Garrison Investment Analysis, R (on the application of) v Financial Ombudsman Service [2006] EWHC 2466 (Admin)

Case No CO/3679/2006[2006] EWHC 2466 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 23 August 2006
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF GARRISON INVESTMENT ANALYSISClaimant-v-
Between
FINANCIAL OMBUDSMAN SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR PAUL STAFFORD (instructed by Financial Services Legal LLP) appeared for CLAIMANTMR J R MCMANUS (instructed by Financial Services Ombudsman) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application for judicial review of a decision by the Financial Ombudsman Service Ltd dated 9 January 2006 in which the Ombudsman upheld in part a complaint made by the interested parties, Mr and Mrs Bell, and ordered the claimant to make redress. Under the statutory scheme, to which it is unnecessary to refer in any detail, the Ombudsman has to give reasons for his decision (see section 228(4) of the Financial Services and Markets Act 2000 ("the Act")). Any redress ordered by the Ombudsman is enforceable by proceedings in court for an injunction (see section 229(9)(a) of the Act).[2]In brief summary, the claimant contends that the Ombudsman's reasons in the decision were unintelligible and/or inadequate and that, in the light of the remainder of the decision letter, the redress ordered was unreasonable. In Mr Stafford's skeleton argument there was also a submission that the Ombudsman did not take into consideration various material considerations. Inevitably, that submission merged with the submission that, in so far as those considerations had been taken into account, inadequate reasons had been given. Under the heading "Findings" in the decision, dated 9 January 2006, the Ombudsman said in terms:
"I have considered all of the evidence and arguments from the outset, in order to decide what is fair and reasonable in the circumstances. Having considered Mr Duerden's latest correspondence, my view on this matter is the same as that detailed in my Provisional Decision dated 13 December 2005."
[3]In the earlier decisions the Ombudsman had specifically referred to the correspondence that he had received from the parties. Against that background there is no reason to believe that the Ombudsman did fail to take into account any material consideration and this case is, in essence, therefore, a challenge to the adequacy of the reasons in the decision letter and to the reasonableness of the redress ordered by the Ombudsman.[4]The interested party's complaint related to investments made into the NDF Extra Income and Growth Plans 3 and 5 in June 2000 and January 2001 respectively. The complaint was summarised in the Ombudsman's decision letters in these terms:
"[Mr and Mrs Bell's] complaint relates to investments made into NDF Extra Income & Growth Plans 3 and 5. You believe Mr Duerden, a representative of the firm, failed to highlight the risks and persuaded [them] that the NDF products were relatively risk free by linking them to the Abbey National. [Mr and Mrs Bell] also state that Mr Duerden recognised that [they] were both pensioners and were only prepared to accept minimal risk."
[5]Although numerous authorities relating to the giving of reasons were cited in the parties' skeleton arguments, it is unnecessary for present purposes to refer to them in any detail because it is common ground that whether reasons are adequate or not will depend on all the circumstances, and these will include the issues in dispute and the process in which the issues in dispute are being resolved. In this context, it is relevant to note that the underlying intention of the Ombudsman scheme is set out in section 225(1) of the Act, namely, "a scheme under which certain disputes may be resolved quickly and with minimum formality by an independent person." It is axiomatic, therefore, that any Ombudsman's decision letter should be read as a whole and in a common sense, and certainly not in a legalistic, way. Considering other aspects of the procedure, there was no hearing in this case. That is not in the least unusual. Normally disputes are resolved by the Ombudsman after exchanges of correspondence, and a hearing is not ordered unless the Ombudsman considers that one is required in the interests of fairness.