O'Driscoll v Financial Service Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 20 October 2014
• Neutral Citation: [2014] IEHC 462
• Docket Number: 256 M.C./2013
• Court: High Court
• Date: 20 October 2014

[2014] IEHC 462

THE HIGH COURT

[number] 256 M.C./2013

O'Driscoll v Financial Services Ombudsman & Anor

IN THE MATTER OF S. 57CL OF THE CENTRAL BANK ACT 1942 (AS INSERTED BY S. 16 OF THE CENTRAL BANK AND FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004)

BETWEEN

VAL O'DRISCOLL

APPELLANT

AND

FINANCIAL SERVICES OMBUDSMAN

RESPONDENT

AND

MALLOW MORTGAGE COMPANY LIMITED TRADING AS LIAM MULLINS AND ASSOCIATES

NOTICE PARTY

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J & E DAVY T/A DAVY v FINANCIAL SERVICES OMBUDSMAN 2010 3 IR 324 2010 2 ILRM 305 2010/24/5828 2010 IESC 30

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TWOMEY v FINANCIAL SERVICES OMBUDSMAN UNREP FEENEY 26.7.2013 [TRANSCRIPT NOT AVAILABLE]

NÍ MHATH ÚNA v FINANCIAL SERVICES OMBUDSMAN & ANOR UNREP WHITE 15.1.2014 2014 IEHC 110

Financial Services Ombudsman – Complaints Procedure – Appeal – Investigation – Oral Hearing – Investment – Discretion – Errors

The facts of the present case involved the appellant, Mr. O”Driscoll seeking an appeal against a determination of the Financial Services Ombudsman (F.S.O) rejecting the appellant”s complaint in relation to the investment of €350,000 in the Broad Street Geared and Property Life fund managed by Irish Life. The appellant contended that there was no concluded investigation of the intended complaint against Irish Life. The appellant was additionally aggrieved about the lack of an Oral hearing and additionally misadvise given by the Ombudsman in relation to how to proceed against Irish Life. The case came before Birmingham J. in the High Court.

Birmingham J analyzed the complaints procedure followed by the FSO and considered whether or not the respondents acted with due diligence when dealing with the appellant. Birmingham J firstly stated that the appellant must establish that in viewing the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or by a series of such errors. After carefully examining the conduct of FSO Birmingham J decided that a fair resolution of the complaint would require specific findings about the circumstances in which the investment came to be made and specific findings as to what if any representations were made by Mr. Mullins and Mr. O”Connell to Mr. O”Driscoll before he invested. In regards to the oral hearing Birmingham J admitted that the decision whether to hold or not to hold an oral hearing is one where the Ombudsman enjoys a broad discretion

Mr. O”Driscoll did not specifically request an oral hearing and this is a very relevant consideration. However, while relevant, given that Mr. O”Driscoll was not legally represented before the Ombudsman, too much should not be made of this. Looking at all the facts holistically, Birmingham J was unsatisfied about how the complaints procedure was handled. Birmingham J concluded that the entire process was vitiated by a series of significant errors. The cumulative effect of these is that the decision cannot stand and the appeal must be allowed and I will remit the matter back to the Financial Services Ombudsman for further consideration.

1 1. This is an appeal brought by Mr. O'Driscoll, the appellant, against a determination of the Financial Services Ombudsman (F.S.O.) dated the 9 ^th July, 2013, rejecting the appellant's complaint in relation to the investment of €350,000 in the Broad Street Geared and Property Life fund managed by Irish Life.

2 2. The appeal is one of a large number of such appeals that have come before the courts in recent years. From these cases it emerges that if an appellant is to succeed he or she must establish that viewing the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or by a series of such errors.

3 3. There are really two aspects to this appeal. One relates to the fact that no oral hearing was conducted, that is an issue that has arisen in quite a number of other appeals and as we will see different conclusions have been reached regarding the necessity for an oral hearing.

4 4. The second is more case specific. It arises in circumstances where the appellant, had in mind initially to make a complaint against both the notice party, Mallow Mortgage Company Limited trading as Liam Mullins and Associates, and also against Irish Life. His complaint was intended to focus on representations which he says were made to him at a meeting in January 2007. The appellant was advised by the F.S.O. to submit separate complaint forms and this he did. Thereafter, he was advised in the course of a letter dated the 17 ^th September, 2012, that both complaint forms related to advice received at the time of the sale of the policy and that the complaint should only be against the broker. Two days later the appellant agreed to proceed as advised.

5 5. The effect of all this was that there was no concluded investigation of the intended complaint against Irish Life. After notice of motion issued in the present proceedings dated the 29 ^th July, 2013, seeking an order setting aside the decision of the Ombudsman, the F.S.O., apparently recognising that a mistake had been made, wrote on the 11 ^th December, 2013, indicating that the appellant could proceed with the complaint against Irish Life, but only if the appeal now before the court was withdrawn.

6 6. While I have referred to the two aspects of the appeal, these are not seen as separate and distinct by the appellant and rather he sees the issues as overlapping and he argues that the misadvice in relation to how to proceed against Irish Life has added an extra dimension to the failure to hold an oral hearing. In these circumstances, it is necessary to look in some greater detail at what is known of the background.

Facts

7 7. A significant area of disagreement between the appellant and the notice party relates to the circumstances in which the appellant came to make his investment. The appellant claims that he was approached about the possibility of making an investment by Liam Mullins, the managing director of Mallow Mortgage Company Limited. Mr. Mullins, it maybe noted is the first cousin of the appellant. According to Mr....