European Court of Human Rights

 


Issued by the Registrar of the Court 11.07.2012

First British case to be rejected using the new significant disadvantage clause

In its decision in the case of Heather Moor & Edgecomb Ltd v. the United Kingdom (No. 2) (application no. 30802/11) the European Court of Human Rights has by a majority declared the application inadmissible. The decision is final.

The case concerned the system in the United Kingdom for dealing with complaints against companies providing financial advice and, in particular, the applicant company's complaint about the Financial Ombudsman's failure to publish its decision upholding a complaint made by a former client about inappropriate pension advice.

The applicant company's complaint that the Financial Ombudsman's decision had not been made public was dismissed under Article 35 § 3 (b) of the European Convention on Human Rights, the Court finding that there had been no significant disadvantage. This new admissibility criterion, introduced by Protocol No. 14 in June 2010 in view of the Court's constantly increasing workload, is intended to enable the Court to focus on cases that justify an examination on the merits.

Principal facts

The applicant, Heather Moor & Edgecomb Ltd, a small family company based in Wiltshire (the United Kingdom), used to provide independent financial advice before being dissolved in March 2012.

In 2000 the applicant company gave financial advice to a British airways pilot, who was approaching retirement, on his pension fund. As a result, he withdrew his pension fund from his employer's pension scheme and invested it elsewhere.

In 2003, having lost 27% (£278,000) of the amount transferred, he filed a complaint with the Financial Ombudsman Service (FOS). The Ombudsman, finding that the applicant company had not explained the investment risks in terms that the client could properly understand, concluded that the most appropriate advice would have been not to transfer. The company was directed to arrange for a loss assessment to be carried out and in August 2010 it paid out the statutory maximum amount (£100,000).

The proceedings were conducted entirely in writing. The applicant company's requests for an oral hearing and an opportunity to cross-examine his former client were refused.

In March 2009 the company's application to the High Court for judicial review was rejected. Both grounds – the Ombudsman's refusal to hold a hearing and the FOS's lack of independence and impartiality – relied on by the company were dismissed. The High Court found that the procedure followed by the Ombudsman had been a fair one, and that a hearing in the company's case had not been necessary. It was also satisfied that the FOS scheme had involved an independent and impartial tribunal.

Ultimately, leave for appeal was dismissed in March 2010.

Complaints, procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 5 August 2010.

Relying on Article 6 § 1 (right to a fair trial) of the Convention, the applicant company complained in particular that the Ombudsman's decision had not been given publicly.

The decision was given by a Chamber of seven, composed as follows:

Lech Garlicki (Poland), President, Nicolas Bratza (the United Kingdom), Päivi Hirvelä (Finland), George Nicolaou (Cyprus), Ledi Bianku (Albania), Nebojša Vucinic (Montenegro), Vincent A. de Gaetano (Malta), Judges,

and also Lawrence Early, Section Registrar.

Decision of the Court

The Court considered that, while what was at stake for the applicant company before the FOS had been considerable, the fact that the decision on its case had not been public had had no bearing on either the conduct or outcome of the proceedings. The non-public nature of the decision against it had not therefore in itself caused the company any significant disadvantage. Indeed, the fact that that complaint had not been included among the grounds put forward for judicial review strongly suggested that the company had not in fact attached any real importance to it. The two safeguards conditions in Article 35 §3 (b) were satisfied: since the Court already has clear case-law on the public delivery of judgments, respect for human rights did not require it to examine the issue in this case; and the judicial review proceedings meant that the case had been duly considered by a domestic tribunal. This part of the application was therefore declared inadmissible under Article 35 §§ 3 (b) and 4 (admissibility criteria).

The remaining parts of the applicant company's complaints were also declared inadmissible, either for being manifestly ill-founded or for non-exhaustion of domestic remedies.

The decision is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.

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