Giles Chapman, R (on the application of) & Anor v Financial Ombudsman Service Limited

The requirement that a respondent indicate whether it consents to waiving an applicable time limit does not deem consent where the respondent fails to provide that indication. The question whether consent exists is ordinarily one of fact for the Financial Ombudsman Service, subject to conventional judicial review. Whether the rules create deemed consent is, however, a question of legal interpretation for the court. The Financial Ombudsman Service must determine its own jurisdiction under the FCA Handbook. The court should not imply a sanction which the rules do not state, particularly where the scheme’s coherent structure does not require it. Regulatory or other remedies for non-compliance do not alter the jurisdictional time limits.

The claimants sought judicial review of a Financial Ombudsman’s decision dated 5 February 2024 that she had no jurisdiction to determine their complaint against Santander UK plc because it was barred by the historic time limits in DISP 2.8.2R. The bank’s final response rejected the complaint and explained the six-month referral limit, but did not indicate whether it consented to waiver of the historic time bar, despite DISP 1.6.2R(1)(f) requiring that indication.

The claimants referred the complaint within six months. The bank later stated that it did not consent to consideration of the complaint. The central issue was whether the bank’s failure to state its position in the final response amounted to waiver or implied consent, or otherwise deprived the Ombudsman of jurisdiction to apply the historic time bar.

1. The application for judicial review was dismissed. The Ombudsman had not misdirected herself in law, and her findings of fact were not challenged on conventional public law grounds.
2. The question whether the bank’s failure to state its position amounted to deemed consent was a question of legal interpretation. It was not a question of precedent fact. If consent existed on the facts, however, that factual issue was for the Ombudsman, subject only to conventional judicial review.
3. DISP had to be read as a coherent whole, applying the approach in Shop Direct Finance Co Ltd v Official Receiver [2023] EWCA Civ 367. The natural meaning of “consent” required voluntary agreement, acquiescence or approval. The bank had not consented merely by failing to indicate its position.
4. The 2015 amendments deliberately changed the scheme from one under which a complaint could proceed unless the respondent objected, to one requiring respondent consent. DISP 1.6.2R(1)(f) promoted clarity, but did not state that non-compliance resulted in deemed consent or prevented the respondent from withholding consent.
5. The requirement that the Ombudsman independently determine jurisdiction was a powerful indication against treating a respondent’s procedural default as conclusively establishing jurisdiction. The court would not imply a sanction which the draftsman could readily have included but did not. The adequacy of regulatory sanctions was a matter for the FCA, not the court.

First-instance judicial review proceedings. Permission was granted on the papers by a Deputy Judge of the High Court on 14 October 2024.