[6]In the present case, the written representations submitted by the claimant and the interested parties to the Ombudsman were very extensive indeed. There were a number of stages in the process. The first stage was a ruling by an adjudicator in favour of the claimant and against the complainant interested parties. The adjudicator concluded, inter alia, that the publicity produced in respect of the NDF product could not be considered misleading; that the NDF investments did not change the overall risk profile of the complaint's portfolio and, as such, were suitable for their requirements. He further noted that the complainants had quite a large and diversified investment portfolio which contained investment that would appear to be of a higher risk nature "at the time the NDF plans were recommended your requirement was to produce a high level of income. The NDF plans in this situation would not appear to be out of keeping with your portfolio and as such it is my view that they were not unsuitable recommendations." The adjudicator also thought that the complainants should be considered as experienced investors.[7]As they were entitled to do, the interested parties disagreed with those conclusions and made representations seeking reconsideration afresh by the Ombudsman. That the Ombudsman did in what, for convenience in these proceedings, has been described as provisional decision one. In that provisional decision, the Ombudsman indicated that he disagreed with the adjudicator and was minded, for the reasons set out in provisional decision, one, to uphold the complaint in full. Unsurprisingly, when that letter was sent to the parties, it produced counter-representations from the claimant and, after considering those representations and further representations from the complainant, the Ombudsman issued provisional decision letter two on 13 December 2005.[8]Although this challenge is formally to the final decision of 9 January 2006, that letter, in essence, incorporated a substantial part of provisional decision 2. One of Mr Stafford's complaints is that it is not entirely clear how much of provisional decision 2 was or was not incorporated in the final decision.[9]Provisional decision 2 referred to the further representations made by Mr Duerden and by the complainants, corrected an error which had been included in provisional decision 1 and then reconsidered the relevant facts. Having concluded that he could not go so far as saying that Mr Duerden advised starting the NDF plans as repayment vehicles for a mortgage, the Ombudsman went on to say this:
"I have considered the not straightforward issue of what risk Mr and Mrs Bell more likely than not, wished to take and what risk their circumstances suggest would have been reasonable for Mr Duerden to advise them to take. I have given this issue considerable thought. I have considered that Mr and Mrs Bell have maintained an equity portfolio well into their requirement (though I do note what Mr Bell has said about his lack of time to redress his portfolio) and have shown through their correspondence with both this Service and letters on file addressed to the firm, that they do appreciate, at least, that there is risk involved with equity based products. Having that understanding I do not believe I could say that, having read, at least, the literature supplied with the investments they would not be aware that an investment that was linked to the performance of a equity index carried significant risk. Whilst the complainants may believe their equity unit trusts are a safe haven, which I do not believe they are and which may indicate a lack of appreciation of the true risks, their previous indication of an appreciation of equity falls from 2000 onwards (for example) would not seem to indicate to me, on the balance of probabilities that it would be reasonable to arrive at the conclusion that risk could be taken with capital. With this in mind I do not intend to uphold the sale of the NDF 3 product. I do not accept on the balance of probabilities Mr and Mrs Bell were unaware of the NDF 3 plan was linked to the EuroStoxx 50 index and as such contained risk. Both the Garrison news letter and NDF brochure give a description of the index and explained in general terms the potential for loss. I have no reason to believe Mr and Mrs Bell did not read the literature provided and even refer to the small print in correspondence to the firm dated 9 October 2003 in which they state 'We, of course, had noted that some inevitable "small print" existed."
