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Cite as: [2011] ECHR 1019
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
1550/09
by HEATHER MOOR & EDGECOMB LTD.
against the United
Kingdom
The European Court of Human Rights (Fourth Section), sitting on 14 June 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having regard to the above application lodged on 19 December 2008,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Heather Moor and Edgecomb Limited (HME), is a company based in Wiltshire. The application was lodged on its behalf by Mr B. Pickering, its managing director. The applicant was advised by Mr A. Speaight Q.C., a barrister practising in London. The United Kingdom Government were represented by their Agent, Mr M. Kuzmicki.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as presented in the judgment of the Court of Appeal, may be summarised as follows.
HME is a small family company founded in 1970. It provides independent financial advice, and is authorised and regulated by the Financial Services Authority. In June 1999, the company was approached by L, a pilot with British Airways who was soon to reach the company retirement age of 55 years. He was covered by his employer’s occupational pension scheme. There was a significant difference in age between L and his wife, with whom he had two children. He intended to continue working as a pilot until the age of 60, and beyond that if possible. He sought HME’s advice about his pension arrangements.
HME arranged two lengthy meetings with L. At the first of these, a company representative discussed two alternatives in detail: remaining in the company scheme but deferring his pension until the age of 60 (viewed as the safer option), or leaving the scheme on retirement and using the funds to purchase a private pension plan. HME wrote to L a few days later recapitulating the points made at the meeting. It referred to the potential advantage of making alternative pension arrangements, assuming a fund growth rate of 9% per annum, which it described as “very modest”. HME considered it “illogical” not to take up the option in view of the transfer value offered by the company scheme, and emphasised that the projected return on the investment did not presume “a very heavy fund performance”. At the second meeting, which involved the same company representative, the option of transferring to a private plan was discussed at length, including the associated risks and possible choice of fund. HME sent L a written note of the meeting shortly afterwards.
Having doubts, L then consulted another independent financial adviser, C. The balance of the latter’s advice was against leaving the company scheme, on the ground that it offered a quite substantial benefit package and a good level of guaranteed income which was not dependent upon investment returns or annuity rates. C took the view that some of HME’s comments were in breach of the regulator’s guidance. In particular, he considered that the assumption of 9% growth was “anything but modest”, and contrary to the lower investment growth assumptions that the regulator had recently introduced and had to be used by all advisers when projecting pension benefits. L provided a copy of this letter to HME’s representative, who nevertheless maintained his advice. L ultimately decided to accept the advice tendered by HME. He left his employer’s scheme and invested with another fund.
The investment performed strongly in the first year, increasing by 18%, but by 2003 the value of L’s pension fund had fallen by some 23%. In October of that year, L wrote to HME, claiming compensation in the sum of GBP 340,089. HME rejected his complaint, pointing out that L had made a free choice in full knowledge of the potential risks, and having considered contrary advice from another adviser. L filed a complaint with the Financial Ombudsman Service (FOS) on 11 November 2003, alleging that HME had given him inappropriate advice regarding his pension. He claimed that the relative security of his company’s scheme compared to the high risk of the investment he had been advised to choose had not been adequately emphasised during his meetings with HME. The figures used by HME had been very optimistic and far above actual performance.
FOS forwarded the complaint to HME and requested copies of the relevant documents and any evidence that the company wished to have taken into account. HME initially asked that the complaint be dismissed without consideration of its merits. It subsequently provided the requested documents and submitted a detailed outline of its case, by letter of 2 February 2004.
The complaint was considered by an FOS adjudicator, who communicated his opinion on it in a letter to HME dated 7 April 2004. He found that L should have been aware of the risks inherent in the investment he chose to make, in view of the second opinion he had obtained from C, and so the complaint should not be upheld in that respect. Pointing out the greater security offered by occupational pension schemes, he stated that the advantages and disadvantages of a transfer should have been explained and compelling reasons should have been given. He considered that the meeting notes that HME provided to L did not adequately caution him in this respect. While the risks may have been discussed during the meetings, the notes did not balance the advantages and disadvantages, nor did they show that all options had been duly considered. Further, the adjudicator took the view that the investment funds recommended to L entailed a higher risk than he was prepared to accept. He concluded that the transfer and investment funds recommended to L may have been unsuitable. He recommended that HME carry out a loss assessment and, if this revealed a loss, to pay redress. HME was asked whether it was prepared to make such an offer to L.
