Judicial Review - Financial Ombudsman Service

[legalpickle]

Hi Fellow CAGers,

A decision was recently made by an Ombudsman in the fos after I disagreed with the Adjudicators decision. The Ombudsman's decision awards me something but not on the same basis as my complaint and not as much as would have been awarded had my main complaint been upheld.

I am seriously considering Judicial Review as I am very annoyed about what I see as the biased behaviour of the FOS. I fail to see how Which? can call them the protector of consumers or things like that! This case has been with the FOS since November last year and only last week the final decision was made - 11 months!

Anyway's I am studying the rules on Judicial Review and to prepare my case and make a quick decision - Judicial Review must be submitted within 3 months - I need some help.

1. I know there was at least one case that went to Judicial Review, I think two, against the FOS, I think both were taken by the firm's as opposed to the complainant's and need a link to the judgments please?

2. Can somebody point me towards the instruction manual for the FOS in taking complaints - I think it's called "DISP" and I think there has been a recent change in versions, in which case both versions please?

3. I'll probably find this one out anyway by calling the Judicial Review team at the Royal Courts of Justice when I get round to it sometime this week, but does anybody know if Judicial Review can be done at the District Registry like other High Court cases? I am in Manchester and really don't want to shlep to London on a train for any hearing.

Ta for any help,
legalpickle

[peterlucas]

I am pretty sure all judicial reviews are at the royal Courts of Justice. They also tend to be expensive, complicated cases. Even if your'e representing yourself, you'd have an awful lot of work to do to win a JR case. Its a lot harder than a county court claim, its a far bigger deal, and a decision in your favor can not do more than require the fos to look again at the matter, even then only due to illegality, irrationality or procedural impropriety. Which heading were you thinking of using?

[legalpickle]

Originally Posted by peterlucas

I am pretty sure all judicial reviews are at the royal Courts of Justice. They also tend to be expensive, complicated cases. Even if your'e representing yourself, you'd have an awful lot of work to do to win a JR case. Its a lot harder than a county court claim, its a far bigger deal, and a decision in your favor can not do more than require the fos to look again at the matter, even then only due to illegality, irrationality or procedural impropriety. Which heading were you thinking of using?

Peter,

Thank you for your swift response. I appreciate the help.

However I would like to ask for on-topic responses. I know the Judicial Review procedure and know that it is substantially more complex than county court claims. If I take the Judicial Review option, I will be entering into it knowing the risks and confident of my chances of success.

I would also prefer not to go into too much detail about the case for a variety of reasons. I will however answer this one question. Firstly, the court can tell the fos that it's decision was wrong, which would leave them with little choice but to make the only other decision they could make which would be to my benefit.

This is advantageous to me. In a lot of Judicial Review cases there are a variety of alternatives that the court can tell the relevant body but in my case there are only two options because of the relative simplicity of the case. I therefore don't expect the trial to take too long or to be too costly.

Secondly, their decision was irrational.

If anybody can answer my questions 1 & 2 which are the most important I would much appreciate it.

Ta,
legalpickle

[tifo]

deleted ... am told anything about the fos, other than the questions asked, is off-topic.

[legalpickle]

Originally Posted by tifo

i've had multiple irrational and biased decisions from the fos in relation to nearly all my complaints (pay the DCA my refund even when account settled or unenforceable, DCA not a party to the complaint at any time etc). They 'given away' more than £12,000 of my refunds. Basically, all the hard work i've put in over the last year and more has gone to the DCA who haven't even been contacted by the fos.

but, it's hard doing anything against them ...

That's not an irrational decision. The DCA would not have been party to that action. Complaints about DCA's to the fos can only be for things that have happened since 1st April 2008 and on certain things. Most things are still relevant to the OFT when it comes to DCA's though this is likely to change soon.

When you get a decision that you feel is irrational you have to look at it from a non-biased perspective. There are laws governing these sort of things and if you complain about a financial institution the DCA is not party to that complaint.

But nonetheless this is off-topic!

[tifo]

deleted ... am told anything about the fos, other than the questions asked, is off-topic.

[legalpickle]

Originally Posted by tifo

Yes, i know, yet they still get the money without submitting a word.

This is not off topic because it still concerns the fos's biased and partial decisions in favour of banks/DCAs, no matter what.

