Coleman v Financial Services Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 08 April 2016
• Neutral Citation: [2016] IEHC 169
• Docket Number: [2015 No. 130 MCA ]
• Date: 08 April 2016
• Court: High Court

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 57 OF THE CENTRAL BANK ACT 1942 (AS INSERTED BY SECTION 16 OF THE CENTRAL BANK FINANCIAL SERVICES AUTHORITY OF IRELAND 2004)

BETWEEN

JEREMIAH COLEMAN

AND

MARY COLEMAN

APPELLANTS

AND

THE FINANCIAL SERVICES OMBUDSMAN

RESPONDENT

AND

ALLIED IRISH BANKS PLC

NOTICE PARTY

[2016] IEHC 169

[2015 No. 130 MCA ]

THE HIGH COURT

Banking & Finance – s. 57 of the Central Bank ACT 1942 – Loss of Withdrawal of Fund – Request for an Oral Hearing.

Facts: The appellants sought an appeal seeking an order setting aside the finding of the respondent that refused to hold an oral hearing in the matter. The matter relates to a withdrawal of a sum from the current account maintained by the appellants. The appellants contended that the said purported withdrawal had been made with a view to complete the necessary forms to open the Advantage account and not for any other purpose. The documents furnished by the bank showed that the fund had been withdrawn in cash. The appellants now challenged the respondent's denial of a request for an oral hearing.

Mr. Justice Noonan held that the appeal for an order setting aside the finding of the respondent that refused to hold an oral hearing in the matter would be dismissed. The Court observed that an oral hearing would not have advanced the state of affairs. The Court held that in reaching a conclusion and denying the request, the respondent acted within the jurisdiction.

JUDGMENT of Mr. Justice Noonan delivered the 8th day of April, 2016.

1 In this appeal, the appellants (Mr. and Mrs. Coleman) seek an order setting aside the finding of the respondent ('the FSO') of the 30th of March, 2015. The appellants' core claim concerns the alleged failure of the FSO to hold an oral hearing into their complaint.

Background.

2 Mr. and Mrs. Coleman are both retired. For many years, they had a current account with the notice party ('the bank') at its branch in Ballincollig, County Cork. Mr. Coleman was a painter by trade prior to his retirement. The current account maintained by the Colemans was designated a business account. As such, certain bank charges and fees were levied on this account. In or around March 2013, Mrs. Coleman became aware that an alternative form of current account known as an 'Advantage Account' was available with the bank for persons over the age of 65 years which had the benefit of no bank charges or fees being applicable to it. Mrs. Coleman says that she went into the branch with a view to discussing opening such an account.

3 Mr. and Mrs. Coleman's business account, designated as their 'No. 1' account was the only account they had with the bank in March 2013. Their bank statements show that as of the 22nd of March, 2013, there was a balance of €9,418 in that account. On the 26th of March, 2013, Mrs. Coleman attended at the branch. She alleges that she did so with a view to completing the necessary forms to open the Advantage account and not for any other purpose.

4 However, the documents furnished by way of evidence to the FSO show that the sum of €9,418 was withdrawn in cash from the Coleman's No. 1 account on that date. A withdrawal form appears to have been signed by Mrs. Coleman for the amount of €9,418. Although there was some dispute as to whether it was her signature on the document, it was ultimately conceded by Mrs. Coleman that it was. The back of the withdrawal form was completed by a teller at the Ballincollig branch, Ms. Carmel Walsh, who has over 30 years experience in her position. The form completed by Ms. Walsh noted that Mrs. Coleman had produced photographic identification in the form of a passport and the passport number was noted by Ms. Walsh who also identified herself by reference to her staff number on the same document. She also wrote a 'C' on the docket to indicate that the withdrawal was made in cash. Further, Ms. Walsh confirmed in her statement that the bank's records show that the cash reconciliation at the end of the day's business on the 26th of March, 2013, balanced correctly indicating that a sum of €9,418 had been paid out in cash. Furthermore, the bank's computer records also tally with a cash withdrawal in the relevant amount having been made on the day in question.

5 Mrs. Coleman is adamant that she made no large cash withdrawal from the bank on that date or any other date and has furnished detailed reasons as to why that should be so.

6 However, Mr. and Mrs. Coleman were furnished with a bank statement dated the 28th of March, 2013, two days later, which clearly shows the withdrawal. Mrs. Coleman says that she did not pay any particular attention to this because she assumed that the money had simply been transferred from the No. 1 account to their new Advantage account. Again however, the undisputed evidence is that the Advantage account was not in fact opened until the 17th of April, 2013, some three weeks after the alleged cash withdrawal. The No. 1 account was closed on the 2nd of May, 2013.

7 The Colemans do not appear to have received a bank statement in respect of the new Advantage account until the 17th of October, 2013, and that account has a zero opening balance as of that date and does not show any credit of the €9,418. This appears not to have been noticed by the Colemans and it was not until about a year later, in May of 2015, that Mrs. Coleman says that she realised the money had disappeared. She immediately raised the matter with the bank and asked her solicitor, Mr. Long, to write to the bank setting out their version of events and asking for a meeting to discuss matters. The branch manager responded on the 19th of May, 2014, to Mr. Long's letter setting out the history of the transaction as indicated above. In this letter, the manager, Ms. Cassidy, advised Mr. Long that the Colemans were entitled to have the matter referred to the FSO if they so wished.

8 Mr. Long was thereafter not further involved in the matter as he had a personal conflict. Mrs. Coleman herself lodged a complaint with the FSO about the matter on the 9th of June, 2014.

The Finding of the FSO.

9 The FSO's finding was issued on the 3rd of March, 2015, by Mary Rose McGovern, the officer designated as head of the investigation. In it, the FSO reviewed the complaint and all the evidence adduced by both parties. An oral hearing was not requested by either party and in this regard, the FSO said:

'Having reviewed and considered the submissions made by the parties to this complaint, I am satisfied that the submissions and evidence furnished do not disclose a conflict of fact such as would require the holding of an oral hearing to resolve any such conflict. I am also satisfied that the submissions and evidence furnished are sufficient to enable a finding to be made in this complaint without the necessity of holding an oral hearing.'

10 It is this determination in particular to which the Colemans take exception. They also dispute the substantive finding made at page 8:

'Having carefully examined and considered the submissions made by the parties to this complaint, I am satisfied based on the evidence before me that, despite the provider's employee not completing the ' large cash request/withdrawal check list' and stamping the withdrawal docket, the first complainant made a cash withdrawal in the sum of €9,418 on the 26th of March 2013, over three weeks before complainant's new current account was opened on the 17th of April 2013. It is clear that the complainants were put on notice of the recording of the withdrawal of the sum of €9,418.00 by the provider, when it issued the complainants business current account statement to them on the 28th of March 2013. I also note that the provider issued statements for the complainants' business current account to them on 5 April 2013, 12 April 2013, 19 April 2013, 26 April 2013 and 2 May 2013 without any issue whatsoever being raised. Furthermore, the complainants were put on notice that the sum of €9,418.00 was not transferred to their new Advantage current account...