England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		21 November 2012

1. MR JUSTICE SALES: This is an application for judicial review of a decision by the Financial Ombudsman Service ("FOS") to treat a complaint by Mr Bankole to the FOS about the conduct of Lloyds TSB in relation to him as being out of time under the statutory regime governing the FOS. On the basis of that decision the Ombudsman has declined to consider the merits of Mr Bankole's complaint about the conduct of LLoyds TSB.
2. The factual background is as follows. In 2006 to 2007 Mr Bankole owned a property in Hackney under a mortgage to TSB. He invested sums borrowed from LLoyds TSB on short term loans at high interest rates in upgrading that property. He did this in the hope that in due course he would be able to remortgage the property with Lloyds TSB on longer term cheaper interest rates. In the event, the valuation produced by surveyors instructed to value the property for the purposes of the remortgage transaction was too low to support the new arrangements Mr Bankole was seeking. Mr Bankole felt that the valuation was unreasonably low and sought to persuade the bank that the property was worth more so that it should proceed with the remortgage transaction. The bank was unpersuaded. Mr Bankole as a result had to go on paying high interest rates on the borrowing he had with the bank.
3. He was aggrieved and complained to the bank, acting by its local manager Ms Patel, first in March 2008 then by letter dated 16 May 2008. The bank acknowledged this complaint by letter dated 21 May 2008 from its customer service recovery centre and said it would investigate. The bank wrote a further letter dated 3 June 2008 saying it was still investigating the matter and referring to the possibility of a complaint to the FOS. Both those letters bore a reference number 1046715. Curiously, on 19 June 2008 the bank wrote another letter to Mr Bankole, this time bearing a reference number 1053197, in terms similar to those of the letter dated 21 May 2008, again beginning:

"I am just writing to let you know that we have received your complaint."

It later emerged from the FOS's investigations with the bank that it had by an error re-logged Mr Bankole's original complaint and that this had had the effect of generating a separate stream of letters about it under this different reference number.

4. On 25 June 2008, Lloyds TSB sent Mr Bankole a letter headed "Final Response". It bore the reference number 1046715. It set out detailed reasons why the bank rejected Mr Bankole's complaint. In summary, the bank said that it was entitled to rely on the surveyor's valuation of Mr Bankole's property it had received rather than a higher valuation proposed by Mr Bankole himself. The letter informed Mr Bankole of his right to complain to the FOS provided he did so within 6 months. It also enclosed information about how a complaint to the FOS could be made. It is clear that this letter meets the definition of a "final response" for the purposes of the rules governing the FOS. However, in these proceedings Mr Bankole denies that he received it. The letter also suggested that if Mr Bankole was unhappy with the surveyor's valuation they had their own formal complaints procedure and he should deal with them directly. By letter dated 10 January 2008 Mr Bankole wrote to the surveyors to make a formal complaint about their valuation. Despite having sent the final response rejecting Mr Bankole's complaint, on 21 July 2008 the bank's customer service recovery centre wrote to Mr Bankole again under reference number 1053197 in terms similar to the letter of 3 June 2008, apologising for the delay in responding to his complaint and saying: "We are still actively looking into it". It also made reference to the possibility of a complaint to the FOS. On 22 August 2008, the surveyors wrote to Mr Bankole rejecting the substance of his complaint to them.
5. Finally, again under reference number 1053197, the bank wrote to Mr Bankole on 21 October 2008 to say that notwithstanding previous letters saying it was still looking into his complaint it considered that it had been fully addressed in discussion with his business manager, Ms Patel, in September 2008 and that the investigation had now been stopped. The letter went on:

"That doesn't mean we won't re-open it if you later think of anything that we haven't properly answered or you change your mind. All you need to do then is to call me on [telephone number] or write to me at the address at the top of this letter and I'll do my best to address your concerns.

If we can't agree on a solution at that point, we will help you refer your complaint to the Financial Ombudsman Service for independent arbitration."

6. On 15 January 2009, Mr Bankole contacted the FOS by telephone to raise with the FOS his complaint about Lloyds TSB. It is common ground that this is the date on which Mr Bankole is to be taken as having made his complaint to the FOS for the purposes of the FOS limitation regime. Mr Bankole later supplied written details of his complaint, including a chronology of events, which he said "details fully the behaviour of TSB towards me..." In that chronology, Mr Bankole included the following entries for July 2008:

"July 2008. Forced to complain to Lloyds TSB head office. Letter written to 3 different departments before letter acknowledged 1 month later.

July 2008. LLoyds TSB respond to complaint, stating that my opinion means nothing to them and that the Surveyors opinion ... means everything to them, rejecting my complaint.

July 2008. Decide to follow up with Lloyds TSB's surveyors' complaints procedure, directing points of contention to the 2nd partner, Mr D. Foskett."

The chronology also referred to the response from the surveyors in August 2008. Mr Bankole did not in that chronology refer to the correspondence from Lloyd TSB under the reference number 1053197.

7. The FOS communicated the complaint to the bank, which referred to its final response letter of 25 June 2008 and maintained that Mr Bankole's complaint to the FOS was out of time under the 6 month limitation rule applicable under the relevant legislation. Adjudicators for the FOS investigated this issue with Mr Bankole and the bank. Mr Bankole denied having received the final response letter. He did this in a telephone conversation on 12 June 2009 with Ms Archer, the FOS adjudicator dealing with that matter at that time. The same day, she wrote a letter to Mr Bankole in these terms:

"I write further to our telephone conversation of 12 June 2009. As you know, Lloyds TSB has told us that your complaint is not one that we can actually deal with. Having now looked into the matter, I am sorry to have to tell you that it appears we cannot consider your complaint any further.

As I explained during our telephone call, Lloyds TSB has sent us a copy of the final response letter sent to you on 25 June 2008. In this letter it stated you had the right to bring your complaint to the Financial Ombudsman Service as long as this was done within six months of the date of the letter. I enclose a copy of the letter for your information [a copy of Lloyds TSB's final response letter dated 25 June 2008 was enclosed].

