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
		12th February 2014

1. MR JUSTICE BLAIR: This is a renewed application for permission to bring judicial review proceedings against the Financial Ombudsman Service. Permission was refused by Lang J on the papers on 16 September 2013.
2. In short, the claimant, which is an insurance broker, seeks permission to challenge the decision of the Financial Ombudsman Service to accept jurisdiction over a complaint made against it as insurance broker by the interested party, Mr Lockner. Mr Lockner's complaint is about an alleged failure to notify his claim under a directors and officers, that is D & O Liability Policy in respect of his previous company.
3. The claimant's case is that the Financial Ombudsman Service did not have jurisdiction and it is common ground that this turns on whether the complaint fell within the scope of the ombudsman's scheme because Mr Lockner was a "consumer". In refusing permission Lang J said as follows:

"There is no arguable error of law in the decision made by the defendant. The defendant has correctly applied the relevant rules and guidance in concluding that the interested party is 'a consumer' and therefore eligible to bring a complaint."

I have considerably more material by way of argument and authority before me than the judge had when dealing with the matter on the papers. In particular, I have detailed skeleton arguments from both sides. These spell out the essential dispute between the parties. For present purposes this can be considered under three headings. The first is the test for the Administrative Court to apply when considering the jurisdiction question. In short, is it a matter of law for the court, construing the relevant material which includes statutory material and regulatory material in the form of the FCA Handbook and the other material too? Or, is the only issue whether the decision taken by the ombudsman in relation to jurisdiction satisfied the Wednesbury test? The second issue, and it has been expressed in terms of time, is the point at which the court should assess, assuming it does go on to deal with the issue, whether the complainant is acting as a consumer or not. There is a considerable measure of disagreement between the parties as to this. The decision of the ombudsman was that the relevant time is in relation to the complaint to the Financial Ombudsman Service. However as Mr Strachan QC for the FOS has fairly pointed out, this decision was expressed by reference to the way the matter was being put. The final decision as to jurisdiction took into account the objections that had been raised by the claimant.

4. The final issue arises essentially if the court gets past the first one and was expressed in argument by Mr Bear QC for the claimant as being whether a D & O policy can be considered a consumer transaction at all. He submits that in effect it cannot or cannot for present purposes and that that is ultimately determinative of the issue which the court has to decide.
5. I have had some doubts as to this aspect of the claimant's case, in the sense that it has to surmount an arguability threshold. Nevertheless, this is quite a specific context in which the issue arises. I do not see that it would be appropriate for the court now to decide the issue. These three issues are not perhaps particularly long issues but they are issues which I think would benefit from more consideration than is available in the course of a permissions list. Given that my view is that the case is sufficiently arguable for permission to be given, it would be wrong and unhelpful for me to say anything more about it and I shall not do so.
6. MR BEAR: In terms of further directions, having heard what your Lordship said and also what Mr Strachan said, it did seem to me that it might be sensible for your Lordship to give us a little time to put in an amended claim which I consider would also assist the court as well. I am wedded to that if your Lordship thinks not necessary but seems to me it would probably be advisable.
7. MR JUSTICE BLAIR: I have no strong views about that but what I do think is that the effectively your skeleton arguments have now set the issues out?
8. MR BEAR: Yes. That may be a cheaper way of doing it.
9. MR JUSTICE BLAIR: There may be further points that neither of you have thought of but it is a bit hard to see what they might be. I think what I would prefer, if you do not mind, is if you both consider what directions the court should now make, if you do not mind, before you leave.
10. MR BEAR: Of course.
11. MR JUSTICE BLAIR: How long, for example, would ... it is quite important for the interested party that the issue is sorted out because this is obviously a matter of great worry for him.
12. MR BEAR: Of course.
13. MR JUSTICE BLAIR: How long will the hearing take?
14. MR BEAR: I was going to say that one should allow, as we are told we have to do these days, perhaps three to four hours for the pre-reading including materials and then on the basis that that is a reasonably acceptable time for pre-reading a day for the hearing which is --
15. MR JUSTICE BLAIR: It certainly would not take more than that, would it?
16. MR BEAR: It would not take more than that and it might be dangerous as though, as I think today shows, that if we made it half a day that we would be cutting it too fine.
17. MR JUSTICE BLAIR: Yes.
18. MR BEAR: Those would be my proposals.
19. MR STRACHAN: That sounds very sensible.
20. MR JUSTICE BLAIR: What I think you should do is just to agree some practical directions that keep the legal costs to a minimum and...
21. MR STRACHAN: I think --
22. MR JUSTICE BLAIR: You can certainly indicate. I am very reluctant to put further pressure on the listing which is, as you know, is under a lot of pressure. On the other hand it can fairly be said that this is worrisome for the interested party and it should come on reasonably soon.
23. MR STRACHAN: My Lord, certainly. That would also reflect section 225, in the sense that these complaints are meant to be dealt with relatively quickly.
24. MR JUSTICE BLAIR: It is an unusual situation.
25. MR STRACHAN: I understand my Lord. It may be that in terms of other directions the standard directions will suffice coupled with --
26. MR JUSTICE BLAIR: I meant to bring them with me and I am afraid I have forgotten.
27. MR STRACHAN: For example, we will have to provide detailed grounds within 35 days. Maybe we can dispense with that in light of the skeletons. I will speak to my learned friend about that.
28. MR JUSTICE BLAIR: If you think the issue is a problem by now actually fully canvassed in the skeleton arguments.
29. MR BEAR: If they are that is easiest. The other point which I know has been considered in some cases, and I need to raise it with your Lordship now, is whether it is suitable for a judge who is nominated both in this court and in the Commercial Court to the hear it. That also puts further pressure on the listing but.
30. MR JUSTICE BLAIR: I think you should add in the Chancery Division.
31. MR BEAR: And/or in the Chancery Division. It was a course that was the taken.
32. MR JUSTICE BLAIR: Only one I am afraid. Never mind.
33. MR BEAR: It was taken in the London Capital case. It is really a matter for your Lordship.
34. MR JUSTICE BLAIR: Can I leave you both to discuss that and that will save Mr Strachan having to disagree. Why do you not both discuss it and --
35. MR STRACHAN: How would you like us to communicate. Should we try and draw up an order and then submit it to you or is that...?
36. MR JUSTICE BLAIR: What I am suggesting you do it before you both leave because then it is done.
37. MR BEAR: We can.
38. MR JUSTICE BLAIR: Someone can pass it in. There is no need to stay.
39. MR BEAR: We will do the best we can. Some of us may have to take instructions. I do not anticipate a problem. Can we submit it through your Lordship's clerk and if there is any point of disagreement my proposal will be to have two sentences to explain the disagreement and your Lordship can deal with it in that way.
40. MR JUSTICE BLAIR: Thank you both. I am very grateful for your help.