Key Post List of appeals of decisions to the High Court

Brendan Burgess

McEvoy & Anor -v- The FSO and PTSB

The complainant claimed that when fixing for 5 years, he was told that there would be a breakage fee of €100. When he subsequently tried to break, he was charged €16,500. The Ombudsman rejected his claim.

The High Court upheld the Ombudsman's decision.
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Brendan Burgess

This is the only case I can find, where the High Court upheld an appeal by the complainant on a matter of substance. The High Court remitted the decision back to the Ombudsman to take into account matters he had not taken into account.

Patrick McCabe vs FSO and Zurich

[FONT=&quot]7.2 In determining the matter before this Court, it is abundantly clear that the function[/FONT][FONT=&quot][/FONT]
[FONT=&quot]of this Court is to decide whether the decision of the respondent was vitiated by a serious[/FONT][FONT=&quot][/FONT]
[FONT=&quot]error or a series of such errors. In carrying out this duty, this Court can only review the[/FONT][FONT=&quot][/FONT]
[FONT=&quot]decision of the respondent on the basis of the evidence that was submitted to him by the[/FONT][FONT=&quot][/FONT]
[FONT=&quot]appellant and the notice party. [/FONT][FONT=&quot]It [/FONT][FONT=&quot]is the view of this Court that, on the basis of the written[/FONT][FONT=&quot][/FONT]
[FONT=&quot]and oral submissions put before the Court, the appellant has established as a matter of[/FONT][FONT=&quot][/FONT]
[FONT=&quot]probability that, taking the adjudicative process as a whole, the decision reached was[/FONT][FONT=&quot][/FONT]
[FONT=&quot]vitiated by a serious and significant error or a series of such errors. [/FONT][FONT=&quot]It [/FONT][FONT=&quot]is this Court's view[/FONT][FONT=&quot][/FONT]
[FONT=&quot]that the respondent erred in failing to adequately consider the mitigating steps which the[/FONT][FONT=&quot][/FONT]
[FONT=&quot]appellant undertook in alerting his insurance brokers upon the reopening of its office on[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Monday, the 21[/FONT][FONT=&quot]st [/FONT][FONT=&quot]April 2008. Furthermore the steps taken included the inspections[/FONT][FONT=&quot][/FONT]
[FONT=&quot]organised by the appellant following the incident that occurred on the [/FONT][FONT=&quot]is" [/FONT][FONT=&quot]April 2008 to[/FONT][FONT=&quot][/FONT]
[FONT=&quot]ensure that no further water ingress occurred. The respondent did consider the "Duty of[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Assured Clause" [/FONT][FONT=&quot]within the insurance policy and whilst expressly acknowledging that the[/FONT][FONT=&quot][/FONT]
[FONT=&quot]appellant was not required under that clause to appoint a surveyor the respondent[/FONT][FONT=&quot][/FONT]
[FONT=&quot]nonetheless concluded that the appellant had failed to take reasonable steps to mitigate[/FONT][FONT=&quot][/FONT]
[FONT=&quot]his loss by not acting on the advice to engage a surveyor to produce a report until October[/FONT][FONT=&quot][/FONT]
[FONT=&quot]2008 which was six months after the claim and in this regard the appellant must take[/FONT][FONT=&quot][/FONT]
[FONT=&quot]responsibility for his failure to act expeditiously. This Court is of the view that the[/FONT][FONT=&quot][/FONT]
[FONT=&quot]respondent erred in failing to adequately consider the mitigating steps that the appellant[/FONT][FONT=&quot][/FONT]
[FONT=&quot]undertook and the fact that the "Duty of Assured Clause" did not require the appellant to[/FONT][FONT=&quot][/FONT]
[FONT=&quot]appoint an assessor but rather to "take such measures as may be reasonable for the[/FONT][FONT=&quot][/FONT]
[FONT=&quot]purpose of averting or minimising the loss which would be recoverable" [/FONT][FONT=&quot]under his[/FONT][FONT=&quot][/FONT]

[FONT=&quot]7.3 [/FONT][FONT=&quot]In light of the Court's finding in respect of this ground, it is unnecessary for this[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Court to consider whether the respondent erred in failing to conduct an oral hearing on[/FONT][FONT=&quot][/FONT]
[FONT=&quot]foot of the conflict of evidence which arose from the documents before him in reaching[/FONT][FONT=&quot][/FONT]
[FONT=&quot]his decision.[/FONT]

[FONT=&quot]7.4 [/FONT][FONT=&quot]This Court is required to consider the adjudicative process adopted by the[/FONT][FONT=&quot][/FONT]
[FONT=&quot]respondent as a whole to see if the decision made was vitiated by a serious and significant[/FONT][FONT=&quot][/FONT]
[FONT=&quot]error. This Court concludes that there is a sufficient basis made out by the appellant[/FONT][FONT=&quot][/FONT]
[FONT=&quot]which would merit intervention by this Court in respect of the decision made and in this[/FONT][FONT=&quot][/FONT]
[FONT=&quot]regard the Court will make an Order pursuant to s. 57CL (1) and s. 57 CM(1) and (2) of[/FONT][FONT=&quot][/FONT]
[FONT=&quot]the Central Bank Act 1942 (as inserted by s.16 of the Central Bank and Financial[/FONT][FONT=&quot][/FONT]
[FONT=&quot]Services Authority of Ireland Act 2004) remitting the decision of the respondent to the[/FONT][FONT=&quot][/FONT]
[FONT=&quot]respondent for further review.[/FONT][FONT=&quot][/FONT]

Brendan Burgess

PTSB vs FSO Feeley and Gallagher 16 November 2012

Feeley and Gallagher had a right to a tracker when their fixed rate expired.
They broke their fixed rate and lost their right to a tracker.
The Ombudsman upheld their complaint
The High Court ruled

" This Court is of the view that there were a combination of serious and significant errors in the finding of the Financial Services Ombudsman dated 21st February 2011, in that the conflict of evidence between the Notice Parties and the Appellant in respect of the events on 8th and 9th January 2009, was not addressed, and the legal relationship of fiduciary was incorrectly applied to the parties, and as a result of this a finding of misrepresentation by silence was incorrectly made
The Court is of the view that the appropriate remedy is to remit the matter back to the Financial Services Ombudsman for review."

It's a pity we don't know what transpired in the rehearing of the case.


Brendan Burgess

Thomas and Claire Ryan vs. The Ombudsman 2010 - ptsb notice party

permanent tsb did not disclose a transcript of a recording during the FSO hearing.

The High Court upheld the appeal and told the Ombudsman to rehear the case.

Other interesting comments. In general when appealing to the High Court, the appellant is not allowed to make new arguments or to provide fresh evidence.