Bluefin Insurance Services Limited ("Bluefin") recently challenged the Financial Ombudsman Service's ("FOS") jurisdiction over a complaint made against it. In order for the FOS to have jurisdiction over a complaint, the person making the complaint (the "Complainant") must fall within the definition of "eligible complainant" contained within Rule 2.7.1R of the FCA'sDispute Resolution: Complaints Sourcebook ("DISP"). This case concerns the definition of an eligible complainant, specifically whether a complaint regarding a directors and officers liability policy relating to a business would mean that the Complainant did not qualify as a consumer under DISP 2.7.1R.
The complaint alleged that Bluefin (an insurance broker) had failed to notify the Complainant's claim under a directors and officers liability policy. Bluefin argued that the Complainant did not fall within the definition of an "eligible complainant" under DISP 2.7.1R and therefore the FOS did not have jurisdiction to handle the complaint.
The definition of an eligible complainant under DISP 2.7.1R includes a consumer, a micro-enterprise (at the time of the referral, or at the conclusion of the contract if related to payment services), a charity with an annual income of less than £1 million or a trustee of a trust worth less than £1 million at the time of the complaint referral. The FOS does not have jurisdiction to handle a complaint if the eligible complainant test is not met.
In September 2013 Lang J found that there was "no arguable error of law" in the Bluefin complaint and that the Complainant fell within the definition of "consumer" under DISP 2.7.1R. The FOS therefore had jurisdiction to hear the complaint, and permission for Bluefin to bring judicial review proceedings was refused.
Bluefin appealed on the basis that "consumer" is defined by the FCA in the glossary to the DISP rules as "any natural person acting for purposes outside his trade, business or profession". The complaint related to the directors and officers liability policy held by the Complainant's former company, of which the Complainant was a director. Bluefin argued this meant he was acting for a purpose related to his business when making the complaint, and he therefore could not fall within the definition of "consumer". Judicial review proceedings would allow Bluefin to raise this point and dispute the FOS's right to jurisdiction over the complaint.
At the appeal hearing in February 2014, Blair J determined that three questions needed to be addressed by the judicial review process. The first was whether the question of FOS jurisdiction should be considered as a matter of law using available statutory and regulatory material, or whether the Wednesbury test should be applied (that no reasonable person acting reasonably could take such a decision). The second was whether the Complainant was acting as a consumer. The final issue was whether a directors and officers liability policy can be considered a consumer transaction for the purposes of defining the Complainant as a consumer. Ultimately, he felt these issues "would benefit from more consideration" and that this case was "sufficiently arguable" for permission to bring judicial proceedings to be granted.
The substantive hearing date is yet to be listed, but is expected to be later this year. The Court's analysis of who falls within the definition of "consumer" under the DISP rules for the purposes of complaints referred to the FOS is likely to be of wider interest to financial services firms.