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 THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE SULLIVAN)

		Royal Courts of Justice Strand London, WC2
		1st March 2005

1. LORD JUSTICE AULD: Mr (and originally Mrs) Ropaigealach sought permission to claim judicial review of a decision of the Financial Ombudsman Service of 15th September 2003 that it had no jurisdiction to consider their complaint against Marine and General Life Assurance Society ("MGL") in respect of their purchase from the Society of an endowment policy. Their initial application for permission to apply for judicial review was refused on paper by a High Court judge and on its oral renewal, after submissions made by Mr Ropaigealach and written responses of the Financial Ombudsman Service, by Sullivan J.
2. They then sought permission to appeal that refusal to this court, which was refused first on paper by a Lord Justice in writing and then by Rix LJ at an oral renewal hearing. Unfortunately, due to a failure to notify Mr and Mrs Ropaigealach of that hearing, they did not attend. Rix LJ gave his reasons for and pronounced refusal in their absence. The matter now comes before the court by way of a reopening of that renewed oral application to this court.
3. The material facts are as follows. In July 1989 Mr and Mrs Ropaigealach, who were then in their late forties or early fifties, sought and obtained funds from MGL to refinance the mortgage of their home, to be supported by a 20-year mortgage endowment policy. Given their ages at the time, it was clear that the policy would extend beyond their likely dates of retirement. The policy took effect in January 1990.
4. Ten years later, in September 2000, they complained to MGL that it had sold them an unsuitable policy because it extended into their retirement years. The burden of their complaint was that this would expose them to difficulties in their retirement years that they might not be able to overcome in meeting the policy requirements, and that they might lose if they had to surrender the policy in consequence.
5. In October 2001 MGL rejected their complaint. In April 2002 Mr and Mrs Ropaigealach complained to the Financial Ombudsman Service. Under the service's rules, such a complaint must be made to it within six years of the event complained of (here the alleged mis-selling in 1989) or within three years thereafter, when the complainants knew or ought to have known of the grounds for complaint.
6. On the applicable rules their complaint was clearly out of time. It was more than six years after the event, that is to say the mis-selling itself, and certainly more than three years after they knew or ought to have known about its possible consequences. It was obvious from the policy documentation given to them in 1989 that it was a 20-year policy that ran well into their retirement years, so there was no scope for any further extension of up to three years referred to in the rules.
7. The Financial Ombudsman adjudicator, to whom the complaint was referred, not surprisingly came to the view that the claim was out of time and that the Service had no jurisdiction to consider it. On 22nd July 2002 the adjudicator wrote to Mr and Mrs Ropaigealach informing them of her view.
8. Following an exchange of correspondence in which Mr and Mrs Ropaigealach expressed their dissatisfaction with that outcome, the matter was referred to the Ombudsman.
9. In the period of a year or so before the Ombudsman gave her decision, Mr and Mrs Ropaigealach submitted copious written representations. They also made two requests, both of which the Ombudsman refused.
10. The first was for an oral hearing, which the Ombudsman considered unnecessary because, as she wrote and explained to Mr and Mrs Ropaigealach, she had more than enough documentary information before her as to the limitation point and on the merits.
11. The second was that the Ombudsman should require MGL to produce a copy of some internal guidance that might bear on their complaint. The Ombudsman declined to do so.
12. On 29th July 2003 the Ombudsman gave her provisional ruling regarding the complaint. Her stated reasons were that, to the extent the complaint concerned MGL's sale to them of a mortgage package extending into their retirement years, they had known that when they agreed it to and thus the matter had become time-barred after six years of the transaction. She added that there were no exceptional circumstances for disapplying the Service's time bar.
13. To the extent that their complaint extended to other matters, the Ombudsman said that there was no merit in it. After allowing 28 days for further representations, the Ombudsman confirmed her provisional ruling by a final decision of 15th September 2003.
14. Following that decision, Mr and Mrs Ropaigealach turned to the High Court, seeking judicial review, and doing so unsuccessfully, as I have indicated, before a number of High Court judges and Lords Justices.
15. In those proceedings they advanced three main complaints. The first was that there had been some communication between the Financial Ombudsman Service and MGL as to whether MGL wished to take the time-bar point. The complaint was that this was an inappropriate course of action for the Financial Ombudsman Service to instigate the taking of a point which, if not taken, would not have deprived the Service of jurisdiction. Sullivan J and Rix LJ successively took the view that there was nothing inappropriate about that. It was eminently sensible for the Service to clarify the time-bar point with MGL at an early stage because, if it operated against the complaint, it operated decisively so as to preclude the Ombudsman from considering the matter on its merits.