We are not free to consider all complaints which are brought to us. For example we cannot consider a complaint if it was brought to us more than six months after the date on which the final response letter was sent. Our records show you first contacted us on 15 January 2009 which exceeds the six month period from 25 June 2008.

Because of this, I do not believe we can consider your complaint further. I appreciate that this is likely to come as a disappointment to you. I know that this is not the outcome you were hoping for. But I hope that my explanation has been helpful in setting out clearly why I have taken this view. However, if you disagree with how I have reached my conclusions, please write and tell me by 26 June 2009 - setting out your reasons and including any evidence that you have not already provided and that you think is important to your case. Could you please let me know now if you plan to reply fully but do not think you will be able to meet that deadline.

As we explain in our leaflet, your complaint and the ombudsman, consumers have the right to ask an ombudsman to review the opinion that the complaint be considered further. If we do not hear from you by 26 June 2009, we will assume that you have decided not to pursue the complaint further."

This letter set out the provisional determination of the FOS that Mr Bankole's complaint had been made out of time by reference to the date of the final response letter of 25 June 2008 but it was a provisional decision which was subsequently revisited in definitive form by the FOS.

8. Mr Bankole did promptly take issue with the position set out in the adjudicator's letter. In a letter which crossed with hers from Mr Bankole to the FOS dated 12 June 2009 and again the letters from him dated 15 June 2009 and 8 July 2009 he again denied that he had received Lloyds TSB's final response letter and now made reference to the subsequent correspondence he had receive from them, enclosing copies for the FOS. The FOS followed up this issue with the bank, who confirmed in a letter dated 22 September 2009 that it had sent the final response letter of June 2008 to Mr Bankole's correct address. It also explained how the correspondence, reference number 1053197, had come into existence. The FOS also pursued the question of the receipt of the final response by Mr Bankole with Mr Bankole.
9. On 26 August 2009, it's adjudicator, Ms Jan O'Leary, who had taken over the file from Ms Archer, wrote to Mr Bankole. In her letter she said that the ombudsman would review the entire file, taking into account all the comments and information which had been provided and explained that the ombudsman would reach his or her own conclusion, which might be different from the provisional view expressed by the adjudicator in the letter of 12 June 2009. Ms O'Leary went on:

"If you have any further points or information that you would like the ombudsman to consider, please write to me by 9 September 2009. If I do not hear from you by then I will assume that you have already provided us with everything you want us to take into account. If there is any reason why you think you might be unable to reply fully by then, please let me know so that we can agree extra time.

In the meantime, there is some further information which I need from you which will assist the ombudsman in considering this matter:

- When and how did you become aware that the bank had rejected your complaint?

If you would like to understand more about where an ombudsman's decision fits into our complaints-handling process, the enclosed factsheet aims to provide such information."

10. Mr Bankole replied by letter dated 3 September 2009. In that letter he said:

"During the month of June 2008 I had written to Lloyds TSB's complaints department having had my complaint rejected outright by my Business Relations Manager, Ms Meena Patel, on account of Copping Joyce's surveyor, Mr Josh Martin and Mr Richard Alford's undervaluation of my property.

The standard complaint receipt letter dated 19/06/08 details clearly the complaints procedure, that the complaint will be passed to a case officer to investigate, it should take 4 weeks to gather all the information they need to review it and then they write with their full response. Should it take longer than 4 weeks they will be in touch.

Around 4 weeks later I received a further letter stating that they are still actively looking into my case (letter dated 21/7/08) however, I have the right to go to the ombudsman now should I choose. Thanking me for my patience.

Knowing that Lloyds TSB were looking into my case, having received two letters, dated 19/06/08, the standard complaint receipt letter and a second, dated 21/07/08. I assumed the investigations stated in their letter 21/7/08 were, at least, partly based on Copping Joyce's final appeal response.

During the month of August 2008 I called Ms Andrea Warbuoys, the Business Area Manager, discussing; that Copping Joyce had not followed their stated time schedule in responding to my complaint (in fact the senior partner, Mr David Foskett, upon my querying such, had told me, in effect, that I will hear from him whenever he chooses to respond) and that which I should expect from Lloyds tsb should I default, payment wise, again, in effect, Lloyds TSB instantly call in their loans and seize my property, given the whole situation.

I received Copping Joyce's complaint response in late August 2008, the letter you have in your possession. The result was the same containing a refusal to answer the questions that I had asked and the subsequent refusal to revise their initial undervaluation. They were admitting clearly to having made some mistakes, but that the bank had accepted their apologies for such.

I received the letter dated October 2008, talking of the discussions that I had with Ms Andrea Warbuoys, whilst awaiting the outcome of the response from the senior partner, Mr David Foskett of Copping Joyce in August 2008 and asking if I was subsequently satisfied or had anything additional to add. This letter you have in your possession also.

I did not receive any specifically titled 'final response' letter from Lloyds TSB complaint department, but have 3 letters from the complaints department and the Copping Joyce letter. All 4 are also enclosed again. They clearly show a chronological progression to the complaints department's investigation."

It is clear from that response that Mr Bankole continued to deny receiving Lloyds TSB's final response letter and that he was placing reliance on the other correspondence that he had received from them, the letters with reference number 1053197.

11. On 5 November 2009, Mr David Millington, an ombudsman in the Financial Ombudsman Service, issued a decision on the question of whether Mr Bankole's complaint to the FOS had been brought within time. In a background section, Mr Millington set out a summary of the background to the complaint and noted that the adjudicator had concluded that Mr Bankole had come to the FOS too late by reference to the Lloyds TSB final response of 25 June 2008. He set out a short summary of Mr Bankole's response to that view, noting that he had not received a final response letter and his reference to the standard replies that he said he had received. The decision then set out the following findings:

"This Service's powers to consider complaints stem from the relevant provisions of our enabling legislation, the Financial Services and Markets Act 2000. We only have the legal power to consider complaints that come within the rules. One of the rules says that the consumer must bring his complaint to us within six months of the bank issuing a final response letter.

