“Some competent advisers would have recommended that Mr Lodge make a transfer …”
“…the regulatory system discourages advisers from recommending transfer as to the best of my knowledge nobody has been ordered to pay compensation for saying ‘stay put’ even if the client dies early and the advice causes his estate to suffer a loss. Advisers know they run the risk of being found at fault for recommending a transfer but not for advising ‘stay put’. There is a clear benefit to the adviser in advising a client to stay put.”
“In my opinion, cases such as Le Compte, Van Leuven and De Meyere, Albert and Le Compte and Bryan establish that, as far such tribunals are concerned, no breach of the Convention arises if the tribunal is subject to control by a court that has full jurisdiction and itself complies with the requirements of Article 6(1). In other words, when dealing with a disciplinary tribunal, such as the PCC, a right of appeal to a court of full jurisdiction does not purge a breach of the Convention. It prevents such a breach from occurring in the first place.”
“In considering what is fair and reasonable in all the circumstances of the case, the Ombudsman will take into account the relevant law, regulations, regulators’ rules and guidance and standards, relevant codes of practice and, where appropriate, what he considers to have been good industry practice at the relevant time.”
“Our “fair and reasonable” jurisdiction has attracted a fair amount of attention. It allows us to look beyond the law, beyond wording of the small print, to take into account the large print in the promotional materials, good industry practice, and, if necessary, adopt a modern and fairer approach where it is clear that the law has lagged behind.”
“While the idea of an ombudsman who can redress the balance of power in favour of consumers of important services has its appeals, it runs contrary to modern western views of formally rational justice and the rule of law. The fact that ombudsmen are created to redress inequalities is not a relevant consideration to formal justice that treats rich and poor alike: wealthy respondents deserve as much respect for their legal rights as poor complainants. The rule of law does not sit easily with concepts of individuated justice, for example those based on the sense of equity of an experienced official… One must not exaggerate the importance of these objections…This is, at least in part, a recognition that formal justice and the rule of law reproduce structural inequalities, favouring those parties who can most easily configure their private rights and obligations and seek to have them enforced through the courts. A corporation which is held to standards of fairness that were not known by it prior to an ombudsman’s determination may cry “foul”, but its position is not necessarily worse than that suffered by an individual who finds that his rights and duties bear no relation to his reasonable expectations. As in other areas of public law, one looks for a pragmatic resolution of these oppositions…”
“5.18 In the context of developing FOSBOOK, I have considered how far individual case decisions should be published. As noted in my call for evidence document, FOS practice on this issue is relatively conservative compared to some of its sister services overseas, some of whom publish all decisions in full, and some other UK Ombudsmen, who publish summaries of all their decisions. Swiss Re UK urged me to recommend full publication to help provide reassurance of consistency of decision-making, but they were a lone voice in the debate. Other respondents from both industry and consumer worlds argued against. Some arguments were practical: volumes would simply be too large to manage. Others started from the principle that no decision should be seen as precedent-setting and argued that publication could create false and undesirable misapprehension. I agree strongly with the practical point. I return to the second below, in discussing test cases. 5.19 I do not, however, see how the FOS can become more transparent without significantly more decisions being published, and those decisions being published in full, rather than in summary form. I believe that decisions need to be published for two purposes: • first, in the context of FOSBOOK, to guide practitioners about developing FOS thinking and practice; • secondly, to facilitate debate on the evolution of practice over time… 5.20 I therefore recommend that the FOS should: • select and publish suitable decisions in full, but anonymised, form in FOSBOOK, to show the relationships between the broad principles applied to resolution of categories of cases and their application in practice; • commission and publish regular academic analysis of the full range of Ombudsman decisions alongside future independent reviews.” • first, in the context of FOSBOOK, to guide practitioners about developing FOS thinking and practice; • secondly, to facilitate debate on the evolution of practice over time… • select and publish suitable decisions in full, but anonymised, form in FOSBOOK, to show the relationships between the broad principles applied to resolution of categories of cases and their application in practice; • commission and publish regular academic analysis of the full range of Ombudsman decisions alongside future independent reviews.”
“The Ombudsman must maintain a register of each money award and direction made.”