HME disagreed with the adjudicator’s opinion and gave a substantial response to it by letter dated 6 August 2004. It argued that since the amount involved greatly exceeded the maximum amount that FOS could order a firm to pay a complainant (GBP 100,000), FOS should decline jurisdiction so that the complaint could be determined in court. If this was not accepted, HME requested an oral hearing to establish the facts of the complaint.
By letter dated 14 October 2004, the adjudicator rejected the request for a hearing on the ground that there were no contradictions in the documentary evidence. A hearing would not therefore be advantageous.
HME maintained its request for a hearing, arguing that since the complaint concerned HME’s “civil rights and obligations” Article 6 of the Convention applied. If its version of events was not accepted by L then a hearing, with cross-examination, would be necessary.
On 11 July 2005 an FOS ombudsman wrote to HME in relation to its request for a hearing. He observed that Article 6 did not require a hearing at every stage of the determination of civil rights and obligations and that HME would be able to seek judicial review of the decision. If the company’s view was correct, then every complaint to the FOS would have to include a hearing. There did not appear to be any dispute over the facts in L’s complaint. Even if there were, it did not follow that there should be cross-examination of witnesses at a hearing. With its inquisitional powers, FOS could use other means to establish the facts. Where hearings were held, they were informal and the procedure was set by the Ombudsman. Cross examination was uncommon. The Ombudsman also rejected the argument that FOS decline jurisdiction in view of the amount of money potentially involved, which, HME said, would endanger its commercial viability.
A provisional decision on the complaint was issued by another FOS Ombudsman on 17 February 2006. Giving detailed reasons, he indicated that he intended to uphold the complaint, subject to any further evidence or comment received.
On 27 April 2006 HME responded in detail to the provisional decision. It again sought a hearing to allow L to be cross-examined. It also submitted a witness statement from an experienced financial adviser, M. The latter stated that, in his opinion, there had been a “respectable school of thought” in 1999 that an assumed growth rate of 9% was modest. He considered that “some competent advisers” would have recommended that L transfer his pension fund.
The Ombudsman issued a final decision on 23 November 2006, in which he set out in detail his reasons for upholding the complaint. He stated that while he had taken the relevant law into account, he had determined the complaint based on what, in his opinion, was fair and reasonable, bearing in mind all the circumstances of the case. He found that the fund recommended by HME was not of medium risk, but significantly higher. The funds that L transferred were insufficient to secure benefits equivalent to those given up. The Ombudsman noted that L would have enjoyed a significant increase in his pension if he had deferred retirement until the age of 60, and was not persuaded that L would have left the company scheme if this had been put to him more clearly. Understating the increase in the deferred pension benefits made the option of remaining in the company scheme appear much less attractive than it was. Had HME shown L the lower assumed growth rates, this might have caused the latter to express concern over the viability of the transfer. Having regard to the opinions received from the other financial advisers, C and M, the Ombudsman placed greater weight on the former’s view, as it was contemporaneous. He considered that a competent adviser would, in view of L’s family situation, have established the value of the widow’s benefit payable and would also have looked at the benefits payable on late retirement and compared these to the benefits available on transfer. He was therefore satisfied that good industry practice in 1999 would have been to advise L against transfer. He agreed with the previous decisions that a hearing had not been necessary, observing that the FOS had an inquisitorial role, not an adversarial one. He directed HME to pay the maximum sum to L (GBP 100,000) and recommended that it also pay compensation for any loss in excess of that amount. L accepted that decision, which therefore became binding on HME.
