Financial Services Disputes and Regulation
Jan 28, 2026 · 23 min · 7 segments
The High Court issued judgment (in two parts) dismissing a Claims Management Company's judicial review application against the FCA. The judicial review sought to quash the FCA's decision to identify…
Michael TanGuestJohn FordHost
James WoodGuestwe've got to the stage where the Claims Protection Agency is judicially reviewing that decision.
So essentially, the claimant advanced two distinct grounds of challenge in this case.
And the first ground of challenge was an allegation that there had been a misdirection of law or a misinterpretation, more precisely, of the FCA's enforcement guide.
And the second ground of challenge was that in the alternative, that the decision was so unreasonable and therefore unlawful that either in terms of the outcome that had been reached or the process that had been followed.
And I think, as Michael's alluded to, on both grounds, ultimately, the claim was unsuccessful.
And just picking up the first ground, which is the misinterpretation of the guide point, this is kind of an important ground to consider because when you're looking at a legality-type ground such as this, it's the court who's the primary objective decision-maker here, and the court can assess... objectively, whether it considers that the interpretation was correct.
But ultimately, the court found that there hadn't been a material misdirection of the guide and that when the reasons for the decision are sort of read as a whole, you know, there wasn't any misinterpretation in the circumstances.
On the second ground, which is quite an interesting ground because, and this is the reasonableness point, because in this circumstance, what you have is you have an expert regulator who's exercised effectively their expert evaluative judgment as to what decision to take in the circumstances.
And there, unlike the first ground, the court takes a bit more of a hands-off or typically takes a bit more of a hands-off approach and is a bit more deferential to the decision of the expert regulator.
And it's quite interesting in this case because the judgment itself says although some of the reasoning in the decision this is can be said to be weak, it's still found that this reasonableness ground of challenge failed in all of the circumstances because although the decision had flaws, it was effectively within the range of decisions open to a reasonable decision maker.
And in reaching that decision, and I think that's the point that I'm sure we'll come back to, I think it's fair to say that the court placed significant weight on what it saw as the key theme of the decision in question, which was a key theme of communicating a message to the customers of the claimant.
Which I think is all I wanted to say by way of brief summary of the grounds that were advanced and the tests that the court applied.
So it's fair to understand that in circumstances where your ground is focusing on the reasonableness of the decision, it's going to be a difficult application to make in terms of, or it turned out to be a difficult application.
Yeah, I think that's a very fair characterisation when you're looking at a reasonableness ground of challenge.
There can be circumstances where claimants can seek to persuade the court that they should take a bit more of a hands-on approach and look at a bit more detail and more closely at the reasoning.
But in this situation, I think the court took what would be seen as kind of a conventional public law reasonableness approach.
reasonableness approach and in that circumstance did pay significant deference, I think, to the decision of the expert regulator.
we've got to the stage where the Claims Protection Agency is judicially reviewing that decision.
So essentially, the claimant advanced two distinct grounds of challenge in this case.
And the first ground of challenge was an allegation that there had been a misdirection of law or a misinterpretation, more precisely, of the FCA's enforcement guide.
And the second ground of challenge was that in the alternative, that the decision was so unreasonable and therefore unlawful that either in terms of the outcome that had been reached or the process that had been followed.
And I think, as Michael's alluded to, on both grounds, ultimately, the claim was unsuccessful.
And just picking up the first ground, which is the misinterpretation of the guide point, this is kind of an important ground to consider because when you're looking at a legality-type ground such as this, it's the court who's the primary objective decision-maker here, and the court can assess... objectively, whether it considers that the interpretation was correct.
But ultimately, the court found that there hadn't been a material misdirection of the guide and that when the reasons for the decision are sort of read as a whole, you know, there wasn't any misinterpretation in the circumstances.
On the second ground, which is quite an interesting ground because, and this is the reasonableness point, because in this circumstance, what you have is you have an expert regulator who's exercised effectively their expert evaluative judgment as to what decision to take in the circumstances.
And there, unlike the first ground, the court takes a bit more of a hands-off or typically takes a bit more of a hands-off approach and is a bit more deferential to the decision of the expert regulator.
And it's quite interesting in this case because the judgment itself says although some of the reasoning in the decision this is can be said to be weak, it's still found that this reasonableness ground of challenge failed in all of the circumstances because although the decision had flaws, it was effectively within the range of decisions open to a reasonable decision maker.
And in reaching that decision, and I think that's the point that I'm sure we'll come back to, I think it's fair to say that the court placed significant weight on what it saw as the key theme of the decision in question, which was a key theme of communicating a message to the customers of the claimant.
Which I think is all I wanted to say by way of brief summary of the grounds that were advanced and the tests that the court applied.
So it's fair to understand that in circumstances where your ground is focusing on the reasonableness of the decision, it's going to be a difficult application to make in terms of, or it turned out to be a difficult application.
Yeah, I think that's a very fair characterisation when you're looking at a reasonableness ground of challenge.
There can be circumstances where claimants can seek to persuade the court that they should take a bit more of a hands-on approach and look at a bit more detail and more closely at the reasoning.
But in this situation, I think the court took what would be seen as kind of a conventional public law reasonableness approach.
reasonableness approach and in that circumstance did pay significant deference, I think, to the decision of the expert regulator.
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