England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Hooper)

		Royal Courts of Justice Strand London WC2 Wednesday, 4th July 2001

Wednesday, 4th July 2000

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal against Hooper J's refusal to grant the applicant, Mr Geoffrey Stone, permission to judicially review a decision of the Banking Ombudsman contained in a letter of 3rd February 2000. The applicant was a customer of Lloyds Bank to whom he charged two properties to secure borrowings from them. In February 1993 the bank took proceedings to realise their security. The applicant defended those proceedings and counterclaimed alleging, among other things, that the bank had made an unauthorised transfer of £75,000 out of his account. Those proceedings were, I believe, settled some time in 1999.
2. The applicant then complained about the conduct which he had relied on in his counterclaim to the Banking Ombudsman. By its letter of 3rd February the Office of the Banking Ombudsman rejected the complaint because it did not fall within its terms of reference: first, because the matters complained of happened more than six years before the complaint was made (paragraph 19(e)(i) of the terms) and, second, because it had been the subject of proceedings and Lloyds Bank had not consented to the Ombudsman considering the complaint (paragraph 19(g)). Paragraph 19 of the terms of reference does make it clear that the Ombudsman is not entitled to consider such complaints.
3. The skeleton argument filed in support of the application to the judge, which was apparently prepared by Mr Flynn, under the banner of an organisation called the Solicitors and Barristers Watchdog, is largely devoted to an attack on the solicitors who acted in the litigation to which I have referred. That has absolutely nothing to do with the Banking Ombudsman. The judge was asked to say that the terms of reference were unfair, because it was the bank who started the proceedings and then allegedly delayed them. He dismissed the application, saying, as is the case, that the Ombudsman is not a statutory body and there was no power in the court to say that the terms of reference were reviewable as being unfair. He was clearly right to reach this conclusion.
4. I should say that there is a threshold question as to whether the Ombudsman is amenable to judicial review at all. The court has received written submissions from the Ombudsman to the effect that he is not and inviting the court to say so on this application. I decline this invitation. It would not be appropriate to decide this point on an application for permission to appeal where one party is a litigant in person and the other is unrepresented. All I will say is that there are strong arguments in favour of the Ombudsman's submission, but for the purpose of this application I shall assume, without deciding, that the Ombudsman is amenable to judicial review.
5. If I understand the notice of appeal, the complaint is that, as the Ombudsman is not a statutory body, it is outside the law and in the pockets of the banks. This is said to offend against the applicant's rights under Articles 6, 13, 14 and 24 of the European Convention on Human Rights, and the court is invited to direct the Government to make the Ombudsman accountable. To that end I have been invited to give my approval to two Parliamentary questions which have apparently been put down by Miss Diana Organ, the Member for the Forest of Dean, which ask:

(1) What are the terms of reference and criteria for operation of the Banking Ombudsman?

(2)Who finances the Banking Ombudsman and what was the budget for the financial year for 2000 to 2001?

6. So far as the Human Rights Act is concerned (like Simon Brown LJ, who refused this application on paper in fairly trenchant terms) I think the applicant's arguments are misconceived. Articles 13 and 24 have not been incorporated into our law by the Human Rights Act 1998. The applicant's Article 6 right to have his dispute with the bank tried by an independent tribunal was met by his right to have his defence and counterclaim heard in the proceedings to which I have referred. It gives him no right to complain about the Banking Ombudsman in this court. Article 14 adds nothing.
7. The court has no power under the Human Rights Act or under any other legislation to give any direction to the Government of the kind asked for; nor does it have power to approve Parliamentary questions; nor would it be right for the court to interfere with the democratic process by expressing views about Parliamentary questions although these appear to be perfectly proper Parliamentary questions for the Member to ask. The answer to them in no way affects the outcome of this application.
8. For these reasons I agree with Simon Brown LJ that this application is hopeless, and permission to appeal is therefore refused.
Order: Application dismissed. Transcript of the judgement to be provided to the applicant at public expense. (Order does not form part of approved judgment)