Heather Moor & Edgecomb Ltd, R (on the application of) v Financial Ombudsman Service & Anor [2008] EWCA Civ 642 (11 June 2008)

Heather Moor & Edgecomb Ltd, R (on the application of) v Financial Ombudsman Service & Anor [2008] EWCA Civ 642 (11 June 2008)

The Financial Ombudsman Service is not required to determine complaints strictly in accordance with English law but must decide what is, in its opinion, fair and reasonable in all the circumstances, taking into account the law and other relevant standards. This approach is compatible with Article 6 and Article 1 Protocol 1 ECHR. The Ombudsman was entitled to reject the Bolam defence on the evidence and was not required to hold an oral or public hearing as no disputed issue of fact required it.

Citation
[2008] EWCA Civ 642
Parties
Claimant/appellant: Heather Moor & Edgecomb Limited; Defendant/respondent: Financial Ombudsman Service; Interested Party: Simon Lodge
Jurisdiction
England and Wales
Judgment Date
11 June 2008
Procedural Posture
Judicial Review / Appeal From High Court to Court of Appeal
Outcome
Appeal dismissed; application for judicial review refused.
Legal Topics
Financial Ombudsman Service Jurisdiction, Standard of Review for Ombudsman Decisions, Application of Common Law Vs. Fairness and Reasonableness Standard, Article 6 ECHR (fair Trial), Article 1 Protocol 1 ECHR (property Rights), Requirement for Oral/public Hearing, Professional Negligence (financial Advice)
Financial Services Law Administrative Law Human Rights Law Financial Ombudsman Service Jurisdiction Standard of Review for Ombudsman Decisions Application of Common Law Vs. Fairness and Reasonableness Standard Article 6 ECHR (fair Trial) Article 1 Protocol 1 ECHR (property Rights) +2 more

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Parties

Heather Moor & Edgecomb Limited

Claimant/appellant

Financial Ombudsman Service

Defendant/respondent

Simon Lodge

Interested Party

Procedural Posture

Judicial Review / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether the Financial Ombudsman Service is required to determine complaints strictly in accordance with English law or may apply a 'fair and reasonable' standard under section 228 of the Financial Services and Markets Act 2000
  2. 2 Whether the FOS's procedure and decision-making process is compatible with Article 6 and Article 1 Protocol 1 of the European Convention on Human Rights
  3. 3 Whether the FOS was required to hold an oral and/or public hearing in this case

Ratio Decidendi

The Financial Ombudsman Service is not required to determine complaints strictly in accordance with English law but must decide what is, in its opinion, fair and reasonable in all the circumstances, taking into account the law and other relevant standards. This approach is compatible with Article 6 and Article 1 Protocol 1 ECHR. The Ombudsman was entitled to reject the Bolam defence on the evidence and was not required to hold an oral or public hearing as no disputed issue of fact required it.

Court Disposition

Appeal dismissed; application for judicial review refused.

Orders

  • No quashing of the Ombudsman's decision.
  • No requirement for FOS to hold an oral or public hearing.