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Assurant General Insurance Limited, R (on the application of) v Financial Ombudsman Service Limited & Ors

18 September 2023
[2023] EWCA Civ 1049
Court of Appeal
A company (Assurant) selling insurance through retailers argued the complaint resolver (FOS) shouldn't handle customer complaints. The court decided that the retailers were essentially working for Assurant, so the complaints were validly handled.

Key Facts

  • •Assurant General Insurance Ltd (Assurant) challenged four jurisdiction decisions by the Financial Ombudsman Service Ltd (FOS) regarding mis-sold Payment Protection Insurance (PPI) complaints.
  • •Consumers purchased goods using retailer credit facilities and were sold PPI policies underwritten by Assurant.
  • •Retailers were not directly subject to financial services regulation when selling the insurance.
  • •The FOS Ombudsman accepted the complaints against Assurant, finding the retailers acted as Assurant's agents.
  • •The High Court dismissed Assurant's judicial review claim.
  • •Assurant appealed, arguing the court should determine agency, not just review the FOS's decision.

Legal Principles

Jurisdictional facts are primarily for the Ombudsman, subject to judicial review on conventional grounds (irrationality, procedural unfairness). However, questions of law, such as contract interpretation, are for the court.

R (A) v London Borough of Croydon [2009] UKSC 8; R (Bankole) v Financial Ombudsman Service [2012] EWHC 3555 (Admin); R (Bluefin Insurance Services Ltd) v Financial Ombudsman Service [2014] EWHC 3413 (Admin); R (London Capital Group) v Financial Ombudsman Service [2013] EWHC 2425 (Admin); R (TF Global Markets (UK) Ltd) v Financial Ombudsman Service [2020] EWHC 3178 (Admin); R (Chancery (UK) LLP) v Financial Ombudsman Service [2015] EWHC 407 (Admin); R (TenetConnect Services Ltd) v Financial Ombudsman Service [2018] EWHC 459 (Admin)

Contract construction is a question of law for the court.

Chatenay v Brazilian Submarine Telegraph Co Ltd [1891] 1 QB 79

Agency is a fiduciary relationship where one party (agent) acts on behalf of another (principal) to affect legal relations with third parties. This can be express or implied; the substance of the agreement matters more than the label.

Bowstead and Reynolds on Agency (22nd ed., 2022); UBS AG v Kommunale Wasserwerke Leipzig GmbH [2017] EWCA Civ 1567; Garnac Grain Co Inc v HMF Faure & Fairclough Ltd [1968] AC 1130; Branwhite v Worcester Works Finance Ltd [1969] 1 AC 552

Outcomes

Appeal dismissed.

The court found a relationship of agency existed between the retailers and Assurant based on the contract terms. The retailers' ability to create binding contracts between consumers and Assurant, coupled with Assurant's control over marketing and the retailers' fiduciary duties, indicated agency. A clause seemingly excluding agency was deemed to relate to partnerships, not agency itself.

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