Ulster Summary of Ulster Bank's challenge to the Ombudsman decision

Brendan Burgess

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This is based on Joe Brennan's Irish Times report


April 2004 took out a mortgage on a one year reduced rate which would default to the home loan rate after the end of Year 1.
Early 2006 Moved to a tracker loan signing a "flexible mortgage transfer form"
May 2007 Fixed until August 2010 - signing a "fixed rate authority" which said that if the borrower did not choose an option at the end of the fixed rate period, it would default to the bank's home loan rate.
October 2008 - Ulster stopped offering trackers to new customers.
August 2010 - fixed rate ended, borrowers did nothing, so defaulted to the bank's home loan rate i.e. the SVR
 
From yesterday's Irish Times, the second case seems a bit different.

The second case relates to a mortgage involving an Ulster Bank staff member that started off on a tracker rate. The customers opted in 2007 to move as much of the loan as possible, amounting to over €90,000, on to Ulster Bank’s preferential staff rate, which was set at 3 per cent a year, fixed for the term of the loan.

The borrowers decided in December 2010 that they wanted to transfer that facility to a tracker rate, as ECB rates were falling at the time. Ulster Bank said at the time that it was not in a position to do that, the court heard. The FSPO decided last year, however, that these borrowers also had an “enduring contractual entitlement” to a tracker loan.


So he started on a tracker.
Moved €90k to the staff fixed rate.
Wanted to return to the tracker and the bank said no.
 
It seems to me that both cases depend on the wording of the documentation and the clarity of that wording.

The Ombudsman made decisions.

The High Court will only quash those decisions if they are "vitiated by a serious and significant error". The High Court might disagree with the opinion of the Ombudsman, but recognises his specialist knowledge in the area.

"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."
 
I was in the Court today and I am locking the thread as I don't want any speculation on a live court case.

I was not there for the first three days, so I am inferring Ulster Bank's case from the defence put by the Ombudsman's Counsel.

The meat of the case as put by the Ombudsman's Counsel

The Flexible Mortgage Transfer form said "the margin is fixed for life of the home loan"
This marries with the "Fixed Rate Form"

The Flexible Mortgage Transfer form had no caveats. It did not say "it is fixed for the life of the loan, but you will lose it if you ever fix your rate"
The "Fixed Rate Form" did not say "By fixing you will lose your tracker"

Both Ulster Bank and the Ombudsman say "it couldn't be clearer" but in the opposite direction.
Ulster Bank says : Obviously you will lose your tracker
The Ombudsman says: It's clear that you won't lose your tracker.
Ulster Bank says: There was no need to say that they will lose their tracker, because it's obvious.

Ulster Bank says that the Ombudsman made a serious and significant error in this decision which is enough to vitiate his decision.

Counsel said the key question to be answered is "Is the Fixed Rate Agreement entirely clear that they would lose their tracker?"

In 2010 at the end of their Fixed Rate, they got notice of the new rates which said "If you are on a tracker, if you choose a fixed rate you will lose that tracker".

"Why" counsel asked "was it necessary to say that if it was already crystal clear when they fixed in 2007?"
 
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In the original complaint to the Ombudsman made by the mortgage holder, he had two parts
1) That defaulting to the Home Loan rate meant the tracker rate and not the SVR
2) He expected to be put on the tracker rate.

The Ombudsman ruled against him on the first argument that it was clear that the home loan rate was the SVR and not a tracker rate.

Ulster Bank had argued that the Ombudsman is not entitled to make a decision based on a complaint which the borrower did not make. Once the Ombudsman had ruled that the Home Loan rate was not a tracker rate, he should have dismissed the complaint.

The Ombudsman argued that part 2 of the complaint clearly indicated that there were other issues to be heard.
 
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Counsel for the Ombudsman started by saying

I have been very quiet for the last few days. I might have interjected on many occasions but chose not to when Counsel for Ulster wove a thicket of argument
  • Ulster Bank was making points which were not pleaded
  • Making points more appropriate to a judicial review
  • making points disconnected from the findings of the Ombudsman
  • Making points which were not before the Ombudsman


This case is fairly straightforward. I will focus on Case A. (Reporting restrictions mean that the borrowers in the three cases cannot be identified.)

At the heart of the case are two points:
1) The contract point
2) The Duty of Care point ( Ulster Bank had a duty to explain the implications of fixing for losing the tracker.)

