Calland, R (on the application of) v Financial Ombudsman Service Ltd [2013] EWHC 1327 (Admin)

Case No CO/5377/2012[2013] EWHC 1327 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/05/2013
Before
THE HONOURABLE MR JUSTICE MALES
Between
The Queen on the application of CallandClaimantFinancial Ombudsman Service LtdDefendant
Mr Hugh Tomlinson QC and Mr Nicholas Gibson (instructed by Foot Anstey LLP) for ClaimantMr James Strachan QC (instructed by The Financial Ombudsman Service) for DefendantHearing Hearing dates: 8 th May 2013
JudgmentMr Justice Males :Introduction
[1]On 23 February 2012, a Financial Ombudsman made a final decision upholding in part a complaint brought by Mr Timothy Fairweather against the claimant, an Independent Financial Adviser (“IFA”), and ordering compensation of £48,355 plus interest to be paid. The complaint was that the claimant’s firm had given Mr Fairweather unsuitable advice in April 1992 to take out a personal pension rather than to join his employer's occupational pension scheme.[2]The claimant challenges that final decision on three grounds:a. The time taken by the defendant to determine the claimant’s obligations was unreasonable and in breach of the claimant’s rights at common law and under Article 6 of the European Convention on Human Rights. The decision was the culmination of an investigation by the defendant into two discrete and relatively straightforward issues relating to the claimant’s services to Mr Fairweather in 1992. The investigation lasted more than six and a half years and had followed more than four years of activity relating to the Claimant by the Financial Services Authority (“FSA”) and the Financial Services Compensation Scheme (“FSCS”).b. The decision was taken without convening an oral hearing, despite the claimant having specifically requested one and despite there being a disputed issue of fact which was central to the decision and which could not fairly be resolved without hearing oral evidence, not least because, twenty years after the events in dispute, few documentary records of Mr Fairweather’s dealings with the claimant now remain and it was apparent that Mr Fairweather’s own recollection was unreliable.c. In all the circumstances, the defendant’s investigation of the claimant’s dealings with Mr Fairweather was carried out in a way which was unfair. That unfairness was the result of the two matters outlined above, together with the fact that Mr Fairweather’s complaint had in effect been solicited by the defendant and would not otherwise have been made, and was such as to render the decision unlawful.[3]Although the principal remedy sought is the quashing of the Ombudsman’s decision, Mr Hugh Tomlinson QC for the claimant accepted in the course of argument that delay by itself would not give rise to that remedy, and that the decision should only be quashed if it were the result of some other unfairness such as the failure to hold an oral hearing.[4]The defendant resists the challenge to its decision, saying that:(1) Although it took longer to determine the complaint than would have been desirable and there were some periods of delay by the defendant, the reason why the determination of what should have been a straightforward issue took so long was the claimant's own conduct. That conduct included sustained procedural and jurisdictional objections to the defendant’s investigations, a refusal for a long while to cooperate or engage with the defendant's investigation of the merits of the complaint, and repeated threats of legal action in an attempt to deter the defendant from progressing its investigation. In these circumstances the defendant says that there is no question of any breach of the claimant's rights under Article 6 or at common law.(2) There was no relevant disputed issue of fact which required an oral hearing. In particular, as it was common ground that Mr Fairweather was not an "execution only" or "insistent" client, the Ombudsman was entitled to find that there was an advisory relationship between him and the claimant and that, regardless of precisely what was or was not said between them, the claimant ought to have advised him to join his employer's occupational pension scheme. As the claimant has never suggested that such advice was given, an oral hearing was unnecessary and, almost 20 years after the events in issue, was unlikely to have been helpful.(3) Ground 3 adds little or nothing to grounds 1 and 2, but in any event the defendant acted with scrupulous fairness to the claimant throughout, giving him every opportunity to challenge its entertainment of the complaint, to object to its jurisdiction, and to deal with the merits.[5]Mr Fairweather has been made an Interested Party but has not played any part in these proceedings. Background CIMS and Mr Fairweather

Background

[6]The claimant is Mr John Calland, who carried on business as an IFA under the name of Calland Insurance and Mortgage Services (“CIMS”). One of the advisers employed by him was Mr John Askham, who retired due to ill health in 1992. I was told that he is still alive but is very unwell. Shortly before his own retirement, in December 1997 the claimant transferred the business to his son, also called John. In 2000, however, Mr Calland junior became insolvent and ceased to trade.[7]In 1992 Mr Fairweather became a customer of CIMS. Although there is a dispute about whether or to what extent he was seeking advice, Mr Fairweather’s complaint was that he approached CIMS for advice regarding his pension arrangements. At that time, he had recently started a new job with GEC Alstom. After a meeting with Mr Askham in April 1992 he took out a personal pension instead of joining the GEC occupational pension scheme. Later, in June 1992 after taking advice from Mr Calland, Mr Fairweather decided to transfer benefits out of his existing Lincoln Co-operative Society pension scheme to the personal pension which he had recently started.

The Pensions Review

[8]As is well known, the mis-selling of personal pensions by financial advisers between 1988 and 1994 caused considerable public concern. Many customers were advised to take out personal pensions instead of joining or continuing with the pension schemes run by their employers and suffered substantial losses as a result. This led the Securities and Investment Board (“SIB”) to issue a statement of policy in 1994 requiring such advisers to carry out a review of past business where customers had transferred from, failed to join or opted out of occupational pension schemes. The SIB statement of policy was implemented for IFAs (such as CIMS) by their regulatory body, then the Personal Investment Authority (“PIA”), through its Pensions Review Guidance. This required IFAs to review past pension business in accordance with specified standards and processes. The review was subject to monitoring by the PIA, and then the FSA as its successor body. Consumers were also entitled to complain to the Ombudsman -- formerly the PIA Ombudsman Bureau but now the Financial Ombudsman Service (“FOS”) -- about such events.[9]In order to carry out the required review, IFAs needed to gather information about each case, for which purpose a model questionnaire was developed. It was recognised, however, that areas of uncertainty due to lack of information would remain. Accordingly the PIA promulgated what it described as a set of "most plausible assumptions", which should be made. These were set out in PIA Regulatory Update 33 as follows:
“Most Plausible Assumptions Where a firm has taken diligent steps to gather all necessary information from the investor and the investor has cooperated but has been unable to provide some or all of that information, the firm should make the most plausible assumptions it can about the missing information (SIB Specification paragraphs 218 and 824). These assumptions will be of direct relevance to both the compliance and causation assessments. Firms are well aware that, in the absence of evidence to the contrary, the most plausible assumptions will include the following: (a) advice was given; (b) the investor’s principal motive for taking out a personal pension was to be better off on retirement; and (c) where the investor was advised and sustained a loss, the firm’s advice was unsuitable.” (a) advice was given; (b) the investor’s principal motive for taking out a personal pension was to be better off on retirement; and (c) where the investor was advised and sustained a loss, the firm’s advice was unsuitable.”
[10]Once the necessary information had been gathered, IFAs were required to carry out a compliance assessment. Two categories of customer were identified where IFAs would be entitled to treat the sale of a personal pension as compliant. The first was an "execution only” customer -- a customer who sought no advice, but merely instructed the IFA what to do. The second was an "insistent" customer -- a customer who insisted on taking out a personal pension instead of joining an occupational pension scheme despite being advised against doing so. However, the PIA emphasised the importance of the need for clear and credible evidence to show that a customer fell within one or other of these categories and warned against IFAs which reported a high level of such customers. In all cases which did not fall within one or other of these categories, IFAs were required to examine the suitability of the advice which had been provided, if necessary with the aid of the assumptions described above. In cases which were neither "execution only" nor "insistent" customers, there was inevitably an advisory relationship in which advice was or should have been given. The PIA’s stated view was that it would seldom have been “best advice” not to join an occupational pension scheme.[11]Mr Calland is critical of the categorisation of customers adopted by the PIA. He considers that it is too rigid, and that in practice the relationship between an IFA such as CIMS and its customers was more nuanced and did not necessarily fit neatly into one or other of these categories. Despite this criticism, however, this was the approach adopted by the PIA, which became part of the regulatory framework for the conduct of the pensions review, and it is far too late to challenge that approach. It cannot be contended, therefore, that a review carried out in accordance with this approach is irrational or unlawful. It is of some significance that Mr Calland has never suggested that, if the PIA categories are adopted, Mr Fairweather was either an “execution only” or “insistent” customer.[12]In order to close a case where an IFA concluded that it was compliant, the firm was required to write to the investor indicating that a review had been carried out and that no cause for concern had been identified, but also explaining the complaints procedure available to the customer. It was an obvious purpose of the pensions review to draw to the attention of customers who had taken out personal pensions that they might be eligible for a claim for compensation, a matter of which they might otherwise be unaware.[13]In 1999 the PIA devised a project to deal with IFAs who had failed to make the required progress in carrying out a review of their pension cases. This project was known by way of shorthand as “Can’t Do, Wont Do”. It enabled the PIA (and subsequently the FSA) to carry out reviews of individual cases where the IFA concerned was unable or unwilling to do this. Where the IFA was unable, or was likely to be unable, to meet its liabilities, such cases would be transferred to the FSCS.

