Giles Chapman, R (on the application of) & Anor v Financial Ombudsman Service Limited [2025] EWHC 905 (Admin)

[2025] EWHC 905 (Admin)Case No AC-2024-LON-001546
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/04/2025
Before
UPPER TRIBUNAL JUDGE WARD(SITTING AS A JUDGE OF THE HIGH COURT)
THE KING-on the application of-
Between
MR GILES CHAPMAN AND MRS ANNA-KARIN CHAPMANClaimantFINANCIAL OMBUDSMAN SERVICE LIMITEDDefendantSANTANDER UK PLCInterested Party
Simon Howarth KC and Connor Jones (instructed by Broadfield Law) for ClaimantsJames Strachan KC (instructed by Georgina Surry of the Financial Ombudsman Service Ltd) for DefendantNo attendance or representation for Interested PartyHearing Hearing dates: 25 March 2025
Approved JudgmentThis judgment was handed down remotely at 12pm on Tuesday 15 th April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

UPPER TRIBUNAL JUDGE WARD

[1]By this application the claimants seek to challenge the decision of the Ombudsman dated 5 February 2024. By that decision she held that the Ombudsman had no jurisdiction because the claimants’ complaint to the defendant in relation to the interested party (“the bank”) was made out of time.[2]Permission to bring the claim was given on the papers by Mr Alan Bates, sitting as a Deputy Judge of the High Court, on 14 October 2024. The ground of challenge on which he granted permission was as follows: “[T]he ombudsman's decision that she had no jurisdiction was wrong in law, with regard to the bank's failure properly to comply with DISP1.6.2(f)R”. (That provision is set out below).[3]The interested party (“the bank”) has informed the court that it will play no active part in these proceedings.[4]In this judgment, I refer generally to a person with a complaint as a “complainant” and the body against whom a complaint is made as a “respondent”.

The legal framework

[5]The defendant (“FOS”) is constituted pursuant to section 225 of the Financial Services and Markets Act 2000 (“FSMA”). By section 225 a scheme is established "under which certain disputes may be resolved quickly and with minimal formality by an independent person."[6]The FOS has a number of jurisdictions: this case concerns the “compulsory jurisdiction”. In cases under that jurisdiction, by s.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.”
[7]Further provision about the determination of complaints is made by DISP 3.6.4:
“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.”
[8]FSMA also sets out the functions of the Financial Conduct Authority (“FCA”).[9]Schedule 17 of FSMA makes further provision for the Ombudsman scheme. By paragraph 13:
“The FCA must make rules providing that a complaint is not to be entertained unless — (a) the complainant has referred it under the ombudsman scheme before the applicable time limit (determined in accordance with the rules) has expired; or (b) in the case of a complaint other than a relevant complaint within the meaning of section 404B, the respondent agrees that the complaint should be entertained despite the complainant having referred it under the ombudsman scheme after the applicable time limit has expired.” (a) the complainant has referred it under the ombudsman scheme before the applicable time limit (determined in accordance with the rules) has expired; or (b) in the case of a complaint other than a relevant complaint within the meaning of section 404B, the respondent agrees that the complaint should be entertained despite the complainant having referred it under the ombudsman scheme after the applicable time limit has expired.”
