Full Circle Asset Management Ltd, R (On the Application Of) v Financial Ombudsman Service [2014] EWHC 1440 (Admin)

[2014] EWHC 1440 (Admin)Case No CO/13079/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 14 March 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE LEWIS
Between
THE QUEEN ON THE APPLICATION OFClaimantFULL CIRCLE ASSET MANAGEMENT LIMITEDClaimantv
Between
FINANCIAL OMBUDSMAN SERVICEDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr Rory Phillips QC and Mr Robert Purves (instructed by Reynolds Porter Chamberlain) appeared for ClaimantJonathan Moffett (instructed by the Financial Ombudsman) appeared for Defendant
J U D G M E N T
[1]In my judgment, this is a case that does deserve to be argued out fully. There are the practical considerations about the operation of the scheme as a whole that Mr Phillips QC raises on behalf the claimant. In addition, there is the wording of section 228. It says:
"A complaint is to be determined by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case."
That does raise issues as to what that means and whether the opinion of the ombudsman is what is fair and reasonable against a background where the industry has accepted a particular level of risk being characterised as medium or not, or whether there is some other reading to be given to the provision.[2]I take on board Mr Moffett's powerful and pithy points that the words "will take into account" mean "will take into account" the industry views and it can depart from them. Against that, Mr Phillips QC says "take into account" all depends upon the context, and when you are dealing with the regulatory standard, if that is what it is, you have to take that into account and you cannot substitute your view on what is the appropriate standard because you think that is fair and reasonable.[3]Although it is a short point, it does seem to me that it is both potentially complex and important, so I am therefore persuaded that this is a case where permission should be granted.