Barclays Bank UK PLC & Ors, R (on the application of) v Financial Ombudsman Service Limited [2026] EWHC 1555 (Admin)

“conclusion in the relevant final decision that it had jurisdiction over the entirety of the complaint referred to it [is] wrong as a matter of law by virtue of its interpretation and application of the time limit in DISP 2.8.2 R(2).”

“Purpose.................................................................................... The purpose of this chapter is to set out: (1) the procedures of the Financial Ombudsman Service for investigating and determining complaints; (2) the basis on which the Ombudsman makes decisions; and (3) the awards which the Ombudsman can make.”

“any oral or written expression of dissatisfaction, whether justified or not, from, or on behalf of, a person about the provision of, or failure to provide, a financial service, (…) or a redress determination, which: (a) alleges that the complainant has suffered (or may suffer) financial loss, material distress or material inconvenience.”

“The Ombudsman can consider a complaint under the Compulsory Jurisdiction if it relates to an act or omission by a firm in carrying on one or more of the following activities.”

“The FCA must make rules providing that a complaint is not to be entertained unless […] the complainant has referred it under the ombudsman scheme before the applicable time limit (determined in accordance with the rules) has expired.”

“The Ombudsman cannot consider a complaint if the complainant refers it to the Financial Ombudsman Service […] (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 the complainant referred the complaint to the respondent or to the Ombudsman within that period and has a written acknowledgement or some other record of the complaint having been received; […].”

“Fair and reasonable 3.6.1 R The Ombudsman will determine a complaint by reference to what is, in his opinion, fair and reasonable in all the circumstances of the case. 3.6.2 G Section 228 of the Act sets the 'fair and reasonable' test for the Compulsory Jurisdiction (…) 3.6.4 R 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.”

“The complaint Mr D complains that Barclays Bank UK plc trading as Barclaycard (“Barclaycard”) didn’t carry out sufficient checks before agreeing to increase the credit limit on his credit card account. He complains that the unaffordable lending forced him to borrow more to keep up with the monthly repayments Barclaycard required from him. Mr D has asked that Barclaycard refund all of the interest he has paid since opening the account. And he would like further interest stopped. What happened In October 2013, Mr D took out a credit card account with Barclaycard – he was provided with an initial credit limit of £400. Mr D’s credit limit was then increased four times in 2014, twice in 2015 and once in 2018; with the final credit limit being £14,000. Mr D alleges that Barclaycard didn’t carry out the appropriate checks before increasing his credit limit – he says if it had done this it would have seen he already had a high level of debt elsewhere that he was struggling to maintain. Mr D complains that the alleged unaffordable lending led to him getting into further financial difficulties that he’s still experiencing today. Mr D complained to Barclaycard about all of this in October 2023. Barclaycard responded to Mr D on 2 November 2023. It didn’t uphold his complaint about the lending decision it made in 2018. It also thought Mr D’s complaint about its decision to increase his credit limit between 2014 and 2015 was made too late under the Financial Conduct Authority’s (the ‘FCA’) “six and three” year time limit set out in rule 2.8.2 (2) of its Dispute Resolution Rules (‘DISP’). That is, more than six years from the events Mr D has complained about, and more than three years from the date on which Mr D became aware, or ought reasonably to have become aware, of a cause to complain. Why I can look into this complaint Mr D’s complaint can and indeed should be characterised in my view as not only being about the credit limit increases, but also about the overall unfairness of the relationship that he had with Barclaycard. It seems clear to me that it is this relationship and Barclaycard’s role in it over the years that is at the very heart of his complaint. Mr D complains not only about the credit limit increases, but about how those lending decisions played out and what happened when he became indebted to Barclaycard. He complains about the difficulty he had in repaying the debt, stating that “I have been forced to borrow from Peter to pay Paul, as they say. I keep having to borrow more money to make the payments for the debts I already have outstanding. I'm still in this position today”

“On 3 December 1998, Mr G applied for – and received – an overdraft limit of £150. Over the years the limit was increased until July 2007 when it reached £3,000. Mr G says he has remained at the upper limit of the overdraft for a prolonged period, causing the interest charges he’s referred to. On 31 August 2023, Mr G raised a complaint with National Westminster Bank Plc (NatWest) using a representative. Mr G says that NatWest has behaved in a way that has caused an unfair relationship to exist between himself and NatWest by allowing the prolonged and continued use of an overdraft facility.”