CIMS’s pensions review

[14]Between 1995 and 1997 Mr Calland reviewed the files of all customers who had taken out personal pensions, including Mr Fairweather. On 21 March 1997 he wrote to Mr Fairweather stating that he had personally reviewed the file in compliance with the Pensions Review, and that there was no cause for concern. He did not, however, refer to any complaints procedure. There was no complaint by Mr Fairweather at that stage.

Transfer of the CIMS business and CIMS’s insolvency

[15]In December 1997, with a view to his forthcoming retirement which took place at the end of that month, Mr Calland formed a partnership with his son and created a new firm, also called CIMS but with a different registration number from the old firm. He wrote to the PIA stating that the new CIMS would assume any liability of the old firm in respect of the pensions review.[16]In 1999 the PIA commenced a second phase of the industry wide pensions review. Mr Calland junior decided to repeat his father's review of the files of CIMS’s customers falling within that second phase. Many customers responded. Mr Calland junior decided in 2000 to file for bankruptcy and the new CIMS ceased trading.[17]Upon the bankruptcy of Mr Calland junior the PIA’s pensions unit took on the task of reviewing the former CIMS business under the “Can’t Do Wont Do” project. This was to be a source of grievance for Mr Calland. So far as the PIA and subsequently the FSA were concerned, Mr Calland junior had become insolvent and the new CIMS had ceased trading, so that there was reason to believe that it would not be able to meet any liabilities as a result of the ongoing pensions review. The FSA took the view that the assumption of liability by the new CIMS did not relieve Mr Calland of his liability now that the new CIMS had become insolvent. But so far as Mr Calland was concerned, he maintained that he had already completed the necessary review before his retirement, that no further action was required, and that any liabilities of the old CIMS had been effectively transferred to the new firm.

The FSA and FSCS

[18]Between April 2001 and January 2004 the FSA (as it now was) sought disclosure from Mr Calland (who was now living in Spain) of his assets and liabilities, with a view to ascertaining whether responsibility for any complaints by his former customers rested with him or (in the event that he was unable to meet any such liabilities) with the FSCS. It is unnecessary to set out the detail of that correspondence. Mr Calland resisted providing such information on the basis that he had not done anything wrong, objected vigorously to what he regarded as harassment, and made clear that he was not prepared to cooperate.[19]During the course of this period Mr Fairweather indicated to the FSA that he wished his pension arrangements to be included in the review. He completed a form in which he complained that he had been advised by CIMS that a personal pension would be better for him than joining his employer's pension scheme and that he had relied on this advice. In fact this claim, which related to the advice which Mr Fairweather said he had been given in April 1992, was only one of two claims which he made. The other was a claim that he should not have been advised in June 1992 to transfer his existing pension benefits to the personal pension which he had taken out.[20]On 20 February 2004 the company appointed by the FSA to assess whether any loss had arisen under pensions included in the review wrote to Mr Fairweather, informing him that his personal pension appeared to be less valuable than his employer's pension scheme would have been and that the FSA was referring his case to the FSCS. This was followed by a letter from the FSCS dated 27 April 2004 enclosing a form for Mr Fairweather to complete if he wished the FSCS to consider a claim for compensation. Mr Fairweather responded that he did.[21]However, by October 2004 the FSCS had come round to the view that any claim by Mr Fairweather should be made directly against Mr Calland and not under its compensation scheme. It did so because there was no evidence that Mr Calland was insolvent and therefore unable to meet any liability. The FSCS wrote to Mr Fairweather to advise him of this conclusion on 26 October 2004, suggesting that he might wish to consider such a claim and providing contact details for the FOS. Mr Fairweather did not take the matter further at this stage and it appears that it was not until May 2005 that the FSA e-mailed Mr Calland to advise that it would be referring customers’ claims (including but not limited to Mr Fairweather’s claim) against him to the FOS.[22]It was therefore in about May or June 2005 that this claim first came to the attention of the FOS. For the purpose of considering the time taken by the FOS to determine this claim, this represents the starting point, although strictly speaking under the FOS rules described below the FOS would only have jurisdiction once Mr Calland had given his final response to a claim or had failed to respond for a period of eight weeks after being notified of the claim. The claim reached the FOS against the background which I have described above, including the increasingly antagonistic correspondence between the FSA (which was the responsible regulatory body) and Mr Calland.[23]In order to determine whether the time taken by the FOS to determine Mr Fairweather's complaint (which so far had been clearly made to the FSA/FSCS but had not formally been made to Mr Calland or the FOS) constituted an infringement of Mr Calland’s rights under Article 6, it will be necessary to consider the course of the proceedings before the FOS. Before doing so, however, it is necessary to say something about the role of the FOS and to identify the matters which are relevant for the purpose of the Article 6 claim.

The role of the FOS

[24]Under the Financial Services and Markets Act 2000 (“FSMA”), the FOS is not a regulator. Its role is to provide an independent and informal complaint resolution procedure for certain complaints about the financial services industry. It is intended to operate with minimum formality and relatively quickly: see section 225 of the FSMA.[25]The independence of the FOS from the regulator (the FSA) is a feature of this case. It was to be a repeated complaint by Mr Calland during the proceedings before the FOS that there was improper collusion between the FOS and the FSA. That complaint was aggressively made in correspondence and was backed up by threats of legal proceedings (which Mr Calland advised were being settled by leading counsel) although in the event no such proceedings or even a letter before action ever materialised (although proceedings have been issued against the FSA). Despite the voluminous papers placed before me, my attention was not drawn to any evidence which would begin to justify any such allegation and Mr Tomlinson did not suggest that any such evidence existed.[26]The FOS has a statutory duty to deal with eligible complaints against firms such as CIMS: section 226 of the FSMA. This function forms part of the overall legislative framework in which the financial services industry operates. Mr Calland has made abundantly clear that he objects to the FOS pursuing Mr Fairweather's complaint. However, subject only to the question whether that complaint was improperly solicited by the FOS, it was the FOS’s duty to do so.[27]The FOS’s procedures for handling complaints are governed by the rules in the FSA’s (from 1 April 2013, the Financial Conduct Authority’s) Handbook “Dispute Resolution: Complaints”, also known as “DISP”, which draws a distinction between rules (marked with the letter "R”) and guidance (marked with a “G”).[28]DISP 2 governs the FOS’s jurisdiction. Under DISP 2.8.1R, an Ombudsman can only consider a complaint if the IFA complained against has sent its final response to the complaint or if eight weeks have elapsed since the firm received the complaint. One of the issues which Mr Calland was to raise was that this requirement had not been complied with. However, there is nothing in the rules to require that the complaint must be made by the customer directly to the IFA. It can be passed on to the IFA by the FOS. The important points are that the IFA must have notice of a complaint and that it is entitled to a period of eight weeks within which to respond before the FOS takes the matter any further.[29]DISP 2.8.2R deals with time limits for making complaints in ordinary cases, but these have been expressly disapplied to complaints concerning a pension contract within the ambit of the Pensions Review: see DISP 2.8.5R. Accordingly there was no applicable time limit within which Mr Fairweather had to make his complaint.[30]DISP 3 sets out the rules on the FOS’s handling of complaints. Ultimately a complaint that is unresolved will be finally determined by an Ombudsman by reference to what is, in his opinion, fair and reasonable in all the circumstances of the case: section 228(2) of the FSMA and DISP 3.6.1R. However there are FOS procedures that precede any such determination. These include the following:(1) Initial consideration of complaints will generally be handled by an Adjudicator who will seek to mediate the complaint by agreement: DISP 3.5.1R. An Adjudicator will offer considered views of the substantive merits of the complaint, or issues of contention such as jurisdiction, but these are not binding. The parties can accept the Adjudicator’s views without requiring an Ombudsman to make a determination but, if they do not accept them, the complaint will be passed to the Ombudsman for final determination.(2) In that event the Ombudsman will consider the complaint afresh and may proceed in two stages. First, he will issue a provisional decision. Then, after giving the parties an opportunity to make further representations, the Ombudsman will determine the complaint by issuing a final decision: see DISP 3.5.4 and 3.6R in particular.(3) If an Ombudsman considers a complaint can be fairly determined without convening a hearing, he will do so. If not, he will invite the parties to take part in a hearing: see DISP 3.5.5R. A party who wants to request a hearing has to do so in writing setting out the issues he wants to raise and the reasons for the hearing: DISP 3.5.6R.(4) The Ombudsman does not act as a court. In addition to the nature of his power under section 228(2), under DISP 3.5.8R and 3.5.9R he may make directions on the evidence required: he may exclude evidence otherwise admissible in court, or include evidence not so admissible. He has power to fix or extend time limits: see DISP3.5.13-15R. However, in making his decision he is required to take into account (among other things), the regulators’ rules, guidance and standards: see DISP 3.6.4R.[31]A procedure also exists, which Mr Calland was to invoke more than once, for handling complaints made against the FOS itself. This involves an initial complaint to a service review manager (ie a FOS employee), followed if necessary by escalation of the complaint to an Independent Assessor.[32]Thus the determination of a complaint by the FOS may involve proceedings before both an Adjudicator and an Ombudsman, and the proceedings before the Ombudsman may involve both a provisional and a final decision. If there is a challenge to the FOS’s jurisdiction, that too will have to be resolved, potentially by way of preliminary determination. In such a case, therefore, there may be as many as six stages to be gone through (adjudication, preliminary decision and final decision on jurisdiction, followed by the same process on the merits of a complaint). In addition there is the possibility of one or more complaints against the FOS’s own handling of a complaint, each of which may involve two separate stages, an investigation by a service review manager followed by a decision or recommendation by an Independent Assessor.[33]While each of these individuals, the Adjudicator, the Ombudsman, the service review manager and the Independent Assessor, has a useful and distinct role to play in the process, which is clearly intended to ensure fair treatment for those involved as well as a fair outcome, there is obvious scope for the procedure to become cumbersome and excessively time-consuming if, as in the present case, a complaint involves challenges to the FOS’s jurisdiction as well as a dispute on the merits and in addition the FOS’s handling of it gives rise to complaints against the FOS itself.