[10]By paragraph 14 of the Schedule the Ombudsman must make rules “which are to set out the procedure for reference of complaints and for their investigation, consideration and determination by an ombudsman.” The consent of the FCA to such rules is required.[11]Rules on the Ombudsman’s jurisdiction are set out in Chapter 2 of the FCA Handbook within a section of the Handbook entitled “Dispute Resolution: Complaints” (“DISP”). Within DISP, the letter ‘R’ denotes a rule, and the letter ‘G’ denotes guidance. The Rules governing the operation of the Defendant’s investigation and determination of complaints are made by the FCA and the FOS and contained in Chapter 3 of DISP.[12]Before dealing with the Ombudsman’s jurisdiction over complaints that may be referred to the FOS, the Handbook sets out the FCA’s rules on the way in which a respondent should handle complaints, which have to be made to the respondent in the first instance. Those complaint handling rules are set out Chapter 1 of DISP.[13]It explains that “DISP sets out how complaints are to be dealt with by respondents and the Financial Ombudsman Service” and that “DISP 1 contains rules and guidance on how respondents should deal with complaints promptly and fairly, including complaints that could be referred to the FOS.”[14]Chapters 2, 3 and 4 then set out how the Financial Ombudsman Service (operated by FOS Ltd) considers unresolved complaints.[15]The purpose of DISP 1 is explained as follows:
“Purpose DISP 1.1.1(G): This chapter contains rules and guidance on how respondents should deal promptly and fairly with complaints in respect of business. DISP 1.1.1A(G): This chapter is also relevant to those who may wish to make a complaint or refer it to the Financial Ombudsman Service.”
[16]DISP 1.3.1(R) is an introductory rule which frames the remainder of DISP 1:
“Complaints handling procedures for respondents Effective and transparent procedures for the reasonable and prompt handling of complaints must be established, implemented and maintained by a respondent.”
[17]DISP 1.6.2R requires a firm to respond to a complaint within the specified eight week period in a prescribed form, which includes, where this time limit is in issue on the facts, indicating whether or not it consents to waiving the historic time bar (emphasis added):
“[T]he respondent must, by the end of eight weeks after its receipt of the complaint, send the complainant: (1) a “final response”, being a written response from the respondent which: (a) accepts the complaint and, where appropriate, offers redress or remedial action; or (b) offers redress or remedial action without accepting the complaint; or (c) rejects the complaint and gives reasons for doing so; and which: […] (f) indicates whether or not the respondent consents to waive the relevant time limits in DISP 2.8.2R […] by including the appropriate wording set out in DISP 1 Annex 3R.”
[18]DISP 1 Annex 3R contains a “menu” of statements. A respondent is required to select the relevant statement to indicate whether or not it consents to waiving an applicable time bar (or bars).[19]This takes us to the time limits applicable to complaints to the FOS. By DISP 2.8.2R:
“The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service: (1) more than six months after the date on which the respondent sent the complainant its final response, redress determination or summary resolution communication; or (2) more than: (a) six years after the event complained of; or (if later) (b) three years from the date on which the complainant became aware (or ought reasonably to have become aware) that he had cause for complaint; … unless: (3) In the view of the Ombudsman, the failure to comply with the time limits in DISP 2.8.2R … was as a result of exceptional circumstances: or … (5) the respondent has consented to the Ombudsman considering the complaint where the time limits in DISP 2.8.2R or DISP 2.8.7R have expired…”
[20]The question raised by this provision has to be considered as at the date the complaint is received by the FOS.[21]In this judgment, the time limit under sub-paragraph (1) has been referred to as “the referral time bar” and that under sub-paragraph (2) as “the historic time bar.”[22]By DISP 2.8.2A(R):
“If a respondent consents to the Ombudsman considering a complaint in accordance with DISP 2.8.2R (5), the respondent may not withdraw consent.”
[23]Time limits are not the only hurdle to be surmounted before a claim can be considered by the Ombudsman. It is, for instance, necessary to be an “eligible complainant” (roughly equating to being a consumer). Other examples feature in the authorities discussed below.

