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Retired IFA John Calland takes his fight to the Court of Appeal

calland
John Calland and his wife Chris

Retired IFA John Calland is appealing the Royal Courts of Justice’s dismissal of a judicial review he brought against the Financial Ombudsman Service regarding a pension misselling case.

The judicial review, heard on 8 May, relates to a FOS decision to uphold a £48,000 pension misselling case against Calland. 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 27 July 2011 until payment, plus a £250 payment for distress and inconvenience.

Calland says the case was solicited by the FOS and the client never complained to him directly.

He also challenged the FOS’s decision not to grant him an oral hearing and claimed the FOS took too long to resolve the complaint in breach of the European Convention on Human Rights. The case was referred to the ombudsman in July 2005 and a final decision was not issued until February 2012.

On 21 May, the honourable Mr Justice Males dismissed the judicial review and ordered Calland to pay £35,000 in FOS legal costs.

Males said while the FOS Independent Assessor found in December 2006 the claim, along with a number of others, had been solicited by the ombudsman, the client “clearly indicated he did wish to complain” to the FSA, which passed the case to the FOS.

He said there is “nothing in the rules to require that the complaint must be made by the customer directly to the IFA”.

Males added that while the case took a long time to resolve, much of the delay was caused by Calland challenging the FOS’s jurisdiction and procedures. He added it is “far-fetched to think oral questioning of the client almost 20 years after the event would add significantly to the known facts”.

Calland is applying to the Court of Appeal to reopen the case, claiming the judgement contains factual inaccuracies.

Kitsons Solicitors partner David Turner, who is representing Calland, says: “This has been a long ordeal for John and as far as he is concerned it is not over.”

Calland has been fighting a 10-year battle with the regulators which has resulted in a separate legal case against the FSA, which he sued for harrassment last year. The judge is yet to return his decision following a second strike out motion by the FSA, which was heard in November. Full details can be found here

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Comments

There are 10 comments at the moment, we would love to hear your opinion too.

  1. RegulatorSaurusRex 6th June 2013 at 11:13 am

    Some facts escape him.

  2. Indeed…

    If you are at all interested in this and why the FOS and FSA did what they did it is worth reading the High Court judgement here:

    http://www.bailii.org/ew/cases/EWHC/Admin/2013/1327.html

    You can make your own mind up but I don’t think many advisers have anything to fear as a result.

  3. Jimmy Swaggart 6th June 2013 at 12:25 pm

    I wonder if the FOS has ever suggested to a fraudster or opportunist that he makes a payment to the adviser for distress and inconvenience.

    FOIA here we come.

  4. As is well known, Article 6 provides that:

    “In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
    Is this a fair description of FOS?

  5. @ Anonymous 12:26

    Depends on your point of view but according to the High Court, the Court of Appeal and the European Court of Human Rights, it is – as a part of the overall process.

  6. The FOS allows between 10-20 personal hearings each year.

    This is a direct breach of the ECHR legislation.

    But, like the FSA/FCA they totally ignore this as they can do whatever they want and treat the industry with contempt.

  7. @Grey Area
    High Court, Court of Appeal and European Court of HR are all wrong.

  8. I am presuming that most comments are from people that did not read the judgement. Give it a go… it is very enlightening.

    Or you could refuse to let facts get in the way of a good story.

  9. Without having read the full judgement, it’s tempting to surmise that the reason the FSA and the FOS have given Mr Calland such a hard time is because they became increasingly irritated by years and years of prevarication.

    When all is said and done, advising anybody to opt out from an employer-sponsored scheme is pretty bad advice by any measure. Then again, was it right for the FOS to (allegedly) encourage the client complain when, in the absence of such encouragement, s/he might not have done so? A vexed issue indeed.

  10. I’ve read the judgement and i don’t hold much sympathy with Mr Calland.

    As Biggus Dickus mentions advising someone not to join their employer scheme is pretty poor advice but to then review that advice on the orders of the regulator some years later and to again find that it was acceptable is ridiculous.
    The judges opinion was that Mr Calland caused the delays by generally being difficult with everyone else involved. Fair point.
    The judge also thought that the FSA was within it’s rights to refer the client straight to the FOS because Mr Calland wasn’t trading any more and the client had indicated that they wanted to complain. Another fair point if you ask me.

    Nobody did ask me so it’s all just my opinion as usual.

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