Barclays Bank UK PLC & Ors, R (on the application of) v Financial Ombudsman Service Limited

The Financial Ombudsman Service’s jurisdiction depends on an identifiable act or omission within the applicable time limit in DISP 2.8.2 R. An unfair credit relationship may be assessed as a whole under section 140 A of the Consumer Credit Act 1974, including earlier events as background. That does not make the whole relationship subject to investigation and redress jurisdiction.

Plevin and Smith explain how omissions may contribute to unfairness and when a court claim accrues. They do not create a continuing corrective responsibility, or make each failure to correct unfairness a fresh event for DISP purposes. A timely event cannot therefore open jurisdiction to grant redress for every historic event in the relationship.

Four banks sought judicial review of jurisdiction decisions made by the Financial Ombudsman Service in complaints concerning allegedly unaffordable credit-card lending and overdraft facilities. The complaints were referred more than six years after many of the relevant lending decisions.

The ombudsmen characterised the complaints as concerning participation in and perpetuation of unfair debtor-creditor relationships. They concluded that an alleged continuing responsibility to correct unfairness created continuing omissions, so that time had not begun to run while the credit relationships continued. Alternatively, the FOS argued that recent acts permitted investigation and redress for the entire relationship.

The central issues were whether that interpretation of DISP 2.8.2 R was lawful, whether section 140 A permitted the asserted jurisdiction, and whether the decisions should be quashed.

1. Ground 1 succeeded. The four jurisdiction decisions contained errors of law and were quashed. Ground 2, concerning A1P1, failed.
2. Jurisdiction means the power to investigate a complaint and, where appropriate, grant redress. It is distinct from considering the history of a credit relationship when deciding whether the relationship is fair under section 140 A of the Consumer Credit Act 1974.
3. The FOS must identify an act or omission within six years of the complaint under DISP 2.8.2 R. The word event requires an identified and reasonably identifiable occurrence. A relationship is not itself an event.
4. Plevin was classificatory. It explained how responsibility for unfairness could be attributed to an omission where the creditor failed to take steps reasonably expected in the interests of fairness. It did not impose a positive and continuing responsibility to correct unfairness. The two-stage structure of sections 140 A and 140 B distinguishes classification of unfairness from discretionary remedy.
5. Smith concerned accrual of a court claim under sections 140 A and 140 B. It did not establish a corrective responsibility or decide that failure to correct unfairness created continuing DISP events. The FOS could consider the whole relationship when assessing fairness, but historic events could not receive a separate remedy merely because a later event was in time.
6. The wide remedial powers under section 229 of the Financial Services and Markets Act 2000 did not enlarge jurisdiction. A broad discretion as to remedy is not a power to disregard the statutory time limit. MAS5 illustrated the permissible use of earlier matters as context, not as events within investigative and redress jurisdiction.
7. The FOS’s alternative Route 2 also failed. The existence of an in-time act did not provide a legal mechanism for granting redress for the entire credit relationship. The statutory scheme required a practical, predictable and informal ADR process, and could not be interpreted to make DISP 2.8.2 R largely meaningless.
8. The section 31(2A) defence failed because correct application of the law would have produced a substantially different outcome on jurisdiction. Further submissions on consequential relief and costs were directed.

First-instance judicial review proceedings in the Administrative Court. Permission was granted by Macdonald J on 5 and 6 February 2025. Bourne J granted the Financial Conduct Authority permission to intervene on 1 May 2025. The Administrative Court quashed the four FOS jurisdiction decisions.