Previous legislative provisions and the 2015 changes

[24]Prior to 9 July 2015: a. DISP 2.8.2R(5) provided that the Ombudsman could not consider a complaint brought out of time:
“unless...the respondent has not objected, on the grounds that the time limits in DISP 2.8.2R or DISP 2.8.7R have been exceeded, to the Ombudsman considering the complaint”
(emphasis added). b. There was no DISP 1.6.2R(1)(f) (or equivalent) requiring a respondent to “indicate whether or not the respondent consents”. c. There was no provision preventing a respondent who had consented from subsequently withdrawing that consent.[25]Thus, from 9 July 2015 onwards:a. DISP 2.8.2R(5) was amended to provide that the Ombudsman could not consider a complaint brought out of time “unless...the respondent has consented to the Ombudsman considering the complaint where the time limits in DISP 2.8.2R or DISP 2.8.7R have expired” (emphasis added).b. The requirement in DISP 1.6.2R(1)(f) to “indicate” in a “final response” “whether or not the respondent consents” was introduced.c. A respondent was no longer able to withdraw their consent; see [22] above.

Facts of the case

[26]Whether the question of the bank’s consent is an issue of fact is disputed. Without prejudice to that issue, I set out a number of primary facts which are not in dispute.[27]The claimants held a fixed rate interest-only mortgage over their matrimonial home, the mortgagee being the bank. This mortgage reverted to a standard variable rate interest-only mortgage in 2009.[28]The claimants had made an initial complaint to the bank about an increase to the standard variable rate, to which the bank responded in 2013 and 2014, not upholding the complaint.[29]The mortgage was redeemed in 2016.[30]The claimants made a complaint to the bank in 2022, arguing that they had been trapped as ‘mortgage prisoners’ on the standard variable rate owing to(a) the bank not agreeing to provide a new product when their mortgage reverted to a standard variable rate in 2009, and(b) the claimants being unable to re-mortgage to another lender.[31]In their complaint, the claimants specifically drew attention to the fact that the historic time bar might apply and requested that the bank should not rely on it. They said:
“Another lender did not time bar our complaint and chose to investigate. I trust you will follow the same logic on this complaint due to recent public awareness and media coverage of affected customers in general.”
[32]The bank investigated the claimants’ complaint and, by way of a ‘final response’, did not uphold it.[33]The ‘final response’ contained the following paragraphs:
“…you have the right to refer your complaint to the Financial Ombudsman Service, free of charge – but you must do so within six months of the date of this letter. If you do not refer your complaint in time, the Ombudsman will not have our permission to consider your complaint and so will only be able to do so in very limited circumstances. For example, if the Ombudsman believes that the delay was as a result of exceptional circumstances.”
[34]This final response made no reference to the position of the bank as regards an historic time bar: in particular, it was silent on the issue of whether the bank would consent to the complaint being referred even if it were prima facie excluded by that time bar.[35]The claimants referred the complaint to the Ombudsman within six months of the ‘final response’, thus complying with the referral time limit in respect of which the bank had expressly indicated it would not waive a breach.[36]The bank informed the Ombudsman in response to her enquiries that it did not consent to the complaint proceeding despite prima facie falling foul of the historic time bar.[37]In her final determination, the Ombudsman found that the claimants’ complaint was brought(1) more than six years after the event complained of and(2) more than three years after the claimants knew (or should reasonably have known) they had cause to complain. In other words, she found that the historic time bar operated to preclude her from having jurisdiction.

Further evidence

[38]Although the claimants had previously informally indicated that they would seek to rely on further evidence in these proceedings, Mr Howarth KC confirmed at the hearing that they no longer sought to do so.

Interpretation of DISP

[39]The correct approach to interpreting DISP was considered in Shop Direct Finance Co Ltd v Official Receiver [2023] EWCA Civ 367. It is unfortunate that this authority was only introduced at the very end of the hearing, but both counsel have had the opportunity to make short post-hearing submissions on it (and have also agreed that they would have no objection to my considering the FCA Handbook online, going beyond the extracts with which I had been provided in the authorities bundle).[40]In Shop Direct, Singh LJ, with whose reasons Carr LJ (as she then was) agreed, indicated at [46] that he derived the following provisions from Lehman Bros International (Europe) v CRC Credit Fund Ltd. [2011] Bus LR 277:
“(1) Ultimately it is the actual wording of a provision that must govern any decision as to its effect. (2) The Handbook should be read as a whole, taking an holistic and iterative approach, so that a preliminary view on one provision can be tested by reference to the rest of the relevant provisions. (3) The provision should be construed in the light of its overall purpose. (4) It should be construed on the basis that it is intended to produce a practical and commercially sensible result. The rules should be taken to be grounded in reality. The court should keep in proportion any drafting infelicities.”
[41]Commenting on DISP and the role of the FOS reflected in it, Singh LJ observed:
“66. [T]he general nature of DISP… is not like conventional legislation. Its drafting style is very different and it is intended to create a relatively informal and simple scheme for and on behalf of consumers. It is also not intended for respondents to have to deal with highly complicated legal concepts. 67. As the Judge rightly observed, at para 16 of his judgment, the purpose of the FOS, as reflected in DISP, is “to provide a consumer-facing, user-friendly, free-of-charge process for seeking redress without recourse to formal legal proceedings.”
[42]Further, Nugee LJ, who agreed with Singh and Carr LJJ in the result, observed at [111]:
“There is no dispute as to the principles on which the provisions in DISP should be interpreted …. Technically speaking the provisions in DISP are not all made by the same body: … [It] includes rules and directions made by the FCA (including Chapter 1, which contains rules as to how respondents should deal with complaints), and rules made (and standard terms set) by FOS Ltd with the consent of the FCA (namely parts of Chapter 2, most of Chapter 3 and all of Chapter 4, which set out how the FOS considers unresolved complaints). But this does not affect their interpretation. They have obviously been drafted so as to produce a coherent whole, and the provisions in DISP must all be read together.”
[43]Some terms used in the FCA Handbook (including DISP) are defined terms and are shown in italics in the Handbook. “Consent”, whether as a noun or a verb, is not such a term. GEN 2.2.9 indicates that: “Unless the context otherwise requires or unless otherwise stated in a particular sourcebook or manual, where italics have not been used, an expression bears its natural meaning. “[44]Before leaving the basis of interpretation of DISP, I note that the bundle of authorities contained the FCA’s Consultation Paper Improving Complaints Handling CP14/30 (2014) which I assume to be the consultation leading to (among other things) the 2015 amendments referred to at [24]-[25] above. Neither counsel invited me to refer to it, even for the purpose of discerning the mischief at which the 2015 amendments were aimed, and Mr Strachan (without demur from Mr Howarth) referred me to the observations of Singh LJ in Shop Direct at [83] that “reliance on such documents for a wider purpose than to identify the mischief to which the legislation was directed is impermissible as a matter of principle.”

