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05 JUL 2013

R (on the application of Calland) v Financial Ombudsman Service Ltd [2013] EWHC 1327 (Admin); (2013) PLLR 089

Professional regulation - financial regulation - financial advice - Financial Ombudsman Service - delay - conduct - oral hearing - right to fair and public hearing - Article 6 European Convention on Human Rights

An investigation into complaints made against an independent financial adviser which incurred significant delay had not breached the subject's rights under Article 6 of the European Convention on Human Rights where the majority of the delay had arisen due to the subject's own conduct during the investigation. An oral hearing was only necessary where fairness required it.

25 May 2013

Administrative Court

Males J

(1)        The claimant (C) was a retired financial adviser. In 2012, the defendant (FSO) upheld a complaint against C brought by a former client, relating to facts which had occurred in 1992. The FSO ordered C to pay compensation of £48,355.

(2)        C sought judicial review of the FSO's decision on the basis that the delay had been so severe as to breach his right to a fair trial under Article 6 of the European Convention on Human Rights. He also argued that the Article was breached by the failure of the FSO to hold an oral hearing when had had requested one.

(3)        Males J held: That, although there had been significant delay, most of this had been as a result of C's conduct. The complaints he raised in relation to jurisdiction and procedure, his repeated threats of legal action and the high volume of correspondence he engaged in rendered what would have been a relatively straightforward case far more complex. It was understandable, in these circumstances, that the FSO should wish to proceed cautiously in order to deal with all the matters fully, rather than imposing strict deadlines. Viewing the proceedings as a whole, there had been no breach of C's rights under Article 6 due to the delay.

(4)        That there was only a requirement to hold an oral hearing where fairness required it. The default position was that there need be no oral hearing, as the objective was resolve disputes quickly and with minimum formality (Heather Moor & Edgecomb Ltd v Financial Ombudsman Service [2008] EWCA Civ 642 considered). That there were disputed facts in the investigation did not itself necessitate an oral hearing. Although the role of the court was to take its own view as to whether fairness required an oral hearing, in most cases the outcome would be the same as if the court was only asked to assess whether the FSO's decision had been rational. In the instant case fairness did not require an oral hearing, as this would not have assisted the investigation and much of what the FSO had to decide involved evaluation and did not require factual evidence.

Claim dismissed

Key paragraphs

[1] - [5] - Introduction

[6] - [23] - Background

[24] - [33] - The role of the FOS

[34] - [37] - Article 6

[38] - [93] - The proceedings before the FOS

[94] - [105] - Failure to reach a determination within a reasonable time

[106] - [117] - Failure to hold an oral hearing

[118] - [121] - Overall unfairness

[122] - [123] - Delay

[124] - Conclusion

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