16. The second complaint raised in the judicial review proceedings was the denial by the Ombudsman to allow an oral hearing. As I have indicated, the Ombudsman wrote and explained to Mr and Mrs Ropaigealach why she denied that request, indicating that she had ample material before her to deal with the point. Both Sullivan J and Rix LJ were of the view that that was an entirely appropriate response. There was no entitlement as of right to an oral hearing and, if, the decision-maker was of the view that there was ample material before him or her to deal with the matter without one, then it could not be the subject of challenge. Certainly the Ombudsman cannot be said to have lacked information in the form of representations from Mr and Mrs Ropaigealach. They were legion.
17. The third complaint relied upon in the judicial review proceedings was the refusal of the Financial Ombudsman Service to require MGL to produce a copy of some internal memorandum that might have been relevant if the complaint to the Financial Ombudsman Service had been upheld. Sullivan J and Rix LJ both wrongly understood that the request for that internal memorandum had been raised later than in fact it had been, but both of them took the view that it would have taken the matter no further and was at best a fishing exercise that did not bear on the complaint to the Ombudsman and the question of limitation.
18. I agree that there was nothing in any of those three complaints that could have justified the grant of permission to Mr and Mrs Ropaigealach to claim judicial review.
19. But now the matter comes before this court with a wholly different focus. Sadly, Mrs Ropaigealach has died and the concern that Mr Ropaigealach and she had about exposure to the financial burden of maintaining the 20-year policy in their retirement years has not come about, as I understand it as a result of her death.
20. Mr Ropaigealach has informed the court this morning that, therefore, he no longer maintains that there was a loss upon which he can rely to sustain his claim for judicial review on the issues to which I have referred. The point that now concerns him is this. At the hearing before Sullivan J, Sullivan J made an order against him for costs in the sum of £2,301, the costs of the Financial Service Ombudsman's preparation of the acknowledgement of service and drafting the summary grounds for resisting the claim.
21. Mr Ropaigealach says that the system that became the rules of the Financial Services Ombudsman was the statutory scheme of limitation at common law, governing, among other things, the accrual of a cause of action. He maintains that at the time when MGL sold them the policy the contingent loss that they faced as a result at that time was not itself the accrual of a cause of action. That did not accrue until the loss eventuated, and it did not. It follows, submits Mr Ropaigealach, that time has never begun to run under the Financial Service Ombudsman's limitation rules. Therefore the Ombudsman had jurisdiction to deal with the complaint, whatever form it took or might have taken.
22. Mr Ropaigealach says that this point was raised in one form or another in his responses in various exchanges before the matter reached this court. He said that it was raised in the course of the documentation prepared for the judicial review proceedings. All I can say is that it does not jump out of the page of the pleaded case, and certainly was not evident to Sullivan J or Rix LJ, for neither of them dealt with it as a live matter of complaint. Nor need they have done at that time because, as I understand Mr Ropaigealach's concern, the point only becomes available to him now as a result of the sad loss of his wife.
23. But it seems to me that the point is a bad one because the relevant rules did not apply the rules of limitation governing common law claims. Their effect was that, if the complaint before the Ombudsman had been a claim for negligence in civil proceedings, which it was not, it would have been time-barred by the time MGL received the complainant's complaint. This was simply a means of identifying the accrual of the cause of the complaint, on the assumption, which was not an apt assumption, that it was itself a cause of action at common law.
24. So, all that was being done here was to import, not rules of common law as to the running of time, but to identify the starting point. The event which gave rise to the cause of action, if it had been a cause of action, is the event which gave rise to the complaint, and the event which gave rise to the complaint was the selling of the 20-year endowment policy to which common law rules governing the cause of action had, in the circumstances of the complaint, no application.
25. So, what is left is an attempt, elegantly put by Mr Ropaigealach, to bring into the judicial review proceedings at this late stage an argument that time has never run, that the complaint was within time and that Sullivan J was wrong when refusing to grant permission to claim judicial review and, in consequence, ordering him to pay costs. Mr Ropaigealach's hope was that, if that refusal could be set aside, the matter could then be disposed of by way of negotiation between him and the Financial Services Ombudsman.
26. As I have indicated, there is no merit in the point. The Ombudsman correctly applied the rules in taking the view that the claim was time-barred under them, and that she had no jurisdiction to deal with it. That being so, the refusals below, particularly that of Sullivan J, cannot be faulted and nor can his order for costs.
27. I therefore refuse the application.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment) ______________________________