The principal authorities

[45]It was common ground that the following authorities were relevant.[46]R (Bankole) v Financial Ombudsman Service [2012] EWHC 3555 (Admin) concerned a dispute over whether the referral time limit had been complied with – specifically, whether, and if so, when, Mr Bankole had received the final ruling on his complaint. The FOS found that it had been sent when the bank concerned said it had and that Mr Bankole had received it, a date which was more than 6 months before he made his complaint to the FOS. At [20] Sales J (as he then was) said:
“In my view, it is clear from the statutory scheme which I have set out above that the question whether a complaint is brought within 6 months as required by the rules or not is primarily a decision for the FOS, subject only to review in this court on usual judicial review grounds. In terms of the construction of the relevant limitation rules in the DISP regime, the question whether a complaint is brought within time or not cannot be categorised as turning on judgment of [precedent] fact in the sense of being factual determinations for this court to make for itself. Therefore, the decision of the ombudsman in the decision of 5 November 2009 has to be tested against the usual judicial review standards.”
[47]The question in R (Bluefin) v Financial Ombudsman Service [2014] EWHC 3413 (Admin) was whether a Mr Lochner was, for the purposes of DISP, a “consumer”, which would mean his complaint could be considered, or not. Wilkie J held “72. I am satisfied, however, that in the context of this statutory scheme access to the compulsory jurisdiction of FOS, with its enhanced benefits or burdens, is determined by reference to limiting conditions stated in objective terms. That being the case, in my judgment, this is a case where the FOS decision was one of precedent fact and, upon its being challenged in judicial review proceedings, it is a decision which the court has to take, rather than being limited to review the decision of FOS on conventional judicial review grounds.73. If I were wrong in that analysis, however, I am satisfied that the nature of the decision is such that, as Lady Hale identified in Croydon, there is a right or wrong answer. It is not a question where Parliament and/or FCA intended the issue to be an evaluative issue, to be determined by FOS subject to the control of the courts on the ordinary principles of judicial review and where, within the limits of fair process and Wednesbury reasonableness, there are no clear-cut right or wrong answers.74. Thus, if I were wrong that the question is one of precedent fact, nonetheless I must consider whether the decision of FOS in relation to whether Mr Lochner was an eligible complainant was right or wrong. If, in my judgment, it was wrong it would necessarily have involved a misdirection in law so as to render FOS’s decision challengeable by way of judicial review.”[48]R (Chancery (UK) LLP) v Financial Ombudsman Service [2015] EWHC 407 (Admin) was a challenge brought by a firm of chartered accountants to the Ombudsman’s finding that he did have jurisdiction to consider a particular complaint. The scheme concerned was complex, but the challenge to the FOS's decision on jurisdiction proceeded on two broad fronts: the role of tax advice, said to take the recommendation of the scheme outside the scope of a regulated activity, and the issue of day to day control by the members of the vehicle concerned, which was said to take it outside the scope of a collective investment scheme as defined by s.235 of FSMA. At [66], Ouseley J held:
“I accept the proposition that the FSMA should not be construed so as to make the FOS master of the limits of its jurisdiction, right or wrong. It is for the Court to decide whether it has acted with or without jurisdiction. It cannot act without jurisdiction simply because its error was reasonable. It is a matter of statutory construction as to how the limits of its jurisdiction are resolved: what decisions are challengeable only on traditional judicial review grounds and what decisions require a different approach, whether one in which the court decides the law, finds the facts and applies the law to the facts, deciding whether the FOS' decision was simply right or wrong and considering new evidence if it wishes, or one in which the Court decides the meaning of the words at issue, and the FOS finds the facts and applies the correct meaning in law to them as a matter of its own reasonable judgment, or one in which the Court decides, on the facts found by the FOS, whether the application of the law to them is correct rather than reasonable. Of course, the fact finding is subject to review on traditional grounds.”