Article 6

[34]As is well known, Article 6 provides that:
“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
[35]It is not disputed that the FOS was such a tribunal and that its decision was a determination of Mr Calland’s civil rights and obligations. The issue is whether its determination was made within a reasonable time. The basic principles for deciding this issue were stated in Porter v Magill [2001] UKHL 67, [2002] 2 AC 537 at [108] to [110] and are not in dispute. They are, first, that the right to a determination within a reasonable time is independent of the right to a fair trial; second, that infringement of the right does not depend on prejudice being caused by the delay; and third, and most importantly for present purposes, that in determining whether there has been a breach of the reasonable time guarantee, it is necessary to have regard to all the circumstances, including in particular the complexity of the case, the claimant's conduct and the manner in which the matter was dealt with by the relevant administrative or judicial authorities. In the present case the claimant's conduct is of particular importance. In that regard, it is not in dispute that while a person is entitled to make use of all relevant procedural rights, he or she must bear the consequences when doing so leads to delay.[36]As already indicated, although the principal remedy sought in these proceedings is the quashing of the Ombudsman’s final decision, Mr Tomlinson accepted that such a remedy could not be granted merely by reason of delay in the absence of some other unfairness. However, in addition to a finding of breach of Article 6, Mr Calland seeks an award of damages for the delay of which he complains pursuant to section 8 of the Human Rights Act 1998. The principles applicable to an award of damages for breach of Article 6 were considered by the House of Lords in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14, [2005] 1 WLR 673. This was not a case of delay but neither party suggested that different principles should apply in such a case.[37]In a speech with which the other members of the House agreed, Lord Bingham pointed out that a finding of breach of Article 6 did not necessarily mean that the outcome of the trial process was wrong and that in the great majority of cases the approach of the European Court of Human Rights was to treat the finding of breach as being in itself just satisfaction under Article 41 of the Convention. However, he identified three classes of case where damages had been awarded. The first was cases of pecuniary loss where there was "a causal connection between the violation found and the loss for which an applicant claims to be compensated”, for example loss of earnings or profits. The second was where the breach of Article 6 had deprived the applicant of a real opportunity to achieve a more favourable outcome in the case, which could also be viewed as a finding of a sufficient causal connection. A third was where damages were awarded for anxiety and frustration attributable to the breach, although such damages were only sparingly awarded and were modest in amount. These are the principles for English courts to apply in awarding damages under section 8.

The proceedings before the FOS

[38]The proceedings before the FOS lasted for over six years. Although there were periods of inactivity which I shall mention, for most of that time the way in which Mr Fairweather's complaint should be dealt with was the subject of vigorous dispute, with extensive written submissions and supporting documents being sent by Mr Calland. Mr Calland himself submitted a total of over 2,000 pages of such documents over the course of the proceedings.[39]Although at first sight it seems extraordinary that what ought to have been a fairly straightforward matter should take so long to determine and should generate such a volume of documentation, this is largely explained by the procedural and jurisdictional objections made by Mr Calland, who was determined to fight every point, and who did so at great length. His objections were unsuccessful, although he did not at any stage accept any of the decisions which went against him. Mr Tomlinson submitted that he was entitled to adopt this approach, and Mr James Strachan QC for the FOS did not demur, but the inevitable consequence was that the proceedings were much longer drawn out than they should have been.[40]It is necessary to set out the course of the proceedings and convenient to do so by reference to a number of separate stages, although ultimately the question of delay must be viewed in the context of the proceedings as a whole. I accept Mr Strachan’s submission that it is necessary to consider the proceedings in some detail and have done so. However, it is not necessary to set out all of that detail in this judgment. What follows is no more than a summary, although inevitably a rather long one.

