Westscott Financial Services Ltd CBHC Llp & Anor v Financial Ombudsman Service [2014] EWHC 3972 (Admin)

Case No 14423/2013[2014] EWHC 3972 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 2 nd December 2014
Before
MRS JUSTICE THIRLWALL DBE
Between
WESTSCOTT FINANCIAL SERVICES LIMITEDClaimantsCBHC LLPClaimantDTE RISK AND FINANCIAL MANAGEMENT LIMITEDClaimantFINANCIAL OMBUDSMAN SERVICEDefendant
[1]MR AND MRS STEEL[2]MR AND MRS ROSS 3.MR DALBY[4]MRS DALBY[5]MR AND MRS BUVYER WALKER Interested Parties - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - Mr Vikram Sachdeva (instructed by Bond Dickinson) for the Claimants Mr Jonathan Moffett (instructed by the Financial Ombudsman Service) for the Defendant Hearing date: 9th October 2014 - - - - - - - - - - - - - - - - - - Judgment Mrs

Justice Thirlwall :

[1]These claims for Judicial review concern five decisions of the Financial Ombudsman Service (FOS) taken in July and September of 2013. The claimants are independent financial advisers (IFAs) who were the subject of complaints to FOS by former clients. Each claimant sought a stay of the determination of the complaint pending the resolution of litigation in the Commercial Court. In each case the stay was refused, the ombudsman upheld the complaint and directed the IFA to pay compensation. The claimants each seek judicial review of the decision not to stay the determination in their case. A sixth challenge to “the Financial Ombudsman Service de facto policy of refusing to stay such complaints pending the outcome of the FSCS litigation” was not pursued.

Background

[2]This is not in dispute. The five complaints to the FOS (and another thirty two Now nine which have yet to be determined) arose out of the recommendation to clients by IFAs of financial products marketed and distributed between July 2005 and April 2009 by Keydata Investment Services Ltd (Keydata). The products were based on bonds issued by Lifemark SA (Lifemark) or SLS Capital SA (SLS). The products were aimed primarily at individual investors who purchased them as a tax-exempt ISA investment.[3]CBHC advised Mr and Mrs Steel in late 2005. DTE Risk and Financial Management Ltd (DTE) advised Mr and Mrs Dalby and Mr and Mrs Buvyer-Walker in mid 2006. Westscott Financial Services Ltd (Westscott) advised Mr and Mrs Ross in early 2009. All the investors bought Keydata products.[4]On 8 June 2009 Keydata was placed into administration on the application of the Financial Services Authority, the predecessor of the Financial Conduct Authority, because some of the products being sold did not qualify for ISA status. In October 2009 it became clear that money invested in SLS had been misappropriated. SLS was put into liquidation. In November 2009 Lifemark was placed into provisional administration. It was suspended from trading in February 2010 and was dissolved in May 2012.

FSCS litigation

[5]A very large number of investors in Keydata products have suffered significant losses. Many have made claims on the Financial Services Compensation Scheme (FSCS) which has so far paid out compensation in excess of £300m. The investors’ claims against their IFAs have been assigned to the FSCS and in 2011 it began proceedings against a large number of IFAs. There are two sets of proceedings, one in respect of Keydata Lifemark products, the other in respect of Keydata SLS products. The two sets of proceedings, which are being case managed together, have been referred to throughout these Judicial Review proceedings as the FSCS litigation.[6]None of the investors in respect of whom ombudsmen made the decisions now subject to challenge are involved in this or any other litigation arising out of these investments.[7]The progress of the FSCS litigation is set out in the witness statement of Mr Cohen, served in these proceedings. At a CMC in March 2013 the court ordered that there be test cases against lead defendants. Those cases and defendants were identified by August 2013. All other cases were stayed. There was no trial date.[8]By July 2014 the FSCS had settled the claims against the lead defendants and against a number of other defendants. Further lead defendants are now being identified. It is expected that this new list will be completed by the time of the next CMC in November 2014. If there is to be a trial it will not take place before the end of 2015/beginning of 2016.