I am satisfied that Lloyds TSB issued its final response letter to Mr Bankole in respect of his complaint on 25 June 2008. That letter set out the bank's reasons for declining to accept the complaint, and it also said that - if Mr Bankole wished - he could complain to the surveyors direct. I am further satisfied that the bank's letter clearly set out the relevant six month time-frame for complaining to this Service.

Mr Bankole has suggested that he may not have received the bank's final response letter. However, his chronology of events - which was completed before he knew that the bank was raising a 'time bar' issue - appears to indicate otherwise.

What Mr Bankole said in July 2008 about the bank rejecting his complaint, preferring the expert opinion of its surveyors to his own opinion, very closely mirrors the contents of the final response letter. In addition, the final response letter said 'if you want to pursue your complaint about the competency of the valuation your complaint is against Copping Joyce. They have explained it to you that they have their own formal complaints procedure and you must go with them direct about this. It is not for us, nor have we a wish, to become involved in any complaint you may raise with Copping Joyce'.

Mr Bankole formally complained to the surveyors on 11 July 2008. I consider it likely that he did so as a result of the information provided by way of Lloyds TSB's final response letter dated 25 June 2008."

In the light of the Ombudsman's finding of fact that Mr Bankole had indeed received Lloyds TSB final response letter on 25 June 2008, the ombudsman concluded that by not bringing his complaint to the FOS until January 2009 Mr Bankole had left it too late and that the FOS did not have legal power to review his complaint.

12. The legal framework in which the FOS operates can be summarised for the present purposes as follows. The ombudsman scheme is established under Part XVI of the Financial Services and Markets Act 2000. Section 225(1) provides:

"This Part provides for a scheme under which certain disputes may be resolved quickly and with minimum formality by an independent person."

The scheme is referred to as the ombudsman scheme. The independent person is the ombudsman. Under that Part, the FOS is given a compulsory jurisdiction under section 226, a consumer credit jurisdiction under section 226A, and a voluntary jurisdiction under 227. The present case concerns the question of determination under the compulsory jurisdiction. Under section 228(5) it is provided:

"If the complainant notifies the ombudsman that he accepts the determination, it is binding on the respondent and the complainant and final."

The scheme of the Act is that complaints may be made to the ombudsman without prejudice to the legal rights of a complainant, and where the ombudsman makes a determination, the complainant has the option whether to accept it, giving rise to binding legal obligations, or not, under section 228(5).

13. Further detail in relation to the ombudsman scheme is set out in Schedule 17 to the 2000 Act. Paragraph 13 of that Schedule provides:

"(1) The Authority [the Financial Services Authority] must make rules providing that a complaint is not to be entertained unless the complainant has referred it under the ombudsman scheme before the applicable time limit (determined in accordance with the rules) has expired.

(2)The rules may provide that an ombudsman may extend that time limit in specified circumstances..

(3)The Authority may make rules providing that a complaint is not to be entertained (except in specified circumstances) if the complainant has not previously communicated its substance to the respondent and given him a reasonable opportunity to deal with it..."

It is clear from this provision that the relevant time limit rules are those to be set out in subordinate legislation made under the 2000 Act. Those rules are for present purposes the rules contained in the DISP section of the Financial Services Authority Handbook, which deals with complaints to the FOS. Guidance in the rule book at DISP 2.2 explains which complaints can be dealt with under the Financial Ombudsman Service and it explains that the scope of the Financial Ombudsman Services three jurisdictions depends, inter alia, on whether the complaint was referred to the FOS in time in accordance with DISP 2.8. DISP 2.8 sets out a binding rule of subordinate legislation. It provides:

"DISP 2.8 Was the complaint referred to the Financial Ombudsman Service in time?

DISP 2.8.1 The Ombudsman can only consider a complaint if:

(1) the respondent has already sent the complainant its final response; or

(2) eight weeks have elapsed since the respondent received the complaint.

DISP 2.8.2 The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service:

(1) more than six months after the date on which the respondent sent the complainant its final response; or

... [provision is made for a longstop limitation period];

unless:

(3) in the view of the Ombudsman, the failure to comply with the time limits in DISP 2.8.2 R or DISP 2.8.7 R was as a result of exceptional circumstances ..."

14. The concept of the respondent's "final response" in the provision is the subject of a definition in the FSA Handbook as follows:

"A written response from the respondent which:

(a) accepts the complaint and, where appropriate, offers redress or remedial action; or

(b) offers redress or remedial action without accepting the complaint; or

(c) rejects the complaint and gives reasons for doing so;

and which:

(d) encloses a copy of the Financial Ombudsman Service's standard explanatory leaflet; and

(e) informs the complainant that if he remains dissatisfied with the respondent's response, he may now refer his complaint to the Financial Ombudsman Service and must do be within six months."

It is clear that the Lloyds TSB final response letter of 25 June 2008 complied with that definition. DISP 3.2 then makes provision as to the jurisdiction of the FOS as follows:

"DISP 3.2.1 The Ombudsman will have regard to whether a complaint is out of jurisdiction.

DISP 3.2.3 Unless the respondent has already had eight weeks to consider the complaint or issued a final response, the Ombudsman will refer the complaint to the respondent.

DISP 3.2.3 Where the respondent alleges that the complaint is out of jurisdiction, the Ombudsman will give both parties an opportunity to make representations before he decides.

DISP 3.2.4 Where the Ombudsman considers that the complaint may be out of jurisdiction, he will give the complainant on opportunity to make representations before he decides.

DISP 3.2.5 Where the Ombudsman then decides that the complaint is out of jurisdiction, he will give reasons for that decision to the complainant and inform the respondent.

