Who Has The Final Say on What FOS Can Decide?Posted on 19/10/15
The importance of the role played by the FOS in resolving financial disputes is demonstrated by the fact that its decisions can only be challenged by judicial review, rather than by the usual appeal process.
Judicial Review is generally regarded as being limited because the court is only usually able to scrutinise the decision making process rather than the merits of the decision itself.
As part of that decision making process, and before it can look at the merits of a financial dispute, the FOS will need to assess whether certain conditions have been fulfilled. So for instance, only persons judged to be “eligible complainants” based on set criteria are able to make a complaint. The complaint has also has to be made within a precise timescale and must relate to the type of activity which comes within the FOS remit.
Historically the High Court (when considering applications for Judicial Review of FOS rulings) appeared happy to let the FOS take its own decisions as to whether these conditions had been satisfied. This was illustrated by Bankole v FOS in 2012 where the High Court would not interfere with the FOS’s refusal to consider a complaint that had not been lodged within six months of the date of the Final Response from the financial institution.
However, in 2014 (in Bluefin v FOS) the High Court overturned an FOS ruling about who was entitled to bring a complaint. A director of an on line gambling firm was noted as an insured person on a policy organised by Bluefin, an insurance broker. The director complained to the FOS that Bluefin had failed to notify the insurer of a litigation claim against him leaving the director without cover.
Due to the fact that the policy provided the director with personal cover the FOS considered that the director was a “consumer” and it therefore had jurisdiction to consider his complaint. However, the High Court ruled the director was not a “consumer” because the insurance policy related to his business activities and therefore the FOS did not have jurisdiction to consider his complaint.
In Chancery v FOS the High Court confirmed the FOS had correctly decided it had jurisdiction to consider a complaint about the quality of investment advice given by a firm of accountants. This was despite the fact the advice also included tax matters which are outside the FOS's remit.
However the statement by the Court that there was nothing in the legislation “to make the FOS master of the limits of its own jurisdiction" suggests the judges will intervene to ensure the FOS stays within its remit.
"this article appeared in the July-September 2015 edition of The Consumer Credit Magazine. For further information please contact Jeremy Bouchier, Senior Solicitor."