In fact the description of the index and potential for loss were not hidden in the small print but in the main text. I have also taken into account the fact that the money invested was already in risk based products and not held on deposit or other capital secure investments. However, having said that, my view regarding the sale of the NDF 5 product remains the same. What I have said above does not absolve a financial adviser of his or her duties to recommend suitable products and whilst I can appreciate that approximately 20% of capital in this type of product may have been acceptable, I cannot accept increasing that to approximately 40% was reasonable in the circumstances, wherever that money derived from. These are short term investments linked to one specific index where very significant losses can be suffered, which are then crystallised at a given point. As I said in the Provisional Decision, my consideration does not merely include the basic risk of the product but also the complainant's wider circumstances. I do not believe it was appropriate to place so much reliance at their age (by recommending a further investment to the NDF 5) on one type of product such as this. In arriving at my conclusion I have also considered Mr Bell's health. Whilst it is my view that Mr Duerden was probably aware of Mr Bell's condition in 2000, following his home visit in November of that year, I note this has not stopped Mr Bell from continuing to invest in equities. ... I am sympathetic to Mr Bell's circumstances (certainly when it comes to the second investment) but if investments were to be restricted at all times to secure investments then I would not have expected a willingness to keep investing in these areas."[10]Against this background provisional decision 2 was that the Ombudsman now intended to uphold the complaint in relation to the sale of the NDF Plan 5 only. The letter continued:
"As detailed in the previous Provisional Decision, with respect to redress my aim would be to put the complainants in the position they would now have been in but for the firm's error. I am satisfied that the complainants would still have invested the original capital in a way designed to produce a return. As there is no compelling evidence about how the original capital would otherwise have been invested until the date of maturity, I consider it fairest to the assume With reasonable advice the complainants would have had the original capital intact plus a reasonable rate of return on the date of maturity The rate of return on the original capital would have been equivalent to 1% more than Bank of England repo rate (often called base rate) from time to time compounded yearly."
The methodology of calculating redress on that basis is then set out.[11]There were further representations, in particular about the question of redress and in due course there was the final decision which said in terms that, having considered the parties' correspondence, the Ombudsman's view was the same as that detailed in the second provisional decision.[12]After dealing with a number of other matters that had been raised in the correspondence, the final decision turned to the question of redress:
"The redress or comparison put forward by the [claimant] seems to be a comparison with equity investments alone and then an extrapolation of returns, which I do not believe appropriate in this instance. That assumes that the capital would have remained where it was, or reinvested in equities rather a decision taken to reduce risk (which is what the complainants have said they thought they were doing) and some other investment or instrument chosen."
The final decision is: "As detailed in the previous Provisional Decision with respect to redress my aim would be to put the complainants in the position they would now have been in but for the firm's error. I am satisfied that the complainants would still have invested the original capital in a way designed to produce a return" and essentially the same basis for calculating redress is set out.[13]Turning to the central criticism, that is to say that the reasons given for the Ombudsman's decision are inadequate, in my judgment, if the second provisional decision letter is considered as a whole and in a common sense way, it is plain why the Ombudsman reached the view that he did. In essence, it was that, although it was acceptable to recommend the NDF 3 products to the complainants, once one got to the NDF 5 product too much reliance was being placed on one particular type of high risk product. To use my phraseology, it was not right to put 40 per cent of one's eggs into this particular type of high risk basket in the complainant's wider circumstances, bearing in mind in particular their age. It is plain that although the Ombudsman considered Mr Bell's health he did not regard that as a circumstance of any particular weight.[14]Although Mr Stafford submitted that that reasoning was inadequate because it did not deal in terms with a number of submissions that had been made by Mr Duerden to the effect that the NDF product was no more high risk than other products; that its performance, for example, had not been markedly different from the performance that would have been obtained if, for example, investment had been made into an index tracker fund and so forth, I am not persuaded that the decision letter of the Ombudsman had to go into that level of detail. The point being made by the Ombudsman was a relatively simple one: a variant of the "do not put all your eggs into one basket" argument. That is a relatively straightforward and well understood concept, and, in my judgment, the letter is readily understandable. It is plain, for example, that the Ombudsman took into account the fact that Mr Duerden had been arguing that the NDF plan had replaced investments of a higher risk category. That fact is specifically mentioned in the Ombudsman's summary of Mr Duerden's representations and, in my judgment, it is plain that the subsequent reference in the letter to it not being reasonable in the circumstances "wherever that money derived from", is a reference back to the fact that the NDF plan was replacing investments that were, at least in Mr Duerden's view, of a higher risk category. As I say, the letter has to be read as a whole; it is not right to pluck out individual phrases, and the letter has to be read in a common sense fashion. This observation applies also to another criticism of provisional decision letter 2, where it is said:
"... my view regarding the sale of the NDF 5 product remains the same."