[49]At [69] he distinguished Bankole and Bluefin in the following terms:
“Bankole was therefore rightly decided: it concerned the FOS' judgment on a procedural aspect of a complaint. Parliament cannot have intended that the question of whether a complaint was made to the FOS on one day or another was for determination anew by the High Court. It is distinguishable from Bluefin on very clear grounds. There it was far from a procedural issue but one which, if the FOS were wrong, meant that it would be deciding that someone who was not eligible on the facts to complain was indeed eligible, and so would be giving itself jurisdiction which it did not have. The language there was not so wide or uncertain as to its scope as to put it into the realms of the South Yorkshire Transport case.”
[50]At [71]: he continued “…Of course, on any view, the FOS must direct itself correctly on the law, as to the meaning of words and phrases, and as to the defining characteristics which must be present for a phrase to apply. The FOS should expect that a reviewing court would regard its assessment of the way in which the law, correctly understood, applied to the facts, as at least persuasive. But that is not the complete answer. If the Court is persuaded that on the facts found by the FOS, the correctly understood law had been applied wrongly, the Court must rule that the FOS had no jurisdiction."[51]In R (Assurant General Insurance Limited) v Financial Ombudsman Service [2023] EWCA Civ 1049 complaints had been made when four catalogue retailers had sold payment protection insurance underwritten by Assurant. The FOS had accepted jurisdiction to consider those complaints on the basis that the retailers had been acting as the agents of Assurant. Assurant sought to challenge this by judicial review. At [39] – [40], the Court held “The Judge was right to take the view that, generally speaking, issues of fact are for the Ombudsman to determine, subject to judicial review on conventional grounds such as irrationality or procedural unfairness. This is true even of facts which go to the Ombudsman’s jurisdiction, i.e. ‘jurisdictional facts’. The mere fact that a fact is a jurisdictional fact does not automatically render it a precedent fact, which has to be established to the satisfaction of the Administrative Court if judicial review proceedings are brought. Professor Paul Craig explains the position as follows in Administrative Law (9th edn, 2021), at para 17-031:
‘The court should not … engage in de novo review merely because the allegation relates to a jurisdictional fact that conditions the existence of the public body’s power.’
Ultimately the issue is one which turns on the correct interpretation of the statute which confers the jurisdiction on the relevant public body: see the decision of the Supreme Court in R (on the application of A) v Croydon London BC, R (on the application of M) v Lambeth London BC [2009] UKSC 8, [2010] 1 All ER 469, [2009] 1 WLR 2557.”[52]At [52], Singh LJ cited with approval paragraph 69 of Chancery, where Ouseley J had distinguished Bankole and Bluefin.[53]At [60] he observed:
“In some complaints made to the FOS there may be a relevant dispute as to what are the terms of a contract, in particular where the contract is an oral one or where there are said to be terms which are to be implied into it by reason of the conduct of the parties. Such a dispute concerns questions of fact and, where it arises, I accept Mr Strachan's submission that the determination of those questions of fact is primarily for the FOS, subject to judicial review on conventional principles of public law. I would also endorse Mr Strachan's concession that the construction of a document such as a contract is a question of law and must be determined by the court itself. This is not a departure from conventional principles of public law; it is simply an application of them, since one of those principles is that a public authority whose decisions are the subject of judicial review must get the law right.”