DISP 3.2.6 Where the Ombudsman then decides that the complaint is not out of jurisdiction, he will inform the complainant and give reasons for that decision to the respondent."

15. It is clear from the scheme of the rules in the DISP section of the FSA Handbook, and in particular from 2.2, that the scheme created by the rules envisages that it will be the ombudsman who determines whether or not a complaint is made within the time limits specified in those rules. That is fully in line with the indications one gets from the primary legislation in the 2000 Act, in particular at section 225(1), setting out the general objective for a scheme under which certain disputes may be resolved quickly and with minimum informality by an independent person, being the ombudsman; and by paragraph 13(1) of Schedule 17 to that Act, which states that the applicable time limit is to be determined in accordance with the rules, that is to say as set out in the subordinate legislation contained in the DISP.
16. In this case, the ombudsman has, in the decision of 5 November 2009, determined that Mr Bankole's complaint was made outside the 6 month time limit set out in the rules. The ombudsman did not specifically refer to the possibility of an extension of time by reason of exceptional circumstances but it is clear from the decision itself that he did not understand that exceptional circumstances applied in the circumstances of this case.
17. The decision of the ombudsman of 5 November 2009 was made the subject of further complaint by Mr Bankole, in particular by raising the matter with his MP, who wrote to the FOS. That gave rise to a letter dated 22 December 2009 from the interim chief ombudsman to Mr Bankole's MP setting out a summary of the background of the handling of Mr Bankole's case by the FOS and referring to Mr Millington's final decision. The Chief Ombudsman's letter stated:

"Parliament did not intend for there to be any further scope for appeal following a final decision by an ombudsman and so, with the fear of disappointing your constituent once again, I have to tell you that the decision cannot be reviewed or overturned under our rules - even by me as the chief ombudsman."