It is submitted that his view could not have been the same because the basis of the criticism of the advice in relation to NDF 5 in provisional decision letter 1 been overtaken by the views expressed in provisional letter 2. So it had; but it is plain, on any common sense reading of the second letter, that what the Ombudsman was saying was that his conclusion as to the sale of the NDF 5 product remained the same. He then explained the reason why he reached that conclusion, and that reason was, in essence, placing 40 per cent of one's eggs in one type of high risk product basket.[15]One of the points made by Mr Duerden in his extensive and detailed submissions to the Ombudsman was, again very much in summary, that had the Bells remained invested in equities other than NDF 5, that is to say if 40 per cent of their capital had not been put into this particular type of high risk product but into other equities, then over the relevant period they would have suffered losses reflecting the fall in the FTSE index and those losses would have been not very different from the losses that they actually suffered. In summary, his point was that whether or not his advice was reasonable, it had caused the complainants no loss.[16]In my judgment, there is force in the complaint that the Ombudsman's conclusions as to the limited nature of the claimant's error were not carried forward into the redress that he ordered. It will be recalled that the expressed aim was to put the complainants in the position they would have been in but for the claimant's error. I make that point because the Ombudsman has a broad discretion as to whether or not to award redress and, if so, how much to award and on what basis, up to a ceiling of £100,000. Section 229(2)(a) of the Act provides that a determination may include an award of such an amount as the Ombudsman considers fair compensation for loss or damage of a kind falling within subsection (3) suffered by a complainant. Subsection (3) deals with what may be compensated for by way of a money award and, as one would expect, that includes financial or other loss of a specified kind. But in order to do what is fair, the Ombudsman has to set out the aim, and the question is whether redress upon the basis that the complainants would have had their original capital intact, plus a rate of return 1 per cent over bank rate, does realistically put them in the position that they would have been but for the particular error identified by the Ombudsman. This was not a case where the Ombudsman concluded that a complainant who was seeking a low risk product had been wrongly advised to purchase a high risk product. The claimant's error was not to recommend the NDF products, but simply to recommend too great a percentage of them.[17]Although Mr McManus QC, on behalf of the Ombudsman, submitted that the approach adopted in this case was consistent with the Ombudsman's usual approach, namely that where it is possible to make a reasonable assumption about what the customers would have done with their money had they not been given wrong advice, redress would usually be awarded on the basis of that assumption; but where that is not possible, that is to say where it is difficult to know what the customer would have done with the money if they had not been given wrong advice, it is assumed that with reasonable advice they would have received a reasonable rate of return and this is calculated by reference to base rate plus 1 per cent compounded annually.[18]While such a broad rule of thumb as a response to uncertainty is readily understandable in the usual run of cases, the facts of this case, given the particular findings of the Ombudsman as to the nature of the claimant's error, were not usual. As I say, the error was a relatively limited one. It was not recommending high risk products; it was recommending that too much reliance was placed on one particular type of high risk product. While it is perfectly true that one would not know which precise stocks the complainants might have bought had they not received erroneous advice, the claimant is entitled to say that it is plain from all of the evidence that they would have remained in equities. The background to the claimant's advice was that the funds for buying the NDF products were derived from investments that were of at least as high a risk category. Moreover, the avowed intention of the complainants was to achieve a high income.[19]Although their complaint was upon the basis that they had been persuaded that the NDF products were relatively risk-free, and that they were only prepared to accept minimal risk, it would appear from provisional decision 2 as adopted in the final decision, that those contentions were not accepted by the Ombudsman. Indeed the Ombudsman expressly dealt with what he described as the not straightforward issue of what risk Mr and Mrs Bell more likely than not wished to take; and what risk would have been reasonable for Mr Duerden to advise them to take.