The Statutory Framework

[9]The relevant ombudsman scheme was set up by Part XVI of the Financial Services and Markets Act 2000 (FSMA). The objective is set out at S225(1):
“This part provides for a scheme under which certain disputes may be resolved quickly and with minimum formality by an independent person.”
[10]The complaints arose under the defendant’s compulsory jurisdiction as set out in section 226 and 228 of FSMA.[11]By section 228(2) – “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… (4) The statement must(a) Give the ombudsman’s reasons for his determination;(b) Be signed by him; and(c) Require the complainant to notify him in writing, before a date specified in the statement, whether he accepts or rejects the determination. (5) If the complainant notifies the ombudsman that he accepts the determination, it is binding on the respondent and the complainant and final”.[12]Paragraph 4 (1) of Schedule 17 to FSMA provides that “The scheme operator must appoint and maintain a panel of persons, appearing to it to have appropriate qualifications and experience, to act as ombudsmen for the purposes of the scheme.”[13]Schedule 17 also provides for the making of scheme rules. The relevant rules are set out in the Financial Conduct Authority Handbook under the heading “Dispute Resolution: Complaints” (DISP). The rules set out the ombudsman jurisdiction, the procedures to be followed and the matters to be taken into account by an ombudsman when determining a complaint.[14]DISP 3.5.1R provides as follows:
“The ombudsman will attempt to resolve complaints at the earliest possible stage and by whatever means appear to him to be most appropriate, including mediation or investigation.”
[15]DISP 3.6.1R and 3.6.4R reflect the statutory duty under s 228(2) of FSMA and set out matters the ombudsman will take into account when making a determination as follows:
“3.6.IR The ombudsman will determine a complaint by reference to what is, in his opinion, fair and reasonable in all the circumstances of the case… 3.6.4R In considering what is fair and reasonable in all the circumstances of the case, the ombudsman will take into account: (1) relevant: (a) law and regulations; (b) regulators’ rules, guidance and standards; (c) codes of practice; and (2) (where appropriate) what he considers to have been good industry practice at the relevant time.”
DISP 3.3.4R makes provision for the situation where a complaint is or has been the subject of court proceedings: “3.3.4R The ombudsman may dismiss a complaint without considering its merits if he considers that:… (8) the subject matter of the complaint has been the subject of court proceedings where there has been a decision on the merits; or (9) the subject matter of the complaint is the subject of current court proceedings, unless proceedings are stayed or sisted (by agreement of all parties, or order of the court) in order that the matter may be considered under the Financial ombudsman Service;… (1) relevant: (a) law and regulations; (b) regulators’ rules, guidance and standards; (c) codes of practice; and (2) (where appropriate) what he considers to have been good industry practice at the relevant time.” (8) the subject matter of the complaint has been the subject of court proceedings where there has been a decision on the merits; or (9) the subject matter of the complaint is the subject of current court proceedings, unless proceedings are stayed or sisted (by agreement of all parties, or order of the court) in order that the matter may be considered under the Financial ombudsman Service;…[16]It is not in dispute that the complaints in these cases did not come within paragraph 3.3.4R. The “subject matter of the complaint” means, in practice, the whole of the complaint made by a particular complainant.