HME sought judicial review of the decision. The claim was initially rejected on the papers on 21 May 2007. A renewed application involving an oral hearing in the Administrative Court was rejected on 8 October 2007. Permission to appeal was granted on 11 December 2007. Following a three day hearing before the Court of Appeal, the claim was dismissed on 11 June 2008. The main judgment was given by Stanley Burnton LJ.
HME first argued that FOS was required by the relevant statutory provision – section 228(1) of the Financial Services and Markets Act 2000 (see below) – to determine complaints solely in accordance with the rules of English law. Stanley Burnton LJ rejected this, finding that it was clear from the wording of the provision that Parliament had not intended to limit the basis for FOS decisions in this way. Certain other provisions of the Act reinforced this view, as did the general objective of the complaints scheme, which was to resolve disputes quickly and with minimum formality. Accordingly, FOS could reach a subjective opinion on the merits of a complaint; if that opinion was perverse or irrational it could be set aside by judicial review.
HME claimed that Article 6 of the Convention applied, since their civil rights had been determined by the Ombudsman’s decision. Moreover, since the decision deprived the company of its property, Article 1 of Protocol No. 1 was also engaged. A decision that was not entirely based on law would be contrary to both of these provisions. The scope for subjectivity in FOS decisions meant that they were unpredictable and arbitrary. Companies could not know how to regulate their behaviour so as to avoid complaints, or how to defend themselves where complaints were made against them.
Stanley Burnton LJ observed:
“45. A statutory provision is only incompatible with a Convention right if and to the extent that it necessarily involves infringing that right. It is not suggested that the ombudsman is not an independent and impartial tribunal. The scheme does not preclude the ombudsman from hearing cases in public, or from pronouncing his decision in public: whether and to what extent he may decide not to do so I consider below. And so the only question is whether the ombudsman scheme satisfies the requirements of the Convention as to the law to be applied to a dispute and as to the fairness of the applicable procedure.”
He then referred to the criteria of accessibility and precision set down in Sunday Times v. the United Kingdom (no. 1), 26 April 1979, Series A no. 30, and continued:
“47. Does the scheme established under the 2000 Act, interpreted in accordance with its natural meaning, comply with these requirements? In my judgment, it can and does. The Ombudsman is required by DISP 3.8.1 to take into account the relevant law, regulations, regulators’ rules and guidance and standards, relevant codes of practice and, where appropriate, what he considers to have been good industry practice at the relevant time. He is free to depart from the relevant law, but if he does so he should say so in his decision and explain why. The other matters referred to in this rule are matters that a court would take into account in determining whether a professional financial adviser had been guilty of negligence or breach of his contract with his client. Again, if the Ombudsman is to find an advisor liable to his client notwithstanding his compliance with all those matters, the Ombudsman would have to so state in his decision and explain why, in such circumstances, assuming it to be possible, he came to the conclusion that it was fair and reasonable to hold the adviser liable. In these circumstances, I consider that the rules applied by the Ombudsman are sufficiently predictable. All the matters listed in DISP 3.8.1 are formulated or ascertainable with sufficient precision. So far as guiding the conduct of financial advisers are concerned, provided that they comply with “the relevant law, regulations, regulators’ rules and guidance and standards, relevant codes of practice and, where appropriate, ... good industry practice”, they can be assured that they will not be liable to their client in the absence of some exceptional factor requiring a different decision. Lastly, the common law requires consistency: that like cases are treated alike. Arbitrariness on the part of the Ombudsman, including an unreasoned and unjustified failure to treat like cases alike, would be a ground for judicial review.”
He rejected the argument that firms were unable to know the principles on which FOS would decide complaints. The procedure followed meant that the Ombudsman’s provisional assessment was copied to the parties, who could indicate their disagreement with it and make further representations. Since that had been done in the present case, there was no unfairness.