This is not a Judicial Review.

This is a statutory appeal. Points not made before the Ombudsman should not be before the court.

The question to be answered is whether the Ombudsman made a significant and serious error in upholding the complaint.

I will set out my case in 5 stages;
1) The statutory framework and tests
2) The chronology
3) The Tracker Mortgage Examination and the Tracker Mortgage Investigation (I was not sure what TMI referred to)
4) The FSPO decision
  • The Contract
  • The Code
  • The Oral Hearing
5) The non issues
  • Former FSPO decisions
  • Similarity in decisions
  • Reasons point
 
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Part 1 - The Legislative Framework

There followed a superb lesson for about two hours on the legal framework. It was worth attending for this alone.

Section 12 of the FSPO Act 2017 provides

(11) Subject to this Act, the Ombudsman, when dealing with a particular complaint, shall act in an informal manner and according to equity, good conscience and the substantial merits of the complaint without undue regard to technicality or legal form.

The Judge asked: Is this unusual?
Counsel replied that she did not know of any other similar operating instructions other than the Refugee Board (?) which must operate in an expeditious manner.

It is ironic that we have had three days of legal argument which is something we are instructed by statute not to do.

The investigation shall be proportionate.

56. (1) The conduct of investigations under this Part shall be undertaken as the Ombudsman considers appropriate in all the circumstances of the case and in a manner that is appropriate and proportionate to the nature of the complaint.

Something about it should be noted that Consumers generally represent themselves when making complaints.

The Ombudsman is entitled , but not obliged, to issue a preliminary decision.

The Ombudsman proposed to send this decision to the Central Bank. In 2021, The Ombudsman sent 13 decisions to the Central Bank where he thought they might have implications for others. But the CB says "Thank you very much" and gives no feedback to the Ombudsman afterwards. So the Ombudsman only knows if the CB takes any action if he reads about it in the papers.

It is only since January 2018 that he is required to publish his decisions.

Section 60 of the Act sets out grounds on which the Ombudsman can uphold the complaint.

(2) A complaint may be found to be upheld, substantially upheld or partially upheld only on one or more of the following grounds:

(a) the conduct complained of was contrary to law;

(b) the conduct complained of was unreasonable, unjust, oppressive or improperly discriminatory in its application to the complainant;

(c) although the conduct complained of was in accordance with a law or an established practice or regulatory standard, the law, practice or standard is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its application to the complainant;

(d) the conduct complained of was based wholly or partly on an improper motive, an irrelevant ground or an irrelevant consideration;

(e) the conduct complained of was based wholly or partly on a mistake of law or fact;

(f) an explanation for the conduct complained of was not given when it should have been given;

(g) the conduct complained of was otherwise improper.




She then went through the case law on the matter. This is very difficult to summarise. They had all the cases set out before them.

Basically the High Court can only overturn a decision of the Ombudsman if, taking the adjudicative process as a whole, it is vitiated by a serious and substantial error or series of serious and substantial errors.

So they must take the adjudicative process as a whole. If it's an error relating to one aspect of it, it does not necessarily vitiated the whole decision.

The High Court must show deference to the Ombudsman who has specialist expertise in the area. The High Court might not have made the decision that the Ombudsman made, but that is not the point. The Ombudsman is an expert.

The High Court must resist the temptation to start a de novo hearing of the case. In one case where it did happen, (Millars) the Ombudsman successfully appealed to the Court of Appeal who overturned the High Court decision.

(The Millar's case is so important that I have attached the full judgements of two of the judges to this post. It is a great summary of the issues involved in appealing a decision of the Ombudsman)


Apparently, Ulster Bank had suggested that two judgements (Lloyds and Utmost?) had questioned this "curial deference" to the Ombudsman.

Ulster Bank had asked the court to come to its own conclusions on what the contract meant.

Counsel for the Ombudsman was clear that the court should not second guess the Ombudsman.

This is my [Brendan Burgess] interpretation of what this means:

It is agreed that the High Court should not defer to the Ombudsman on a point of law. If the Ombudsman is seriously wrong on a point of law, the High Court is entitled to so find.

But most issues are a mix of questions on law and fact and, for example, the Ombudsman is entitled to interpret a contract as not clear.

The judge was very engaged on this issue asking a lot of questions.

Counsel argued that it is totally irrelevant what decisions a court would come to. The Ombudsman is entitled to form his own expert opinion and is entitled to be wrong.