18. I turn then to the issues of legal dispute in this case. Mr Bankole complaints about the three letters that he has received from the FOS indicating provisional decisions or decisions in his case, namely the letter from the adjudicator dated 12 June 2009, the ombudsman's decision letter dated 5 November 2009 and the chief ombudsman's letter dated 22 December 2009. As to Mr Bankole's complaints about the first of these letters, I accept the submission of Mr Loveday for the FOS that it is an academic and misplaced complaint. It is clear from the decision-making processes which I have described that the operative decision in Mr Bankole's case was not that of the adjudicator but that of the ombudsman in November 2009. The adjudicator's letter specifically invited Mr Bankole to present further information if he wished to and was not binding upon him. Accordingly, it is not necessary to take up further time in relation to that letter.
19. Equally, in my view, the complaints about the chief ombudsman's letter of 22 December 2009 are misplaced. For the reasons briefly referred to in that letter the chief ombudsman had no power to act as in some way a court of appeal from a formal decision on the relevant limitation question by an ombudsman. Again, the operative decision in this case is that of the ombudsman in November 2009 and it is that decision which, in my view, has to be the focus for legal analysis in this case.
20. In my view, it is clear from the statutory scheme which I have set out above that the question whether a complaint is brought within 6 months as required by the rules or not is primarily a decision for the FOS, subject only to review in this court on usual judicial review grounds. In terms of the construction of the relevant limitation rules in the DISP regime, the question whether a complaint is brought within time or not cannot be categorised as turning on judgment of president fact in the sense of being factual determinations for this court to make for itself. Therefore, the decision of the ombudsman in the decision of 5 November 2009 has to be tested against the usual judicial review standards.
21. In my view, the conclusion arrived at by the ombudsman that Mr Bankole had indeed received the final response letter from Lloyds TSB dated 22 June 2008 cannot be impugned as irrational or otherwise unlawful. The ombudsman gave reasons for coming to the conclusion that in his judgment Mr Bankole had received the final response letter. He referred to the correspondence of one of the entries for July 2008 in Mr Bankole's chronology with the substance of the final response letter and referred to the fact that Mr Bankole had shortly after the date of that letter pursued a course referred to in that letter, namely to make a formal complaint to the bank surveyors. The ombudsman also had available to him the information supplied by Lloyds TSB in its letter of 22 September 2009 giving details of where it had sent the final response letter. In the light of that evidence and as explained by the ombudsman, I consider that his conclusion of fact was one which was lawfully open to him. It cannot be characterised as in any way irrational or as unsupported by evidence available to him.
22. I also consider that the procedure by which the ombudsman arrived at his decision was a fair procedure. Both the bank and Mr Bankole were given fair notice of the points being made on either side and asked for their comments. In particular, Mr Bankole was provided with a copy of the bank's final response letter and asked for his comments on it. The ombudsman took account of all the correspondence in the case and in his decision demonstrated that he understood Mr Bankole's case on the matter.
23. In my view, the ombudsman was entitled to treat the bank's final response letter of 25 June 2008 as the relevant "final response" for the purposes of the rules set out in the DISP section of the FSA Handbook. It was a response which complied with the formal definition as required by those rules. It had not been withdrawn as a final response by the bank in the course of its correspondence with Mr Bankole. In particular, I do not consider that the bank's correspondence with Mr Bankole under the reference number 10531397 could be construed expressly or impliedly as in some way retracting the formal final response letter that he had already received. Nor in the circumstances of this case is it, in my judgment, in any way unfair to Mr Bankole to treat the final response letter of 25 June 2008 as operative and effective in relation to him. Mr Bankole did not when he received the later correspondence under reference 1053197 seek to raise any query with the bank to clarify the relationship of that further correspondence with the formal final response letter he had already received. Nor did he say at any time in his correspondence with the FOS that he had been confused by that later correspondence or had taken it to have in some way revoked or varied the bank's position that the previous letter of June 2008 was to be treated as its formal final response.
24. Nor do I consider that for the purposes of the time limit regime under the DISP section of the FSA Handbook that the relevant time limits begin to run again after each or any letter is sent in relation to a complaint in relation a complaint made by him. In my view, it is clear in the context of the scheme that clarity is required for the benefit of all parties: complainants, respondents and the FOS as well, as to the operation of the time limit rules. The definition of a final response in the rules is clear and precise and allows parties to know exactly where they stand. Short of some formal clear withdrawal by a respondent of what purports to be a final response given in compliance with the definition in the rules, in my view, it is clear that the relevant time limits are to be taken to run from the time when a proper final response is given. The time limits do not revive simply because there is subsequent correspondence pertaining to the same complaint.
25. One matter which did give me cause for thought in the course of the hearing is whether the ombudsman should have considered distinctly in his decision whether, notwithstanding that on his finding of fact as to receipt of the final response letter Mr Bankole was out of time for making his complaint so far as the 6 month rule was concerned, nonetheless exceptional circumstances might arise which should be considered in the context of deciding whether there should be an extension of that 6 month rule. It seems to me that in some circumstances issues of unfairness or potential unfairness or confusion might be so clear on the face of the papers in a particular case that the ombudsman should be prepared to consider such matters on his own initiative without necessarily having a case formally made out by a claimant that their case falls within some exceptional circumstances category.
26. However, in the present case, I do not consider that there was any unlawfulness in the way that the ombudsman proceeded in the circumstances of this case. It was clear from the way in which issue had been joined between Mr Bankole and Lloyds TSB that the critical issue between them was whether Mr Bankole had received the final response letter or not. On that issue, the ombudsman came to the conclusion on the facts that he did, and that was a conclusion he was entitled to arrive at. That factual position having been determined, Mr Bankole had not sought to suggest that there was any additional exceptional circumstance which purport to lead the ombudsman to think that, notwithstanding he had received the final response letter giving him clear notice of his rights and time within which he should act, he should nonetheless have been given a further period of time. Nor do I think there was anything in the surrounding circumstances in this case which was such as should have required or compelled the ombudsman to have considered that matter distinctly and reached a conclusion on it here. As I have already indicated, there is no unfairness to Mr Bankole, in my opinion, once it has been determined that he did receive the final response letter, in holding him to the terms of that letter, with its express reference and warning that a complaint to the FOS should be made within 6 months by reference to the later correspondence he received under reference number 1053197.
