High Court gives guidance on amenability to judicial review - Decisions by the UK FOS

In iDealing.com Ltd, R (On the Application Of) v Financial Ombudsman Service Ltd [2024] EWHC 847 (Admin), the High Court considered three related decisions made by the Financial Ombudsman Service (FOS), following various complaints about the standard of its service. The High Court held that the Decisions were not amenable to judicial review.

Key points:

• The correct legal test to determine whether a decision is amenable to judicial review, if the source of the power does not provide a clear answer, is whether the nature of the power and function being exercised has, 'a sufficient public law element, flavour or character to bring it within the purview of public law' (R (Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233).
• The fact that the complaints related to the standard of service provided by the FOS when it was exercising its statutory functions under FSMA was insufficient to persuade the court that the decisions had a sufficient public law element, flavour or character to be amenable to judicial review.
• Even where a decision is amenable to judicial review and the grounds of challenge are arguable, the courts must usually refuse to grant permission if it appears highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred (section 31 (3D) of the Senior Courts Act 1981 (SCA 1981)).

For a full report, please see the article published by our Public Law team here.