HME argued that the Ombudsman should have accepted the request for an oral hearing. Stanley Burnton LJ considered that if the determination of the complaint involved the resolution of a dispute as to what had been said at the meetings, or if it could be sensibly argued that L would have taken the same course of action even if he had been advised differently, then the case for an oral hearing might have been substantial. However, the existence of contemporaneous records would normally make a hearing unnecessary. He stated:
“59. ... I have been unable to identify any issue as to HME’s advice to [L] that arguably required an oral hearing in order fairly to determine his complaint. Perhaps more importantly, [HME’s counsel] did not identify any such evidence. The advice given in meetings was the subject of Mr Pickering’s extensive notes, and was confirmed in correspondence. HME did not suggest that Mr Pickering’s notes were inaccurate. In any event, given the length of time between the meetings and [L’s] complaint, any such contention would have been highly unlikely to succeed. HME did not suggest that Mr Pickering had contradicted or modified orally the advice he had previously given in writing. In any event, the Ombudsman, sensibly in my view, considered that the written report provided by HME to [L] carried greater weight than information provided orally.
60. In relation to the issue of reliance, I think it obvious that if [L] had received the advice that the Ombudsman held he should have received, it is inconceivable that he would have removed his pension fund from the BA scheme. It would have been pointless to ask him whether he would have acted differently if differently advised: he undoubtedly would have answered affirmatively.”
He considered the Court’s judgment in Jussila v. Finland ([GC], no. 73053/01, ECHR 2006 XIII and found a number of similarities with the facts of the present case: the purpose of the oral hearing was cross examination, which was reasonably found to be unnecessary; the demands of efficiency and economy referred to in Jussila resembled the objective of the complaints scheme in the present case. There was therefore no unfairness about the Ombudsman’s decision not to hold a hearing. There had in any event been a public hearing before the Court of Appeal in the context of the judicial review proceedings, and this was available to any complainant or respondent who considered that the Ombudsman had made an unlawful decision.
The complaint that the Ombudsman’s decision had not been pronounced publicly was rejected for the same reason. The decision would be made public with the publication of the Court of Appeal’s judgment, which achieved the purpose of ensuring public scrutiny of FOS decisions, as required by Article 6 of the Convention.
Lord Justice Rix agreed with the judgment of Stanley Burnton LJ. He added some further observations on the rule of law and publicity. Regarding the latter, he said:
“90. Finally, I would like to say something about the matter of the FOS "register". This has been the subject of written submissions, but has not figured in oral argument, no doubt because the parties appreciated that it would not affect the outcome of this appeal. Nevertheless, it remains the case that the Act’s Schedule 17, at para 16, in providing for the enforcement of an Ombudsman’s money award in the county courts of England and Wales and by similar means in Northern Ireland and Scotland speaks of such an award "which has been registered in accordance with scheme rules". Thus it is a statutory requirement that the scheme rules provide for the registration of money awards. Accordingly, DISP 3.9.15 R requires the Ombudsman to keep a register: "The Ombudsman must maintain a register of each money award and direction made." In referring to directions, the scheme rules go beyond the statute. FOS seeks to comply with its rule by keeping an internal data base. It is not available to public inspection. I have my doubts as to whether such an internal data base amounts to a "register" properly so called. A register is an official list or record. It may be that it can be kept in any form, but I suspect that it needs to be open to public inspection. Since we have not heard oral argument on this matter, I merely refer to this point in passing.”
Permission to appeal to the House of Lords was refused on 30 October 2008.
B. Relevant domestic law
The applicable primary legislation is the Financial Services and Markets Act, 2000. Section 225(1) of the Act reads:
“This Part provides for a scheme under which certain disputes may be resolved quickly and with minimum formality by an independent person.”
Section 228(2) provides:
“A complaint is to be determined by reference to what is, in the opinion of the Ombudsman, fair and reasonable in all the circumstances of the case.”
Section 229 refers to the awards that an Ombudsman may make. These cannot exceed the monetary limit, which is set at GBP 100,000. Where the assessed loss is higher than this, the Ombudsman may recommend that the respondent pay the excess, but this is not binding on the firm.
Schedule 17 to the Act provides for the making of rules for the complaints procedure. These are referred to as DISP. The relevant DISP provisions that were in force at the time read as follows:
“DISP 3.8.1 R
(1) The Ombudsman will determine a complaint by reference to what is, in his opinion, fair and reasonable in all the circumstances of the case.