The individual complaints against the Claimants

[17]Chronologies prepared by Mr Moffett, Counsel for the defendant (and agreed as correct by Mr Sachdeva for the claimants) in respect of each of the other claims are annexed to this judgment. I do not repeat the detail.[18]In each case the investors complained to FOS in accordance with the rules. An adjudicator sent out his/her decision. Each claimant made submissions, the ombudsman in each case then produced a provisional decision. The claimants made further submissions. The ombudsmen went on to make their final decisions. In each case the ombudsman found that the products posed a “significant risk” which would not have been suitable for “all [sic] but the most experienced of retail investors”. The products were unsuitable even as a small proportion of each client’s portfolio. Each ombudsman concluded that “the advice demonstrated a complete disregard for [the client’s] individual circumstances and interests.” The total compensation ordered in these five cases was £362k. The requests for stays[19]I take up the history at the point of the provisional decision of Mr Biles, ombudsman, in the case of Mr and Mrs Ross, dated 28th February 2013. It records the points made to the ombudsman by Westscott in its disagreement with the finding of the adjudicator. The first point raised was that Mr and Mrs Ross had not taken their complaint to the FSCS. There then followed a number of points on the merits. The question of a stay was not raised.[20]The first request not to proceed came a month later in a letter from Westscott on 28th March in its response to the provisional decision. Westscott asserted that the provisional decision was premature “and will in due course be proven by the court to be incorrect”. It sets out the background to the investment and refers to the fact that the “matter is currently subject to complex litigation in the Commercial Court in London.” Under the heading ‘Product Risk’, Westscott sets out arguments with which Westscott expected the Commercial Court to agree. The rest of the letter deals with the substance of the provisional decision. It concludes thus:
“Further it is our firm view that in light of the FSCS Proceedings which concentrate on many of the issues which are identified in the provisional decision, it is not appropriate for you to come to a final decision until judgment has been handed down in those proceedings. We therefore respectfully suggest that any decision in relation to this complaint should be effectively stayed until the outcome of the FSCS Proceedings so that judicial weight can be added to your considerations. We understand that this approach has been endorsed in relation to Keydata-related complaints made against other firms”
. This last assertion is now accepted to be incorrect.[21]Bond Dickinson, on behalf of Westscott and on behalf of DTE, wrote to FOS in respect of the cases of Mr and Mrs Ross and Mr and Mrs Dalby in a letter of 15 April 2013. They raised five points:-(i) that the decisions had been reached with the benefit of hindsight(ii) that Keydata investor claims were currently subject to complex litigation in the Commercial Court. “In those cases, the Court is expected to require the input of experts before coming to any firm decision on liability. In particular the Court will require expert guidance on whether the Keydata products were low, medium or high risk investment and whether they were suitable for certain investors. No doubt the court will also consider what constituted an appropriate balance of portfolio in terms of both the risk profile of those investors who had a cautious or moderate attitude to risk and the take up of their portfolios.”(iii) Risk profile – it is said that the provisional decisions identifying the Keydata products as high risk “ will be determined to be an incorrect assessment”. The rest of this section of the letter is an amplification of what appears in the first two sections.(iv) Under the heading “balance of portfolio” the points first identified under (ii) are rehearsed again(v) Under the heading “deferred decisions” the assertion was repeated that other members of the FOS have deferred making decisions. I do not need to deal with this.[22]In an email of 21st May 2013 the Case Review adjudicator responded thus, “I appreciate that action has been and may continue to be taken by the FSCS against other advisers that sold Keydata products and these could end up in court, although the timescale for doing so (and any likely outcome) is uncertain. The FSCS is independent of the FOS and as such any actions it decides to instigate will not affect our ability to consider an eligible complaint. Moreover my understanding is that the subject matter of these particular complaints has not been referred to court nor is it in the process of being referred. It follows that we are not persuaded that there is any reason not to continue with our work.”[23]The wording in the final paragraph reflects the wording in DISP 3.3.4R which provides for the dismissal of complaints which are the subject of litigation (see paragraph 15 above)[24]Bond Dickinson replied to that point in their email of 22nd May, “We must reiterate that the subject matter of the complaints you refer to involve the same issues as those currently before the court and therefore it would be unfair and unreasonable for you to make decisions that will later be proven to be inconsistent with that of the court.” The FOS was then exhorted to defer making the final decisions “until the court passes judgment in the litigation issued by the FSCS. To not do so will only serve [sic] the parties to incur the unnecessary costs of a Judicial Review.”[25]By a letter of 12th June 2013 the defendant said that Mr and Mrs Ross’s complaint would not be stayed. A letter in the same terms was sent in respect of Mr and Mrs Dalby’s complaints on the same day to DTE. The ombudsman issued his final decision in respect of Mr and Mrs Ross on 2nd July 2013. The final decision in respect of Mr and Mrs Dalby was issued on 29th July 2013.[26]A similar sequence of correspondence occurred in the case of CBHC and Mr and Mrs Steel and in the case of DTE and Mr and Mrs Buvyer-Walker. The final decisions being issued on the 26th July and 27th September 2013 respectively.