Submissions for the claimants

[54]Mr Howarth KC submits that the bank had waived the right to rely on the complaint to the FOS having been made out of time or had impliedly consented to it going forward on the merits, with the consequence that it was not open to the Ombudsman to decide that she had no jurisdiction on the basis of a time bar. A decision by the Ombudsman within her jurisdiction is subject to judicial review on conventional public law grounds. However, where the question is one of jurisdiction, that is a question of law and the Ombudsman must get the answer right. It might involve inquiry as to facts, as in Bankole, which would be for the Ombudsman, but the position is different where facts have been found and the question is one of application of the rules.[55]In support of that, he relies in particular on Assurant. At first instance the judge had not herself construed the contracts said to give rise to a relationship of agency. Holding that that was not the correct approach, Singh LJ cited with approval the passage from paras 66 and 71 of Chancery set out above. and adopted the summary of the legal position given by Ouseley J in TenetConnect v Financial Ombudsman Service [2018] EWHC 459:
“…the Ombudsman had to interpret the law correctly, and reach rational findings of fact, but that it was for the Court to decide whether his application of the law to the facts was wrong, and not whether it was reasonable. …..[A]lthough the Ombudsman's fact-finding was reviewable only on Wednesbury grounds, the same did not apply to his application of the law to the facts.”
[56]Mr Howarth accepts that, as Singh LJ identified, there might be some questions of fact even where construction of a contract was involved, such as where the contract was an oral one or where terms were said to be implied by the conduct of the parties, but that was not the case here.[57]Nor did the present case concern the sort of evaluative issue which would point to the decision being one for the administrative decision-maker, subject only to conventional judicial review.[58]Mr Howarth accepts that a respondent is only disabled from relying on a historic time bar defence if it has consented. However, relying on the prescriptive nature of the requirement in DISP to state whether or not a historic time bar was being relied upon, exemplified by the requirement to use closely-prescribed wording, consent to disapplication of the historic time bar rules or waiver of them should be inferred or considered impliedly to have been given. DISP, by requiring the respondent’s position regarding the time limits to be stated in their final response to the complaint, requires that position to be clear before the FOS commences its investigation. Given that the bank had indicated it would not consent to waiver of the referral time limit but said nothing about the historic time limit and that the claimants had expressly asked the bank to consider waiving the historic time limit, a reasonable person in the position of the claimants would have concluded that the bank consented to the matter going forward provided the referral time limit was complied with. Were it otherwise, there would be no meaningful consequence for a respondent who failed to comply with obligations under DISP 1.6.2R, and a complainant would be left in a position of unacceptable uncertainty. As a substantial financial institution with a dedicated complaints department, the consequences of the default should fall on the bank.[59]It matters not that the DISP rules nowhere set out that the consequence of default should be that for which he is contending. It can be expected that financial institutions would comply with the rules and, had the bank done so, there would have been complete clarity.[60]It is not the case that other, appropriate sanctions exist for such a default. If it be the case (as the Glossary to the FCA Handbook indicates) that a purported final response deficient in the respect at issue would not constitute a valid “final response”, that would not be an effective sanction because a respondent could simply issue a compliant one later. It would also mean that complaints could be raised with the Ombudsman for a potentially indefinite period. The ability of the FCA as regulator to act against an institution which is non-compliant in this respect does not serve to promote the resolution of disputes nor assist those such as the claimants. The right to sue for breach of statutory duty under s.138D of FSMA faces both considerable financial obstacles and legal ones - that one would be suing for loss of a chance, a chance moreover of a determination based on the looser principles of s.228 and DISP 3.4.6 (above).[61]Mr Howarth confirmed that he was not submitting that whether or not consent existed is a matter of precedent fact. Rather, if the Ombudsman had misdirected herself in law, that would be a public law error on a conventional basis.[62]He submits that the defendant seeks unacceptably to broaden the category of “a question of fact”. How to treat the non-compliant letter is a conclusion of law from the undisputed facts. That is what happened in Bluefin, where the issue was whether the complainant was a consumer or not. While that might sound like a matter of fact, what Wilkie J in that case did was to draw conclusions based on the primary facts the Ombudsman had found. That case (and this) are different from Bankole. Assurant shows that the nature of the question may differ from case to case – construction of the written agreement was a question of law, but establishing the facts that would be needed to decide whether there was a course of dealing giving rise to an implied term would be a question of fact.[63]What the Ombudsman was doing in the present case can plainly be seen to have been based on interpreting DISP (and so a matter of law). In her determination she wrote:
