Donnelly v Financial Services & Pensions Ombudsman
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 08 May 2023 |
| Neutral Citation | [2023] IEHC 228 |
| Court | High Court |
| Docket Number | 2022 No. 207 JR |
[2023] IEHC 228
2022 No. 207 JR
THE HIGH COURT
JUDICIAL REVIEW
The applicant represented himself
Francis Kieran for the respondent instructed by Fieldfisher
JUDGMENT of Mr. Justice Garrett Simons delivered on 8 May 2023
This judgment is delivered in respect of an inter partes application for leave to apply for judicial review. The principal issue to be addressed in this judgment is whether the initial ex parte application for leave was made within time; and, if not, whether the criteria for an extension of time under Order 84, rule 21 of the Rules of the Superior Courts have been met.
The applicant seeks to challenge a decision of the Ombudsman dated 13 December 2021. The impugned decision takes the form of a decision to discontinue the investigation of a complaint which the applicant had made against a financial services provider (Danske Bank). The chronology is unusual in that the decision to discontinue the investigation had only been made at a very advanced stage of the process: the Ombudsman had already circulated his “ preliminary decision” on the merits of the complaint to the parties.
(It should be explained that the practice of the Ombudsman is to circulate a “ preliminary decision” in advance of his formal decision. The parties are afforded an opportunity to make submissions on the “ preliminary decision” within fifteen working days. If no submissions are received, then what is described as a “ legally binding decision” will be issued to the parties on the same terms as the “ preliminary decision”).
It is submitted on behalf of the Ombudsman that the investigation of the applicant's complaint had been discontinued on the grounds that an alternative and satisfactory means of redress is available to the applicant. As discussed at paragraph 13 to 17 below, this rationale is not apparent from the decision-letter.
There is a statutory right of appeal against certain categories of “ decision” made by the Ombudsman: see Part 7 of the Financial Services and Pensions Ombudsman Act 2017. The parties are agreed, however, that the statutory right of appeal does not extend to a decision to discontinue an investigation. Rather, an application for judicial review is the only remedy available to a person aggrieved by such a decision. See, by analogy, the discussion in Suarez v. Financial Services and Pensions Ombudsman [2022] IEHC 46 (at paragraphs 24 to 27).
The applicant filed a statement of grounds and a verifying affidavit in the Central Office of the High Court on 14 March 2022. The applicant has since explained that he had, in fact, prepared the paperwork on an earlier date (10 March 2022) but had been unable to file same in the Central Office in circumstances where the incorrect stamp duty had been paid. The applicant avers that this arose as a result of an error on the part of an official in the stamping office and that it, accordingly, represents a circumstance which was outside his control.
At the time the statement of grounds and verifying affidavit were filed, special procedures governed the listing of applications for leave to apply for judicial review. In particular, the maximum number of applications which would be listed for hearing on any particular Monday was confined to fourteen. This formed part of the public health measures introduced in response to the coronavirus pandemic. The objective being to limit the number of lawyers and litigants who might attend physically in the designated courtroom at any particular time.
Notwithstanding that the paperwork had been filed in the Central Office of the High Court on 14 March 2022, the application for leave was not listed for hearing before a judge of the High Court until 28 March 2022. On that date, the High Court (Meenan J.) directed that the application for leave be made on notice to the respondent. The applicant issued a notice of motion and same was first returnable before the High Court on 31 May 2022. The inter partes application for leave was then allocated a hearing date and the matter ultimately came on for hearing before me on 27 February 2023. There was some confusion at that hearing as to when the application for leave had first appeared before a judge of the High Court. The applicant suggested that he had, in fact, attended before the High Court on or about 14 March 2022. Given this confusion, I directed that the motion be adjourned for a number of weeks to allow enquiries to be made with the relevant registrars as to when the proceedings had first appeared before a judge of the High Court. This enquiry indicated that the matter had, in fact, first appeared before a judge on 28 March 2022.
