Green, R (on the application of) v Financial Ombudsman Service Ltd & Ors

MR JUSTICE HICKINBOTTOM: In this claim, the claimant (a registered financial consultant) seeks to challenge two decisions of an ombudsman within the defendant organisation, both dated 25 March 2008, by which he upheld complaints made by the two interested parties, Mr and Mrs Gunner, about advice provided to them by the claimant in 1999. Those decisions made an “award” to the Gunners of some £115,000 which, under the relevant regulatory provisions, is binding on the claimant who is required to pay the award made. Permission was refused on the papers by David Elvin QC sitting as a Deputy High Court Judge on 15 September 2008. The claimant has applied to renew his application, which has come before me this morning.

In so far as is material, Mr and Mrs Gunner's complaints and the decisions reached on them were the same. In 1999, the Gunners engaged the claimant to give them financial advice at a time when they were considering retiring and drawing down their pension benefits. The claimant advised investing the pension funds in such a way as to generate an income - as opposed to buying an annuity which would have had a guaranteed income - and the claimant gave the Gunners advice as to the risks in terms of minimum growth on the former course. The ombudsman found the claimant had significantly underplayed the risks of that course: and, had they understood the true risk, the Gunners would not have invested in that arrangement. The award reflected the loss to the Gunners resulting from that mis-advice.

The decisions, as I have said, were made in March 2008. Unfortunately, the claimant suffered a stroke in the previous month, and since then he has suffered from cognitive and speech impairments. He continues to do so, although fortunately there is no evidence that his disability has worsened since March 2008. This claim has been brought and managed at some considerable length by the claimant’s son, Andrew Green.

The claimant has, through his son, sought a further adjournment of this application, a renewed application for permission to judicial review. The application to adjourn has been made in writing, neither the claimant nor his son attending.

Whilst I am sensitive to the claimant’s condition, and sympathetic, in dealing with the application to adjourn I have to take into account not only the claimant but also the defendant and particularly the interested parties. They have an "award" from the ombudsman that Mr Green pay them a total of £115,000, that award being made in March 2008 but referring back to advice in 1999. Under the relevant scheme that award is binding upon the claimant. That sum, of course, has not been paid. The Gunners have a right to reasonably prompt justice.

In relation to the claimant, as I have said, although he has suffered a stroke, these proceedings have been effectively brought and managed throughout by his son. Mr Andrew Green indicated beforehand that he did not intend attending today, but gave no compelling reason for failing to do so, having been instrumental in instigating and pursuing this claim to date. There is no medical evidence as to when, if at all, the medical condition of the claimant will improve.

As I have already indicated, the Gunners are entitled to some consideration. In all of the circumstances, and bearing in mind the merits of Mr Green's claim, to which I will come in a moment, I am not willing to grant an adjournment.

The application for permission was turned down by the Deputy Judge in what is correctly described by Mr Moffett as robust terms. The grounds originally relied upon are, in my view, not arguable for the reasons set out in the summary grounds of the defence.

The application for renewal is brought upon two particular grounds, which also I do not regard as arguable. First, Mr Green seeks to rely upon expert witness evidence to show that the ombudsman's decisions were wrong. However, such evidence is not admissible in this court, for the reasons set out in paragraphs 20-25 of Mr Moffett's helpful skeleton argument, and in particular as set out by Collins J in R (Lynch) v GMC [2004] 1 All ER 1159. In any event, in my view, that evidence, even if admitted, would stand no reasonable prospect of persuading any court that the ombudsman's decisions were wrong in law by reason of perversity or on any other public law ground. The claimant is simply seeking to reargue the matter that was considered and decided by the ombudsman on the merits. That is not the role of this court.

The second ground concerns the perceived inadequacies of the ombudsman appointed. However, that ombudsman was appointed under the proper statutory provisions. Again, there is in my judgment no arguable case that there was any error in law by the defendant in appointing the particular ombudsman to deal with this matter, or in that ombudsman in fact dealing with the matter.

In short, I consider that there is no arguable ground upon which this claim could properly proceed. I have taken into account those merits in deciding that it is proper today not to agree to any further adjournment of this claim.

For those reasons, first, I refuse the application to adjourn, and, second, I dismiss the application for permission.

Is there anything else Mr Moffett?

MR MOFFETT: There is one further matter. In the summary grounds of resistance the defendant made an application for Mount Cook costs of the preparation, the summary grounds and the acknowledgement of service. Your Lordship has it there, it is paragraph 30. There should have been a schedule of costs attached to that as well.

MR JUSTICE HICKINBOTTOM: The schedule is, on its face, limited to the acknowledgement of service.

MR MOFFETT: Your Lordship will have seen the very voluminous bundle indeed was submitted with the claim form.

MR JUSTICE HICKINBOTTOM: On the principles of Mount Cook, Mr Moffett, you are entitled to your costs of the acknowledgement of service and summary grounds, which I will summarily assess in the sum sought, £1,751. Given the enormous numbers of documents which Mr Green has supplied, the hours involved are modest indeed. The rate involved is particularly modest, and certainly counsel's fees are both proportionate and reasonable.

MR MOFFETT: I am very grateful my Lord.