Another issue is how they have to consider law but not follow it, meaning they pick and choose which law they like and don't like. Totally unfair.

Tifo: This is off topic as I have asked specific questions not asked for a discussion on the issue! If I was asking for advice and to discuss it, it would be on topic, but I am not, I have asked specific questions that I am posting here again:

Originally Posted by legalpickle

1. I know there was at least one case that went to Judicial Review, I think two, against the fos, I think both were taken by the firm's as opposed to the complainant's and need a link to the judgments please?

2. Can somebody point me towards the instruction manual for the fos in taking complaints - I think it's called "DISP" and I think there has been a recent change in versions, in which case both versions please?

3. I'll probably find this one out anyway by calling the Judicial Review team at the Royal Courts of Justice when I get round to it sometime this week, but does anybody know if Judicial Review can be done at the District Registry like other High Court cases? I am in Manchester and really don't want to shlep to London on a train for any hearing.

So you see tifo your points are off-topic so I would really appreciate it if you did not continue to ruin my thread and stopped your rants that are irrelevant to my questions and go no way to answer them.

Thank you for your understanding!

[peterlucas]

There is a discussion of one of the cases here Fair and reasonable: challenging the fos . It seems from this that challenges to the fos actually have different criteria than the normal three headings.

Section 228(2) of the Financial Services and Markets Act 2000 is at the heart of the case, Orton said. This section requires the Ombudsman when determining a complaint to have reference to what was, in his opinion, 'fair and reasonable' in all the circumstances of the case. The FOS does not have to make a decision in accordance with English law, however.

[Bona]

I am also thinking of going for a Judicial review but do we have to pay the other side if we loose
Have you thought about petioning the European parliament ( not court) it takes about six weeks cost nothing execept a small fee and your trip to Brussells they cannot change the law but if you get a decision in your favour the govermaent are obliged i think to look at it ( very rarely used but very effective)

[legalpickle]

Peter Lucas: Thanks for that. I'll look at it later today. If anybody has anything else on-topic, I'd appreciate it. Ta.

Originally Posted by Bona

I am also thinking of going for a Judicial review but do we have to pay the other side if we loose
Have you thought about petioning the European parliament ( not court) it takes about six weeks cost nothing execept a small fee and your trip to Brussells they cannot change the law but if you get a decision in your favour the govermaent are obliged i think to look at it ( very rarely used but very effective)

Yes of course you have to pay the other side! It's the High Court!

Petitioning the European Parliament can only be done in larger cases where the government is more intricately involved. It can't be done against the fos, they would refuse to look at it. And frankly, travelling to Brussels would be more of a nightmare for me than all the money I may have to pay if I lost in Judicial Review!

Judicial Review is - as has been said above - complicated and can be costly. It isn't like county court. You also have to have exhausted all other methods first and abide by the Pre-Action Protocol or your case could be struck out with a costs order.

Also a petition to Brussels only helps where it's a problem with the Law as it is, but is extremely unlikely to help where you have a dispute with a Government body where the Law is fine - and unlikely to be changed, as it isn't wrong - and they have followed the Law. In my case the body - the fos - has been irrational, but they have followed the Law overall.

I suggest you read everything to do with Judicial Review in depth before even considering it. Just not knowing that in all High Court cases you can be liable for the other party's costs if you lose, and in most occasions will be, gives the impression that you have not thought it out. Here are some links:

Judicial Review Procedure: Publications - Guidance - Administrative Court

CPR Part 54 - relates to Judicial Review:
PART 54 - JUDICIAL REVIEW AND STATUTORY REVIEW

Pre-Action Protocol for Judicial Review:
Pre-Action Protocol for Judicial Review

All court forms, including those for Judicial Review if you finally decide to go for it:
CPR - Forms
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By the way in response to my question 3. I have called the Administrative Court Office and the Listings Office. In rare circumstances they can list a case after the Application has been made to be heard in a District Registry, but all Judicial Review applications must be made to the ACO in the RCJ and it is very rare that it will be heard in a District Registry.

Anybody that can provide more on my other two questions it would be much appreciated.