The decision of the Ombudsman does not have to be as formal and as well laid out as the decision of the court. ( I assume that Ulster Bank argued that the Ombudsman did not clearly set out his reasons.)


[I had to leave the court for a few minutes due to a fit of coughing]

The nature of the jurisdiction of the Ombudsman was being discussed. The Ombudsman can conclude that there was no breach of the law but it's still unfair to the consumer and so uphold a complaint.

In another case Justice McMenamin (?) said that the lender had a duty to explain the implications of restructuring a mortgage.

She discussed what was the measure of reasonableness of the Ombudsman and acknowledged that the Ombudsman did not have carte blanche to find anything reasonable. This was based on a decision published last week in the Hiscox case .

56. The terms “unreasonable”, “unjust” and “improper” are not specifically defined in the Act of 2017. While it is for the FSPO to decide whether particular conduct is to be characterised under any such term, and while due deference must be given to the Decision of the FSPO in that regard, this does not mean that the FSPO has carte blanche to so characterise any behaviour or to do so without identifying the reasons and evidence for doing so.
57. By their nature, such terms may not be capable of precise and exhaustive definition. However, it remains incumbent on the FSPO to identify the particular conduct so found and the
reasons for that finding, as well as the evidence supporting same.



We must defer to the Ombudsman in evaluating whether particular contract terms are clear or not, given his expertise in dealing with consumers.

From the Hiscox decision:
66. This case, at least as regards the findings of unreasonable and improper conduct, might be
seen as a marginal one, and it may be that a Court could take a different view of the conduct, but
it is for the FSPO to make such marginal calls and provided this is done within the ambit of the
deference to be given to the FSPO then it is not for this Court to strike down such findings or
substitute alternative findings. I regard the findings made by the FSPO in respect of the provider’s
conduct in this instance as falling within that ambit of due deference to be afforded the FSPO. The
provider has failed to establish that such findings by the FSPO are vitiated by a serious and significant
error or a series of such errors.





The Judge interjected at this stage to query the point raised by Ulster Bank about the Ombudsman's lack of explanation for their decision and which part of the CPC had been broken. What was the conduct complained of?

Counsel for Ulster Bank replied that the Ombudsman's written decision was not perfect, nor was it required to be perfect or the standard of the High Court. The standard for the Ombudsman is lower, although not eliminated. Frankly the argument that Ulster Bank does not know what the conduct complained of is "laughable" - (not sure what exact word she used.)

The standard of the High Court does not apply to an Ombudsman's (written?)decision or the decisions of an administrative body. A decision does not have to be perfect. It can contain mistakes but that does not vitiate it.

Ulster Bank had argued that the curial deference was effectively confined to situations where the FSPO had some specific expertise not available to the High Court.

The judge intervened to ask what specialist expertise the Ombudsman had to which Counsel for the Ombudsman replied that he dealt with issues of mortgages, mortgage rates and insurance every day.

She finished this section with the following summary
1) Curial deference is accepted
2) Except on issues of pure law
3) Deference applies to instances of mixed law and fact.
4) Deference applies when there is confusion or lack of clarity
5) Deference may apply on contracts where there are issues of facts
6) It is wrong to ask for a de novo interpretation of the contract.
 

Attachments

  • Millar Court of Appeal Great summary.pdf
    79.9 KB · Views: 124
  • Millar Court of Appeal Finlay Judgement decision.pdf
    51.2 KB · Views: 118
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Counsel for the Ombudsman then went through two cases where the High Court had quashed decisions of the Ombudsman and the Valuations Tribunal. These cases had been raised by Ulster Bank to show that there are limits to curial deference.

She argued that the issues in these cases did not apply to the current case.
 
Stage 2 Chronology

This was the afternoon session and she started by restating that the issue is actually a very simple one and should not be lost "in the thicket spun by counsel for Ulster Bank".

She then outlined the meat as I have outlined in the first post.

Ulster Bank had argued that the Ombudsman had arrived at the opposite conclusion in four previous cases. The FSPO had said that this was an unhelpful observation. No precedent applied. The borrowers did not get copies of the previous cases.

This was the only time that Counsel for Ulster Bank interrupted. And he said that the Ombudsman's Guidelines for drafting decisions were on his website. I didn't follow this point.
 
TME/TMI

For me this was the most interesting part. The part where I wanted to stand up and interrupt.

