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Retired IFA John Calland takes FOS case to European Court of Human Rights

Retired IFA John Calland is taking his case against the Financial Ombudsman Service to the European Court of Human Rights after exhausting all UK avenues for litigation.

Last May, the High Court dismissed Calland’s judicial review relating to a FOS decision to uphold a £48,000 pension misselling case against him.

The FOS found the client received unsuitable advice in April 1992 to take out a personal pension rather than join his employer’s occupational scheme.

Calland was ordered to pay £48,105 plus interest at 8 per cent per annum from July 2011 until payment, plus £250 for distress and inconvenience. In May a judge also ordered Calland to pay £35,000 in FOS legal costs.

Calland says the case was solicited by the FSA and the FOS and the client refused to complain to him directly.

He also challenged the FOS’s decision not to grant him an oral hearing and the time taken to resolve the complaint. The case was referred to the ombudsman in 2005 and a final decision was not issued until 2012.

Calland subsequently took his case to the Court of Appeal, which ruled against him last month.

He is now applying to have the case heard in the European Court of Human Rights, on the basis that he has been denied the right to a fair trial because the FOS has not had an oral hearing on the case.

The European Court of Human Rights will decide in the coming months whether the case merits a hearing.

Calland says: “I am as determined as ever to continue to fight this injustice.”

Kitsons Solicitors partner David Turner, who is representing Calland, says: “This case is crying out for an oral hearing.”

Calland has been battling the regulators for over 10 years which has resulted in a separate legal case against the FCA, which he sued for harassment in 2010.

The judge found in favour of the FCA in May, and Calland is awaiting a hearing at the Court of Appeal.

Yellowtail Financial Planning managing director Dennis Hall says: “A 15-year long stop and more widely available run-off professional indemnity insurance would help prevent cases like this going so far.”

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Comments

There are 6 comments at the moment, we would love to hear your opinion too.

  1. Obviously I don’t know all of the ins and outs of this case but I would imagine most IFAs would wish this chap the very best of luck, as it does seem that the odds are always stacked against ‘the small guy’ by the regulators and government, who seem to behave as though this is an authoritarian state rather than a democracy.

  2. 10 years! Solicitors, barristers, courts, Court of Appeal, EU Court of Human Rights. How much is all this costing?

    “Point of principle” are the three most expensive words in British jurisprudence. Lawyers love them – it does wonders for their wallets. Wouldn’t he have been better off paying the £50k and just getting on with his life?

  3. The Law Lords have ruled against a law that suspended the Human Rights Act and imprisoned foreign terrorist suspects without charge or trial in Belmarsh prison. Is it not time to ask the same questions of the Financial Services and Marketing Act? Under the Financial Services and Markets Act 2000 (FSMA) the defendant (the financial adviser) should be afforded the same right of appeal as afforded terrorist suspects? A simple question that requires a simple answer?

    Condemnation from Lord Hoffman included the comment that “the real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these”. Lord Hoffman could have just as easily been referring to the Financial Services and Markets Act 2000, or even the Finance Act or any other recent Act. Every single piece of legislation introduced since 1997 (and there have been hundreds) erodes basic, and not so basic, liberties.

    The Financial Services and Markets Acts allows the FSA/FCA/FOS to act as a quasi-judicial body without imposing upon that body the power to operate within the rule of law. The Act exempts the FSA/FOS from the rules of evidence, the right to an independent and impartial tribunal; and perhaps the very worst aspect – denies the right of appeal to the open courts.

    I might add it does not deny the right of appeal to the plaintiff but only the accused. It panders to the “Lynch mob” and has allowed a free for all whilst tying the hand of defence firmly behind their back.

    Make no mistake about this I am “not” asking for an unregulated industry or any diminution of consumer rights. I am suggesting that some sanity is put back into this process and accountability to the courts is the only solution. Grant the defence the same right of appeal that is granted to the plaintiff. Grant the accused the right to seek redress in the open courts if falsely accused.

  4. To Patrick Schan ~ Democracy in financial services regulation doesn’t exist and, for as long as the regulators remain unaccountable for their actions and policies, not to mention enjoying statutory immunity from prosecution, that state of affairs will continue. In short, the regulators have carte blanche to do whatever they want in whatever way they want to whomsoever they want.

  5. To Julian
    I think that is the point I was making, albeit maybe in an undersated fashion. It seems you agree that the situation is less than ideal, and Simon Mansell seems to agree as well; most eloquently I would add. Sadly, although Harry Katz is possibly right, in terms of ‘getting over it’ for the individual involved, it needs a courageous person to step forward, sometimes, and stand up to the bullys, which is why many of us would support Mr Calland in his fight.

  6. Jurisdiction rears its head here again. If this case was part of the pension review process all those years ago then the client has no right to revisit the matter (other than through the Court) when the rules and regulations clearly deny that. The Statute of Limitation is clear too in regard to the length of time for knowledge of the complaint.

    Is it therefore as simple as no-one has challenged the FOS’s jurisdiction to act in the first place!?

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