The Wednesbury unreasonableness standard applies to judicial review of FOS decisions under its Terms of Reference, including decisions whether to exclude disputes. A financial services provider challenging a FOS decision not to exclude a dispute must demonstrate that the decision was not reasonably open to FOS, not merely that a court would be a preferable forum. Complaints about loss of proportionate liability rights or inability to join third parties will not establish unreasonableness where the nature of the underlying claim remains uncertain and the prejudice is contingent. However, Tate JA's dissent signals that a conflict of interest in the representative acting for a complainant, combined with the inherent procedural limitations of the FOS process, may in some circumstances render a refusal to exclude unreasonable.
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