FS&PO and adjudicated decisions

WhiteCoat

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When the mediation bit has run aground, how does the adjudication bit work with the Ombudsman?

What are the advantages & disadvantages of going the adjudication route versus going directly to the High Court?

Can one back out of the adjudication route at any stage?

Any insights into any of this appreciated.

Also, how have people found the Ombudsman's decisions generally - fair, well reasoned, other?
 

TrackerThieves

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The way I believe the process to work is as follows. The first phase is the resolution or mediation phase. Either party can opt out of this and proceed to the the 2nd/investigation phase which in turn leads to adjudication. I'm not sure why anyone would want to opt out at the adjudication stage. If you have gotten to this stage surely you would like to know what decision the fspo has come to and if you still disagree then proceed with the courts. I don't see the point of getting this far to back out. Maybe I'm missing something
 

Brendan Burgess

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Maybe I'm missing something
Yes, you are.

If the Ombudsman hands down a decision, you can go to the High Court on very limited grounds. The High Court will not second guess the Ombudsman's decision on a point of fact or opinion. There would have to be a huge legal error or a series of very big judgemental errors for the High Court to quash the Ombudsman's decision.

If you go directly to the High Court, the case is heard from the beginning and you would just have to prove your facts on the balance of probabilities.

Brendan
 

Brendan Burgess

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What are the advantages & disadvantages of going the adjudication route versus going directly to the High Court?

This thread is a bit out of date, but the principles are still the same.

Brendan
 

WhiteCoat

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Thank you, Brendan

If someone commences the adjudication route and gets second thoughts about it (mentioned, not so, hypothetically!) - can I back out or is it a case that, once I've engaged, I am committed to seeing it through?
 

Brendan Burgess

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I understand that you can withdraw at any time up to the issue of the Preliminary Decision.

For example, Ulster Bank will sometimes go right up to the brink, and then ask the Ombudsman to put the case on hold while they attempt to resolve it directly with the borrower. They then settle it in full, and their name does not get published so they avoid being named and shamed. And the decision is not published so others who might benefit from it never get to see it.

Brendan
 

WhiteCoat

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Thanks again, Brendan - your time is much appreciated.

It seems clear to me that you are as familiar with this stuff as pretty much anyone.

Maybe it's a language thing - but "I understand" suggests to me an element of doubt and this feeds into my main observation.

The FSPO website talks about the principle of "transparency". I should not have to come on this site to ask my original question and an expert, like you, should KNOW the position. This point should be clearly set out in the FSPO website. This is not, in the slightest, any criticism of you.

Also, the process is not transparent in one other critical aspect which you have mentioned above and also in the referenced thread earlier. The banks know the "game" (the process) inside out - but consumers, by definition the party with a grievance, do not have anywhere near the same visibility, which puts them at a distinct disadvantage. Something really should be done to improve the transparency from the consumers' perspective.

Take the Ulster Bank approach referred to above. Are you saying that UB proceed with the Adjudication process and then ask for an opportunity to go back to mediation? Is this allowed? - where is this stated? - I had thought that once the Adjudication process had commenced, mediation options had expired?
 

Brendan Burgess

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Hi White Coat

The Ombudsman is constrained by law in what they can say.

I am less constrained. I can tell you that in reality, there is no point in going to the High Court after the Ombudsman makes his decision. The Ombudsman obviously can't say that.

Ulster Bank does not go back to mediation. It says that it would like an opportunity to settle this directly with the customer. The Ombudsman will notify the customer accordingly and the customer is free to say "I have no wish to engage in direct dealing with UB - please continue with the adjudication decision." But if Ulster Bank offers you what you had asked for - e.g. a return to the tracker and compensation - you would be foolish not to accept it.

I agree with you fully that the customer is at a disadvantage. However, they are at a much bigger disadvantage in the courts system.

The Ombudsman system, despite its faults, is a huge step forward for customers.

Brendan
 

WhiteCoat

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Thanks again, Brendan,

I do not wish to run the risk of testing the patience of an expert as per your guidelines earlier on in the week! I should probably finish with this post!

The Ombudsman is constrained by law in what they can say.
My point is that there is a gap - an information gap - between what the Ombudsman can say and the Ombudsman actually does say.

I can tell you that in reality, there is no point in going to the High Court after the Ombudsman makes his decision.
I agree. This is true because of the restrictive nature of the appeal which is not obvious when commencing a complaint. Hence the question at what stage can I back out? My supposition is that even you, an expert, are not certain - the info should be clearly available in communication to the complainant and on the Ombudsman's site. Neither is the case.

