Paul Richard Hogan, R (on the application of) v Financial Ombudsman Service Ltd & Anor

On a renewed application for judicial review, the court’s role is supervisory. It does not substitute its assessment for an Ombudsman’s evaluative judgment unless the decision is unlawful, unreasonable or unfair.

Where the Financial Ombudsman Service has previously considered the same subject matter, a complaint may be excluded unless material new evidence has subsequently become available to the complainant and is likely to affect the outcome. The original decision is treated as sound on the evidence then available. The exclusion cannot be avoided by adding unrelated matters or by inviting reconsideration of alleged errors in the earlier decision. A previous quashing order and a provisional decision do not disapply the exclusion.

The claimant challenged the Financial Ombudsman Service’s decision of 16 March 2022 concerning advice given in 2011 about transferring defined-benefit pension rights to a self-invested personal pension and purchasing an annuity.

The FOS treated a data-access complaint as distinct and dismissed the remaining complaint under the Materiality of New Evidence Exclusion in its Dispute Resolution Rules. The claimant relied on a pension transfer analysis report, a suitability report, a contemporaneous note, witness statements and alleged procedural breaches. Permission had previously been refused on the papers by HHJ Jackson on 8 September 2022. The issue at the renewal hearing was whether any ground of challenge was arguable with a realistic prospect of success.

1. Disposition. Permission for judicial review was refused. The earlier costs order in favour of the FOS stood. The Financial Conduct Authority was removed as a defendant and its costs application was dismissed.
2. Supervisory jurisdiction. The permission threshold was arguability with a realistic prospect of success. The court was not exercising a general substitutionary function. The FOS’s evaluative judgment under section 228(2) of the Financial Services and Markets Act 2000 could be challenged only on established public-law grounds.
3. Material new evidence. The complaint concerned the same subject matter as the complaint determined in 2018. Under Rules 3.3.4A and 3.3.4B of the Dispute Resolution Rules, reconsideration was permissible only if material new evidence had subsequently become available to the complainant and was likely to affect the outcome. The proper starting point was the soundness of the 2018 decision on the evidence then available. The new evidence had to be capable, when considered with that evidence, of demonstrating that the earlier outcome was unsound.
4. The data-access issue could properly be separated from the 2011 advice complaint. The 2020 Quashing Order did not require the FOS to bypass the exclusion, and the first provisional decision was neither final nor binding. The Ombudsman had considered the witness statements, but was entitled to identify the contemporaneous documents as the relevant alleged new evidence.
5. The FOS was entitled to conclude that the additional documents were not likely to affect the outcome. The 2018 decision had found that the transfer and annuity were not unsuitable in the claimant’s difficult circumstances, including his overwhelming and unavoidable need for income. Alleged procedural failings did not establish a likely different outcome.
6. Summary assessment of the FOS’s acknowledgment-of-service and summary-grounds costs was appropriate. There was no general rule requiring a percentage reduction or detailed assessment.

• High Court (Administrative Court): HHJ Jackson refused permission for judicial review on the papers on 8 September 2022 and awarded the FOS £2,370 in costs.
• High Court (Administrative Court): on renewal, the application for permission was dismissed and the earlier costs order maintained.