“It is also clear from a number of Supreme Court decisions going back to Plevin v Paragon Finance [2014] UKSC 61, that there normally exists an expectation on the lender which is party to an unfair relationship, to correct any unfairness or take steps to mitigate it. This responsibility lasts right up to the end of the relationship. In this case, Mr G complains about an unfair relationship with NatWest relating to his overdraft. The unfairness arose, he says, from a series of failings of NatWest in granting him an unaffordable overdraft and failing to monitor its use. He has asked NatWest to refund its interest charges, which he says arose during the course of that unfair relationship, and complains to this service because it has refused to do so. I consider this to be a complaint about NatWest’s conduct of the relationship with Mr G right up to the point in time when it ends or we decide his complaint. Our service is entitled to take into account the history of the relationship from its start in deciding its fairness or unfairness as at that point in time, because the allegation that the bank is party to and has perpetuated an unfair relationship necessarily involves looking at that material in order to decide whether the relationship was (when it ended) or is (when the assessment is made) unfair. A central issue is whether NatWest ought to have taken steps to correct or mitigate any unfairness by making the refunds Mr G has asked of it and, if so, whether that was a responsibility it should have fulfilled up to the end of the relationship or date of assessment. As I noted in my provisional decision, the credit agreement between Mr G and NatWest is still in place. So, any such corrective responsibility on NatWest may still be live at today’s date. In these circumstances, Mr G’s complaint about NatWest’s participation in and perpetuation of an unfair relationship concerns its current, ongoing acts and omissions and I’m not prevented from considering any aspect of it by DISP 2.8.2 R.”

“Miss C complains that Vanquis Bank Limited (“Vanquis”) increased her credit limit when it ought to have been clear that she was already struggling with her finances, which made her financial position worse. She complains that Vanquis didn’t freeze the interest on her account. And that she was charged overlimit fees as a result of the unaffordable lending. Miss C says she struggled to make the minimum repayment each month and eventually had to take out a loan to repay the outstanding balance. On 11 October 2014, Miss C took out a credit card account with Vanquis – she was provided with an initial credit limit of £1,000. Miss C’s credit limit was then increased in May 2015, October 2015, June 2016, and January 2017, with the final credit limit being £4,000. Miss C alleges that Vanquis didn’t carry out the appropriate checks on any of the occasions it increased her credit limit. She says that if it had done this, it would have seen she already had other credit cards that were close to their limits. She says that her debt with Vanquis was unaffordable for her and that this led to her incurring overlimit charges, which made her financial position even worse.”

“For the avoidance of doubt, I accept that if Miss C’s complaint was to be interpreted strictly in the way Vanquis suggests then that would be a complaint that we could not consider. That’s because those events took place more than six years prior to Miss C making her complaint to Vanquis and more than three years from when she either was aware, or ought reasonably to have been aware of a cause to complain. … I find that Miss C’s complaint can and should be characterised as a complaint about Vanquis’ participation in and perpetuation of an unfair debtor-creditor relationship. And the events complained of here include not only Vanquis’ acts as creditor in requiring the allegedly unaffordable repayments and imposing fees and charges on her account but also its omissions to correct the unfairness of the relationship by showing forbearance and taking other steps. As regards to omissions, I consider that the complaint includes dissatisfaction that Vanquis failed to take steps (i.e. forbearing on interest and charges and refunding her the same) to correct the unfairness that has arisen in their relationship and that, by those omissions, Vanquis perpetuated the unfairness. Vanquis says that there is no general rule that an omission to remedy unfairness is a relevant omission under s.140A or an “event” under DISP 2.8.2 R. It refers to the fact that creditor’s corrective responsibility has been found in cases involving the non-disclosure of commission, rather than unaffordable lending. The origin the lender’s corrective responsibility lies in Plevin v Paragon Finance, where there had indeed been a non-disclosure of high commission on a PPI policy. Lord Sumption said that the creditor should normally be regarded as responsible for an omission making its relationship with the debtor unfair if it fails to take such steps as would be reasonable to expect in the interests of fairness and would remove the unfairness or mitigate its consequences. Then, in Smith v RBS [2023] UKSC 34, the Supreme Court held that, where a bank had received PPI premiums and commissions which it wouldn’t have received if the commission had been properly disclosed, its corrective responsibility extended to repaying the sums it had received from the borrower many years earlier. Lord Leggatt referred to the corrective principle in Plevin when rejecting the Bank’s argument, which had succeeded in the Court of Appeal, that Ms Smith’s relationship with the Bank ceased to be unfair when her PPI policy terminated and she ceased to make premium payments. And he applied the principle in finding that it would have been reasonable for the Bank both to disclose to Ms Smith its undisclosed commission and repay to her sums she had paid for the PPI cover … … it is my decision that this service has jurisdiction to consider the relationship between Vanquis and Miss C to the extent it’s relevant to the question of whether Vanquis has participated in and perpetuated an unfair relationship with her. That complaint involves continuing acts and omissions by Vanquis, and has been made within six years of the events complained of for the purposes of DISP 2.8.2 R. My decision For the reasons set out above, it is my decision that this service has jurisdiction to consider Miss C’s complaint about Vanquis’ participation in and perpetuation of an unfair debtor- creditor relationship.”