The claims

[27]The claims for Judicial Review are brought in respect of the final decision in each case. It is not suggested that the substance of the decisions in respect of the complaints was flawed. Mr Sachdeva accepts that in the light of the information before each ombudsman the decisions reached were unimpeachable. This was an important shift from the position first taken by the claimants when they complained that the decisions were wrong because (amongst other things) they had been taken with the benefit of hindsight. That was not pursued. The recognition that the decision was correct, given the material available to the ombudsman, was inevitable. It is nonetheless an unusual starting point given the nature of the challenge.[28]I set out below the passages in the letters from the ombudsmen to the claimants upon which Mr Sachdeva focussed in support of his submissions. The emphasis is his. Steel:
“Firstly, this was because the ombudsman’s remit for determining a complaint was entirely distinct from that of a Court and he or she was not bound by the law and regulations. Secondly, we had a duty to resolve matters quickly and with minimum formality. Lastly, Mr and Mrs B had elected to bring their complaint to this service as an alternative to the court and it was our understanding the subject matter of their complaint had not been taken to court or in the process of being referred.” (Final Decision letter, 26 July 2013, at [3/114]) Ross:“Firstly, whilst we acknowledge that some of the issues considered in the FSCS proceedings might be similar to the issues considered in the context of Mrs Ross’ complaint, the ombudsman’s remit in determining such a dispute is entirely distinct from that of the Court. As you know, the ombudsman will determine a complaint by taking account of, amongst other things, the relevant law and regulations. But he or she is not bound by them. Ultimately, the ombudsman must decide the complaint by reference to what it [sic], in his or her opinion, fair and reasonable in all the circumstances of the case.”
Furthermore, the ombudsman has a duty to resolve matters quickly and with minimum formality (s225 FSMA). Although the FSCS legal action against certain independent financial advisors is on foot, the timescales involved are uncertain. In those circumstances, we do not consider it reasonable to suspend consideration of Mrs Ross’ complaint. Mrs Ross is an eligible complainant who has elected to refer her complaint to the ombudsman as an alternative to the courts. The FSCS legal action does not affect our ability to consider her complaint. Our understanding is that the subject matter of Mrs Ross’s complaint has not been referred to court nor is it in the process of being referred.” (letter from FOS to Bond Dickinson, 12 June 2013) Dalby: The letter of 12th June 2013 in respect of Mr and Mrs Dalby to which I referred in paragraph 25 was in identical terms. The final decision letter in the Dalby cases reads, “I am aware that action has been and may continue to be taken by the FSCS against other advisors that sold Keydata products and these could end up in court, although the timescale for doing so (and any likely outcome) is uncertain. But the FSCS is independent of the ombudsman service and any actions it decides to take will not affect our ability to consider an eligible complaint. Moreover, it is my understanding that the subject matter of Mr C’s complaint has not been referred to court nor is it in the process of being referred. My remit in determining a dispute is entirely different from that of a court. While any decision I reach must take account of the relevant law and regulations, I am not bound by them. My role is instead to decide what is fair and reasonable in all the circumstances of an individual dispute. I am also conscious that my role is to resolve complaints as quickly as possible and with a minimum of formality. Taking all of these points into account, I am not persuaded that my decision should be delayed pending the outcome of court proceedings.” Buvyer –Walker “I am aware that action has been and may continue to be taken by the FSCS against other advisors that sold Keydata products and these could end up in court, although the timescale for doing so (and any likely outcome) is uncertain. But the FSCS is independent of the ombudsman service and any actions it decides to take will not affect our ability to consider an eligible complaint. Moreover, it is my understanding that the subject matter of this particular complaint has not been referred to court nor is it in the process of being referred. As such, the court proceedings, although concerning matters which may be similar to some of the issues considered by me are not directly relevant to the individual circumstances of this complaint.Whilst I have regard to the law and any relevant legislation, codes of conduct or principles which might apply to regulated advice at the time of occurrence, my role is to informally resolve complaints as quickly as possible and with a minimum of formality. The timescale for any court case (and any likely outcome) is uncertain. I have taken this into account when considering this matter. Overall I am satisfied that I am able to take account of the law without waiting for the outcome of any court action” (letter dated 27 September 2013). The Claimants’ submissions[29]Mr Sachdeva submitted “that FOS’s decisions contain a number of errors of principle, each of which render the decisions flawed in law, namely:(a) Failure to appreciate that the FSCS litigation was directly relevant to the proper determination of the key issue of the risk posed by the products, according to the information available at the time.(b) Failure to enquire into the likely timescales of the FSCS litigation, including an indication of when trial was expected to take place.(c) No enquiry having taken place into the likely timescales of the FSCS litigation, excessive weight being placed on the bald assertion that the timescales were “uncertain”.(d) Reliance on an irrelevant factor – that none of the decisions in each case had been referred to court for determination.(e) Failure to provide adequate reasons.”