[Bona]

Thats not the information we have about the European parliment

We have a dispute with a partnership of Acouncill and NHS Trust canr get anyone to look into it not a MP not the chief Exec nobody onbudusman says he dosnt cover were at our wits end

[legalpickle]

Originally Posted by Bona

Thats not the information we have about the European parliment

We have a dispute with a partnership of Acouncill and NHS Trust canr get anyone to look into it not a MP not the chief Exec nobody onbudusman says he dosnt cover were at our wits end

Post in the Health forum and you may get some help about it.

[HermieMonk]

Originally Posted by legalpickle

Hi Fellow CAGers,

A decision was recently made by an Ombudsman in the fos after I disagreed with the Adjudicators decision. The Ombudsman's decision awards me something but not on the same basis as my complaint and not as much as would have been awarded had my main complaint been upheld.

I am seriously considering Judicial Review as I am very annoyed about what I see as the biased behaviour of the FOS. I fail to see how Which? can call them the protector of consumers or things like that! This case has been with the FOS since November last year and only last week the final decision was made - 11 months!

Anyway's I am studying the rules on Judicial Review and to prepare my case and make a quick decision - Judicial Review must be submitted within 3 months - I need some help.

1. I know there was at least one case that went to Judicial Review, I think two, against the FOS, I think both were taken by the firm's as opposed to the complainant's and need a link to the judgments please?

2. Can somebody point me towards the instruction manual for the FOS in taking complaints - I think it's called "DISP" and I think there has been a recent change in versions, in which case both versions please?

3. I'll probably find this one out anyway by calling the Judicial Review team at the Royal Courts of Justice when I get round to it sometime this week, but does anybody know if Judicial Review can be done at the District Registry like other High Court cases? I am in Manchester and really don't want to shlep to London on a train for any hearing.

Ta for any help,
legalpickle

I am going through the same thought process. To gain compensation, I should and probably will, go through the Courts.

However, after 20 months of enduring the FOS process and given their obvious bias, I really would like to get a Judge to run his ruler through my matter as they should not be allowed to get away with this.

Find it surprising that an individual has not lodged a request for a JR yet but recognise that cost/risk is a serious factor.

I'm still evaluating this as an option - not to get financial compensation but because they appear to be seriously flawed as a public function. My argument would be bias and absence of reasonable process (disregarding key evidence, insufficient reasoning).

If there are people with legal experience that would like to comment - please give me some feed-back.

[tifo]

a Judicial Review is normally for a public body, yet the fos is a private company who accept a DSAR because a Freedom of Information Act request does not apply to them.

so why do we have to go for a JR? seems to me that the fos can act like a public body and a private company and eat their cake either way.

[legalpickle]

Originally Posted by tifo

a Judicial Review is normally for a public body, yet the fos is a private company who accept a DSAR because a Freedom of Information Act request does not apply to them.

so why do we have to go for a JR? seems to me that the fos can act like a public body and a private company and eat their cake either way.

I think you're a bit confused, though some of what you're saying is right.

A Subject access request applies to personal information relating to the Data Subject (i.e. requestor / applicant). This applies jointly to all public bodies, though there are different rates - such as for medical information - and certain exclusions - such as certain medical information where it may not be in the best interests of the requestor to have that information disclosed.

A FOIA request applies to public information - not relating directly to the requestor, but the general public - from public authorities and covers Local Government & most Central Government.

The fos is excluded from the FOIA as it is a company incorporated by statute as opposed to a public authority.

Judicial Review however is not excluded with companies incorporated by statute, such as the FOS so can apply. Though to date nobody has succeeded in a Judicial Review against the FOS.

Hope this clears it up. I'll try to respond to HermieMonk's post later on.

[bedlington83]

I guess you've already got the answers to the questions in your original post but for others who may have found this thread while looking for similar information: The only fos Judicial Review that I have so far found is this one
IFG Financial Services Ltd, R (on the application of) v Financial Ombudsman Services Ltd & Ors [2005] EWHC 1153 (admin) (19 May 2005)

The DISP manual is here: FSA Handbook - Full Handbook

[dad]

LP,

You asked about DISP. That sounds like part of the FSA Handbook which has a section called DISP. Given that both the fos and the FSA and its handbook are creations of the Financial Services and Markets Act I suggest that is a good place to start.

The FSA handbook (It is not the easiest of reads by the way) can be found at:

FSA Handbook

HTH

Dad

PS: Sorry Bedlington I did not see your post until after I had written mine.