“I’ve taken into account Mr C and Mrs C’s view that Santander is unable to rely on the time limit set out in DISP 2.8.2(2)R, because it didn’t say in its final response letter dated March 2022 whether or not it consented to waive this time limit – and it was required to do this. The specific requirements for a valid “final response” are set out at DISP 1.6.2R. It says a valid final response is a written response from the respondent which, amongst other things: “…(f) indicates whether or not the respondent consents to waive the relevant time limits in DISP 2.8.2R or DISP 2.8.7R by including the appropriate wording set out in DISP 1 Annex 3R…”
If a final response doesn’t meet the regulatory requirements as set out in DISP 1.6.2R, then it isn’t a valid final response. However, the reasons for why I think this complaint has been made too late aren’t connected to the final response letter dated March 2022. So, whether or not this final response letter is valid makes no difference to my findings. I also haven’t seen anything within the relevant DISP rules which indicate a business’ non-compliance with DISP 1.6.2.1(f)R should be treated by this Service as if the business has consented to waive the relevant time limit or that it is prevented from withholding its consent to waive the relevant time limit. It follows that I’m unable to set aside the relevant time limit on this basis.” “…(f) indicates whether or not the respondent consents to waive the relevant time limits in DISP 2.8.2R or DISP 2.8.7R by including the appropriate wording set out in DISP 1 Annex 3R…”[64]Mr Strachan KC submits that whether or not a respondent consented to a complaint being considered after the time limits have expired is a question of fact, subject to review on conventional public law grounds only, relying on Chancery at [69] and Assurant at [52] (i.e. the passages where Bankole and Bluefin were distinguished.)[65]However, if it is a question of law, the consequence of a failure such as the bank’s is that the response letter was not a proper final response letter (see what constitutes a “final response”, which is a defined term and is set out at [17] above) and the 6 month referral time limit would not be triggered.[66]That does not mean that a respondent is positively giving consent not to rely on the relevant time bar. There is nothing in DISP to that effect. DISP 1 applies to respondents and “is distinct from DISP 2-4”, whose purpose is focused exclusively on the scope of the FOS’s jurisdiction and on its procedures for dealing with complaints and it is therefore “wrong in principle” to contend that the requirements of DISP1 should bind respondents for the purposes of DISP 2-4 or the FOS.[67]DISP 2.8.1 provides that the Ombudsman can only consider complaints in the circumstances it goes on to list, one of which requires the consent of a respondent. Non-compliance with DISP 1.6.2 is merely a factor for the Ombudsman to take into account in deciding whether or not a respondent did consent. It would be contrary to the spirit of DISP 2.8.2AR to infer consent now that the respondent is unable to withdraw consent subsequently. The claimants in effect seek to restore the pre-2015 position.[68]DISP 3.2 envisages that the Ombudsman must consider jurisdiction for herself. The question of the time bar falls to be considered by the Ombudsman by reference to when the matter is referred to the FOS (which will be different from the time at which a respondent has to indicate its position in relation to the time bar if it is to provide a compliant “final response”). As part of considering jurisdiction, the Ombudsman may have to consider the possible application of the exception provided by DISP 2.8.2R(3) where “in the view of the Ombudsman”, the failure to comply with the time limit is as a result of “exceptional circumstances”. All of the matters in this paragraph indicate that the Ombudsman is required to consider jurisdiction for herself and are indicators against the Ombudsman being fixed with jurisdiction as a result of deficiencies in a respondent’s “final response”.[69]Mr Strachan further submits that the consequences of non-compliance are to be found in(a) the deficient letter not constituting a “final response” as defined (with the consequence that a respondent is unable to take the referral time limit point, an effective sanction);(b) in the potential for sanctions by the FCA under its extensive powers, noting that DISP 1.6.7G expressly provides that: “When assessing a respondent’s response to a complaint, the FCA may have regard to a number of factors including the quality of response, as against the complaints resolution rules”; and(c) by an action for breach of statutory duty under s138D FSMA.[70]Mr Strachan refers me to “well-established” principles concerning the Ombudsman’s jurisdiction in Bankole, Bluefin,Chancery and Assurant, submitting that whether a claim is in time is not a question of precedent fact but a procedural question reviewable on “conventional public law grounds” only. In essence, he submits that the analogy is with Bankole and the matter should be left to the FOS to determine.