[20]Having posed that question, while the answers are expressed in a series of double negatives, it would appear, on any common sense reading of the letter, that the Ombudsman was satisfied that Mr and Mrs Bell's contention that they were only prepared to accept minimal risk was not correct. He concluded that they knew there was a risk with equity based products; that they had read the literature relating to NDF 3 and were aware that an investment that was linked to the performance of an equity index carried significant risk, in short, that they were prepared to accept a degree of risk with their capital. He expressly concluded that they had read and understood the brochure giving details of the NDF 3 product. As Mr Stafford rightly submitted, it follows that they realised that there was at least an equal risk with NDF 5. So here were people who were prepared to accept more than minimal risk. Indeed the Ombudsman himself noted the fact that the money invested was already in risk-based products and not held on deposit or other capital secure investments.[21]Against that background, the conclusion in the final decision letter that the claimant was wrong to assume that the capital would have remained where it was or would have been reinvested in equities seems, on the face of it, inexplicable. The final decision refers to a decision to reduce risk "which is what the complainants have said they thought they were doing". But there is nothing in provisional decision 2 to suggest that that contention on the part of the complainants had been accepted by the Ombudsman when he went through the exercise specifically with the object of trying to ascertain the "not straightforward issue" of what risk Mr and Mrs Bell more likely than not wished to take.[22]Mr McManus referred in his submissions to passages in the representations made by the complainants to the Ombudsman to the effect that they were wishing "to batten down the hatches", and also to the fact that they viewed the products as "relatively risk free."[23]The difficulty with those submissions is that the Ombudsman does not appear to have accepted those submissions that had been made on behalf of Mr and Mrs Bell. As I say, the underlying complaint was that they have been induced to purchase products that they thought were relatively risk-free, they being prepared to accept only minimal risk. But those contentions were expressly not accepted by the Ombudsman. That was why he did not uphold the complaint in respect of the sale of NDF 3. He upheld the complaint in respect of the sale of NDF 5, not on the basis that what Mr and Mrs Bell wanted was a relatively risk-free product, or should have been advised to invest in a relatively risk-free product, but simply that they should not have been told to invest so much of their funds into one particular product.[24]Against this background, the proposition that a decision would have been taken to reduce risk is, on the material before the Ombudsman and accepted by him, wholly speculative. This is a case where on all the evidence the only rational conclusion would have been that the Bells wished to invest in equities which they had invested in and continued to invest in, notwithstanding Mr Bell's illness, but they were wrongly advised to invest in too great a proportion of a particular type of product. The question, therefore, whether they sustained any loss as a result of being advised to invest too much in that particular type of product should, in fairness to the claimant as well as to the complainants (if the aim is to put the complainants in the position they would have been but for the error) have been assessed against the background of what return would they have obtained if they had invested in equities generally (perhaps by reference to the FTSE index).[25]That brings one full circle to the points that had been made in various ways by Mr Duerden, that is to say, that the investment that had been made had resulted in no greater loss than would have been suffered had the Bells remained invested in equities. Whether that point was made by way of an argument that one type of investment was no more risky than another, or whether it was put on the basis of: look at all the circumstances; look at the return actually received by the Bells; look at all their circumstances, what they had been investing in, what they would continue to invest in, and so forth. The point remains the same - that, on the basis of all the evidence, it was irrational to proceed on the basis that the Bells would not have continued to invest in some form of equity, as opposed to taking a decision to reduce risk. There is nothing to support the proposition implicit in the Ombudsman's conclusions as to redress that the Bells wanted to reduce their risk.[26]For those reasons, while I do not accept Mr Stafford's submission that the Ombudsman's reasons as to liability are inadequate, I do accept his submission that, in the light of those reasons and the limited nature of the error as identified by the Ombudsman, there is no logical connection between the redress ordered and the error found. In short, the redress does not fulfil the aim set by the Ombudsman himself and is, therefore, on its face, irrational. For that reason the decision must be quashed and the matter remitted to the Ombudsman, but I would remit only the issue of what is the appropriate redress in the light of the Ombudsman's earlier conclusion as to the error made by the claimant.[27]MR STAFFORD: My Lord, there remains the question of costs.

