Key Post Appealing an Ombudsman's decision to the High Court

Brendan Burgess

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In a case today, of Alan and Deirdre Grant vs. Permanent TSB with the Ombudsman as notice party, Justice Hedigan set down the basis on which the High Court would overturn the Ombudsman's decision. I think that this is a very clear setting out of the approach. In summary - unless the Ombudsman's decision is bizarre, we are not going to interfere with it.



The nature of the appeal to the High Court is now well established. The classic statement thereof is that by Finnegan P. in Ulster Bank v. Financial Services Ombudsman & Drs. [2006J IEHC 323:


"To succeed on this appeal the Plaintiff must establish as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. In applying the test the court will have regard to the degree of expertise and specialist knowledge of the Defendant. The deferential standard is that applied by Keane C.l in Orange v The Director of Telecommunications Regulation & Anor and not that in The State (Keegan) v Stardust Compensation Tribunal."





The Orange test to which Finnegan P. referred is as follows:



"In short, the appeal provided for under this legislation was not intended to take the form of a re-examination from the beginning of the merits of the decision appealed from culminating, it may be, in the substitution by the High Court of its adjudication for that of the first Defendant.

It is accepted that, at the other end of the spectrum, the High Court is not solely confined to the issues which might arise if the decision of the first Defendant was being challenged by way of judicial review. In the case of this legislation at least, an applicant will succeed in having the decision appealed from set aside where it establishes to the High Court as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. In arriving at a conclusion on that issue the High Court will necessarily have regard to the degree of expertise and specialised knowledge available to the first Defendant."
 
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Brendan Burgess

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This case is even more decisive and clear-cut

McEvoy & Anor vs FSO and PTSB
3 May 2012

14. There are no unusual features about the case and it is one which can be described as a standard investigation into a standard complaint.

15. The applicable test for an appeal to this Court is that as set out by Finnegan P. in Ulster Bank v. Financial Services Ombudsman & Ors [2006] IEHC at p. 323, wherein Finnegan P. set out the relevant test:-

"To succeed on this appeal the plaintiff must establish as a matter of probability that taking the adjudicative process as a whole the decision reached was vitiated by a serious and significant error or a series of such errors. In applying the test the court would have regard to the degree of expertise and specialist knowledge of the defendant. The deferential standard is that applied by Keane C.J. in
Orange v. the Director of Telecommunications Regulation & Anor and not that in the State (Keegan) v. Stardust Compensation Tribunal."

16. I accept the submission of counsel for the Financial Services Ombudsman that the test as enunciated by Finnegan P. in
Ulster Bank can be broken down as follows:-
(i) The burden of proof is on the appellant.
(ii) The onus of proof is the civil standard.

(iii) The court should not consider complaints about process or merits in isolation but rather should consider the adjudicative process as a whole
(iv) In the light of the above principles the onus is on the appellant to show that the decision reached was vitiated by a serious and significant error or a series of such errors.
(v) In applying this test the court will adopt what is known as a deferential stance and must have regard to the degree of expertise and specialist knowledge of the Ombudsman.

17. It is not the function of this Court to place itself in the shoes of the Financial Services Ombudsman. As MacMenamin J. stated in Molloy v. Financial Services Ombudsman:

"I would re-emphasise the simple fact that it is not the function of the court to place itself in the shoes of the Financial Services Ombudsman. The jurisprudence militates against such a course of action. The test therefore is whether the decision was vitiated by a serious error or a series of such errors."


18. I do not consider that it would be appropriate for this Court to attempt to second guess the decision of the Financial Services Ombudsman on its merits.

19. The appellants do not satisfy me that taking the adjudicative process as a whole there was any serious or significant error or a series of such errors. I must have regard to the degree of expertise and specialist knowledge of the defendant and in these circumstances the appellants appeal
 

Brendan Burgess

Founder
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44,659
This makes it very clear. Do not appeal the substance of the Ombudsman's decision. Cases will only succeed where the Ombudsman made a legal error or procedural error.

(v) In applying this test the court will adopt what is known as a deferential stance and must have regard to the degree of expertise and specialist knowledge of the Ombudsman.
17. It is not the function of this Court to place itself in the shoes of the Financial Services Ombudsman. As MacMenamin J. stated in Molloy v. Financial Services Ombudsman:

"I would re-emphasise the simple fact that it is not the function of the court to place itself in the shoes of the Financial Services Ombudsman. The jurisprudence militates against such a course of action. The test therefore is whether the decision was vitiated by a serious error or a series of such errors."


18. I do not consider that it would be appropriate for this Court to attempt to second guess the decision of the Financial Services Ombudsman on its merits.


The appellant would face three sets of legal costs - their own, the Ombudsman's and the Financial Services Provider. It is not unreasonable to assume that they would be at least €100,000 each or €300,000 in total. Given that the maximum award is €250,000, it is rarely going to be worth the while of an ordinary consumer to appeal the Ombudsman's decision to the High Court.

It will often be in the bank's interest, as there is usually a number of decisions of a similar nature and it's worth their while getting an unfavourable decision overturned as in the case of PTSB.
 

Brendan Burgess

Founder
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44,659
In some cases, the customer seems to take the case against the Ombudsman.

In others, they take it against the Ombudsman, with the financial services provider as a notice party.

In yet others, they take it against the financial services provider, with the Ombudsman as a notice party.

I don't understand this.
 

DingDing

Registered User
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269
Brenan the list I emailed you only had the Financial Services Ombudsman as a defendant.

It might be necessary to widen the search more as there may be more cases based on this.
 
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