Lest there be any doubt, however, as to the chronology, I made a further order on 13 March 2023 giving the applicant liberty to file an affidavit expressly addressing the sequence of events leading up to the proceedings appearing before the High Court (Meenan J.) on 28 March 2022. The applicant duly filed an affidavit on 23 March 2023, and a replying affidavit on behalf of the Ombudsman was filed on 6 April 2023.
The application for leave was listed again on 24 April 2023 and judgment was reserved to today's date.
The legal test governing an application for leave to apply for judicial review has recently been considered by the Supreme Court in O'Doherty v. Minister for Health [2022] IESC 32, [2022] 1 I.L.R.M. 421. The Chief Justice, O'Donnell C.J., explained at paragraph 39 of his judgment that the threshold to be met is that of arguability:
“The threshold is a familiar one in the law. It is, in essence, the same test which arises when proceedings are sought to be struck out on the grounds that they are bound to fail, or the test that is normally required in order to seek an interlocutory injunction. It must be a case that has a prospect of success (otherwise it would not be an arguable case) but does not require more than that. While, inevitably, individual judges may differ on the application of the test in individual cases at the margins, the test itself is clear. This test – it must be stressed – is solely one of arguability: it is emphatically not a test framed by reference to whether a case enjoys a reasonable prospect of success, still less a likelihood of success. Any such language obscures the nature of the test and may on occasion lead to misunderstanding, appeal and consequent delay.”
The Chief Justice also confirmed that the same threshold test applies irrespective of whether the application for leave is made ex parte, or, as in the present case, is made on notice to the respondent.
For the reasons which follow, I am satisfied that the applicant has demonstrated arguable grounds for challenging the validity of the decision by the Ombudsman to discontinue the investigation of the applicant's complaint.
The rationale for the decision to discontinue the investigation is summarised as follows in the decision-letter of 13 December 2021:
“Once again, I must inform you that neither this Office or myself have dealt with you or your complaint in a biased manner. Your assertions are ill placed and unfounded. As I have pointed out on numerous occasions, I cannot complete the adjudication of your complaint in such circumstances where you do not believe that the investigation has been carried out in a fair and impartial manner.
I must therefore inform you that your complaint has now been closed and the Provider has been informed accordingly. In accordance with fair procedures this correspondence will be shared with the Provider.”
Whereas the Ombudsman enjoys a broad discretion, under Section 52 of the Financial Services and Pensions Ombudsman Act 2017, to decline to investigate, or to discontinue an investigation of, a complaint, this must be done by reference to the statutory criteria prescribed. Counsel on behalf of the Ombudsman, in his speaking note, has drawn the court's attention to subsection 52 (1)(d) which provides that the Ombudsman may discontinue an investigation where there is or was available to the complainant an alternative and satisfactory means of redress in relation to the conduct complained of. It is submitted that this criterion is fulfilled in that the applicant may be within time to litigate against Danske Bank. The implication being that, in circumstances where legal proceedings against Danske Bank do not appear to be barred under the Statute of Limitations, such putative proceedings represent an alternative and satisfactory means of redress.
With respect, it is not at all obvious from the terms of the decision-letter that the decision to discontinue the investigation of the complaint had, in fact, been informed by a finding by the Ombudsman that there was an alternative and satisfactory means of redress available to the applicant. Moreover, no explanation has been advanced for why it is that—notwithstanding the supposed existence of an alternative and satisfactory means of redress—the Ombudsman had proceeded as far as circulating a “ preliminary decision” on 24 September 2020. The “ preliminary decision” indicates an intention to direct the financial services provider to pay a sum of €5,000 to the applicant by way of compensation. The covering letter also states that the “ adjudication of the above complaint has now concluded”.
Having regard to the chronology of the complaint investigation process, where matters had advanced to the stage of a “ preliminary...
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...a repetition of Mr. Buckley's letter of the 27 th January, 2009. 44 Similarly in Donnelly v Financial Services and Pensions Ombudsman [2023] IEHC 228 the Ombudsman had clearly communicated that he had closed the file on the applicant's complaint against Danske Bank and explained his reasons......