Assurant General Insurance Ltd, R (on the application of) v Financial Ombudsman Service

This is a judicial determination on the papers, but where it is, in my judgment, appropriate to give reasons by way of a short judgment. This is a claim for judicial review in which a minded to transfer order (“MTTO”) was made on 8 February 2021. The Claimant had filed the claim in London and had answered “yes” to the question in Form N461: “Have you issued this claim in the region with which you have the closest connection?” The Form N461 went on to say this:

The MTTO gave reasons for a transfer to Manchester and gave the parties 7 days to file representations objecting to that course. The Claimant and Defendant have each filed objections to the transfer to Manchester. The Interested Parties have not.

The judicial review claim impugns the decisions on 26 October 2021 in relation to complaints brought by the four Interested Parties, in each case determining that the Defendant had jurisdiction to consider their complaint against the Claimant. The claim is said to raise a “narrow and discrete point of law as to the proper scope of the Defendant’s statutory compulsory jurisdiction”, relating to whether an implied agency arose between the Claimant and distributors who sold PPI to the Interested Parties, such that complaints could be brought against the Claimant. The Claimant’s registered address is in Crewe (CW1). Its solicitors are in London (EC2A) as is its Counsel (WC1R). The Defendant and its in-house lawyers are based in London (E14). The Interested Parties are in Porthcawl (CF36), Glasgow (G21), Filey (YO14) and Foston (DE65).

The written objections to transfer on behalf of the Claimant emphasise the following. (1) Although the Claimant has its registered office in Crewe roughly 7% of its UK workforce is based in Staines where it has a legal team member. (2) The Claimant’s client relationship manager, who as its witness has filed the evidence in support of the claim, is based in Bracknell, Berkshire. (3) The Claimant’s solicitors and its Leading and Junior Counsel are all based in London. (4) The Defendant is based in London. (5) The case concerns a jurisdictional point which will be relevant to other future complaints. (6) The Interested Parties are from different locations throughout the UK and have not indicated an intention actively to participate. (7) There is no clear reason to favour Manchester over London, and no more closely connected region than London.

The written objections to transfer on behalf of the Defendant emphasise the following. (1) The Defendant’s offices are located in London, and it has a “specific connection” to the London region. (2) The Defendant is represented by in-house solicitors based in London and it has instructed Leading Counsel also based in London. (3) Both of the active parties in the judicial review proceedings are objecting to transfer. (4) Transfer would inevitably lead to additional costs for both sides including travel and potential overnight accommodation for multiple lawyers. (5) The case is already in London. (6) Retaining it in London prudently promotes the ability to comply with any new Covid-related restrictions. (7) None of the Interested Parties has any apparent connection to Manchester nor has evinced any intention actively to participate.

I make these preliminary observations. First, the fact that the claim has been commenced in London is not of itself a reason why it should be administered and determined there. Parties should not be able to gain, by an act of filing the claim, an unwarranted traction or momentum for proceedings whose closest connection is with another regional Administrative Court venue. Secondly, the prospect of future Covid-related restrictions does not, in my judgment, constitute a reason for keeping a claim in London. Thirdly the question in Form N461 is to be answered straightforwardly. Here it was asserted on behalf of the Claimant that the claim had been issued in the region with which the Claimant has the closest connection. That was not correct. The Form N461 allows a claimant to acknowledge that this has not occurred and give reasons. Where that is the position, that is the course should be taken. Fourthly, the reason originally given in the Form N461 for issuing the claim in London

The submissions made by both of the principal parties in the present case have persuaded me that, in the particular circumstances of the present case, London should properly be regarded as the region with which the “claim” is most “closely connected”; or, put another way, that in any event London is the regional centre at which this claim should be administered and determined. I arrive at that conclusion having regard to the subject matter of the claim, the location of the Claimant, the location of the Defendant, the location of the Interested Parties and all the other relevant circumstances. It is not simply that the parties have chosen to instruct legal representatives based in London. So far as the Defendant is concerned, the Defendant is instructing in-house solicitors, and it is based in London. Although I am not persuaded that the present case has a “specific connection” to the London region, rather than the Manchester region, so as to engage the principle that the claim should “if at all possible” be administered there, the same is true of Manchester. The fact that the Claimant’s registered address in Crewe is, in the circumstances of the present case, rightly to be regarded as a key feature in considering “closest connection” of “the claim”. And I am not persuaded by the fact that 7% of the claimant’s workforce is in Staines. But it is relevant that the Claimant’s employee, who as client relationship manager was the appropriate person to give evidence in support of the claim, is based in Berkshire. The fact is that the ease and cost of travel to a hearing does support London as a venue in the case of him, the identified in-house lawyer based at Staines, the solicitors (Pinsent Masons) and Counsel, the Defendant’s in-house team and in-house solicitors, and the Defendant’s Counsel. There is no identifiable key person, linked to the principal parties, for whom Manchester would be a closer venue. There is no ‘subject matter’ property or premises identifiably proximate to Manchester. There may be – and I think there are – strong reasons why a Claimant based in the North-West of England should in general expect to have its judicial review claims determined at the regional Administrative Court in Manchester. But, in all the circumstances of the present case, that consideration is outweighed by the other features of the case, viewed in aggregate. Among them, it is relevant that both principal parties have filed objections to transfer from London to Manchester, given the opportunity to do so in the MTTO. It is also relevant that none of the Interested Parties have evinced an intention actively to participate, and in any event that they are in Wales, Scotland, North Yorkshire and South Derbyshire. Venue determinations can be finely balanced. I am satisfied that, on balance, the present case comes down in favour of London. For all these reasons I accede to the combined representations of the two principal parties and the claim will remain administered and determined in the London region.