“Mr B has had a current account including an overdraft facility with Santander for several years. By November 2017, his overdraft facility was £1,800. Mr B says he has remained at the upper limit of the overdraft for a prolonged period, causing the interest charges he’s referred to. On 27 November 2023, Mr B raised a complaint with Santander UK Plc using a representative. Mr B says that Santander has behaved in a way that has caused an unfair relationship to exist between himself and Santander by allowing the prolonged and continued use of an overdraft facility.”

“I consider this to be a complaint about Santander’s conduct of the relationship with Mr B right up to the point in time when it ends or we decide his complaint. Our service is entitled to take into account the history of the relationship from its start in deciding its fairness or unfairness as at that point in time, because the allegation that the bank is party to and has perpetuated an unfair relationship necessarily involves looking at that material in order to decide whether the relationship was (when it ended) or is (when the assessment is made) unfair. A central issue is whether Santander ought to have taken steps to correct or mitigate any unfairness by making the refunds Mr B has asked of it and, if so, whether that was a responsibility it should have fulfilled up to the end of the relationship or date of assessment. As I noted in my provisional decision, the credit agreement between Mr B and Santander is still in place. So, any such corrective responsibility on Santander may still be live at today’s date. In these circumstances, Mr B’s complaint about Santander’s participation in and perpetuation of an unfair relationship concerns its current, ongoing acts and omissions and I’m not prevented from considering any aspect of it by DISP 2.8.2 R.”

“ … the Supreme Court’s judgment in Smith v RBS – which overturned the contrary decision of the Court of Appeal – fundamentally changed the understanding of the law relating to s.140A of the CCA 1974 in significant ways. Having done so, the D’s Ombudsmen were required to review their approach to complaints requiring consideration of s.140A in light of Smith.”

“the relevant omission will be in the failure to take action to remedy the unfairness which is subsisting. That is a continuing responsibility and necessarily a continuing omission if no such action is taken. … the Ombudsmen correctly and unsurprisingly concluded that they had jurisdiction to consider the entirety of these creditor-debtor relationships, rather than being limited to acts or omissions in the six years preceding the complaints. … the Interested Parties are complaining about the Claimant banks’ participation in, and perpetuation of, alleged unfair debtor-creditor relationships within the meaning of s.140A of the CCA 1974.”

“The language of “perpetuation of” that relationship simply describes the fact that Barclays is continuing in that alleged unfair relationship, without having taken the type of corrective action Mr Domer is alleging should be taken.”

“I turn therefore to the question whether the non-disclosure of the commissions payable out of Mrs Plevin’s PPI premium made her relationship with Paragon unfair. In my opinion, it did. A sufficiently extreme inequality of knowledge and understanding is a classic source of unfairness in any relationship between a creditor and a non-commercial debtor. It is a question of degree. Mrs Plevin must be taken to have known that some commission would be payable to intermediaries out of the premium before it reached the insurer. The fact was stated in the FISA borrowers’ guide and, given that she was not paying LLP for their services, there was no other way that they could have been remunerated. But at some point commissions may become so large that the relationship cannot be regarded as fair if the customer is kept in ignorance. At what point is difficult to say, but wherever the tipping point may lie the commissions paid in this case are a long way beyond it. Mrs Plevin’s evidence, as recorded by the Recorder, was that if she had known that 71.8% of the premium would be paid out in commissions, she would have “certainly questioned this.”