Is there any way to establish the precise "back-out" point from adjudication, i.e. so that an unrestricted High Court action can be taken?

Ulster Bank does not go back to mediation.....
Have I got this right? UB let the adjudication process commence and then seek to abandon the adjudication process - with the consent of the complainant? By the context, it seems that this tactic has been facilitated by the Ombudsman on multiple occasions. Seems to me like a questionable practice.

The Ombudsman system, despite its faults, is a huge step forward for customers.
Carlsberg! That said, personally, I definitely wish that I had gone for another larger.
 

TrackerThieves

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142
Yes, you are.

If the Ombudsman hands down a decision, you can go to the High Court on very limited grounds. The High Court will not second guess the Ombudsman's decision on a point of fact or opinion. There would have to be a huge legal error or a series of very big judgemental errors for the High Court to quash the Ombudsman's decision.

If you go directly to the High Court, the case is heard from the beginning and you would just have to prove your facts on the balance of probabilities.

Brendan
Thanks Brendan
That makes sense, i couldn't think of any reason why it would be beneficial to skip adjudication.
 

MaxGordon

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New poster here. I saw this thread earlier on in the week and have decided to register to comment on it or at least recount my tale. Just to say also that I like this site very much.

The thread reminded me of my own disappointment with the Ombudsman's decision. He made some statements that were just wrong but my biggest gripe was the black and white nature of the decision.

I felt that my case was not described properly in the final decision. Full disclosure: I saw the final decision and the provisional decision almost at the same time as I had been working overseas on a project. In the letter with the provisional decision, I was given an opportunity to respond by a certain date but because I had been overseas for a few weeks, by the time that I got back, I had only 2 or 3 days to reply to the provisional decision and just didn't get around to it. Truth be told, I was so deflated by the initial decision that I felt that there wasn't much point in replying anyway.
From memory, there was also something about any appeals only being allowed on very limited grounds.

It was a bit strange though that after waiting something like 2 years for the judgement that I effectively only had 2 days to reply to it. I know that I was away for a few weeks but if I had known that it was on its way, I could have asked my mother or sister to keep an eye on my post.

Regarding the decision itself, my feeling was that the Ombudsman had decided the outcome and then quoted parts of my submission and parts of the banks submission to support his decision.

I know that other posters on here have been very pleased with the current Ombudsman and that he is generally seen as an improvement on his predecessor.

I just felt that his judgement was lacking in depth and that it wasn't fair. When you read a judgement from a judge, you can really understand the specific point or points that led the judge to favouring one argument over another. In my case, the Ombudsman found things as "clear" when they were really not clear. It was all very strange. I would have been much more accepting of the decision if he had properly recorded and examined the arguments of both sides and logically explained why one argument was preferred.

I have been following the tracker threads on Askaboutmoney for a long time and I know that my views may not be widely shared. I just think that the Ombudsman's decision in my case should have been more balanced. I remember thinking when I read my decision that if I was a reading the decision in full as a stranger (i.e. as an independent person without knowledge of my case), that I'd have believed (this is me reading it as a stranger) that the complainant (this is me the person who brought the case) was chancing his arm. This is because of the way the decision was written.

I do have one question. Is there somewhere where I can see the judgements of cases where people have appealed the Ombudsman's decisions to the High Court? I would really love to see how a judge evaluated such cases. It won't increase my bank balance or reduce my mortgage repayment but I would have a satisfied smile if there was a line somewhere which goes something like........"there is no rationale basis for the Ombudsman's finding of clarity in this regard, etc...."

Sorry for the long post. If nothing else, even many months later, I still have a deep sense of disappointment with the process and so writing this post has been cathartic.
 
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Brendan Burgess

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Hi Max

You can't really blame the Ombudsman for your failure to respond to the Preliminary Decision.

The Ombudsman is very flexible. I have never seen a request for an extension on either side refused. In fact, I have seen multiple requests from ptsb for extensions given, long beyond when I think that they should have been. So you could have called the Ombudsman and explained that you had just received the decision and he would have given you a further two weeks.

The courts show what is known as curial deference to the Ombudsman. He is regarded as the expert on fact, and they will not second guess him unless his decision is vitiated by a series of very serious errors.

Both sides have appealed and they rarely succeed. It's usually on a point of law. I don't know if the current Ombudsman has had any decision changed by the court. I doubt it.

The Ombudsman now publishes the decisions on his website. So you can read the ones for 2018 and 2019 here:
https://www.fspo.ie/decisions/Court-Judgments/ Let us know if you find anything.

You can find the earlier ones by searching https://www.courts.ie/online-searches although they are very hard to find.