Conclusions

[71]Mr Howarth, correctly in my view, does not seek to argue this as a question of precedent fact. He put the claimants’ case in various ways, relying on such concepts as waiver or implied consent, but I consider the question is ultimately one of interpretation of this unusual form of legislation, conducted in accordance with the principles set out at [39] to [44] above. In my judgment, the claimants are therefore seeking to argue a point of law.[72]I do not consider that to do so is inconsistent with what is said in Bluefin at [61]-[62] which, in my respectful view, in the light of subsequent authorities can be seen to have been directed to the sort of enquiry which fell to be made in Bankole rather than making a blanket point about time limit cases more generally.[73]The Oxford English Dictionary gives a meaning of consent as a noun as “Voluntary agreement to a proposal, request, demand, etc.; acquiescence; an instance of this. Frequently in official or legal contexts: permission or approval for something.” As a verb it gives “To agree to a proposal, request, demand, etc.; to comply with the wishes of another or others; to acquiesce, accede; to yield.” Those in my view are the “natural meaning(s)”. On the material before the Ombudsman, the bank expressly did not agree voluntarily to the waiver of the historic time bar, nor did it acquiesce. By GEN 2.2.9, we are taken to whether the context “otherwise requires” so that the meaning of “consent” can be extended so as to apply to a notional consent derived from the bank’s failure to state whether or not it consented to waiver of the historical time bar. That is a question of interpretation of the rules and a point of law. If it fails, then we are left with it being a question of fact whether or not the bank did consent, a matter which would be for the FOS alone, subject only to control on judicial review principles.[74]Mr Strachan’s argument put the case in two ways, both leading to the same result, but if and to the extent that it was his primary case that consent was a matter of fact and thus for the FOS alone, that in my view assumed what had to be decided (though, for the reasons that follow, was ultimately correct).[75]Mr Strachan’s skeleton argument was perhaps over-ready to emphasise that the provisions of Chapter 1 (dealing with the obligations of financial institutions) and chapters 2 and 3 (dealing with the FOS) are “distinct”. As Nugee LJ noted in Shop Direct, the provisions of DISP must all be read together and it represents “a coherent whole”. I can accept that the statements of purpose of the Chapters are relevant to the construction exercise but not that the consequence sought by the claimants would be (as labelled by Mr Strachan) “wrong in principle” provided it were to be derived from construing the provisions as part of a coherent whole.[76]The purposes of DISP 2.8.2 are self evident. It ensures that claims will be made reasonably promptly, when recollections are fresher and material is more likely still to be available. It avoids a disproportionate use of the financial institution’s time in investigating stale cases which, had they been made earlier, could have been addressed more readily. While a financial institution may consent to waive the referral time limit and/or the historical time limit with the consequence that the FOS would still have to consider a stale case, the time limits also contribute to keeping the FOS’s caseload within manageable limits.[77]It is not necessary to place any reliance on the Consultation Paper to note that the requirement for the respondent’s consent was a deliberate choice by the legislator. It was a change of position from that which prevailed previously, namely that a complaint would be considered unless the respondent objected. That position involved balancing of interests of respondents and complainants: thereafter the respondent was unable to withdraw consent once given.[78]Part of the same package of amendments was the change to DISP 1.6.2.R so as to introduce sub-paragraph (1)(f). That, in the paradigm case where the respondent complied, would contribute to the complainant knowing where they stand and delineating the area of dispute and can be seen as consistent with the purpose of Article 13 of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (the “ADR Directive”). That the set wording of Annex 3 should be used to inform the complainant of the position reduces the scope for a lack of clarity or even obfuscation or deterrence on the part of an unscrupulous respondent.[79]Where sub-paragraph (f) is not complied with, then those desirable features are not present. What the bank was required to do was indicate its position one way or the other and it did not do so.[80]I note that the claimants had flagged up the historical time limit point in their dealings with the bank. However, as the question in my judgement is one of interpretation of the legislation I cannot see that that is relevant to the question I have to consider.[81]In my view, the context does not “otherwise require” a meaning other than the normal meaning. While notionally available, I accept that there would be formidable steps to pursuing an action for breach of statutory duty. However, it does not appear to be in dispute that the FCA as regulator would have the ability to take steps if it saw fit under its regulatory powers in respect of a default such has occurred in this case (albeit the utility of that to the claimants is questioned). While the legislator would clearly not have anticipated that it would be necessary, it would also have been open to the claimants, rather than latch on to the bank’s default, to have taken the self-help mechanism of going back to the bank to say “You were meant to state your position in your final response, one way or the other, and you haven’t done so. Are you waiving the historical time limit or not?”[82]There was some discussion before me as to the consequences, if the failure at issue meant that the “final response” was not a “final response” as defined and did not set time running for the 6 month referral time limit. There is some force in both positions but it cannot be said that such an interpretation is absurd.[83]I accept, too, Mr Strachan’s points demonstrating that DISP requires the Ombudsman to take her own decisions on jurisdiction. While of course if the law said that the law on jurisdiction was as the claimants would like it to be, the Ombudsman would have to apply it, the independent consideration to be given by the Ombudsman to questions of jurisdiction is a powerful pointer that consent being treated as given by a respondent’s failure to provide the mandated information, thereby precluding independent consideration and holding jurisdiction to exist, does not represent the legislative intention.[84]Whether the legislator simply assumed that the requirements of DISP 1.6.2R would be complied with and thus only considered the paradigm case or whether the legislator thought about the possibility of non-compliance and decided that it was not necessary to sanction non-compliance by a deemed consent, I cannot know. However, the latter seems more probable for, as Arden LJ put it in an analogous context in Lehman Bros, cited at [45] of Shop Direct, “ “It can be assumed that the FSA as regulator will seek to ensure that the rules ensured investment protection even where mistakes were made”.[85]What is evident is that, had it been the legislative intention to sanction non-compliance in that way, it would, as a matter of drafting, been straightforward to do so. In my view, it is not for me to read in something which the draftsman could have included but did not and the need for which is not so obvious that it must be taken to have been within the draftsman’s contemplation. The need to read DISP as a coherent whole does not require me to read in a sanction which does not exist. Interpreting DISP so as to imply provisions which are not expressly stated would sit very uncomfortably with the stated purposes of the Ombudsman scheme, reflected in the remarks of Singh LJ at [66] and [67] of Shop Direct (above) and in the terms of FSMA s.225. Even were it to be felt that the sanctions for a default such as the bank’s in this case were insufficient, that would be a policy matter for the FCA to consider, not one for this Court.[86]It follows that the Ombudsman did not misdirect herself in law. There is no challenge on public law grounds to her findings of fact and accordingly the application for judicial review is dismissed.