reviewing court. The approach in R (Chancery (UK) LLP) v FOS [2015] EWHC 407 (Admin) did not alter that position, which was consistent with R (Bankole) v FOS [2012] EWHC 3555 (Admin) and R (Tenetconnect Services Ltd) v FOS [2018] EWHC 459 (Admin).
3. Delay and the merits. The limitation framework in the FCA rules was clear and elaborate and reflected Parliament’s mandate. Because the Ombudsman had faithfully applied those rules, there was no arguable requirement to identify the common law or statutory limitation analysis which a court might apply, or to justify departing from it. The principle in R (Heather Moor & Edgecomb Ltd) v FOS [2008] EWCA Civ 642, [2008] Bus LR 1486, concerned departure from substantive legal principles, not limitation considerations.
4. Delay-related matters could in principle re-enter the merits assessment of what was fair and reasonable in all the circumstances, and exceptionally could be so clearly relevant that they required consideration. On the facts, however, the Ombudsman was entitled to focus on the matters it addressed. The analysis in R (Bamber) v FOS [2009] EWCA Civ 593 concerned retrospectivity and did not support the claimant’s argument.
5. Substantive evaluation. The finding that the later investment manager still needed to assess suitability before assuming responsibility was plainly open to the Ombudsman. Judicial review was a supervisory jurisdiction, not a correctness appeal. The challenge disclosed no realistic prospect of success.
6. The application for permission for judicial review was refused. The earlier costs order stood, and no further order as to costs was made.

Administrative Court: HHJ Gosnell refused permission for judicial review on the papers. On renewal, the High Court granted permission to amend the grounds but refused permission for judicial review: [2021] EWHC 1620 (Admin).