It might be easier to go back and look at the Ombudsman's Annual Report to see if they are listed there.

Having said that, it would be no benefit to you if the High Court found a ruling by the former Ombudsman unsatisfactory. It's the current guy you have a problem with.
 
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Brendan Burgess

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Regarding the decision itself, my feeling was that the Ombudsman had decided the outcome and then quoted parts of my submission and parts of the banks submission to support his decision.
This is just plainly wrong.

You had mediation.
You had an exchange of information.

The Ombudsman looks at the issues and makes his decision.

Of course, he gets facts wrong. But the Preliminary decision allows you to correct them. If they were material, he would have changed his decision.

Brendan
 

Brendan Burgess

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if I was a reading the decision in full as a stranger (i.e. as an independent person without knowledge of my case), that I'd have believed (this is me reading it as a stranger) that the complainant (this is me the person who brought the case) was chancing his arm. This is because of the way the decision was written.
This is a real problem.

There is no cost in taking a case, so some people are chancing their arm. I doubt that the Ombudsman suspects this in most cases.

By the way you can read all the decisions of the Ombudsman on his website so you can see what you think of them generally.

Brendan
 

MaxGordon

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This is just plainly wrong.
With respect, this is just your opinion. I specifically said that it was my feeling/opinion. I also specifically acknowledged that my views may be in the minority. I remain convinced of the accuracy of my opinion.

You had mediation.
Again, with respect, this is exactly the type of comment that I found in the Ombudsman's decision. The truth is that you can't possibly know if I had mediation or not as I never mentioned mediation in my post. Yet you make a blanket statement which may or may not be true. Why do that? [As it happens, the bank refused mediation so I didn't have mediation.]

I know well that I could have gone back to the Ombudsman but I basically had lost confidence in him such was my disappointment with the quality and manner of his judgement which left me very much deflated.
 

Brendan Burgess

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Again, with respect, this is exactly the type of comment that I found in the Ombudsman's decision.
Hi Max

But that is not a material error.

The vast majority of cases have mediation. OK, I made an error assuming you had. But it doesn't invalidate anything.

It's unusual that the bank refused mediation. One possible reason might be that they saw it as a pointless exercise as there was no case to answer.

Why don't you summarise your complaint here and you will get views on the merits of your complaint.

Brendan
 

MaxGordon

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Just for the record, I didn't say that your error was a material error. I just said it was the type of comment that I found in the Ombudsman's decision. What I meant by that is that a supposedly factual statement is made that has actually no basis in fact whatsoever. That's all.

I honestly do not have the motivation to revisit the complaint in detail. My main point is that I was not pleased by the quality of the Ombudsman's decision in my case. I can accept that the decision didn't go my way but it was the quality of the rationale used in arriving at the decision that was so annoying. I had gone to him in good faith with a valid complaint.

Again, I accept that my view may well be a minority view but if you do read the decisions, you will see that there are other people who share my unhappiness. I also need to point out that, from my perspective, I would now actually be quite circumspect as to the accuracy of other published decisions. The reason that I say this is because the one case that I know back to front is not accurately recorded in my opinion.
 

WhiteCoat

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Hi MaxGordon,

For what its worth, my solicitor has made some similar comments to me about the Ombudsman's decisions. It was this that prompted my OP. My solicitor is a lifelong friend and I greatly value his opinion. That said, I may persist with the Ombudsman because the ultimate downside risk of a High Court action, in terms of costs and stress, are probably disproportionate.
 

Brendan Burgess

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my solicitor has made some similar comments to me about the Ombudsman's decisions.
Hi WhiteCoat

The legal profession does not like bodies like the Injuries Board and the Ombudsman as it cuts them out.

Read the published decisions and make up your own mind.

I have seen Ombudsman's decisions which I thought were wrong. But I have seen far more court decisions which seemed wrong to me.

The losing side will always think that the Ombudsman is wrong.

Brendan
 

WhiteCoat

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Hi Brendan,

I get the feeling that you are a staunch supporter of the Ombudsman!

The legal profession does not like bodies like the Injuries Board and the Ombudsman as it cuts them out.
LOL! I appreciate your point here. That is why I said....

My solicitor is a lifelong friend and I greatly value his opinion.
In fairness, I was too subtle here. What I was alluding to is that when a solicitor (or other professional) says something, one certainly does, on occasion, have to be aware of vested interest. As my dad used to put it, you don't ask a barber if you need a haircut. However, my relationship with my solicitor is such that there is not an iota of concern that his comments were in any way conflicted. The "well, he would say that, wouldn't he" reflex is redundant in this case, I believe.
 
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