MR JUSTICE SULLIVAN: Yes.

[29]MR STAFFORD: Your Lordship may have noticed from the correspondence bundle that there was considerable exchange of letters after the final decision of 9 January between (inaudible) financial service on this very issue of redress. And the position taken by the courts was that the redress was to be along the lines of the assumption as to the return of base rate plus consent, compounded I think either quarterly or annually for the investment period in question.[30]The impression I had as counsel reading the papers when I first saw them - I am fortified by that impression by what your Lordship has said this afternoon - is that had the matter been resolved at that point, or rather had those issues been addressed, I should say, this application would not have been brought, because clearly a finding that an error -- an unsuitable recommendation was made, but nevertheless one that had no or negligible financial consequences, was unlikely to be a finding which would (inaudible) such as Mr Duerden sitting behind me to embark on this litigation. In the light of your Lordship's findings, and recognising that we are not successful on the liability point as opposed to redress point, but nevertheless encouraged by the fact that your Lordship's findings on the liability point were necessary to your finding on the redress point; and further, because of the fact that there was some unnecessary time taken over the question of the witness statement, which was not in the event relied upon, I would ask your Lordship that an order be made that the respondent should pay Garrison's costs.

MR JUSTICE SULLIVAN: What do you want to say about that, Mr McManus?

[32]MR MCMANUS: My Lord, I of course accept the defendant should pay some of the costs of these proceedings. I have one submission of principle and one submission of quantum. My Lord, as far as principle is concerned, while it is true that there was correspondence about the redress issue at an early stage, the fact of the matter is that these proceedings when launched were originally entirely confined to the liability issue. The submissions on the liability issue my Lord will see played a very small part of the redress issue, very small part indeed on the papers and, as my Lord noted, came in at a very late stage, indeed during the course of the permission hearing. In terms of my learned friend's argument, there were no relevant authorities on the redress issue; there was simply one paragraph in a 17-page skeleton and in our submission the appropriate order would be to make a partial order for costs, bearing in mind the limited success of this challenge. How much is, of course, a matter for your Lordship. We would submit no more than 20 per cent, in the light of the amount of time in relation to this issue. My Lord, that is the submission of principle we make in relation to costs issue; it should be discounted.[33]As far as quantum is concerned, my Lord, we make a very brief submission indeed, my Lord will be relieved. My Lord should have a detailed schedule of costs from the other side.

MR JUSTICE SULLIVAN: Is it somewhere in the bundle?

[35]MR MCMANUS: My Lord, it is not in the bundle.[36]MR JUSTICE SULLIVAN: Is this being given to me now? Is there going to be -- I see, it suggested summary assessment.[37]MR MCMANUS: Summary assessment. My Lord, in my submission this is a case where a summary assessment will not be possible. The very short point I make in relation to quantum, does relate entirely to counsel's fees and it is to some extent related to the submission I made as a matter of principle. My Lord will see that counsel's fees in total in relation to this matter are £19,425. My Lord, the submission we make is really in relation to the brief fee, £10,000 for in hearing and £4,000 for the permission hearing. My Lord was no doubt much assisted by my learned friend, but we submit that someone in his circumstances perhaps the appropriate fee may be somewhat less than that. We would submit £7000 would be an appropriate fee in the circumstances. My Lord, those are the short submissions I make on costs.[38]MR JUSTICE SULLIVAN: I am just slightly concerned, I do not say it in any critical sense, but at first sight, whilst I realise there has been a permission hearing, the total amount is really very substantial for a one-day JR; that slightly worries me as to whether it is right to do this by way of summary assessment. I see there was a great deal of work done on attendances. When sums claimed get up to this amount I must say I am very cautious about doing rough justice by way of summary assessment.