(2) In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account the relevant law, regulations, regulators’ rules and guidance and standards, relevant codes of practice and, where appropriate, what he considers to have been good industry practice at the relevant time.
DISP 3.2.12 R The parties will be informed of their right to make representations before the Ombudsman makes a determination. If he considers that the complaint can be fairly determined without convening a hearing, he will determine the complaint. If not, he will invite the parties to attend a hearing. No hearing will be held after the Ombudsman has determined the complaint.
DISP 3.2.13 R A party who wishes to request a hearing must do so in writing, setting out the issues he wishes to raise and (if appropriate) any reasons why he considers the hearing should be in private, so that the Ombudsman may consider whether the issues are material, whether a hearing should take place and, if so, whether it should be held in public or private.
DISP 3.2.14 G In deciding if there should be a hearing and, if so, whether it should be in public or private, the Ombudsman will have regard to the provisions of the European Convention on Human Rights.
DISP 3.10.1 R
(1) In dealing with any information received in relation to the consideration or investigation of a complaint, the Financial Ombudsman Service must have regard to the parties’ rights of privacy.
(2) Paragraph (1) does not prevent the Ombudsman disclosing information (either in full, or where he considers it necessary or appropriate under DISP 3.5.2R (2), in the form of an edited version or (where this is not practicable) a summary or description):
(a) to the extent that he is required or authorised to do so by law; or
(b) to the parties to the complaint; or
(c) in his determination; or
(d) at a hearing in connection with the complaint.”
COMPLAINTS
The applicant raised four complaints under Article 6. It complained that FOS failed to deliver its decision on L’s complaint publicly; that FOS had refused to hold an oral hearing; that FOS was neither independent nor impartial; and that the complaints system was not compatible with the rule of law. In relation to the last complaint, HME also relied on Article 1 of Protocol No. 1.
THE LAW
The applicant argued that the procedure followed by FOS in dealing with the complaint against it was contrary to Article 6 of the Convention since (i) FOS was neither independent nor impartial, (ii) it refused to hold a hearing, (iii) it failed to deliver its decision publicly, and (iv) it did not take decisions based on law, which was also contrary to Article 1 of Protocol No. 1.
Article 6 of the Convention, in so far as relevant, provides:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Article 1 of Protocol No. 1, in so far as relevant, provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
(i) The complaint of lack of independence and impartiality
The Court notes from the judgment of Stanley Burnton LJ that the applicant did not raise this complaint before the Court of Appeal. Domestic remedies have therefore not been exhausted in this respect. Consequently, this part of the application must be rejected in accordance with Article 35 § 1 and 4 of the Convention.
(ii) The complaint about the lack of an oral hearing
a. The parties’ arguments
The applicant rejected the stance taken by FOS and the Court of Appeal, which was that as the facts of the complaint were not in dispute, no hearing was necessary. On the contrary, it argued, there should have been a hearing if the complaint brought against it by L was to be fairly determined. The FOS approach changed during the proceedings before it. Initially, the criticism was that HME had failed to achieve the correct balance in its advice to L. This raised the question whether a different balance would have led L to decide differently, bearing in mind that L had received, but not followed, contrary advice from another independent expert. This point should have been explored at an oral hearing at which HME’s counsel could have cross-examined L. Ultimately, the complaint had been decided on a different basis, namely that the only suitable advice in the circumstances would have been to advise L against transfer. Given the nature of judicial review proceedings, the Court of Appeal had accepted the factual basis of the Ombudsman’s decision. Therefore, the flaws of the FOS procedure had not been cured subsequently. The applicant disputed that its requests for a hearing had been duly considered. It argued that FOS refused to hold hearings as a matter of policy, and quoted a speech given by a senior FOS official to the effect that a hearing took place in just one case out of every ten thousand. The stated objective of the system, rapidity, had not been achieved, since it had taken 3 years, much correspondence and lengthy written submissions to deal with L’s complaint. In contrast to highly technical areas of law, such as social security, that could be entrusted to specialised tribunals, the dispute in the present case closely resembled professional negligence proceedings, which would normally be dealt with by a court and include an oral hearing.