From receipt of the complaint to the Independent Assessor’s decision

[41]I have already described the way in which Mr Fairweather's complaint first came to the attention of the FOS in May or June 2005.[42]On 15 July 2005 the FOS wrote to Mr Fairweather. The letter thanked him for contacting the FOS and explained that the FOS had written to CIMS "to let them know that you have a complaint". It went on to advise that CIMS should issue a final response in writing within eight weeks of receipt of the complaint, and that if Mr Fairweather was not satisfied with the response he should contact the FOS again, concluding with the statement that the FOS would take no further action unless he did. This letter was subsequently criticised by the Independent Assessor on the ground that Mr Fairweather had not actually made a complaint to the FOS. He had apparently taken no further action since October 2004. However, he had certainly complained to the FSA before then about the pensions advice given to him. On the same date the FOS wrote to Mr Calland stating that “we have received a complaint from your customer Mr Fairweather” (which again was not strictly correct, although the FOS had received from the FSA the complaint which Mr Fairweather had made to the FSA) and asking for a response within eight weeks.[43]Mr Calland’s response, after some initial e-mails, was a letter dated 26 September 2005 in which he complained about harassment by the FSA (by soliciting claims from former customers) and insisted that the FOS did not "have any jurisdiction to require my co-operation in these circumstances”.[44]Mr Fairweather’s reaction to the letter sent to him was to write to Mr Calland at his address in Spain by recorded delivery, but his letter dated 20 October 2005 (referring to "an official complaint" to the FSA and requesting a final response) was returned as not signed for or collected (it is not clear why not), and apparently was not seen by Mr Calland until some years later.[45]On 9 November 2005, more than eight weeks after its previous letter, the FOS wrote to Mr Calland stating that "We have been asked to consider Mr Fairweather’s complaint", requesting further information, and advising that any challenge to the FOS’s jurisdiction should be made within 21 days, failing which the FOS would take it that there was no such objection. It is apparent from Mr. Fairweather's undelivered recorded delivery letter that he did in fact wish to pursue the matter and he had telephoned the FOS on 10 October 2005 to say that he had not heard from Mr Calland. There was no time limit within which Mr Fairweather was required to make a formal complaint to the FOS and there is no reason to think that he was minded to drop the matter.[46]FOS’s attempt to initiate the complaint procedure was met with vigorous opposition by Mr Calland. He denied any right of the FOS to deal with the complaint at all. On 19 November 2005 he wrote to the FOS’s General Counsel asserting that the FOS had “no authority or jurisdiction over me” and that any further correspondence or processing of the complaint would be regarded as deliberate harassment. He asked for information about how to pursue a complaint against the FOS.[47]Mr Calland did submit a complaint to the FOS’s service review manager, which he supported on 13 December 2005 with a file of 286 pages of documents. After some further correspondence the service review manager, Mr Neighbour, explained on 10 February 2006 that this volume of material meant that it was not yet possible to respond but he hoped to do so soon. Mr Calland then wrote a further letter on 13 February 2006 which repeated the point that any further correspondence regarding the processing of complaints against him would be regarded as deliberate harassment. He complained about the delay being taken in dealing with his complaint against the FOS, and objected to any progression of Mr Fairweather’s (and other) complaints against him until his own challenge to the FOS’s jurisdiction was resolved.[48]Mr Neighbour replied on 17 February 2006. He explained that he expected to be in a position to respond to the complaint by 3 March 2006, but in the meantime he had acceded to Mr Calland’s request that the complaints should not be actively progressed until he had responded to Mr Calland’s own complaint. Oddly, however, it appears that the FOS did write to Mr Fairweather on 3 March 2006 requesting further information so that his claim could be progressed, a request to which Mr Fairweather responded on 28 April 2006 expressing the hope that the information which he had provided would be "sufficient to continue taking matters forward on my behalf". Evidently, therefore, Mr Fairweather did wish to pursue his complaint against Mr Calland.[49]In the event Mr Neighbour provided his response on 10 March 2006. His conclusion was that the FOS did have jurisdiction to deal with complaints against CIMS, but he explained that ultimately it would be for the Ombudsman to determine any disputed question of jurisdiction. Mr Neighbour’s response dealt with two distinct issues of jurisdiction which Mr Calland had raised. The first was whether FOS had jurisdiction over Mr Calland as a result of the way in which the liabilities of CIMS had been undertaken by his son's new firm. The second was whether the FOS had jurisdiction in circumstances where the customer's complaint had not been made directly to the FOS, but had been referred to it by the FSA. The response concluded by indicating that if Mr Calland was unhappy with it, he could either ask an Ombudsman to make a formal decision on jurisdiction or he could approach the Independent Assessor in relation to the service provided by the FOS.[50]Mr Calland did not accept Mr Neighbour’s analysis and continued to resist any FOS involvement in the complaints, complaining further of illegitimate co-operation between the FOS and the FSA. With hindsight, and perhaps in any event, as his principal points went to the FOS’s jurisdiction, it would have been preferable if he had put that issue to an Ombudsman, but he decided instead to pursue his complaint about his treatment by the FOS. On 31 May 2006 he submitted a complaint to the Independent Assessor about the FOS’s treatment of him (“unwarranted intrusion into my affairs"), insisting that "I do not in any sense whatsoever accept myself as being subject to FOS jurisdiction”, complaining of harassment, persecution and a lack of impartiality, and alleging that most of the complaints against him were "deliberately fraudulent". He complained also that he had not been given any opportunity to deal with the complaints and requested that they be referred to him directly. These and similar points were repeated in correspondence at considerable length over the next few months.[51]In the meantime Mr Fairweather’s complaint was allocated to an Adjudicator, Mr Mooney, on 7 June 2006. The Adjudicator contacted Mr Fairweather on 14 July 2006 to explain the procedure and to request that the complaint form be properly completed. Mr Calland’s response to the Adjudicator was to reiterate his objection to any of the complaints against him progressing whilst his complaint about jurisdiction was being dealt with. In view of this Mr Neighbour instructed the Adjudicator to put the cases on hold until the complaint to the Independent Assessor was resolved, which the Adjudicator agreed to do.[52]The Independent Assessor’s preliminary response to the complaint, dated 23 August 2006 explained that his role was limited to reviewing the manner in which the FOS had handled the matter (such as whether there was any irregularity in the way in which the complaints came to be referred to the FOS and any issue of harassment) but that he could not consider issues of jurisdiction which only the Ombudsman could decide.[53]The Independent Assessor’s final decision was dated 6 December 2006. The Assessor considered that the wording of the FOS’s correspondence with Mr Fairweather and others was "questionable from a procedural point of view", because it assumed that the customer did have a complaint rather than advising what to do if there was such a complaint and because there was no evidence that the customer had complained directly to Mr Calland. However, as the Assessor also pointed out, by returning the complaint forms the customers concerned had clearly indicated their wish to seek redress from Mr Calland. He concluded that "normal procedures appear to have been truncated as a matter of expediency, and the complaints were in effect ‘solicited’ … that the basis on which the FOS has progressed the four cases to date is unsatisfactory, and has caused you distress” and that compensation of £500 should be paid to Mr Calland. He said that the immediate priority was to get the complaints on a proper basis and that the FOS should review the extent to which the four complaints in question had been properly made. He emphasised again, however, that his decision was not a decision on jurisdiction, but on the service provided by the FOS.[54]Thus the Independent Assessor took a little over five months to deal with Mr Calland’s complaint, during which time no progress was made in dealing with the merits of the customers' complaints. That period of five months followed an even longer period while Mr Calland’s complaint against the FOS was considered internally by the service review manager, during which again little or no substantive progress had been made. However, it is clear that for most of this time Mr Calland was himself insistent that any substantive processing of the complaints against him should be put on hold while his own complaint was considered. It is true that Mr Calland also complained that it was taking a long time, as indeed it was, for his complaint against the FOS to be dealt with. No doubt it could have been dealt with sooner. However, bearing in mind the length and nature of the submissions made by Mr Calland, I do not accept that the time taken internally by the service review manager is a matter of serious criticism, while (as Mr Tomlinson accepted) the time taken by the Independent Assessor is not something for which the FOS can be held responsible -- the Assessor was, as his title indicates, independent of the FOS.[55]The result of the complaint to the Independent Assessor was a partial success for Mr Calland in that the Assessor criticised the FOS’s procedure and considered that the complaints had in effect been solicited by the FOS. However, this process had not resolved, and it had always been made clear to Mr Calland that it could not resolve, the issue of jurisdiction. Moreover, despite the Assessor's view that the complaints had been solicited, he also made clear that the various complainants had the right to seek redress. Mr Calland had therefore failed in his main objective which was to bring the FOS proceedings to an end. Instead, the Independent Assessor concluded that the FOS investigation should proceed provided that it was put on a proper footing.[56]Mr Calland objected strongly to this last conclusion. He set out his views in a long letter to the Independent Assessor dated 3 January 2007, protesting that there were in fact no complaints against him and rejecting the proposed payment of compensation, even accusing the Assessor himself of "further harassment”. The Assessor responded, however, that the next step was to see what action the FOS proposed to take in order to make progress with the cases in question. For its part, the FOS accepted the Assessor's recommendations, including offering the sum of £500 by way of redress for distress and inconvenience. In a letter dated 7 February 2007 it confirmed that the various complaints would be reviewed in order to put them on a proper basis. Mr Calland continued, however, to reject the offered compensation.[57]The FOS carried out the review of all the CIMS complaints. That process took until June 2007, by which time the FOS was satisfied that each of the four complaints against Mr Calland, including Mr Fairweather's, had been clearly and sufficiently made, that details had been brought to Mr Calland’s notice significantly longer than eight weeks ago, and that he had had a proper opportunity to deal with the complaint. Whatever may be said about the somewhat tangled way in which matters had reached this stage, by mid 2007 all of those conclusions were clearly correct. Mr Neighbour wrote to inform Mr Calland of these conclusions on 22 June 2007 and indicated that if Mr Calland still wished to mount a jurisdiction challenge, he should do so as soon as possible. The file was then passed back to Mr Mooney, the Adjudicator.