“… Paragon owed no legal duty to Mrs Plevin under the ICOB rules to disclose the commissions and, not being her agent or adviser, they owed no such duty under the general law either. However, as I have already pointed out, the question which arises under section 140A(1)(c) is not whether there was a legal duty to disclose the commissions. It is whether the unfairness arising from their non-disclosure was due to something done or not done by Paragon. Where the creditor has done a positive act which makes the relationship unfair, this gives rise to no particular conceptual difficulty. But the concept of causing a relationship to be unfair by not doing something is more problematical. It necessarily implies that the Act treats the creditor as being responsible for the unfairness which results from his inaction, even if that responsibility falls short of a legal duty. What is it that engages that responsibility? Bearing in mind the breadth of section 140A and the incidence of the burden of proof according to section 140B(9), the creditor must normally be regarded as responsible for an omission making his relationship with the debtor unfair if he fails to take such steps as (i) it would be reasonable to expect the creditor or someone acting on his behalf to take in the interests of fairness, and (ii) would have removed the source of that unfairness or mitigated its consequences so that the relationship as a whole can no longer be regarded as unfair.”

“On that footing, I think it clear that the unfairness which arose from the non-disclosure of the amount of the commissions was the responsibility of Paragon. Paragon were the only party who must necessarily have known the size of both commissions. They could have disclosed them to Mrs Plevin. Given its significance for her decision, I consider that in the interests of fairness it would have been reasonable to expect them to do so. Had they done so this particular source of unfairness would have been removed because Mrs Plevin would then have been able to make a properly informed judgment about the value of the PPI policy. This is sufficiently demonstrated by her evidence that she would have questioned the commissions if she had known about them, even if the evidence does not establish what decision she would ultimately have made.”

“29. Applying this test, Lord Sumption considered that, given the size of the commissions paid and their potential significance for the claimant’s decision whether to purchase PPI cover, it would have been reasonable to expect the lender in the interests of fairness to have disclosed to her the amount of the commissions. Had this been done, this source of unfairness would have been removed because the claimant would then have been able to make a properly informed judgment about the value of the PPI policy (para 20). The Supreme Court concluded that this was a sufficient reason to justify reopening the transaction and remitted the case to the county court to decide what, if any, remedial order to make under section 140B.”

“The fundamental difference is that the ICOB rules impose obligations on insurers and insurance intermediaries. Section 140A, by comparison, does not impose any obligation and is not concerned with the question whether the creditor or anyone else is in breach of a duty. It is concerned with the question whether the creditor’s relationship with the debtor was unfair. It may be unfair for a variety of reasons, which do not have to involve a breach of duty.”

“the standard of fairness in a debtor-creditor relationship is a matter for the court, on which it must make its own assessment. … the question of fairness involves a large element of forensic judgment. … An altogether wider range of considerations may be relevant to the fairness of the relationship, most of which would not be relevant to the application of the [ICOB] rules.”

“[64] … As I construe s 140A, the question whether the relationship between the creditor and the debtor is unfair to the debtor, upon the answer to which the power to make an order under s 140B depends, is a single question which admits of a ‘Yes’ or ‘No’ answer that has to be determined as at a particular point in time. However, in determining whether, at the relevant date, the relationship is or is not unfair, the court is required to have regard to certain matters specified in s140A(1) and to all other matters it thinks relevant, whenever those matters occurred. There is no possibility, therefore, if the court is entitled to make the determination of fairness at all and is not barred by limitation from doing so, of restricting the temporal scope of the inquiry. [65]Hence the critical question is: what is the relevant date at which the fairness or otherwise of the relationship has to be determined? In principle, it seems to me that the determination should be made having regard to the entirety of the relationship and all potentially relevant matters up to the time of making the determination. This means that if the relationship between the creditor and the debtor has ended, the determination should be made as at the date when the relationship ended; and if the relationship is still ongoing, the determination should be made as at the time of the trial.”

“A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

“If I am right in my analysis of the date at which the fairness of the relationship between the creditor and the debtor falls to be assessed, the result is that the debtor’s cause of action is a continuing one which accrues from day to day until the relevant relationship ends.”