The Government considered that, in the circumstances of the case, it had not been inconsistent with Article 6 of the Convention for the FOS to decide the complaint on the basis of a written procedure. The crux of the complaint was whether HME had given suitable advice to a client. This was quintessentially a matter of judgment to be decided on the basis of the parties’ written submissions and other written materials. FOS relied on HME’s own detailed written accounts of the meetings with L to establish the tenor of the advice given. The relevant facts were therefore clear and undisputed. The Court of Appeal had noted the inability of counsel for HME to indicate in what way an oral hearing would have been of benefit to the fair determination of the complaint. HME’s suggestion to the Court of Appeal that even if it had advised him against transfer L might nonetheless have done so was absurd. The Government underlined that FOS had been created in order to reconcile several valid objectives: a relatively quick and informal complaints mechanism entrusted to an independent authority observing procedural fairness, operating within a precise statutory framework and under the control of the courts via judicial review. Oral hearings were provided for in the rules of procedure, and any such requests were considered on their merits. If refused, reasons had to be given. The fairness of the proceedings before the Ombudsman in this case had not been compromised. HME had known the grounds of L’s complaint in detail, as well as the Ombudsman’s provisional decision, and had been able to respond to them through multiple submissions. In the alternative, any potential shortcoming in the complaints procedure had been made good by the Court of Appeal. In the judicial review proceedings, HME had been able to present its arguments orally about the need for a hearing before the Ombudsman. The Court of Appeal had given full consideration to the issue, and had had due regard to the relevant Convention case-law. Thus, taken overall, the proceedings had been in conformity with Article 6.
b. The Court’s assessment
The parties accepted that Article 6, under its civil head, is applicable to the facts of this case. The Court agrees. In deciding the complaint against the applicant and ordering it to pay compensation to L, the Ombudsman determined the applicant’s civil rights and obligations. The procedure must therefore conform to the standards set down in Article 6.
According to the Court’s well-established case-law, an oral and public hearing constitutes a fundamental principle enshrined in Article 6 § 1 (see Jussila, cited above, § 40). As the Court recognised in that and other cases, however, the holding of a hearing is not an absolute obligation. There may be proceedings in which it is not required, where the courts, or other deciding authority, may fairly and reasonably decide the case on the basis of the parties’ written submissions and other written materials (ibid., § 41). Considerations of efficiency and economy may also be relevant in certain contexts, one example being social security law. The present context is of protection for consumers in the domain of financial services and investment advice. Parliament’s intention, clearly stated in the legislation, was to provide for the resolution of certain disputes quickly and with minimum formality. It notes in this respect the very high number of disputes that FOS deals with annually, which the Government put at 150,000. The Court does not find such a legislative policy inappropriate. It notes, moreover, that the existence of FOS does not preclude access to the courts; the complainant may reject an Ombudsman’s decision and take legal proceedings instead against a firm, while it is open to a firm to seek judicial review of an Ombudsman’s decision in a particular case. In the present case, this led to oral argument in the Court of Appeal over three days, and resulted in a lengthy judgment that considered, inter alia, whether the circumstances of this case called for an oral hearing before the Ombudsman.
The applicant has alleged that FOS operates a policy of not holding hearings. The Court considers that the general practice of FOS, whatever it may be, is beyond the scope of this application, which must be decided on its particular facts. It notes from the rules governing the complaints procedure that it is open to the parties to a complaint to seek a hearing, and that the Ombudsman considers any such request in the light of the Convention (see Jussila, cited above, § 47, and, mutatis mutandis, Martinie v. France [GC], no. 58675/00, § 44, 12 April 2006). That is what in fact happened in the present case. HME’s request was initially considered by an adjudicator and then by two ombudsmen at different stages of the procedure. Each of these gave reasons why they considered a hearing unnecessary. Their view was endorsed by the Court of Appeal. At each stage the view was taken that the contemporaneous written evidence provided a sufficient factual basis for determining the complaint, there being no contradiction in it. Before this Court the applicant has sought to question the whole approach that was taken by the Ombudsman, whose findings of fact were subsequently accepted by the Court of Appeal. The Court recalls that it is not its function to deal with errors of fact or law allegedly committed by a national court, or other competent authority, unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I).