The decision on jurisdiction

[58]Mr Calland continued in his staunch opposition to any continuation of the process. On 18 July 2007 he wrote to the Chief Ombudsman alleging that the FOS was acting in bad faith in collusion with the FSA and the FSCS and warning that "I do not intend to co-operate in progressing FOS procedures of any kind” so that it was “neither appropriate nor prudent for [the FOS] to continue harassing me for co-operation that will not be forthcoming.” This was followed by representations to the FOS Board. Both the Chairman of the Board and the Chief Ombudsman responded, saying that the cases would be progressed as the complainants had been kept waiting a long time while Mr Calland’s objections had been under investigation.[59]It is apparent from an internal e-mail dated 6 September 2007 that those charged with progressing the complaints against Mr Calland at the FOS were extremely concerned at the "politically uncomfortable" recommendations made by the Independent Assessor and took the view, reasonably in my judgment, that it would be important to proceed in a manner which was "squeaky clean" in order so far as possible to avoid future complaints -- or, more likely, to ensure that any future complaints could be shown to be unjustified. While Mr Calland saw himself as a victim of unjustified action by the FSA and subsequently the FOS which he was determined to resist as strongly as he could, it is clear that he was regarded by those concerned at the FOS, with some justification from their point of view, as a difficult man to deal with. This inevitably meant that progress was likely to be slower than would otherwise have been the case.[60]In response to Mr Calland’s protest that the FOS had no jurisdiction over him and (a new point, taken after Mr Calland said that he had been taking legal advice) that further progression of the complaints against him was contrary to his rights under Article 6, the question of jurisdiction was considered further. On 17 October 2007 an FOS Adjudicator issued a letter concluding that there was jurisdiction over CIMS notwithstanding the transfer of liabilities to the new firm in December 2007. The letter invited Mr Calland either to refer the jurisdiction issue to an Ombudsman or to deal with the merits of the complaints. After some further correspondence and repeated complaints and protests by Mr Calland in which among other things he complained – wrongly, even bizarrely -- that the FOS had been denying him access to an Ombudsman to determine the issue of jurisdiction, an Ombudsman (Ms Audrey Baxter) was appointed in November 2007 to determine this issue.[61]The Ombudsman did not issue a decision until a whole year later, on 20 November 2008, although it appears that the decision was ready in draft much earlier, by mid-May 2008, but was not issued, possibly because of the need to obtain legal advice. I would accept that the jurisdictional points raised by Mr Calland were of some complexity and that, in view of some of his arguments, it was prudent for the Ombudsman to take legal advice, which may well have prolonged the time needed before the decision could be issued. However, to take a whole year to issue what was still no more than a provisional decision was clearly excessive, as the Ombudsman herself recognised, apologising for the delay.[62]The Ombudsman’s provisional jurisdiction decision, after a detailed review of the applicable regulations, was that the old CIMS and the new CIMS were essentially the same firm and that the FOS had jurisdiction to deal with complaints concerning advice given by the former firm. She added that she was satisfied that complainants whose complaints related to matters the subject of the pensions review had requested the FOS to review their claims and as such those claims fell within the jurisdiction of the FOS.[63]The Ombudsman asked the parties to make any further submissions by 7 January 2009. Mr Calland challenged the Ombudsman’s provisional decision in lengthy submissions dated 6 January 2009, which also objected to any attempt to progress the complaints against him and threatened legal action:
“Jurisdiction aside – I believe you are aware that 5 months ago my legal representatives, Foot Anstey, lodged formal notice with the FOS of my intended Claim for redress, the final details of which are still being formulated by Counsel. My Claim arises from 6 years of abuse, and includes inter-agency collusion between the FSA, FSCS and the FOS and is in consequence lengthy and complicated to put together. In light of the foregoing it is clearly inappropriate for the FOS – after an unexplained lapse of 13 months – to now respond to that information with further attempted action against me. It is incongruous for the FOS to progress any cases against me at a time when I am in process of bringing a Claim against the FOS in relation to some of those cases. My Claim particularly concerns the pension cases, and it is therefore inappropriate for the FOS to seek any resolution on these.”
[64]Mr Calland’s letter concluded by indicating that he wished to make further representations before any final decision on jurisdiction was made, stating:
“… I would suggest that such further delay on jurisdiction does not cause inconvenience to anyone involved, since it would be imprudent of the FOS to progress any cases in advance of my Claim.”
[65]Therefore, far from Mr Calland seeking to progress the complaint, or suffering any distress, inconvenience or harm if the complaint were not dealt with quickly, let alone suggesting that delay was itself an infringement of his rights, his position was the opposite, that further progress would constitute harassment and that delay would cause no prejudice to anyone. This position was backed up by the threat of legal action.[66]Mr Calland did make further representations later in January 2009, which the Ombudsman took time to consider, including once more taking legal advice. Her final decision, concluding that there was jurisdiction, was issued on 8 October 2009 and essentially confirmed the provisional decision. The FOS accepted before me that the time taken for this final decision was longer than was desirable. I would go further. I accept that the matter was not entirely straightforward and that Mr Calland’s further submissions needed careful consideration. I accept also that it was reasonable for the Ombudsman to take legal advice, not least in view of Mr Calland’s threat of legal action. Nevertheless, against the background of a whole year to reach a provisional decision, a further eight months (from the end of January to the beginning of October 2009) to reach a final decision on jurisdiction was unacceptable for what was supposed to be a relatively quick and informal procedure.[67]The Ombudsman had now made a final decision on jurisdiction against Mr Calland. Although it was clear that he did not agree with that decision, Mr Calland did not attempt to challenge it (for example by judicial review) at that stage, and it has not been suggested in the proceedings before me that the decision was wrong or was otherwise open to challenge. In any event it is far too late for any such challenge now.[68]The present complaint is simply one of delay, and it is the delay taken up to this stage which represents the principal focus of Mr Tomlinson’s submissions concerning Article 6.

Adjudication

[69]The Adjudicator recommenced his investigation promptly once the jurisdiction decision had been made, but Mr Calland’s reaction to the Ombudsman’s final jurisdiction decision was to reiterate his refusal to co-operate further before the claim which he was threatening to bring against the FSA had been dealt with. Meanwhile he objected to any progression of the complaints against him, repeating the now familiar refrain that any attempt to elicit his co-operation would constitute harassment.[70]Despite this, and in the absence of any substantive response from Mr Calland on Mr Fairweather’s complaint, the Adjudicator did his best to make progress by issuing his non-binding view on 18 December 2009 based on the information he had at that point. That view was that part of the complaint against CIMS should be dismissed (relating to the transfer advice in June 1992), but that part should be upheld (relating to taking out a personal pension instead of joining the employer’s scheme). On 30 December 2009 the Adjudicator sought an updated valuation of Mr Fairweather’s policies, but Mr Calland’s response was to write a further letter to Mr Neighbour (the FOS’s service review manager) on 9 January 2010 (copied to the acting Chief Ombudsman and the Independent Assessor), contending that progression of the complaints was “outrageous” and seeking confirmation of the “legal or regulatory justification for any continued FOS progression of the 5 pension case it holds”. He alleged that all five complainants had declined to complain to him, and that the FOS was required to write to each of them to explain that they had to address their complaints to him if they wanted any further assistance from the FOS. This was followed by a further letter to the Independent Assessor seeking to initiate a formal complaint about the way he considered the complainants were being over-protected by the FOS.[71]Mr Neighbour responded on 28 January 2010 referring to the numerous letters written by Mr Calland to different recipients and inviting him to set out all his concerns in a single letter so that they could be considered together and one response could be given. In the meantime, internally he asked for a pause in progressing the complaints (not formally putting them on hold) until he had heard back from Mr Calland. After some further correspondence in which Mr Calland also complained about Mr Neighbour, the acting Chief Ombudsman endorsed the principle of Mr Calland summarising all his complaints in one place and explained that he would issue instructions for case handlers to take no further steps for 14 days to give him an opportunity to provide the summary requested.[72]Mr Calland acceded to this suggestion and wrote a three page letter dated 8 February 2010, with 18 pages of attachments, setting out his complaint. In essence, this repeated his assertions as to the lack of any basis for the FOS to act and that “further progression of any pension review cases cannot be justified”. Far from complaining about lack of progress, his complaint was that “FOS personnel, under instruction, have consistently endeavoured to progress those solicited cases (and others) toward making awards of compensation against me …” and that he did not see “how the FOS can claim cause or authority to further progress any of the cases where complainants have failed to address their complaint to me”.[73]The acting Chief Ombudsman gave a full response on 22 February 2010. He outlined the FOS procedures and distinguished between a service complaint and issues relating to jurisdiction. He noted that Mr Calland’s concern focused on the question of whether he had had an appropriate opportunity to deal himself with the complaints made against CIMS and indicated that he did not share Mr Calland’s views about the requirements of the relevant rules. He explained that the FOS had accepted the Independent Assessor’s criticism of the wording of the initial letters sent to complainants, but noted that the Independent Assessor had stated that by returning complaint forms the complainants had clearly indicated their wish to seek redress. His conclusion was that he was not aware of any reason why the cases should not be progressed in the usual way.[74]As a result of this response, the restriction on progressing the cases was lifted. On 16 April 2010 the Adjudicator in Mr Fairweather’s complaint wrote to Mr Calland noting that he had not agreed to pay compensation in accordance with the Adjudicator’s recommendation of 18 December 2010 and advised that the case would be passed to an Ombudsman. He requested that any further representations should be made by 7 May 2010.

The Ombudsman’s provisional decision

[75]Mr Calland continued over the next few months to insist that the cases against him should not proceed. On 24 May 2010 he referred to legal action to be taken against the FOS and followed this with a letter of 10 June 2010 confirming that “my claim for damages against the FSA/FSCS is being extended to include the FOS”. On 16 July 2010 Mr Calland’s solicitors, Foot Anstey, wrote to the Chief Ombudsman to confirm that legal action was being taken against the FOS and that counsel would be drafting a letter of claim. They stated:
“Our client is now seeking damages from the FOS for the period 2005-2010, and until his claim has reached an outcome we consider it improper for the FOS to further process complaints because the FOS processing of these complaints is plainly the subject of Mr Calland’s claim against the Ombudsman Service.”
[76]In fact the threatened claim against the FOS never materialised. But it is apparent that far from having any concern about the time being taken to progress the claims, Mr Calland’s aim was to prevent any such progress from being made. On 12 August 2010 Mr Calland’s solicitors wrote again, passing on his belief that there was “an overwhelming logic in the case for suspending formal FOS action on the pension review cases pending the resolution of my legal action, and I think it would be most unwise of the FOS to ignore that logic”. Another long email from Mr Calland to the Ombudsman on 31 August 2010 indicating that a letter of claim would shortly be forthcoming was to similar effect.[77]Despite Mr Calland’s objections, the Ombudsman (now Mr Roy Milne) did review the complaints. On 5 October 2010 he issued his provisional decision on Mr Fairweather’s case. In a detailed decision he agreed with the view of the Adjudicator, rejecting the transfer element of the complaint and upholding the complaint relating to the non-joining of the occupational pension scheme, referring to the SIB and PIA Pensions Review Guidance including that relating to “execution only” and “insistent” customers. The Ombudsman dealt in detail with those submissions that Mr Calland had made on both jurisdiction issues and the merits of the complaint. He accepted that Mr Fairweather had sought advice about his options and noted the submissions which Mr Calland had made as to why Mr Fairweather would have decided not to join his employer’s scheme, but he considered that Mr Fairweather was relying upon advice given by CIMS and that the adviser had a responsibility to give suitable advice which, in the circumstances, would have been for Mr Fairweather to join his employer’s scheme. In accordance with usual FOS practice, the Ombudsman gave the parties an opportunity to respond and sought any further submissions by 5 November 2010.[78]It should be noted that although at one stage Mr Calland had requested an oral hearing before the Ombudsman, this request had subsequently been withdrawn and accordingly the Ombudsman’s provisional decision was made on the basis of the written material. This is not a matter of complaint in the present proceedings.