Ulster Bank had argued that the cases were considered as part of the Central Bank's Tracker Mortgage Examination.
Counsel for the Ombudsman referred again to the "thicket of argument that surrounds the key issue."

She asked what is the significance of the argument raised by Counsel for Ombudsman? It is still unclear.

Ulster Bank had argued that the Central Bank had permitted Ulster Bank to conclude its TME knowing that Ulster Bank had deemed these customers not impacted. And the FSPO had failed to consider the findings of the Central Bank on this matter.

Counsel for Ulster Bank (or the Ulster Bank affidavit) had quoted extensively from the comments of the Ombudsman before the Oireachtas Finance Committee about his role. But the affidavit was wrong in that when the Ombudsman referred to "the bank" he was not referring to Ulster Bank but to the Central Bank.

Counsel for the Ombudsman argued
1) It was not the role of the Central Bank to review individual cases but cohorts.
2) This was not argued before the Ombudsman so it could not be raised now anyway as part of the appeal.

It is very difficult to know what the legal point being raised by Counsel for Ulster Bank is.

Ulster Bank had argued that the CBI permitted UB to conclude the TME knowing that these customers were deemed "not impacted". The Ombudsman had erred in not taking the findings of the TME into account.

[not sure if I got the next bit right] But UB made no submission on the TME to the Ombudsman, so they cannot raise it now in this appeal.

The Ombudsman argued that the role of the Central Bank was just to set the parameters for the investigation and not to consider the individual facts of the case.

The Ombudsman is doing a different job from the Central Bank in hearing consumer complaints.

Counsel for the Ombudsman then complimented Counsel for the Ulster Bank with a quote from Justice Hogan in another case ""This, undoubtedly, is a sophisticated and clever argument which, for example, had it been advanced in an undergraduate law examination would have attracted high praise from the examiners as an original demonstration of legal craft and skill. ." [ I was delighted with this as I have often quoted this at the AGMs of banks and in newspaper articles. I had not realised it was quoted in the courts and obviously well known in legal circles.]
 
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Some other points raised by Counsel for the Ombudsman

UB has argued that the Ombudsman has no jurisdiction to hear this complaint [ not sure why but it may have been because the TME ruled that the borrower was not impacted]

Counsel for the Ombudsman argued:
  • The time for arguing this was when the complaint was submitted
  • On conclusion of the borrower’s complaint to UB, they wrote to them telling them t hat they could go to the Ombudsman
  • The argument that the Ombudsman has no jurisdiction because the TME determined that he was not impacted, means that UB could determine who could go to the Ombudsman and who could not.
The bank could have made a lot of the submissions it is now making in response to the preliminary decision, but it did not do so. It can’t make those submissions now.

According to Counsel for Ulster Bank

  • The Ombudsman erred in law in saying that the Flexible transfer form amended the original contract.
  • The borrower can’t have reasonably believed that they would have a right t a tracker ad infinitum.
  • The role of previous decisions. There were 4 previous decisions on this issue upholding UB’s side of the story.
This was quoted by Counsel for the Ombudsman, but I had not realised its source.

70. As Hyland J. noted in Danske Bank at para 27:-

“27. Those subsections make it clear that the Ombudsman both has jurisdiction to uphold
on grounds involving what I might describe as black letter law issues i.e. contrary to law, or
based on a mistake of law but also to uphold on grounds where there has been no breach of
law at all, including quite strikingly upholding a complaint where the conduct is in accordance
with law, but the Ombudsman holds that the application of that law was detrimental to the
complainant. The breadth of the Ombudsman’s jurisdiction under s.60(2) cannot be
underestimated: he or she is effectively given a jurisdiction to override the law in certain
situations, in the sense that although a complainant may have no remedy in law, including
under the law of contract, nonetheless they can have their complaint upheld. In other words,
a financial service provider can act perfectly lawfully but nonetheless find that a complaint
is upheld against it carrying with it an obligation to make specified redress.”
 
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I wrote my initial report on Friday evening in a hurry. I have now updated it significantly with the relevant quotes from the legislation and the links to the very important decision in the Millar case.
 
I was present for Day 5 today where the FSPO's Counsel Eileen Barrington continued her case.
Today she covered

4) The FSPO decision
  • The Contract
  • The Code
  • The Oral Hearing
5) The non issues
  • Former FSPO decisions
  • Similarity in decisions
  • Reasons point
It was quite repetitive and probably necessarily so to emphasise points already made.