27. I turn then against the background of this legal analysis to review the particular grounds set out by Mr Bankole in his written grounds of claim. First, he submits that the FOS's decision should be set aside as being based on unsubstantiated and un-pleaded evidence. I do not accept this. As I have set out above, the ombudsman proceeded on the basis of evidence which was available to him and which had been set out for Mr Bankole to comment on. The decision that the ombudsman arrived at, in particular his conclusion on the fact that Mr Bankole had received the final response, was one which the ombudsman was lawfully entitled to arrive at and which was supported by evidence before him.
28. Secondly, Mr Bankole complains that there was unlawful exclusion of evidence by the FOS in its decision-making procedures. I do not accept this either. In my view, it is clear that the FOS's decision-making process leading up to the operative decision of 5 November 2009 was designed to and did elicit relevant evidence and information bearing upon the question which had to be determined.
29. Third, Mr Bankole complains that the FOS placed insufficient weight upon objective evidence; in particular, the letters dated 9 June 2008, 21 July 2008 and 21 October 2008 (reference number 1053197), to which I have referred. In my view, it is clear from the documentation that the FOS clearly had those letters in mind and that the ombudsman took them into account when reaching his decision adverse to Mr Bankole upon the facts. That was a decision which cannot be impugned as irrational or unlawful. So this ground also falls to be dismissed.
30. Fourth, Mr Bankole submits that the FOS's decision is invalidated by a misdirection in law; essentially, that the FOS misapplied the law in relation to determining the position in relation to the time bar. He also in that context complains that the decision was Wednesbury unreasonable. I dismiss both these points. In my view, there is no misdirection in law on the part of the FOS, nor was the decision that it arrived at Wednesbury unreasonable.
31. For all these reasons, I dismiss this application for judicial review.
32. MR LOVEDAY: My Lord, whilst taking note of your Lordship's judgment, just a couple of corrections. One matter for your Lordship's attention, I am not sure, my Lord, that your Lordship covered the question of the chief ombudsman's power to reopen.
33. MR JUSTICE SALES: I did. I referred to the letter and said, essentially for the reasons that the chief ombudsman had set out, I did not need to take up further time on that.
34. MR LOVEDAY: Thank you, my Lord. Two typos, my Lord, it is FOS.
35. MR JUSTICE SALES: Yes, I became conscious as I was going through it that I was calling it the FSO. I will correct that in the transcript.
36. MR LOVEDAY: My Lord, the first time you referred to section 225, I may have misheard but I heard it as section 235 but that may need to be checked.
37. MR JUSTICE SALES: I confirm it is section 225.
38. MR LOVEDAY: My Lord, the Ombudsman seeks its costs of defending the claim and the costs schedule has been served on Mr Bankole. I am not sure whether your Lordship has a copy in front of you, I can hand one up.
39. MR JUSTICE SALES: I have seen it. Let me just check it. Yes, I have it.
40. MR LOVEDAY: My Lord, before Mr Bankole makes any comment about the principle of costs and the amounts sought, may I just make the following very brief points. Firstly, in my submission, the fees are reasonable. Secondly, you will have seen from the transcript of the permission hearing, which Mr Bankole helpfully produced for the court, that the prospect of a costs award against him was fairly flagged up. Thirdly, this is no criticism of Mr Bankole as a litigant in person but the fact that he was a litigant in person has meant that the Ombudsman has had to do a degree of the running in terms of setting out the legal framework, addressing grounds in some detail, perhaps in a little more detail than a respondent might otherwise be excepted to respond, as a result of the rationality and misdirection challenge. For those reasons, I ask for the principle of costs and ask your Lordship to award costs in the sum sought.
41. MR JUSTICE SALES: It might be sensible if you just explain: you are asking me to assess costs on a summary basis, is that right?
42. MR LOVEDAY: Yes, I am.
43. MR JUSTICE SALES: And in the sum of, is this right, £10,650.75?
44. MR LOVEDAY: Yes, I apologise, I should have made that clear.
45. MR JUSTICE SALES: Mr Bankole, I saw from the transcript of the hearing before Collins J that he did warn you that you might lose and if you lost, a costs order could be made against. You do you understand what is now being sought is that the Financial Ombudsman Service is seeking an order for costs against you. They are saying that I should assess it summarily now. What that means is I deal with the figures now and if I make an order for costs against you, I would say how much it is. The alternative to that, just so that you understand, is that a costs order can be made but leaving it for assessment later on. Usually, on a case that has lasted a short time, less than a day, the court will make a summary assessment because what happens is that if you have argument later on it will increase the costs usually, whenever you argue about things in court it increases costs. But if you want to address me either on the principle of whether there should be a costs order or on whether it is a summary assessment, you may do that now. Thirdly, I think you will have understood from the schedule that you have been given that what is being sought from you now is that I should make an order that you should pay in the sum of £10,650.75 and, again, now is your opportunity to go through this schedule and if you disagree with the figures or say that they are --
46. THE CLAIMANT: I don't have the schedule.
47. MR JUSTICE SALES: I am sorry?
48. THE CLAIMANT: I don't have the schedule.
49. MR JUSTICE SALES: You do not have the schedule?
50. THE CLAIMANT: I do not have the schedule.
51. MR JUSTICE SALES: Are saying that you have not received it?
52. THE CLAIMANT: I received a recorded delivery notice, which I haven't collected from the Post Office because it takes 48 hours for it to get back to the Post Office and I haven't collected it so I don't have the schedule. But in light of that, I think I have the ability to appeal anyway, do I not? Which I think I should be --
53. MR JUSTICE SALES: You have the ability to ask for permission to appeal, you do not have a right to appeal.
54. THE CLAIMANT: I would like to ask for permission to appeal.
55. MR JUSTICE SALES: We will deal with that separately.
56. THE CLAIMANT: Okay, sorry.
57. MR JUSTICE SALES: You are quite right to raise it but the issues that arise now are the question of costs and then the question of permission to appeal. So let us deal with costs first.
58. CLAIMANT: In relation to costs, I'd like to set out I've behaved one hundred per cent reasonably. I have behaved as any honourable, decent, reasonable lay person would have behaved. I've simply asked for my issue to be looked into by a body that has been set up by Parliament to look into this issue. Now, I absolutely respect your decision, your Honour, but, however, I'm not sure if I entirely agree with the decision in light of the evidence that was provided but that's what we've discussed today. Back to the issue of costs. I was economically hemorrhaging at the hands of Lloyds TSB and, as such, my complaint -- that's why I went to the ombudsman, I didn't do it frivolously, I didn't do it out of a whim. I did it because the Financial Ombudsman Services are supposed to serve the interests of the consumer, they're supposed to be a fair and just mediator which takes into account the possibility that an individual like myself will not have masses of finance to take an issue to court. That is how I find myself in court. I was cornered into court. I didn't go to court straightaway. I went to the Financial Ombudsman Services for a specific reason. I don't have a multitude of funds and I don't have a multitude of funds available. That's in relation to costs.