The Independent Assessor’s further review

[79]The Ombudsman had reached his preliminary decision within a relatively short period. However, it was to be another 16 months before a final decision was issued.[80]Between October and December 2010 Mr Calland asked a number of questions relating to Mr Fairweather’s case while maintaining his position that progress of the case was inappropriate. In December 2010 Mr Calland wrote to the acting Chief Ombudsman requesting that a new formal complaint be referred to the Independent Assessor. He followed this in January 2011 with a request that all action on the cases against him be suspended pending determination of that complaint. He also requested an oral hearing before the issue of a final decision in Mr Fairweather’s case, although at that stage no reasons for that request were given.[81]On 20 January 2011 the Independent Assessor wrote to the FOS requiring it to suspend its investigation of Mr Fairweather’s complaint (and two other complaints) until she had completed her review. This suspension took place at Mr Calland’s request, at a time when he was in receipt of legal advice.[82]The Independent Assessor issued her decision on the complaint on 18 March 2011. She was satisfied that the review recommended back in December 2006 had followed the proper process but said that it was regrettable that it had taken so long. She considered that the decision on jurisdiction had taken what seemed to be an inordinate length of time, but that there was no failure of proper process. She was satisfied that the FOS had acted reasonably in the matters drawn to her attention, although she added that she could not be satisfied "that this has been a well and firmly managed investigation”. However, she was satisfied that the investigation of the merits had proceeded on a normal path, though rather slowly. She recommended a new deadline of 18 April 2011 for any further submissions about the merits.[83]Mr Calland did not accept this approach. On 18 March 2011, the day the decision was issued, his solicitors wrote to the Chief Ombudsman proposing that all outstanding FOS matters should be put on hold pending the outcome of his harassment proceedings against the FSA, which had finally been issued. This proposal was not accepted.

The procedure leading to the Ombudsman’s final decision

[84]The Ombudsman then recommenced his determination. He dealt first with the request for an oral hearing, requesting Mr Calland on 25 March 2011 to provide details of the issues which he might wish to raise at such a hearing. On 6 April 2011 Mr Calland did so, saying essentially that he would be able to assist the Ombudsman with any matters which the Ombudsman wished to raise.[85]On 18 April 2011 Mr Calland sent detailed submissions to the Ombudsman, which also referred to the fact that his solicitors were “seeking an injunction in relation to the FOS progression of cases against me”. In fact there was no such injunction claim, but the comment further illustrates Mr Calland’s attitude. These submissions included for the first time a statement from Mr Askham, the adviser who had dealt with Mr Fairweather in April 1992. That one page statement, dated 4 August 2010, stated candidly that Mr Askham was "quite unable to offer any precise recollections of my contacts or conversations with Mr Fairweather”, although he did also deny advising Mr Fairweather that he would be better off in taking out a private pension than joining his employer's scheme. It was in the course of these submissions that Mr Calland expressed his disagreement with the classification of customers adopted by the PIA, but he also made it clear that he was not contending that Mr Fairweather was an "execution only" or "insistent" customer within the meaning of those terms as adopted by the PIA. He described him instead as a “reluctant non-joiner”, and accepted that Mr Askham would have given advice, albeit he maintained that the advice was suitable. He was not suggesting at this stage, therefore, that this was a case where no advice had been given.[86]The Ombudsman considered Mr Calland’s request for an oral hearing but decided that this was not necessary. In a letter dated 19 April 2011 he explained that even when a hearing was held, the procedure was informal and did not involve evidence on oath or cross examination of witnesses. He expressed the view that all of the material issues were covered in the case papers, that Mr Calland had set out his case on paper clearly, and that he could decide the case fairly without a hearing.[87]Mr Calland repeated his request for an oral hearing, making clear in an e-mail dated 21 April 2011 that he wished to ask questions of Mr Fairweather and reiterating his previously stated view that the case ought not to be progressed to a final decision. He followed this with a detailed list of such questions in an e-mail dated 8 May 2011, requesting that these questions should not be put to Mr Fairweather in advance because he wanted to see his "spontaneous answers". He also enlisted the support of his MP, Mr Stephen Phillips QC, who wrote to say that refusal of an oral hearing was a flagrant breach of undertakings given to the House of Commons during the consideration of the FSMA (a point disclaimed by Mr Tomlinson in the proceedings before me).[88]It is apparent that at this time the Ombudsman was attempting to bring the matter to a conclusion, urging Mr Calland to make any final representations, but that he was unable to do so because Mr Calland continued to send lengthy and largely repetitive communications, in which once again he set out his concerns about harassment by the FSA, collusion between the FSA and FOS, solicitation of the complaints against him and the possibility of legal proceedings, all of which needed to be considered. For example, a letter dated 23 May 2011 enclosed 673 pages of what was described as "relevant evidence". Mr Calland did complain in this letter, as he had in others, about the length of time which the process was taking, but that complaint is difficult to reconcile with the many previous demands that the process should be put on hold pending the outcome of litigation, and with the volume of material which Mr Calland required the Ombudsman to consider. Every time the Ombudsman communicated with Mr Calland (as he did, for example, in July 2011 regarding the quantum of loss claimed by Mr Fairweather), Mr Calland made clear that he wished to make further representations, and frequently he requested additional time in which to do so -- sometimes because of his personal circumstances, sometimes because of other complaints with which he had to deal, and sometimes because he said that impending developments in his legal case against the FSA should be awaited. The position was further complicated by direct contact between Mr Calland and Mr Fairweather in August 2011 when Mr Calland delivered a file of documents to Mr Fairweather under cover of a letter accusing him of telling lies in order to obtain compensation which Mr Calland viewed as “attempted theft”, which led to yet further lengthy submissions being made to deal with these points. That correspondence only came to an end in early November 2011.

The Ombudsman’s final decision

[89]After considering the extensive material submitted to him, the Ombudsman issued his final decision on 23 February 2012. In that decision, he dealt with all of the issues that Mr Calland had raised. He recognised that there was a dispute about whether advice had been given. Mr Calland’s position in his latest submissions was that no advice had been given to Mr Fairweather, who had already decided not to join his employer’s pension scheme. Mr Fairweather, however, said that he had sought advice as he had no financial experience, and that after a discussion with Mr Calland, Mr Calland had advised him to start a personal pension rather than join his employer’s scheme.[90]The Ombudsman pointed out that Mr Fairweather was wrong about this, as it was Mr Askham and not Mr Calland with whom Mr Fairweather had dealt in April 1992. As a result, the Ombudsman treated Mr Fairweather’s evidence with caution. He concluded, however, that this was merely a mistake in recollection about the identity of the adviser at the April meeting, when it was common ground that there had been other meetings with Mr Calland during the period 1992 to 1997. He found that:
“… I am nonetheless satisfied that he did purchase a personal pension as a result of recommendations made at that meeting. Mr Fairweather had an established advisory relationship with CIMS and was an unsophisticated investor. On balance, it is my view that it was more likely than not that advice was given to transfer out of the Co-op pension scheme and to purchase a personal pension rather than join his employer's occupational scheme.”
[91]In fact this finding related to two separate pieces of advice. The first referred to, although the second in time, was advice which was indeed given by Mr Calland, namely to transfer out of the Co-operative scheme of Mr Fairweather’s former employer. As to this, the Ombudsman said that there was no new evidence to alter his former provisional view that this advice had been reasonable. Accordingly he dismissed that complaint.[92]The second piece of advice referred to was the April 1992 advice for Mr Fairweather to start a personal pension rather than join his new employer’s scheme. Having found that this advice had been given, the Ombudsman had to consider whether it was suitable. He found that it was not. Mr Calland had argued that concern in 1992 about the possible takeover of Mr Fairweather’s employer and publicity regarding the unlawful raiding of pension funds by Robert Maxwell would have been reasons not to join an employer’s scheme which would have weighed with Mr Fairweather. The Ombudsman agreed that these would have been matters for discussion, but nevertheless concluded, in accordance with the regulator’s view, that it would seldom have been best advice not to join an employer's scheme, and that there was nothing to displace that view here. He found that suitable advice would have been, and should have been given, to join the employer’s scheme, and that if such advice had been given Mr Fairweather would have joined the scheme.[93]The Ombudsman then turned to the quantum of Mr Fairweather’s loss and accepted a point made by Mr Calland which it is not necessary to explain here. Having done so, he ordered Mr Calland to pay Mr Fairweather £48,105 to increase the value of his pension plus simple interest at 8% per annum from 27 July 2011 until payment, together with an award of £250 for distress and inconvenience.

