Tom Johnson v Bank of Scotland PLC
[2023] EWHC 169 (Ch)
Greg Moniak, R (on the application of) v Financial Ombudsman Service
17 February 2023
[2023] EWHC 333 (Admin)
High Court
A man's bank was robbed, and the bank wasn't held responsible by a financial complaint service. He found new evidence proving the bank was at fault. A judge agreed the service made mistakes and sent the case back for them to look at the new evidence.
Key Facts
- •Mr. Moniak's complaint to the Financial Ombudsman Service (FOS) against Barclays Bank for failing to prevent fraudulent activity on his accounts was rejected.
- •After the rejection, Mr. Moniak obtained court transcripts that contradicted the FOS's factual premise.
- •The FOS refused to reconsider its decision, stating the transcripts were not 'material new evidence'.
- •Mr. Moniak challenged this decision via judicial review.
- •The FOS offered to reconsider the decision not to reopen the complaint, but Mr. Moniak rejected the offer as it didn't guarantee consideration of the transcripts.
- •The court transcripts revealed discrepancies with the Barclays Note used by the FOS, which had misrepresented the judge's sentencing remarks.
Legal Principles
The FOS has broad discretion in determining complaints but must act fairly, reasonably, and avoid irrational conclusions.
Clark v In Focus Asset Management & Tax Solutions Ltd [2014] 1 W.L.R. 2502 (CA); R (IFG Financial Services Ltd) v Financial Ombudsman Service Ltd [2006] 1 BCLC 534; R (Williams) v Financial Ombudsman Service [2008] EWHC 2142
A decision can be quashed if based on a material error of fact.
E v Secretary of State for the Home Department [2004] EWCA Civ 49
The FOS's jurisdiction is an alternative dispute resolution process, not bound by court procedures or rules of evidence.
Westcott Financial Services Limited & Ors v Financial Ombudsman Service [2014] EWHC 3972 (Admin); R. (on the application of Aviva Life and Pensions (UK) Ltd) v Financial Ombudsman Service [2017] EWHC 352 (Admin)
The Ombudsman may dismiss a complaint without considering its merits if dealing with it would seriously impair the FOS's operation, except where material new evidence is available.
DISP 3.3.4A R, 3.3.4B G
Outcomes
The court allowed Mr. Moniak's claim for judicial review.
The FOS's decision not to reopen the complaint was irrational and based on material errors of fact. The transcripts constituted 'material new evidence' that should have been considered.
The matter was remitted back to the FOS for a new decision.
The FOS's decision was based on an irrational application of the rules and guidance, and on a material mistake of fact. The court avoided usurping the FOS's role but ensured the legal errors were corrected.
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