[39]MR MCMANUS: My Lord, I see that entirely. My Lord could rule on the point of principle that I have addressed and leave the rest to detailed assessment. My Lord has my submissions, I am not seeking to ask my Lord to do rough justice in relation to that. My Lord feels something of this size needs to be looked at with all care as possible, that is my Lord's views, but my Lord, I do make a submission about the principle, bearing in mind what actually succeeded before my Lord.[40]MR JUSTICE SULLIVAN: Yes, as to whether there should be a proportionate order, I understand that. Thank you very much. Mr Stafford, what I am minded to do at the moment, obviously subject to any final submissions you may have about it, I think there ought to be a part order for costs. While it might be said that the liability issue took up the principal amount of space in skeleton arguments and authorities bundles, in reality you will end up in the same position, or substantially the same position, perhaps smarting from a criticism. But if your financial liability is significantly reduced, in one sense it matters not too much whether it is done by the redress route or the liability route; so you have achieved a substantial amount. That is an introduction where it is saying it seems to me that 50 per cent costs, obviously it is up to you to persuade me whether you are entitled to more, but I do not think the strict mathematical approach Mr McManus says is of 20 per cent whilst it would be justified in terms of the amount of paper, not justified in terms of the amount of success; so 50 per cent costs. But I am not happy to deal with this by way of summary assessment, given the sums involved. I am not intending any criticism, it is just a very large sum for a one-day JR hearing and I would for myself be inclined to send it off to detailed assessment unless it can be agreed. If it can be, there is no problem at all. Otherwise it is somewhat invidious making any significant reductions in brief fees or even solicitors' time or whatever. Those are my feelings about that. I am minded to say you have 50 per cent of your costs and the costs go off for details assessment unless they can otherwise be agreed. Can you do better than that?[41]MR STAFFORD: My Lord, I think that since you have indicated that is the way that your mind is working, I doubt very much that anything I could say would persuade you to move from that; so I am not going to do that. But I would simply ask this that, having made that order, the claimant, Garrison, should - if there should be a part order - receive 50 per cent of its costs.[42]May I also ask you to order something by way of payment on account, notwithstanding the fact that there is going to be a detailed assessment of costs? The normal position on this I think your Lordship knows, the judgment is Jacob J's (as he then was) in Miles v (inaudible), where he said as a rule of thumb the court, if faced with an application for a payment on account, could award up to a third of the sum which it thought that the successful party would recover on assessment. So within that framework there is room for a payment on account of whatever sum your Lordship thought appropriate. It may not seem a very large sum in the circumstances, but I do repeat that it is an application that I am entitled to make and that it is one which does has some force in it, on the basis of Jacob J's judgment.[43]MR JUSTICE SULLIVAN: It does not usually arise in these cases because generally the sums are not that large and so payments on account do not really arise. But I see that. Is there any problem about making sums of payment on account?[44]MR MCMANUS: My Lord, I do not see that there is any problem about some sort of payment on account. In light of the ruling you made as to 50 per cent, and my Lord bearing in mind the approach my learned friend indicated, 50 per cent of £41,000 is approximately £21,500. We are talking about more than £7,000 on the principal indicated. My Lord, I am not instructed there is any problem about a payment on account.[45]MR JUSTICE SULLIVAN: I cannot see, for example, why you should not have £7,000 on account, within how many days?[46]MR STAFFORD: I think it is normally 14 days.[47]MR JUSTICE SULLIVAN: Is there any problem in that? You better check. The Financial Services Ombudsman is good for the money anyway, so you are all right on that score.[48]MR MCMANUS: We can manage that within 14 days.

MR JUSTICE SULLIVAN: So £7,000 within 14 days.

[50]MR STAFFORD: I am grateful, my Lord.

MR JUSTICE SULLIVAN: Thank you both very much indeed.

Cited in 8 later judgments