A lot seems to turn on the grounds on which the FSPO upholds a complaint. It's quite formal, and he must follow one or more of the following:

(2) A complaint may be found to be upheld, substantially upheld or partially upheld only on one or more of the following grounds:
(a) the conduct complained of was contrary to law;
(b) the conduct complained of was unreasonable, unjust, oppressive or improperly discriminatory in its application to the complainant;
(c) although the conduct complained of was in accordance with a law or an established practice or regulatory standard, the law, practice or standard is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its application to the complainant;
(d) the conduct complained of was based wholly or partly on an improper motive, an irrelevant ground or an irrelevant consideration;
(e) the conduct complained of was based wholly or partly on a mistake of law or fact;
(f) an explanation for the conduct complained of was not given when it should have been given;
(g) the conduct complained of was otherwise improper.

In the Lloyds case, The FSPO upheld the complaint on grounds B&G which seemed to conflict with C. Miss Justice Phelan said it was ok to set aside one part of the Ombudsman's decision but uphold the overall decision if the other two parts were not quashed.
 
The core of the case is the decision itself.

Counsel said the UB's criticism of the decision seems to be based on some erroneous and undefined legal theory.

She reminded the court that the Ombudsman has a hybrid jurisdiction and can uphold a complaint based on the impropriety of the provider even if their conduct is not illegal or a breach of contract.

There are two points to be discussed
1) The contract
2) The duty of Ulster Bank to clearly explain the implications of fixing the rate

Even if one fails but the other stands, the decision overall must stand.

The Ombudsman decided that the borrower had a contractual entitlement to a tracker from the time they signed the Flexible Transfer Form which gave them a tracker for the life of the mortgage. This was not an immutable entitlement. Ulster Bank could have added a caveat e.g. that you have a tracker for the life of the mortgage unless you fix the rate. But they added no such caveats.

This is probably not surprising as in 2006 they were still offering trackers.

Ulster had a duty to notify the borrower that by fixing they would lose their tracker and they did not do so.

The Fixed Rate Authority was silent on whether it had an effect on the contractual entitlement to a margin of 1.15%.

The provider owes a duty to the customer to make sure all products are understood and this has been upheld in many court cases.

Judge asked: Is the failure to understand that the tracker would be lost based on the bank's duty to explain or on the borrower's claim that he didn't understand the contract?

Counsel: The Ombudsman made an objective assessment of the documentation. The only issue is whether this decision is objectively fair.

Back to the contractual terms. Ulster Bank has argued that the customer cannot have reasonably believed they would keep their tracker - they fixed for 5 years. What did they think would happen after 5 years?

The issue is that at the end of the fixed rate, the bank did not offer the tracker rate. Was the intended effect of the Fixed Rate Agreement clear to the borrower?
 
The Utmost case is very relevant and was revisited.

To decide on whether the Ombudsman's decision is reasonable, look at the relevant codes.

One of the general principles is that the provider must provide all relevant information.
Provider owes a duty to act in the best interest of the customer.

One of Ulster's arguments was that the Ombudsman was relying on a code not yet in force. But the general principles were in force.

The test for the court is "Is the FSPO reasonably entitled to think..."

It is clear from case law, that the decision should be based on the objective evidence of the wording of the documentation and not on some subjective interpretation of what the lender intended.

The bank argues that it is self-evident that the Fixed Rate Agreement ends the tracker. The Ombudsman thought otherwise.

Apparently Ulster had raised the Tanager vs. Kane case where the judge ruled that the documentation showed that the fixed rate was in lieu of the tracker. But that was a different case. It was Kane defending against a possession and did not involve the Ombudsman. And we do not know the wording of the Tanager mortgage and it may well have made it clear that the fixed rate ended the right to a tracker.

This is a contractual point. It must be interpreted by reference to the "pope". I could not figure out what word they were using. Sounded like pope. Could have been code.

Ulster Bank says "You judge must decided what the contract means and you must decide if it meant that there was an end to the tracker" But we say "No, you can't hear this case de novo. You must follow the Utmost guidance and only overturn it if you believe that "no reasonable Ombudsman could come to this conclusion." You must defer to the Ombudsman.
 
She then moved on to issues surrounding the Consumer Protection Code.

Ulster Bank seems to be concerned that the FSPO did not articulate the rationale.

