Heather Moor & Edgecomb Ltd, R (on the application of) v Financial Ombudsman Service & Anor

Heather Moor & Edgecomb Ltd, R (on the application of) v Financial Ombudsman Service & Anor

The Ombudsman is not required to determine complaints strictly in accordance with English law but must apply a 'fair and reasonable' test, taking into account the law and other relevant standards. This approach is compatible with Article 6 and A1P1 ECHR. The Ombudsman was entitled to reject HME's evidence as not establishing a responsible body of professional opinion under the Bolam/Bolitho test. No oral or public hearing was required as there were no disputed issues of fact necessitating such a hearing, and the process as a whole, including judicial review, satisfied Article 6.

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; Judgment on Substantive Application
Outcome
Claim for judicial review dismissed
Legal Topics
Ombudsman Jurisdiction, Judicial Review Standards, Fair and Reasonable Test, Article 6 ECHR, Financial Services and Markets Act 2000, DISP Rules, Professional Negligence, Public Hearing Requirements
Administrative Law Financial Services Law Human Rights Law Ombudsman Jurisdiction Judicial Review Standards Fair and Reasonable Test Article 6 ECHR Financial Services and Markets Act 2000 +3 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; Judgment on Substantive Application

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' test under section 228 of the Financial Services and Markets Act 2000.
  2. 2 Whether the Ombudsman’s process and decision breached Article 6 ECHR (right to a fair and public hearing) or Article 1 of the First Protocol (A1P1) (peaceful enjoyment of possessions).
  3. 3 Whether the Ombudsman was required to hold an oral and/or public hearing.

Ratio Decidendi

The Ombudsman is not required to determine complaints strictly in accordance with English law but must apply a 'fair and reasonable' test, taking into account the law and other relevant standards. This approach is compatible with Article 6 and A1P1 ECHR. The Ombudsman was entitled to reject HME's evidence as not establishing a responsible body of professional opinion under the Bolam/Bolitho test. No oral or public hearing was required as there were no disputed issues of fact necessitating such a hearing, and the process as a whole, including judicial review, satisfied Article 6.

Court Disposition

Claim for judicial review dismissed

Orders

  • Application for judicial review dismissed; Ombudsman’s decision upheld