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The High Court has dismissed a judicial review application by a securities brokerage in respect of decisions made by the Financial Services Ombudsman Service (FOS): iDealing.com Ltd, R (On the Application Of) v Financial Ombudsman Service Ltd [2024] EWHC 847 (Admin).

As a reminder, the FOS was established under the Financial Services and Markets Act 2000 (FSMA), from which it derives its statutory powers to resolve disputes between consumers and businesses that provide financial services. Accordingly, decisions of the FOS in exercising its public law functions are amenable to judicial review.

In the present case, the brokerage challenged three FOS decisions made under its non-statutory service complaints scheme (complaining about the standard of the service provided by the FOS). The brokerage argued that the FOS was generally amenable to judicial review, and the fact that the decisions were not made in the exercise of any statutory power did not matter. It argued that the decisions had a sufficient public law element, flavour or character to fall within the scope of public law because they related to complaints, which themselves concerned the FOS’s exercise of its statutory functions under FSMA.

The FOS accepted that the exercise of its statutory functions under FSMA was amenable to judicial review, but argued that this did not extend to its ex-gratia voluntary non-statutory service complaints scheme, which focused on the FOS’s practical handling of consumer complaints under FSMA, rather than substantive aspects such as the merits of the consumer complaint or its outcome.

The court found that the FOS decisions in question were not amenable to judicial review as there was an insufficient public element, flavour or character to the decisions to bring them within the scope of public law. It is a helpful reminder to financial institutions that not all FOS decisions are amenable to judicial review. Even a link between a non-statutory decision and other statutory decisions will not necessarily be enough for the non-statutory decision to be rendered amenable.

For more information, please see our Public Law blog post.


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