As the Court has indicated previously, the key consideration is the overarching principle of fairness embodied in Article 6 (Jussila, cited above, § 42). The fact that proceedings are of considerable significance for an applicant, as is the case here, is not decisive for the necessity of a hearing (ibid. § 44). The applicant was afforded ample opportunities to present its case and to know and respond to the arguments put forward by L, and to make final representations on the basis of the Ombudsman’s provisional decision. The Court therefore accepts the Government’s argument that the relevant issues of fact and law could be adequately addressed in, and decided on the basis of, written submissions. It finds that the requirements of fairness were complied with and did not necessitate an oral hearing before the Ombudsman.
The Court would observe, moreover, that contrary to the applicant’s criticisms about the scope of judicial review in this case, in its judgment the Court of Appeal did in fact consider on their merits each of the grounds raised by HME without ever having to decline jurisdiction in replying to them (see Zumtobel v. Austria, 21 September 1993, § 32, Series A no. 268 A). This can only reinforce the Court’s conclusion that the absence of an oral hearing before the Ombudsman was not contrary to Article 6 of the Convention. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(iii) The complaint about the non-publication of the Ombudsman’s decision
a. The parties’ arguments
The applicant complained that, in keeping with the general practice of FOS, the Ombudsman’s decision was not made public. This contradicted the purpose of the public pronouncement of judgments, which was to guard against justice being administered in secret, and to maintain public confidence in the system of justice through public scrutiny of decisions. Although obliged by statute to keep a register of its decisions, FOS did not make them publicly available, a point that attracted critical comment from Rix LJ in the Court of Appeal. There was no good reason for this practice. It gave rise to a culture of excessive informality in FOS’ handling of complaints. The applicant rejected the suggestion that it had waived its right to have the judgment made public. The policy of non-publication made it impossible for a firm to check whether the decision against it was consistent with other FOS decisions, thus curtailing the chances of seeking judicial review. It also meant that firms did not generally know how FOS dealt with complaints, making it impossible for them to adjust their conduct accordingly.
The Government argued that the applicant did not have victim status on this point since the contents of the Ombudsman’s decision on L’s complaint were set out in the judgment of the Court of Appeal. Therefore, taken as a whole, the proceedings in this case met Article 6’s requirement of publicity. Rix LJ’s remarks about the register of decisions had been made merely in passing. HME could have requested FOS to publish the decision, but had not done so. It was only later on during the judicial review stage that it raised this point. This should be treated as waiver. The Court’s case-law allowed that certain disputes may be dealt with in private if the subject matter was not of public importance, was highly technical and of a private nature. This was the case here. The Government rejected the applicant’s assertions regarding excessive informality and the lack of information on Ombudsman decisions.