59. Whether or not it should be a summary assessment, a summary assessment of the costs is I don't have the ability to pay. The defendant's pocket are deep, they are a government funded organisation. I'm sure that could go and write out a cheque for £10,675 in seconds. I don't have that ability, your Honour. I'm in debt to my bank. I am in overdraft to my bank, to the same Lloyds bank who have caused the dispute, which today your Honour has -- I've been denied access to the consumer body to actually look into -- I haven't asked for a decision, I've asked just for it to be looked into. Okay. Like I said, I was forced into court and so if you order a summary assessment, well, I do not have the ability to pay it. It's as simple as that.
60. MR JUSTICE SALES: On the last thing, which is that amount, I am very concerned that you should, although you did not pick up the letter that was sent to you, have the opportunity to look at it now. So I am going to ask Mr Loveday to --
61. THE CLAIMANT: Your Honour, it wouldn't make any difference. The sum total, whether I look at it, it doesn't change the fact that I do not have the ability to pay said amount.
62. MR JUSTICE SALES: Shall I proceed on this basis: that you had the opportunity to look at it but you are content for me just to deal with it without you going through it.
63. THE CLAIMANT: Well, it doesn't specifically -- as far as proceeding and I've had the opportunity to look at it, it's -- right now probably isn't the best point in time for me to adsorb all the figures and how appropriate they are, in light of the fact that I'm not a legal individual, I don't know how much people normally charge for these things, I don't know the fairness or the objectivity of it even being granted to me or being awarded against me. So all of these factors I'll have to go away and research. So if you now tell me that I have to -- that you have to award costs of £10,000/£11,000 against me, well, quite frankly, I don't have that and it's -- as I said to you, I will now have to research whether it is just and fair or whether I have the ability to argue against it. And in relation to costs, that's where I feel I stand.
64. MR JUSTICE SALES: Thank you. I will give you a chance in a moment on permission to appeal but I will just deal with the costs matter now.
65. Mr Loveday, what is the position on whether the schedule was sent to Mr Bankole?
66. MR LOVEDAY: My Lord, I am instructed that it was sent to Mr Bankole. I am further instructed that Mr Bankole had phone contact on 19 November, which I think was Monday, with one of my instructing solicitors and that Mr Bankole wanted a call back, the instructing solicitor called him back and explained who she was and explained that she understood Mr Bankole had told her that there was a letter waiting for him at the Post Office and my instructing solicitor tried to confirm whether all bundles had been received and picked up by him and my instructing solicitor told him that my side had recently sent him a letter with a statement of costs but Mr Bankole would not let here finish when she tried to explain. I am not sure on the basis of instructions, my Lord, whether I can take this further but that is the general tenor of what I am instructed.
67. MR JUSTICE SALES: Is there anything further you wanted to add?
68. MR LOVEDAY: Just that I am specifically instructed that my instructing solicitor's telephone note was that Mr Bankole said he wanted to know what had been sent to make sure there was not something he was not aware of and it is not an issue about the statement of costs, he will pick it up.
69. MR JUSTICE SALES: Yes, Mr Bankole?
70. THE CLAIMANT: I'm not doubting I did make that telephone call. I assumed the point of issuing that letter prior to the incident was some sort of intimidation. As I said, I don't do this as a profession like Mr Loveday, I do my best to keep calm and composed, as I'm not here every day. I've been forced into this corner in the pursuit of justice and the pursuit of justice is what I'd like even at this point in time. I believe it's still reachable.
71. MR JUSTICE SALES: Thank you. In relation to costs, the Financial Ombudsman Service seeks on order for its costs against Mr Bankole. In my view, this is a case where the ordinary costs rule should apply: costs follow the event, and it is right that in principle an order for costs should be made against Mr Bankole. In that regard, I note that when Collins J considered the matter at the oral permission hearing, he specifically drew Mr Bankole's attention to the fact that if he proceeded and lost he would be on risk as to costs. The justice of the position is that a costs order should be made in favour of the Financial Ombudsman Service.
72. I am also satisfied that it is right that I should assess the costs on a summary basis. The Financial Ombudsman Service sent a letter to Mr Bankole containing its statement of costs for the purposes of the summary assessment on 16 November 2012. I am satisfied from what I have heard from both sides that Mr Bankole was aware that such a letter had been sent and was waiting for him to pick it up. Whether he picked it up or not was really a matter for him. He has had a fair opportunity to consider --
73. THE CLAIMANT: No, 48 hours until you pick up from the Post Office.
74. MR JUSTICE SALES: -- to obtain and consider the statements of costs which was sent to him. I also consider that I am in a position to make an assessment of costs on a summary basis, as I am invited to do by Financial Ombudsman Service, on the basis of their schedule and served and provided to me. The total costs sought on a summary basis are in the sum of £10,650.75. In my view, in a judicial review of this kind and on review of the schedule, those costs have been reasonably incurred and are proportionate to what was at stake and it is fair and just that an order for costs in favour of the Financial Ombudsman Service should be made in that sum. Accordingly, I order Mr Bankole to pay the Financial Ombudsman Service £10,650.75 in respect of the costs of this application.
75. THE CLAIMANT: Can I speak?
76. MR JUSTICE SALES: Yes.
77. THE CLAIMANT: I didn't entirely understand that. So I'm not going to be given the opportunity to go and research, or to look into it, because the letter goes to the Post Office and it takes 48 hours, so it's only today I'd be able to go and pick it up from the Post Office. So I haven't been given the opportunity to look into it, to evaluate it, to even see whether it's relevant to what's happened.
78. MR JUSTICE SALES: Mr Bankole, my ruling is on the basis of what I have heard, that you have had that opportunity and you did not take it.
79. THE CLAIMANT: No, I hadn't been given the opportunity because it takes 48 hours for you to pick it up from the Post Office.
80. MR JUSTICE SALES: Mr Bankole, I have given my ruling on that part of the case. Now is the time, if you want to ask for permission to appeal, for you to do so.
81. THE CLAIMANT: Can I appeal against everything?
82. MR JUSTICE SALES: You can ask me for permission to appeal against any part of the order that I have made. Just to be clear, the order that I have made is an order dismissing your application for judicial review and an order requiring you to pay the £10,000 odd to the Financial Ombudsman Service.
83. THE CLAIMANT: I would like to appeal against both orders, if I may. I would like permission to appeal against both orders. Mainly because I don't think -- I think my behaviour is totally in line with the behaviour of a lay person, behaviour of a consumer, who's in pursuit of justice. I believe, given the evidence that has been provided and as you stated in the 18 May case, that I had a very valid argument and the points in my argument, I believe, should have weighed in my favour. I believe firmly that as a lay person, being -- I'm up against Lloyds TSB, a government 40 per cent owned organisation. I'm up against the Financial Ombudsman, who's supposed to be protecting the consumer, on the other hand, appears to be attempting to do everything but simply look into the merits of the case, which is specifically what I've asked for. I've asked for the merits of the case to be looked into. So if one, as an objective lay person -- if an objective person were to look into it, this order is not just, it's not fair and it definitely isn't reasonable. I haven't done anything an ordinary individual wouldn't have done in pursuit of fairness and justice, and I believe that is simply what I've been asking for. I've been asking for fairness and justice, for them to look at the case. As Justice Collins said, it would do Lloyds TSB no harm -- no harm can be done. Not only has this decision today done me harm, not only has the behaviour that Lloyds TSB has done was doing me harm, even the decision today is now doing me harm because not only am I not going to be given the right at this particular hearing just to have the ombudsman look into the case but I'm now going to be compounded with £10,000 costs, which certainly, unless it wants to bury me, unless the intention of Lloyds TSB is to bury me, is not a fair outcome.