“To identify when a cause of action has accrued, it is thus necessary to identify, first, the remedy sought by the claimant and, second, the material facts which, if proved, would as a matter of law entitle the claimant (subject to any positive defences) to obtain that remedy. The cause of action accrues on the date when all those material facts are first capable of being pleaded.”

“the date on which the plaintiff would be able to issue a statement of claim capable of stating every existing fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to judgment.”

“The central flaw in the completed cause of action argument is that, for as long as the credit relationship is continuing, the debtor cannot have a completed cause of action before the time at which a determination of unfairness is made. Proof of facts which made the relationship unfair to the debtor at some earlier point in time is never sufficient to give the debtor an entitlement to a remedy. That is because, as noted at paras 19-21 above, unless the relationship has ended, section 140A makes the power of the court to make an order under section 140B conditional on a determination that the relationship “is” (i.e. at the time when the determination is made) unfair to the debtor. Necessarily, a right to obtain a remedy for unfairness existing on that day cannot arise before that day comes.”

“… the question to be determined under section 140A(1) is not whether the relationship between the creditor and the debtor was unfair to the debtor when the credit agreement was made or at some other time in the past. It is whether the relationship is unfair to the debtor, i.e. at the time when the determination is made. This is reinforced by section 140B(9), quoted at para 14 above, which is likewise framed in the present tense.”

“If nothing further had been said, it might have been thought impossible to make a determination of unfairness under section 140A if the relationship between the creditor and the debtor has ended before the hearing takes place. But this contingency is catered for by subsection (4). That provides that a determination may be made under section 140A in relation to a relationship “notwithstanding that the relationship may have ended”

“66. I cannot accept, however, that the relationship between the bank and Ms Smith ceased to be unfair to her in April 2006. Indeed, I think it plain that it did not. It is true that no more payments for PPI cover were made by her after April 2006 out of which the bank received further commission. But the bank did not at any time before the relationship ended in 2015 repay any of the sums which Ms Smith had paid for PPI cover, nor did it disclose to her the existence let alone the amount of the commission that it had received out of those payments. Applying the test articulated in Plevin (see para 27 above), those are both steps which it would be reasonable to expect the creditor to take in the interests of fairness and which were necessary to reverse the consequences of the unfairness so that the relationship as a whole could no longer be regarded as unfair.”

“The purpose of an ordinary limitation period is to prevent stale claims from being litigated, the period of 6 years being fixed as a generally reasonable period to bring a claim.”

“(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.”

“For the purposes of the new Scheme, we propose to apply the time limits enshrined in English law relating to the limitation of actions. In other words, the Ombudsman would be entitled to refuse to investigate a complaint which was brought to the Scheme more than 6 years after the event or more than 3 years after the date when the complainant became aware or ought reasonably to have become aware of the cause of complaint, if this was longer.”

“2.2 The purpose of this paper (which is also a joint FSA/FOS paper) is to provide the response of the FSA and the FOS to the comments which we received on CP49 and to set out the final rules which we propose to make.”

“31. It follows therefore that as a matter of ordinary language the complaint made by the claimants to the FOS about the handling of their complaint by AIB was not a complaint about the provision or failure to provide a financial service. Further, on the facts, which again I emphasise will apply widely, the review by AIB of the redress, if any, which it should offer in respect of the swaps made with the claimants did not fall within the compulsory jurisdiction rules both for the reasons I have given and also because the activity of dispute resolution was not itself an activity specified in the 2001 Order. It was therefore, by dint of subsection (4) of section 266, outside the remit of the FOS. 32. For those reasons, I have concluded that the Ombudsman's conclusion that she was not entitled to investigate or reach a determination upon the conduct of the review was right. It follows that the single ground upon which permission to apply for judicial review has been granted fails and I dismiss this claim.”