[30]In oral argument Mr Sachdeva submitted additionally that these claims involved the human rights of the claimants namely the right to peaceful enjoyment of possessions protected by Article 1 of the First protocol. Therefore the court is required to apply a higher level of scrutiny to the decision making than usual.[31]On behalf of the defendant Mr Moffett submitted that, properly analysed these claims are challenges to the rationality of the decisions. There were, he submitted, no errors of law, and there was no irrationality. He also submitted that there was no requirement for a higher level of scrutiny than usual.[32]I was referred during the course of arguments to some 30 authorities, most of them setting out or repeating well recorded principles. It is not necessary to refer to them. Before dealing with the arguments in turn I make some preliminary observations:-i) The ombudsman scheme is designed to permit disputes to be resolved quickly and informally by people who have appropriate qualifications and experience. There is no requirement that processes (or indeed decisions) should mirror those of the courts. On the contrary this is an alternative method of resolving disputes. ii) Provided a person is eligible to complain (which all of these complainants were) he is entitled to have his complaint considered. Complaints which are also causes of action are not excluded – save where the complainant has brought proceedings (as set out above at paragraph 15).iii) Complaints are to be determined by reference to what is, in the opinion of the ombudsman, fair and reasonable in all the circumstances of the case. What is fair and reasonable is a decision to be taken by a suitably qualified ombudsman who has understood the material before him and who takes into account the matters set out in s228(2) of FSMA and DISP 3.6.1R and 3.6.4R iv) A decision by a judge of the Commercial Court in respect of the alleged professional negligence of an IFA is reached by the application to the facts found of the relevant law. It is not suggested that any new question of law will be determined in the FSCS litigation. To the extent that an ombudsman is required to have regard to the law, the FSCS litigation will add nothing. The law is settled. v)The matters taken into account by the judge when determining whether there has been professional negligence in recommending particular products will be, broadly, those which would be taken into account by the ombudsman in accordance with Section 228(2) and DISP 3.6.1R and 3.6.4Rvi) Expert evidence may be called in the Commercial Court. Expert evidence may be called before the ombudsman. The rules also permit for hearings with (implicitly) cross examination. There were no applications for expert evidence or oral hearings in these cases. vii) A decision by the Commercial Court in respect of the level of risk inherent in particular Keydata products is a decision of fact, not of law. Mr Sachdeva’s submission to the contrary was unarguable. viii) A decision of fact by the Commercial Court in respect of that risk would be one of the matters to be taken into account by an ombudsman dealing with a complaint in respect of the same product. The weight to be given to it would be a matter for the ombudsman.ix) When considering a case where the Home Secretary has certified as unfounded human rights claims by a claimant for judicial review in respect of an immigration decision the court applies ordinary judicial review principles, with the addition of the requirement of “anxious scrutiny.” I am far from persuaded that such a requirement ought to be imported into a claim against the FOS. In my judgment these are ordinary judicial reviews to which the ordinary principles apply, with no gloss or additional requirement. x) Decision letters are not statutes. They are not legal documents. They set out decisions and explain them. They are to be read and interpreted in a common sense way. The questions to be asked when they are being scrutinised are – what is the decision and are the reasons for it clear? Then, where appropriate, is the decision unlawful/irrational?[33]I turn to the individual headings: Failure to appreciate that the FSCS litigation was directly relevant to the proper determination of the key issue of the risk posed by the products, according to the information available at the time.[34]In oral submissions Mr Sachdeva suggested that the inference to be drawn from the use by a number of the ombudsmen of the phrase “could end up in court” was that the ombudsmen did not understand that proceedings had begun. This argument is not sustainable. The context in which the words appear make it plain that court proceedings have started. “Ending up in court” is a well known layman’s expression to describe the time when proceedings reach a trial.[35]The ombudsmen had been informed of the litigation in all cases. It was the reason stays were being sought. There is no basis for asserting that any of the ombudsmen misunderstood the position on this point.[36]Mr Sachdeva’s primary submission was that the ombudsmen did not appreciate that the assessment of risk in the Commercial Court proceedings was in respect of the same products as were the subject of the complaints. He points to the fact that in a number of the decision letters there is reference to the fact that the issues are similar. To be accurate, he submitted, they should have said that one of the issues was the same. That they did not do so reveals that the ombudsmen did not know the true position. Accordingly the decisions not to stay were made on the basis of a misunderstanding and were erroneous.[37]Mr Sachdeva considered the following passage in the Buvyer-Walker letter, particularly the second sentence, rendered his submission unanswerable. “Moreover, it is my understanding that the subject matter of this particular complaint has not been referred to court nor is it in the process of being referred. As such, the court proceedings, although concerning matters which may be similar to some of the issues considered by me are not directly relevant to the individual circumstances of this complaint”.