The Court of Appeal has refused permission to appeal a decision that refused an appeal for judicial review. The case involved a broker (Mr Bamber), who worked with a firm subject to first FIMBRA and then PIA rules, before FSMA. Complaints arose about old mortgage endowment sales. Mr Bamber raised several issues with FOS over its jurisdiction to decide on complaints. The judge considered:
- whether DISP 2.3.6R was unlawful as it appeared to abrogate accrued rights under the Limitation Act. However, the judge said FSMA "conspicuously" did not apply the Act to FSA rules and it is FSMA that gives FSA the right to decide on time limits for complaints to FOS; and
- whether it was right to apply current criteria on how complaints will be determined, where they are stricter than the criteria that applied at the time of the actions that gave rise to the complaint. The judge said the ombudsman should apply "what is fair and reasonable in all the circumstances". This would include taking into account what a former scheme would be likely to have decided.
Although the judge refused the application, he said some matters might be open to review following the FOS decision.