84. So what I'm saying is that I'd like to have permission to look into the points that you've made but also the points -- you've made certain points but I feel in light of -- I feel 99 per cent of individuals would have behaved in the way that I behaved, given the evidence provided, the issues that -- a lot of the issues that were stated, they were rational, they were rational behaviour. It was -- I went from one position -- is it unreasonable to expect that when you're talking directly in communication with your bank that the issue is still going on, when you receive letters that the issue is going on? Is it unreasonable the truth of this or not reasonable? And is it unreasonable for the objective arbitrator to totally and utterly ignore those letters and ignore the behaviour of a lay person or the rational behaviour of a lay person in the support of a massive organisation, a very powerful organisation, Lloyds TSB, owned by the government and the government, or protection organisation --
85. MR JUSTICE SALES: Mr Bankole, I apologise for interrupting but I think I do understand your arguments. What I have to consider, on whether to grant you permission to appeal, are two things. One is whether you have a real possibly of success on appeal. I think you can take it that I understand your argument that you say that you would have a real prospect of success.
86. THE CLAIMANT: My evaluation on the ability of succeeding is whether or not -- maybe I haven't done my best to project my behaviour in line with rationality, in line with normal behaviour. Maybe the law isn't in support of normal behaviour but I haven't done anything -- I haven't done anything that is not -- that has been antagonistic.
87. MR JUSTICE SALES: I do not think anyone is accusing you of having proceeded in that way but what you need to understand is that, so far as costs are concerned, when I used the formula "costs follow the event" -- and I apologise, that is legalese. What it basically means is that usually when people litigate they may both be behaving reasonably, they may both have genuine belief in the justice of their case and have reasonable grounds for thinking that but at the end of the day one wins and one loses and the usual rule is that the costs are paid by the loser in relation to costs. It is not a criticism of you for any way in which you have behaved in relation to the claim, it is a function of the rules that costs are paid by the loser. So just to explain, in relation to costs, it is not a criticism of you for any way in which you have behaved in relation to the claim, it is a function of the usual rules that costs are paid by the loser to the winner.
88. So far as the appeal is concerned, again, nothing I have said should be taken as a criticism of the way you have handled the litigation, none of it is, but in assessing whether I should given you permission to appeal I have to ask a different question. It is not whether you, Mr Bankole, have behaved reasonably, it is whether you would have a reasonable prospect of persuading the Court of Appeal that the legal analysis that I have embarked upon was wrong. So that is just to explain to you essentially what I have to do.
89. THE CLAIMANT: Can I ask a question?
90. MR JUSTICE SALES: Yes, you can. Just one last thing, just so that you know what the test is that I am now applying on permission to appeal. There are basically two limbs. One is real prospect of success on appeal, which I have just explained. The other is some other compelling reason, which usually is taken to be some particular interest of the public interest which requires the matter to be investigated. Those are the two limbs, just to give you an opportunity, finally, to address me on those.
91. THE CLAIMANT: Okay. I do think it's a matter of public interest that documents issued by a bank have been absolutely and totally ignored. I do believe that the evidence -- the prospects of succeeding, I can only evaluate prospects of succeeding based on the evidence that is put in front of you that I show is there. I believe that -- I received a variety of letters from Lloyds TSB. Am I supposed to take one letter as -- I have learnt the procedure of the ombudsman. In fact, this is the first time I've gone to the ombudsman. I've learnt the procedure. Now I'm more aware of the ombudsman's procedure. But for a powerful professional organisation to be issuing letters, A, B, C -- exhibit A, B, C and D and expecting that the ordinary customer will say, "Well, this letter is of more importance, this letter has less importance," I don't think that is fair or just in a court of law. I think one has to look from the perspective of the lay person and say, "Well, this is one letter, this is another letter, this is another letter. Now, which letters have any effect on the ordinary customer?" And I think the Financial Ombudsman Services institution actually states that information sent out by financial institutions should be clear. It should not be clouded in the confusion we've heard of today, it should be clear and precise. There are laws, rules, that state that and I --
92. MR JUSTICE SALES: Mr Bankole, I think I do understand the point that you are making.
93. THE CLAIMANT: Okay, so, with that in mind, I believe that if one were to look at that in its entirety, there are prospects of success. Subsequently -- I've forgotten your second point.
94. MR JUSTICE SALES: Other compelling reason, but I think you have rather wrapped that up in what you have said.
95. THE CLAIMANT: I do believe it's an interest to the public. I haven't brought it into the public domain because I haven't had time but maybe that's what I need. Maybe I need to bring it into the public domain because, as I said to you, I'm just an ordinary guy. Lloyds TSB -- I don't have pockets full of -- well, the depth of pockets that these guys have, Lloyds TSB, and if I'm -- I'm considering myself to have some sort of academic ability to at least stand up for my rights but I feel like I need the opportunity to thoroughly express them.
96. MR JUSTICE SALES: Thank you.
97. Mr Loveday, I do not need to hear from you on the permission to appeal point.
98. Mr Bankole seeks permission to appeal. In my judgment, there is no real prospect of success on appeal in relation to the legal analysis, either in relation to the dismissal of his claim for judicial review or in relation to the court's exercise of discretion in relation to payment of costs, nor is there any other compelling reason, in my judgment, why permission to appeal should be granted. Accordingly, his application is dismissed.
99. Mr Bankole, just to explain to you, you can seek to renew your application for permission to appeal to the Court of Appeal.
100. THE CLAIMANT: How long do I have?
101. MR JUSTICE SALES: I am afraid you will need to check that for yourself. I am not sure how long you do have.
102. THE CLAIMANT: Does this relate to costs as well?
103. MR JUSTICE SALES: You can seek to appeal in relation to any part of the order that I have made.
104. THE CLAIMANT: Do I do it separately or do I do it all at once?
105. MR JUSTICE SALES: No, if you are going to ask, you should do it together in relation to both things but I am afraid I am not in a position to give you legal advice, having intimated that you can do that.
106. THE CLAIMANT: Sorry, I didn't mean it in that way.
107. MR JUSTICE SALES: That is quite all right.
108. Associate, could I have one of the forms for refusal of permission to appeal, or will you fill that out for me?
109. THE COURT ASSOCIATE: I will fill it out and bring it over to you.
110. MR JUSTICE SALES: Thank you, Mr Bankole, for your very moderate presentation of your argument, and to Mr Loveday for his assistance. Is there anything else we need to deal with before I rise?
111. MR LOVEDAY: No, thank you, my Lord.
112. MR JUSTICE SALES: Very well. Thank you both. I will rise.