“27. The rival propositions are relatively easy to state but their resolution depends upon a careful analysis of the statutory scheme and that part of the scheme which although not statutory has the force of statute. 28. The key to the conundrum is the statutory definition of “compulsory jurisdiction rules” in subsection 226(3) and the proviso to that in subsection (4). The Ombudsman can only consider a complaint as defined in the Glossary. The complaint must be about “the provision of or failure to provide a financial service or a redress determination” within the meaning of that latter phrase as defined in the Glossary. The claimant's complaint about the withdrawal of the offer was not a complaint about a redress determination because it was not about a redress determination conducted under section 404 of the Act. It can therefore only succeed if it is about “the provision of or failure to provide a financial service”. “Financial service” is not defined in the 2000 Act. Mr Catsambis and Mr Temple submit that dispute resolution is not on any view “a financial service”

“25. … The Ombudsman Service does frequently and routinely consider all sorts of complaints involving matters that happened more than six years ago. There are numerous decisions, published on the Ombudsman Service’s website, that reflect this. 26. By way of example only, complaints about pension transfers and investment advice often involve events that took place more than six years ago, because the complainant may not have been aware that they had cause for complaint until the product matured and/or they changed adviser.”

“The Supreme Court decision Smith v RBS was handed down in October 2023. It reversed the decision of the Court of Appeal and provided important new guidance on the assessment of when a relationship will be regarded as “unfair” within the context of the CCA and the responsibilities of a creditor within an unfair relationship. Mr B’s complaint to Santander was made in November 2023 and referred to this service in March 2024. So, it is right that my decision should reflect the implications of the Supreme Court’s decision for our jurisdiction, which was plainly impossible for decisions made by our service before October 2023.”

“An efficient and cost-effective and relatively informal type of alternative dispute resolution should not be stifled by the imposition of legal doctrine.”

“45. Once the credit relationship ends, the position changes. A determination that the relationship was unfair to the debtor on the date when it ended can be made on that date or any later date. All the facts relevant to the determination are fixed when the relationships ends and nothing that occurs subsequently can affect the assessment of fairness. It can therefore be said that a cause of action has accrued so that the period of limitation starts to run.”

“the 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.”

“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.”

“1B The FCA's general duties (1) In discharging its general functions the FCA must, so far as is reasonably possible, act in a way which— (a) is compatible with its strategic objective, and (b) advances one or more of its operational objectives. (2) The FCA's strategic objective is: ensuring that the relevant markets (see section 1F) function well. (3) The FCA's operational objectives are— (a) the consumer protection objective (see section 1C); (b) the integrity objective (see section 1D); (c) the competition objective (see section 1E). (4) The FCA must, so far as is compatible with acting in a way which advances the consumer protection objective or the integrity objective, discharge its general functions in a way which promotes effective competition in the interests of consumers.”

“1C The consumer protection objective (1) The consumer protection objective is: securing an appropriate degree of protection for consumers. (2) In considering what degree of protection for consumers may be appropriate, the FCA must have regard to— (a) the differing degrees of risk involved in different kinds of investment or other transaction; (b) the differing degrees of experience and expertise that different consumers may have; (c) the needs that consumers may have for the timely provision of information and advice that is accurate and fit for purpose; (d) the general principle that consumers should take responsibility for their decisions; (e) the general principle that those providing regulated financial services should be expected to provide consumers with a level of care that is appropriate having regard to the degree of risk involved in relation to the investment or other transaction and the capabilities of the consumers in question; (f) the differing expectations that consumers may have in relation to different kinds of investment or other transaction; (g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (h) any information which the scheme operator of the ombudsman scheme has provided to the FCA pursuant to section 232A.”

“The alleged acts (or omissions) within that six-year period which were complained about included by way of specific and various examples: an increase in a credit limit (Barclays); requiring repayment of allegedly unaffordable amounts (Barclays and Vanquis); imposing fees and charges (Barclays and Vanquis); the act of continuing to provide credit (all); specifically allowing the prolonged and continued use of an overdraft facility (Santander and NatWest); and failing properly to monitor use of an overdraft facility, resulting in significant charges of interest (Santander and NatWest).”

“As for the potential implications for redress, the Claimants … argue that any compensation the Ombudsman might award at the merits stage must be limited to redress for acts which occurred in the six years preceding the complaint. The short answer is that such submissions are premature. The question of the lawfulness of any money award an Ombudsman might make following a determination on the merits, even if the events complained of do not include any analysis of omissions relating to the corrective responsibility, simply has not arisen. The issue for this Court is limited to whether the jurisdiction decisions which have been made are correct.”

