Ropaigealach v Financial Ombudsman Service Ltd

1. LORD JUSTICE RIX: This is the application in effect of Mr and Mrs Ropaigealach, who seek permission for judicial review of the decision of the Financial Ombudsman Service, to appeal from the judgment of Sullivan J dated 27th April 2004 refusing them permission to go to judicial review.

2. Since the applicants have not appeared this morning at the 10.30 appointment, I have postponed dealing with the matter until now, just before 1.00 pm. However, no word has come from the applicants and I will therefore proceed to judgment which, in the circumstances, I will take more shortly than I would otherwise have done.

3. In essence, the applicants complain that the decision of the ombudsman dated 29th July 2003 is wrong in law insofar as it deals with the time bar point and otherwise was unfair in respect of the matters referred to and dealt with in the judgment below.

4. The applicants had applied in July 1989 for a refinancing of the mortgage of their home and had taken a package including a 20-year endowment policy from the Marine and General Life Assurance Society ("MGM"). That policy came into effect on 23rd January 1990. It was a 20-year policy and therefore was known from the very beginning to extend into a time when the applicants would be retired.

5. In September 2000, ten years after commencement of that policy, the applicants complained to MGM about the unsuitability of the endowment policy and the financial package which they had been provided with. That complaint was rejected by MGM on 21st October 2001.

6. On 23rd April 2002, the applicants filled up a complaint form to the ombudsman. At that time, the ombudsman bureau was operated under the Personal Investment Authority, PIA. Subsequently, that has become the Financial Ombudsman Service, the FOS. On 22nd July 2002, the FOS adjudicator wrote to the applicants to give the Service's initial view. There was further correspondence about the time bar feature and in the upshot, the matter was referred to the ombudsman herself.

7. There was a request for an oral hearing which the ombudsman declined by letter of 4th July 2003. On 29th July 2003, the ombudsman gave her provisional indication to the applicants but allowed 28 days for further representations. Her decision was in effect that to the extent that the applicants' complaint was that they had been sold a package which involved the danger and difficulty of it extending into their retirement years, that matter was known to them at the time of taking up the package and had been time barred at latest six years later. There were no exceptional circumstances. To the extent that their complaint raised any matter outside the retirement aspect referred to, there was effectively no merit in it.

8. On 15th September 2003, the ombudsman gave her final decision which was to the same effect as her provisional indication. On 15th December 2003, the applicants applied for judicial review.

9. In response to that application, there was a very lengthy submission put in on behalf of MGM pursuant to their acknowledgment of service. The applicants then themselves responded to that submission with a lengthy reply. In that reply, they made it clear that their case was "both first and last concerned" with the sale of a policy extending into retirement. On that point, the judge below was quite satisfied that there was no error of law in the ombudsman's decision that the complaint was time barred. As a result the ombudsman lacked jurisdiction.

10. As for the three matters of unfairness complained of in the process of decision-making by the FOS, the first was that it was unfair of the Service, the FOS, to raise with MGM the question whether that firm wished to take a time bar point. If it did, then the relevant rules under which the Service operated were to the effect that there was no jurisdiction in the Service to accept a complaint. The judge said that it was eminently sensible for the time bar matter to be clarified with MGM and that there could be no objection to that course. I agree.

11. The second matter of unfairness relied upon was that the applicants had been denied an oral hearing by the ombudsman, but this matter was carefully explained to the applicants in the ombudsman's letter of 4th July 2003. They were given a further opportunity to make representations; they were offered the chance to make a recording which they could submit, if that was their preference, regarding their submissions. In my judgment, the judge can be in no way faulted for saying that there was no unfairness in the ombudsman's procedure.

12. The third point of unfairness raised was that MGM were not required to produce a copy of internal guidance which might have been relevant if the applicants' complaint to the ombudsman had been upheld. That was, in any event, requested after the final decision of 15th September 2003 had been published. It was then too late. Again I agree with the judge's view of the matter below.

13. It seems to me that neither on the question of law effectively arising out of analogous statutory time bars, nor on the questions of unfairness complained of by the applicants, is there a real prospect of success on appeal. For these reasons, I dismiss this application.