The Financial Ombudsman Service (FOS) was established under the Financial Services and Markets Act 2000 (FSMA) in order to resolve certain types of disputes between firms and their retail clients in a relatively fast, informal and independent process.

Section 228(2) of FSMA states that a complaint to the FOS is to be determined by reference to what is "in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case". The words "in the opinion of" make it clear that the ombudsman may be subjective in arriving at what is fair and reasonable in all the circumstances of the case, although if the ombudsman's decision is perverse or irrational, it and any associated determination may be set aside on conventional judicial review grounds.

The case of R (on the application of Heather Moor & Edgecomb Ltd) v Financial Ombudsman Service & Simon Lodge [2008] EWCA Civ 642, concerned a determination by the FOS of a complaint under s228 relating to unsuitable pensions advice from an IFA firm. The IFA firm applied for judicial review of the decision on various grounds including that the FOS ought (in order to comply with the fair hearing rules of Article 6) to have held an oral hearing in public on the complaint before issuing its determination.

The Court of Appeal was satisfied that, in the circumstances, the procedure established for handling complaints by the FOS was Article 6 compliant and, in particular, that there had been no breach of the Human Rights Act 1998 in not holding an oral hearing in this particular case.

03 September 2008

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