“37. If the Ombudsmen were to go on to find that the events complained of involved unfairness in the relationships and that the unfairness arose at a point earlier than six years before the complaint, and if a money award rather than a direction (DISP 3.7.11R) were contemplated, the Ombudsmen would need to decide what “fair compensation” for financial loss (DISP 3.7.2R) would be. This would require the Ombudsmen to consider, on the facts of the case, any ongoing economic consequences for the consumer, as well as other potentially relevant factors, such as any delay in bringing the complaint as the Ombudsmen have indicated they would do consistent with the principles expressed in Smith.”

“In considering the fairness of each of the monthly charges from 31 October 2012 onwards, we need to consider all relevant matters contributing to those events. That means we will need to consider the whole history of the interest rate, including before 31 October 2012. That is because the interest variation decisions taken by MAS5 from 2008 to 2012 are important context for the later monthly charges. MAS5 may have determined, in part, the rate that was charged during the period we can consider.”

“And so I consider it appropriate and proper that we now take into account the whole history of the MAS5’s SVR since Mrs D’s mortgage reverted to it on 31 December 2008 in order to determine whether charges from 31 October 2012 onwards were fair. The historic changes made to the interest rate are relevant factors to the interest rate applied over the period I can consider. I believe that it’s important background Mrs D’s complaint about the interest rate applied to this mortgage from October 2012 onwards. I see this as being an essential part of establishing the fairness of Mrs D’s interest rate from 31 October 2012 onwards. Whether historic variations have led to unfairness during the period of time we can consider Mrs D’s complaint is a matter that would be explored as part of the merits investigation of this complaint. Otherwise we won’t be looking at the full picture and all the circumstances of the case when we consider whether charges from 31 October 2012 were fair.”

“85. … When the Ombudsman’s actual decision is examined, there is nothing wrong with it so far as the claim to jurisdiction is concerned. She accepts complaints about interest charging events after 31 October 2012 and she rejects complaints about interest charging events (or, indeed, any losses) before 31 October 2012. 86. The Ombudsman’s proposed consideration of interest variations before 31 October 2012 is firmly set as background, or context, for the complaints under consideration about interest rate charges from 31 October 2012 only. This is a point made repeatedly in the last three paragraphs of my quotation from the final decision letter in para 33 above. The Ombudsman is not considering them as free standing complaints or as complaints at all, within the meaning of DISP 2.8.2 R. There is, therefore, no basis for challenging her final decision on the basis that it accepts jurisdiction over complaints which are out of time.”

“88. These are not jurisdiction findings in relation to events before 31 October 2012. In these passages, the Ombudsman is exercising her discretion under section 228 of FSMA and DISP 3.6.1 R to decide what she ought to look into before determining “what is, in [her] opinion, fair and reasonable in all the circumstances of the case” in respect of interest charges after 31 October 2012 and not before. This discretion is broad, and it is not limited to the sort of narrow analysis that might be appropriate to a jurisdiction founded (as hers is not) only upon legal causes of action which, once accrued, cannot be revived for limitation purposes by reference to the working out of their consequences. The Ombudsman is entitled to form the opinion that she has expressed about what she will take into account when deciding what is “fair and reasonable in all the circumstances of the case”

“conclusion in the relevant final decision that it had jurisdiction over the entirety of the complaint referred to it [is] wrong as a matter of law by virtue of its interpretation and application of the time limit in DISP 2.8.2 R(2).”

“(1) The maximum money award which the Ombudsman may make is: (a) £350,000 for a complaint concerning an act or omission which occurred on or after 1 April 2019; and (b) £160,000 for a complaint concerning an act or omission which occurred before 1 April 2019.”

“The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by the legislature. Here, the courts give a very wide meaning to the concept of ‘absurdity’, using it to include virtually any result which is impossible, unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief.”

“it is without question a legitimate method of purposive statutory construction that one should seek to avoid absurd or unlikely results.”

“By excluding acts and omissions going back further than six years before the complaint, the Cs’ interpretation would preclude the D from considering the entirety of the creditor-debtor relationships in relation to such complaints. That would be directly contrary to the Supreme Court’s unequivocal exposition of the law and would lead to incoherent results.”

“Protection of property Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of the State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure payment of taxes or other contributions or penalties.”

“(2A) The High Court— (a) must refuse to grant relief on an application for judicial review … … … if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.”