Justice Hogan asked in the ILP case "What are the duties of the bank?"

In that case, the borrower Thomas had gone to ILP for advice. He was poorly advised, There was a tacit silence - encouraging him to break out of a fixed rate early so that he would lose his tracker.

The bank should have spelled out the potentially serious adverse consequences - especially if the borrower went looking for advice.

She then referred to the Healy case and the "hummingbird(?)" test.

There is no disagreement between the sides on the legal status of the code.

The finding on part (a) contrary to law was based on the contract. The finding on part (g) that the conduct was otherwise improper was based on the code.

Ulster Bank had argued that if the court finds that the contract was not broken, but that the conduct was otherwise improper, then it does not follow that the borrower should get their tracker back as the Ombudsman had ordered.

Counsel for the Ombudsman disagreed. In the Danske case, the only issue was improper conduct there was no contract issue and the High Court did not object to the tracker being restored.

The IL&P case was also grounded on (g) alone - improper conduct and the restoration of the tracker was the result which Justice Hogan did not overturn.

They adjourned for lunch. To be continued...
 
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The Oral Hearing issue

I found this difficult to follow.

UB made this point in the response to the Preliminary Decision, but apparently the FSPO did not deal with it in the final decision.

I think that that Ulster's argument is:
We say that the borrower understood that he would lose his tracker.
He said that he did not understand that. We need to probe that assertion that he did not understand it.
This is a clear conflict of fact and should have been the subject of an oral hearing.
The Ombudsman ruled that the disagreement on facts was not so significant to warrant an oral hearing.

The Ombudsman's argument seems to be that his decision was based on the contract and the consequence of the Fixed Rate Agreement.

There was an exchange of letters after the Preliminary Decision and Ulster Bank felt that the Ombudsman was not engaging with the issues raised.
 
Part 5 Extraneous issues

Extraneous Issue no. 1: Former decisions of the FSO

The former Ombudsman (Bill Prasifka) had rejected 4 complaints on this issue over the years.

Ulster Bank argued that while it is acknowledged that each case is judged on its merits and does not form a precedent, the fact that one Ombudsman found in the opposite direction 4 times must "bear consideration". The current Ombudsman seemed to abandon the "logic and rationale" of the former Ombudsman. (Again I stress that I am inferring this argument from the response of Counsel for the FSPO - Counsel for Ulster Bank did not speak.)

Apparently Ulster Bank sent in the 4 case numbers of the previous cases in their submissions to the Ombudsman. The Ombudsman objected to this on the grounds of the risk of GDPR being compromised. Ulster Bank then sent in the dates of the judgements.

Counsel for the FSPO said that Ulster Bank could have sent in anonymised cases but didn't do so. There was an inequality of arms because the borrower did not have access to these cases but Ulster Bank had.

Ulster Bank's Mr Stanley's 2nd affidavit "slips the moorings of the 1st affidavit". (I have no idea what this meant but I liked the analogy anyway.)

Counsel for the FSPO said that it was not clear which ground of appeal this argument related to?

There is no rule of law being broken. No ordering of conduct.

The decisions had not been sent to the complainant. They were not even included in the evidence before the court.

There was then a discussion of comments made before the Oireachtas Finance Committee about the importance of publishing the Ombudsman's decisions. But I didn't understand the implications of this.

Counsel for the FSPO stressed that the Ombudsman's process was an informal one and there was no need to explain their departure from previous decisions.

Counsel for Ulster had argued that consistency in decision making is a legal value in and of itself.

The Judge intervened to say : Ulster's Counsel seemed to argue that it was ok to depart from previous decisions but that the Ombudsman should explain why.

The Ombudsman had said in his decision "it is unhelpful of UB to raise these previous cases"

The Judge asked : Is the Ombudsman entitled to criticise the bank in this way?

Counsel for the FSPO said he was not criticising Ulster as such, but was saying

1) I don't propose to refer to previous judgements
2) Ulster has acknowledged that they do not create precedents
3) There has been no abandonment of logic
4) It's unhelpful to raise these cases
5) Each case is judged on its own merits

There followed some case law in other administrative decision makers (i.e. not Ombudsman appeals) to justify the Ombudsman's position.

It seemed to be the inverse of what is happening in this case. The Refugee Appeals Commission (?) had ruled against some appeals but had access to previous cases which the appellants didn't have.
 
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