b. The Court’s assessment
The Court recalls that the publicity of legal proceedings, which renders the administration of justice visible, contributes to the achievement of the aim of Article 6 § 1, namely a fair trial (see Ryakib Biryukov v. Russia, no. 14810/02, § 30, ECHR 2008 ..., with further references). With respect to the requirement of the public pronouncement of judgments, the Court has held that in each case the form of publicity must be assessed in the light of the special features of the proceedings in question, having regard to their entirety, and by reference to the object and purpose of Article 6 § 1 (ibid., § 32). The Court observes that, in contrast to certain types of case such as those involving children (e.g. K.S. v. the United Kingdom, no. 45035/98, (dec.), 25 September 2001), there was no compelling reason to withhold the Ombudsman’s decision from publication. The considerations of quickness and informality that are relevant to the holding of an oral hearing are not relevant to the public pronouncement of “judgment”. However, looking at the domestic proceedings in this case in their entirety, the Court cannot but agree with Stanley Burnton LJ that the Court of Appeal’s judgment on the case, which quoted at length from the Ombudsman’s final decision, achieved the purpose of Article 6 § 1. Consequently, the Court finds that this complaint too is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(iv) The complaint about the legal basis of the Ombudsman’s decision
a. The parties’ arguments
The applicant argued that the Court of Appeal had confirmed that the relevant legislation allowed the Ombudsman to make decisions that were not in accordance with English law. Rather, by basing decisions on what was deemed fair and reasonable in the circumstances of each case, the Ombudsman made new law. Ombudsman decisions were therefore not foreseeable. This was not consistent with the rule of law. Judicial review placed no fetter on the Ombudsman’s discretion; the fact that a decision was at variance with English law was insufficient ground for quashing it. While DISP rules listed the matters to be taken into account by the Ombudsman when deciding a complaint, that list was not exhaustive. There was also a problem with accessibility. Neither the decisions nor the internal documents containing the criteria for decision-making were publicly available, and the information that FOS published was insufficient to enable firms to know how a particular case would be decided. Being given sight of the Ombudsman’s provisional decision at the end of the procedure was inadequate; firms should be in a position to know the possible legal consequences of their actions beforehand and not years later.
The Government emphasised that the Ombudsman’s jurisdiction was prescribed by law. It was a well-established jurisdiction that was familiar to firms in the financial services sector such as the applicant. The substantive legal framework for resolving disputes was accessible and foreseeable. Moreover, on the actual facts of this case, the applicant’s complaint was misconceived. The Ombudsman’s decision was in accordance with the principles of tort law, as the Court of Appeal had confirmed. The Ombudsman had not created new law. The Government added that it was commonplace for decision-makers to be guided by what was fair and reasonable in the case before them. Being an expert in financial services, the Ombudsman was uniquely qualified to make that determination. The Convention did not require absolute certainty, but allowed scope to the competent domestic authorities to interpret and apply laws couched in more general terms. Judicial review served as a safeguard. As a matter of law, the Ombudsman was required to take account of a series of relevant legal rules and standards. The applicant could not maintain that firms were unable to know the basis on which the Ombudsman would deal with a complaint. FOS made considerable efforts to inform firms about how it dealt with complaints, publishing case studies, fact sheets, technical briefings and so forth. It deemed this more effective than publishing thousands of anonymised decisions. In addition, the procedure before the Ombudsman included sending the draft decision to the parties to allow them an additional opportunity to make representations before the final decision was taken.
b. The Court’s assessment
As
noted above, Stanley Burnton LJ found that the applicable statutory
provisions (section 228 and DISP 3.8.1) conveyed the clear intention
of Parliament that the Ombudsman’s decision was not limited to
the rules of common law, but allow for a subjective appraisal of what
is “fair and reasonable in all of the circumstances of the
case”. He observed that the many guiding factors set out in
DISP 3.8.1(2) were matters that a court would take into account in
the context of an action in negligence or breach on contract, i.e.
were typical legal considerations. The Court considers that the scope
of the Ombudsman’s discretion is not so broad as to
automatically contravene the principle of foreseeability that is an
integral part of the rule of law. Moreover, as can be seen from the
lengthy extracts set out in the judgment of the Court of Appeal, the
Ombudsman explained in detail the basis for upholding the complaint
against the applicant. While the applicant has challenged the
findings made against it, the Court detects no sign of any
arbitrariness in the decision of the Ombudsman. It has already found
that the procedure conducted by the Ombudsman provided sufficient
opportunity to the applicant to know the details of L’s
complaint and to respond to it. It was also enabled to respond
in detail to the provisional decision of the Ombudsman. It cannot
therefore be said that the final decision or the manner in which the
Ombudsman dealt with the complaint were unforeseeable. In sum, the
Court is persuaded by the reasoning on this point of Stanley Burnton
LJ (at paragraph 47 of the Court of Appeal judgment, see above). The
applicant’s complaint in this respect is manifestly
ill-founded and therefore inadmissible under Article 35 §§
3 and 4 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Fatoş Aracı Lech Garlicki
Deputy
Registrar President