Failure to reach a determination within a reasonable time

[94]In the light of this review, I turn to the first ground of challenge, that the FOS failed to determine the complaint against Mr Calland within a reasonable time such as to infringe his rights at common law and under Article 6 (it was not suggested that any rights at common law added materially to the position under Article 6). As already indicated, all the circumstances must be considered, including in particular the complexity of the case, Mr Calland’s own conduct, and the manner in which the matter was dealt with by the FOS.

Complexity of the dispute

[95]The merits of Mr Fairweather’s complaint were not complex at all. They involved a factual question as to what if any advice he was given at the meeting with Mr Askham in April 1992, together with an evaluation of whether that advice was suitable. Even in 2005 when this complaint was first referred to the FOS, the meeting was already 15 years ago and it was highly unlikely that either participant would have a detailed recollection of it. Further, even by that stage, there were few if any contemporary documents available.[96]Nevertheless the issues were very familiar and were issues that commonly had to be decided on incomplete or uncertain information -- so commonly, in fact, that the PIA had developed a set of "most plausible assumptions” to assist in that process, as well as identifying the principle that except in the case of two specific kinds of customer, suitable advice would generally require an IFA to advise a customer to join an employer’s occupational pension scheme. There was no evidence before me as to the number of such typical complaints that the FOS had handled over the years, or as to the time which they generally took to reach a final decision, but it seems probable that there have been very many, all raising similar issues.[97]I accept, however, that this fairly straightforward complaint was very substantially complicated by the jurisdictional and procedural points raised by Mr Calland, as well as his own complaints about the way in which the FOS was handling the matter. That introduced a high degree of complexity, not only because of the nature of the points themselves, but also because of the different individuals responsible for dealing with them. In addition the repeated (but in the end never fulfilled) threat of legal action against the FOS added a further layer of complexity, necessitating the taking of careful legal advice. I accept also that further complexity was added by the lengthy and repetitive correspondence from Mr Calland and the substantial volume of material which he required the FOS to consider.

Mr Calland’s own conduct

[98]It was undoubtedly the conduct of Mr Calland himself which was the principal cause of the substantial delay in bringing the proceedings before the FOS to a final conclusion. No doubt he was entitled to challenge the jurisdiction of the FOS to determine the complaint against him if he considered that he had grounds for doing so. Similarly he was entitled to invoke the FOS’s own complaints procedure if he considered that he was being unfairly treated. But he cannot complain now that determination of the proceedings was delayed as a result of the various emanations of the FOS (or the Independent Assessor) having to deal with his various objections – all of which were rejected, or at any rate were rejected as grounds for bringing the proceedings to an end, and there is now no challenge to the various decisions which were made. Indeed for much of the time Mr Calland was insisting that the progression of Mr Fairweather’s complaint should be put on hold while his latest objection was dealt with and was threatening legal proceedings to ensure that this happened.

The FOS’s handling of the proceedings

[99]In view of Mr Calland’s conduct there is no substance in my judgment to most of the present complaint of delay. Mr Tomlinson submitted that once the FOS had decided to entertain Mr Fairweather's complaint, it was duty bound to proceed expeditiously, if necessary by imposing and enforcing appropriate deadlines. That is easy to say and indeed has considerable force with the benefit of hindsight, but I consider that it is somewhat unrealistic in the circumstances as they actually were. Those circumstances included that Mr Calland was a retired individual facing a number of complaints which cumulatively were no doubt of considerable financial significance to him; that he was acting for the most part in person, albeit with lawyers in the background from time to time; that he had threatened on a number of occasions to bring legal proceedings to restrain the FOS from progressing the complaints against him on their merits; and that he was very likely to challenge by legal proceedings any final decision against him on any ground available. In those circumstances, it was entirely understandable that those dealing with Mr Calland at the FOS should proceed cautiously, giving him every opportunity to make whatever submissions he wished to make, and being reluctant to impose guillotines which would themselves be likely to result in further complaints. Indeed, at one stage (September/October 2007) Mr Calland was protesting that further progression of the complaints against him was contrary to his rights under Article 6, while now he is making the exactly opposite complaint.[100]I would accept, as did Mr Strachan for the FOS, that there were some periods when the FOS was not proceeding as expeditiously as would have been desirable, but I accept also that not every such period (even if considered on its own) will be sufficiently serious to amount to a breach of the reasonable time requirement in Article 6. For example, some criticism can validly be made of the time taken to complete the review of CIMS cases recommended by the Independent Assessor’s decision of 6 December 2006.[101]However, I conclude that the only real period of delay for which the FOS can be held unequivocally responsible and at fault is the lengthy period from November 2007 until October 2009 when the question of jurisdiction was before the Ombudsman. As noted above, it took a whole year for a provisional decision on jurisdiction to be issued, although it was apparently ready much earlier, and it then took a further eight months for a final decision confirming the provisional decision to be issued. I have already commented that these delays were excessive and unacceptable, and I consider that the Independent Assessor was right to describe this as an inordinate length of time in her decision of 18 March 2011. This stage of the proceedings could and should have taken much less time.

All the circumstances

[102]Having identified the various factors to be weighed, I return to the question whether there was in all the circumstances a failure to determine Mr Calland’s rights and obligations within a reasonable time such as to amount to a breach of his rights under Article 6. It is important to remember that this question must be answered by reference to the particular claimant, so that the same answer would not necessarily be given if the question were whether the delay amounted to an infringement of Mr Fairweather’s rights, he having after all been kept waiting for a decision for the same length of time.[103]It is important also that the proceedings should be viewed as a whole. It is not sufficient to point to individual periods of delay for which the FOS was responsible. Even if such periods occurred, as they did in this case, there would be no breach of Article 6 if (for example, although hypothetically) any lost ground was subsequently made up at a later stage. Nor would there be a breach in my judgment if (as did happen) Mr Calland repeatedly made it clear that his objection was to the existence of the complaints against him and not to the time being taken to reach a final decision. Indeed, even at the time of the jurisdiction issue being referred to the Ombudsman for a final decision, Mr Calland’s position was that further progress of the complaints would constitute harassment and that delay would cause no prejudice to anyone, while after that final decision on jurisdiction was made he continued to insist that investigation of the merits of the complaints should be suspended pending a legal action which in the event never materialised -- with the inevitable consequence, as he must have understood, that if that legal action was unsuccessful, the final determination of the complaints would be yet further delayed.[104]In such circumstances, and viewing the proceedings as a whole, I consider that it would be highly artificial to find that the time taken by the FOS to reach a final determination constituted a breach of Mr Calland’s Article 6 rights. That would be the exact opposite of the stance taken by him at an earlier stage, namely that to attempt to progress the complaint against him would infringe those same rights. Accordingly I dismiss the claim based on delay. That is not to say, however, that the FOS can look back with satisfaction on its handling of this case as “a well and firmly managed investigation”, to borrow a phrase used by the Independent Assessor in her decision of 18 March 2011. That, however, is a different question.

Damages

[105]Even if I am wrong in my conclusion on liability I have no doubt, applying the principles in Greenfield referred to above, that this is not a case where damages should be awarded. No specific heads of loss are claimed and it is not suggested that whatever delay occurred caused Mr Calland to lose the opportunity of a more favourable outcome to the proceedings. Further, I do not accept that Mr Calland has suffered any anxiety or frustration as a result of the time taken to bring the proceedings before the FOS to a conclusion. He has undoubtedly been frustrated and annoyed, and in view of the potential financial consequences for him may well have suffered anxiety, as a result of the existence of Mr Fairweather’s complaint and the complaints of other former customers, but such anxiety or frustration as he may have felt have nothing to do with the time taken to resolve them. Failure to hold an oral hearing Legal principles