[38]I repeat my preliminary observation. This is a letter, not a statute. This passage conveys to the reader that this particular complaint is not part of the FSCS litigation and so any decision by the court in that litigation will not determine this complaint. That is correct. I do not accept that this passage reveals that the ombudsman did not appreciate that the court was to assess the risk inherent in the Keydata products with which he too was concerned (and so refused a stay on the basis of this error). That was the basis for the application for a stay. The first sentence, which appears in a number of the decision letters and reflects the wording of DISP 3.3.4R is the subject of an additional separate complaint with which I deal in paragraphs 49 and 50 below.[39]The use of the phrase “similar issues” without express reference to the fact that one of them was the same does not mislead anyone. It does not suggest that the ombudsmen did not understand this point. They understood everything else put before them, hence the absence of any challenge to their substantive decisions.[40]There is no error of principle. There is no error at all. Failure to enquire into the likely timescales of the FSCS litigation, including an indication of when trial was expected to take place.[41]This is unarguable. It was from the legal advisers of several of the claimants that the assertion that the timescales were “uncertain” came. The legal advisers were involved in the litigation themselves. The ombudsmen are not to be criticised for accepting what was said to them by those who were in the best position to know. The timescales were uncertain. As a matter of fact they are still uncertain. There was no duty upon the ombudsmen to enquire into the uncertainty. They were not asked to do so. Had there been any degree of certainty as to when the litigation would come to trial the claimants’ advisers would have said so. They did not. No enquiry having taken place into the likely timescales of the FSCS litigation, excessive weight being placed on the bald assertion that the timescales were “uncertain”[42]As I have already observed the assertion that the timescales were uncertain came from those who were in the best position to know, the claimants’ advisers. The weight to be given to the fact that the timescales were uncertain was plainly a matter for the ombudsmen who were required to consider a number of factors. The contrary is not arguable.[43]I note that a year later the timescale remains uncertain. Given that the first raft of cases have settled there must be some doubt as to whether the balance of the claims will ever be tried. Excessive weight placed on the need to determine disputes quickly[44]The ombudsmen were bound to take into account the objective of the scheme, to determine disputes quickly. Mr Sachdeva complains that the decisions to continue with the complaints risk inconsistent decisions and significant prejudice to the claimants. These matters should have outweighed the requirement for complaints to be resolved quickly. Inconsistency will arise between ombudsmen’s decisions taken before judgment in the FSCS litigation and those taken afterwards. This is predicated on the basis that the decision of fact in the FSCS litigation on the risk inherent in the Keydata products will be favourable to the IFAs.[45]The prejudice asserted relies on the same assumption and so it is submitted that in failing to await the FSCS judgment the ombudsmen have deprived themselves of important information which might have led them to come to decisions on the issue of the inherent risk that would have been favourable to the claimants. Since there is no appeal from the ombudsmen’s decisions, the decisions not to stay the complaints mean that the claimants have been prejudiced.[46]I do not accept that theoretical potential future prejudice or the asserted risk of possible future inconsistent decisions should, as a matter of law, have outweighed the need to determine disputes quickly. I identify no error of approach by the ombudsmen in this regard. The weight to be put on this consideration was for the ombudsmen.[47]Mr Sachdeva further submitted that since the complaints had already been the subject of significant delay further delay was a neutral factor. I disagree. Pre- existing delay does not reduce the need for speedy resolution, rather the reverse. Reliance on an irrelevant factor – that none of the decisions in each case had been referred to court for determination.[48]Were the claimants to have succeeded in their application for a stay the complainants would have been tied to the uncertain timetable of the FSCS litigation in which they play no part and over which they have no control. It is in that context that the ombudsmen made the obvious point that none of the complaints had been referred to the court. At worst they were stating the obvious. This does not begin to undermine the integrity of the decision making, nor does it render it irrational.[49]In the event I do not consider irrelevant the fact that the complainants had not brought proceedings. The practical effect of the claimants’ submissions is that where two people consider they have been adversely affected by advice about the same financial product, and one wishes to bring proceedings, the other to make a complaint to the ombudsman, the latter would be prevented from having his complaint heard until the determination of the former’s claim in court. Such an outcome would frustrate the very purpose of the scheme. Failure to provide reasons[50]This too is unarguable. The reasons for the decisions are clear in each case. The complaints under this heading are no more than a repetition and reworking of the complaints under the previous four. There is nothing in them. Conclusion[51]I am quite satisfied that the ombudsmen understood the basis upon which the applications for stays were made. I can identify no error in their approach to the applications. Their reasons are clearly expressed and easily understood. There were no errors of law. In my judgment the decisions were not irrational.[52]The claims for judicial review are dismissed.

Cited in 2 later judgments