Failure to hold an oral hearing

[106]The second ground of challenge to the Ombudsman’s final decision is that this is a case where fairness required an oral hearing to be held. The applicable principles here were considered by the Court of Appeal in R (Heather Moor & Edgecomb Ltd) v Financial Ombudsman Service [2008] EWCA Civ 642 at [57] to [67]. That case was concerned with a previous version of the FOS rules, but it was not suggested that there was any material difference between those rules and the rules applicable in the present case. It is clear from the judgment of Stanley Burnton LJ that the normal or default position is that in view of the objective of resolving disputes quickly and with minimum formality, there need be no oral hearing, and that an oral hearing must be held only when that is necessary fairly to determine the dispute in question.[107]In Heather Moor & Edgecomb Ltd the reason for requesting an oral hearing was to enable the IFA to cross examine, or to have the Ombudsman examine, the customer as to the advice he had received, and his reliance on it. As to this, Stanley Burnton LJ said at [58]:
“If the determination of his complaint involved the resolution of disputes as to what was said in the meeting between Mr and Mrs Lodge and Mr Pickering, or if it could sensibly be argued that if Mr Lodge had received the advice that the Ombudsman ultimately held he should have received he would have acted no differently, the contention that fairness required an oral hearing might have been substantial. However, even if there had been disputes as to what was said at a meeting, the availability of a contemporaneous written record would normally make an oral hearing unnecessary.”
[108]Stanley Burnton LJ went on to find at [59] that on the facts there was no real issue about what had been said at the meeting in question and at [60] that if the customer had received the correct advice he would unquestionably have acted in accordance with it, and that it would have been pointless to ask him questions about that orally. He also cited the judgment of Clarke LJ in R (Thompson) v The Law Society [2004] EWCA Civ 167, [2004] 1 WLR 2522, including this statement from [46]:
“An oral hearing should be ordered where there is a disputed issue of fact, which is central to the Board's assessment and which cannot fairly be resolved without hearing oral evidence.”
[109]A subsequent claim before the Strasbourg court was held inadmissible as being manifestly ill-founded: Heather Moor & Edgecomb Ltd v United Kingdom (2011) 53 EHRR SE 18.[110]Accordingly the relevant principle is one of fairness. An oral hearing need not be held unless fairness requires that one should be. That will depend on all the circumstances of the individual case. One example, and perhaps the main one, when an oral hearing may be necessary is when there is a disputed issue of fact to resolve, but that too will depend on the circumstances. Even if there is such a dispute, a hearing may be unnecessary if, as in Heather Moor & Edgecomb Ltd, there is a contemporaneous written record whose accuracy is not in doubt, or if in the circumstances the answer to a question (such as what the customer would have done if the correct advice had been given) is obvious. These examples are not exhaustive. The existence of a disputed issue of fact does not by itself mean that there must be an oral hearing. Rather, there need be an oral hearing only where the dispute cannot fairly be resolved without hearing oral evidence. It follows that if an oral hearing is unlikely to assist materially in resolving any such dispute, no such hearing need be held.[111]There was some debate before me whether the role of the court is to make up its own mind as to whether fairness required an oral hearing or is merely to decide whether the Ombudsman's decision was rational. In principle, I consider that the former position is correct, as the court is deciding whether a claimant's Article 6 rights have been infringed, but in practice this will not generally make much difference, and does not in this case. It will only be on fairly rare occasions that the court will conclude that fairness did in fact require an oral hearing, but that the Ombudsman rationally decided to the contrary.

Did fairness require an oral hearing?

[112]On behalf of Mr Calland, Mr Tomlinson submitted that fairness did require an oral hearing in this case, because there was a dispute of fact which was central to the decision which the Ombudsman had to make and which could not fairly be resolved without hearing oral evidence. That dispute was said to be whether Mr Fairweather had sought advice as to whether he should join his employer’s pension scheme or whether he had already decided not to join his employer’s pension scheme and had merely instructed CIMS to execute his wishes. It was submitted that in the absence of contemporary documents, this dispute could only be decided fairly by oral witness evidence.[113]I do not accept this analysis. First, although Mr Calland was denying in his most recent submissions that any advice had been given to Mr Fairweather, he had previously accepted that Mr Fairweather was not an "execution only" customer. Second, Mr Fairweather had been maintaining for several years that he had sought advice from CIMS. Third, and despite Mr Fairweather's mistake as to the identity of the adviser who had advised him, which the Ombudsman rightly had well in mind, it was inherently probable that he had in fact done so. That is generally why people go to IFAs. Fourth, Mr Calland was not at the April 1992 meeting. Fifth, Mr Askham who was the adviser concerned had provided a statement in which he admitted (not surprisingly) that he did not have a precise recollection of the meeting, but certainly did not assert that Mr Fairweather was not seeking advice; on the contrary, he maintained that he did advise him, including by checking that Mr Fairweather was fully aware that taking out a private pension would mean the loss of his employer's contributions towards his retirement provision. Sixth, it was not suggested that Mr Askham should give oral evidence, and I understand that he would have been too unwell to attend any hearing.[114]For all these reasons it was extremely unlikely that an oral hearing would have assisted the Ombudsman to decide whether advice had been given to Mr Fairweather. I accept that, unlike Heather Moor & Edgecomb Ltd, this was not a case where contemporaneous records were available. However, it was far-fetched to think that oral questioning of Mr Fairweather almost 20 years after the event would add significantly to the known facts. There was no other witness proposed to be called whose evidence would shed light on this issue.[115]Further, once it was concluded (as in my judgment it inevitably would have been) that Mr Fairweather was neither an "execution only" nor an "insistent" customer, but was a customer who sought advice, the Ombudsman would need to decide what suitable advice would have been. That question arose against the regulatory background that suitable advice would generally be to join an employer's pension scheme. That was an objective question requiring consideration of any factors said to point in a different direction. It did not require oral factual evidence and was an evaluative exercise which the Ombudsman did carry out, giving appropriate weight to matters such as the possibility of a takeover of GEC and the Maxwell pensions scandal which Mr Calland had raised.[116]Once the conclusion was reached that suitable advice would have been for Mr Fairweather to join his employer’s pension scheme, it was obvious not only that such advice had not been given (neither Mr Askham nor Mr Calland ever suggested that it had), but that Mr Fairweather would have acted upon it if it had been. At all events, it is very difficult to see how oral evidence would have made any difference. Mr Fairweather would inevitably have said that he had not been advised to join his employer's pension scheme, and that if he had been so advised, he would have done so. There was nothing to suggest that such evidence would have been wrong, and it was in accordance with the inherent probabilities.[117]Accordingly, I conclude that despite the factual differences between the present case and Heather Moor & Edgecomb Ltd, this is not a case where fairness required an oral hearing to be held. The Ombudsman was able to and did decide the matter without an oral hearing. The fairness of his approach is apparent not only from his careful reasons (including a recognition that Mr Fairweather’s recollection was faulty which it did not need cross examination to expose), but also from his rejection of one of Mr Fairweather’s two grounds of complaint (the transfer issue) and his acceptance of Mr Calland’s point on quantum.

Overall unfairness

[118]The final challenge to the Ombudsman’s decision is that the proceedings overall were unfair such that the decision should be quashed. By the close of the argument three matters were relied on, namely the delay in bringing the proceedings to a conclusion, the failure to hold an oral hearing, and the fact that Mr Fairweather’s complaint was solicited by the FOS in the first place.[119]I have already dealt with the first two of these three matters and rejected them as individual grounds of challenge to the decision. In my judgment, they contribute nothing further to a complaint of overall unfairness.[120]As to the question of solicitation, the Independent Assessor’s conclusion dated 6 December 2006 was that the claim had indeed been solicited by the FOS. He recommended a payment of compensation to Mr Calland which Mr Calland rejected. However, the Assessor also found that the customers concerned including Mr Fairweather had clearly indicated their wish to seek redress. In my judgment the Assessor’s finding of solicitation may be regarded as a little harsh on the FOS in circumstances where Mr Fairweather had complained to the FSA which had referred the matter on to the FOS. Be that as it may, however, it is clear that Mr Fairweather did wish to complain, as shown by the fact that he had already made a complaint to the FSA and his recorded delivery letter to Mr Calland dated 20 October 2005, as well as his subsequent correspondence. This is not a case, therefore, where the FOS has provoked a complaint which would otherwise never have been made, although even if it were there is force in the point that one of the main purposes of the pensions review was to bring to the attention of customers to whom personal pensions had been sold that they might have grounds for complaint of which they were not aware. Nor is it, as Mr Calland has sought to suggest, a case of provoking a fraudulent and false complaint. That was a matter for determination by the Ombudsman, who has found that the complaint was both genuine and valid. There is (and so far as I can see can be) no challenge to his conclusion on that point, for example on the ground that it was irrational.[121]In these circumstances, I consider that Mr Calland was fully compensated by the finding of the Independent Assessor in December 2006 and by the recommended compensation of £500 for any injustice which he may have suffered as a result of solicitation of the complaint by the FOS. There is no valid basis on which the Ombudsman’s final decision can be quashed, which in any event would be a thoroughly disproportionate remedy, as well as being highly unfair to Mr Fairweather.

Delay

[122]Finally, the FOS contends that Mr Calland has delayed in bringing these proceedings which were issued on 23 May 2012, exactly 3 months after the FOS’s final decision. If I had found that Mr Calland’s challenges to the FOS’s final decision were otherwise well founded, I would not have refused relief on this ground.

Conclusion

[123]The claim for judicial review of the FOS’s final decision dated 23 February 2012 ordering Mr Calland to pay compensation to Mr Fairweather is dismissed.