Flavio Jr Suarez v Financial Services and Pensions Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 08 February 2022
• Neutral Citation: [2022] IEHC 46
• Court: High Court
• Docket Number: 2021 No. 1 MCA

In the Matter of the Financial Services and Pensions Ombudsman Act 2017

Between

Flavio Jr Suarez

Applicant

and

Financial Services and Pensions Ombudsman

Respondent

[2022] IEHC 46

2021 No. 1 MCA

THE HIGH COURT

Practice and procedure – Financial services – Order 84B of the Rules of the Superior Courts – Applicants seeking to challenge a decision of the respondent to refuse to investigate a complaint made against a financial services provider – Whether the proceedings should have been brought pursuant to Order 84B of the Rules of the Superior Courts

Facts: The applicant, Mr Suarez, applied to the High Court seeking to challenge a decision of the respondent, the Financial Services and Pensions Ombudsman, to refuse to investigate a complaint made against a financial services provider. The Ombudsman’s decision had been to the effect that he was statutorily precluded from investigating the complaint in circumstances where the same matter had been the subject of parallel Circuit Court proceedings between the same parties. The Circuit Court proceedings had since been discontinued without there having been any adjudication on the merits. The applicant disputed both the Ombudsman’s characterisation of the Circuit Court proceedings, and his interpretation of the statutory provisions governing jurisdiction. The applicant also contended that the provisions of the Financial Services and Pensions Ombudsman Act 2017 should not be applied retrospectively to a complaint made prior to the commencement of the Act. The Ombudsman raised a procedural objection to the form of the High Court proceedings. It was submitted that the applicant should instead have gone by way of judicial review pursuant to Order 84 of the Rules of the Superior Courts.

Held by Simons J that the proceedings should not have been brought pursuant to Order 84B of the Rules of the Superior Courts. Simons J held that the form of procedure employed was irregular and had caused potential prejudice to the financial services provider. Simons J held that the proceedings would, therefore, be set aside in their entirety.

Simons J’s provisional view was that each party should bear their own costs.

Proceedings dismissed.

Appearances

The Applicant represented himself

Mark William Murphy for the Ombudsman instructed by Eversheds Sutherland

JUDGMENT of Mr. Justice Garrett Simons delivered on 8 February 2022

INTRODUCTION

1 The Applicant seeks to challenge a decision of the Ombudsman to refuse to investigate a complaint made against a financial services provider. The Ombudsman's decision had been to the effect that he is statutorily precluded from investigating the complaint in circumstances where the same matter had been the subject of parallel Circuit Court proceedings between the same parties. The Circuit Court proceedings have since been discontinued without there having been any adjudication on the merits.

2 The Applicant disputes both the Ombudsman's characterisation of the Circuit Court proceedings, and his interpretation of the statutory provisions governing jurisdiction. The Applicant also contends that the provisions of the Financial Services and Pensions Ombudsman Act 2017 should not be applied retrospectively to a complaint made prior to the commencement of the Act.

3 The Ombudsman has raised a procedural objection to the form of these High Court proceedings. It is submitted that the Applicant should instead have gone by way of judicial review pursuant to Order 84 of the Rules of the Superior Courts.

4 For the reasons which follow, I have concluded that the procedural objection is well founded and that these proceedings should be dismissed as improperly constituted.

HISTORY OF THE COMPLAINT

5 The complaint the subject-matter of these proceedings relates to a housing loan mortgage entered into by the applicant and his wife with Permanent TSB plc (“ the financial services provider”). The Applicant submitted a complaint to the office of what was then the financial services ombudsman on 22 September 2016.

6 The financial services provider subsequently commenced proceedings in the Circuit Court on 9 January 2017. These proceedings were by way of Civil Bill for Possession. The applicant and his wife delivered a document entitled “Replying Affidavit and Counterclaim” on 16 May 2017. This document attached, as annexes, a number of documents which had previously been submitted to the (former) ombudsman as part of the complaint. This form of pleading had been irregular in that the proceedings before the Circuit Court were summary proceedings: it was not permissible, therefore, to raise a counterclaim in the absence of an express order remitting the proceedings to plenary hearing.

7 The Circuit Court proceedings were adjourned generally, with liberty to re-enter, on 9 May 2018. Thereafter, the Circuit Court proceedings were struck out on 31 July 2019. The circumstances in which the proceedings came to be struck out is itself a source of controversy. The Applicant has instituted separate judicial review proceedings against the financial services provider in this regard: Suarez v. Permanent TSB plc (2021 No. 320 JR). The High Court refused leave to apply for judicial review on the grounds of delay, and that decision has recently been upheld by the Court of Appeal: Suarez v. Permanent TSB plc [2021] IECA 349.

8 The Deputy Ombudsman made a decision on 18 December 2020 that the Applicant's complaint fell outside the Ombudsman's jurisdiction as a consequence of section 50(3) of the Financial Services and Pensions Ombudsman Act 2017. This section provides, in relevant part, as follows:

“(3) The Ombudsman shall not investigate or make a decision on a complaint where—

[…]

(b) there are or have been proceedings (other than where the proceedings have been stayed under section 49) before any court in respect of the matter that is the subject of the investigation,”

9 The Deputy Ombudsman held that the Applicant had raised the same matters before the Circuit Court as in his complaint to the Ombudsman:

“While it may be the case that you were seeking different remedies before the Court and from this office, this does not alter the fact that you were asking this office and the Court to determine the same matters, to ultimately arrive at a decision as to whether a remedy is merited from the court with respect to your counter-claim and also whether a direction from the FSPO is warranted with respect to your complaint to this office.”

10 The decision concluded by stating that it would not be possible for the Ombudsman to proceed with a formal investigation of the merits of the complaint.

11 The Applicant instituted the within proceedings on 6 January 2021. The proceedings took the form of an originating notice of motion and affidavit, purportedly issued pursuant to Order 84B of the Rules of the Superior Courts.

WHICH VERSION OF THE LEGISLATION APPLIES?

12 There is a fundamental disagreement between the parties as to which legislative scheme governs the Applicant's complaint. It will be recalled that the complaint had been made to the former financial services ombudsman on 22 September 2016. The legislation in force at that time had been Part VII B of the Central Bank Act 1942 (as inserted by the Central Bank and Financial Services Authority of Ireland Act 2004).

13 It seems that the initial complaint form as submitted on 22 September 2016 had not been signed by either the Applicant or his wife. A signed version was subsequently submitted. Neither party has sought to attach any particular significance to this resubmission. It has not been suggested, for example, that the complaint had not been properly “ made” until the signed form was submitted. Rather, both parties argued the case on the basis that the complaint was made on 22 September 2016.

14 The Applicant's complaint had not yet been determined as of 1 January 2018, the date upon which the new office of the financial services and pensions ombudsman was established, and the Financial Services and Pensions Ombudsman Act 2017 was commenced.

15 The Ombudsman contends that the extant complaint fell to be dealt with under the newly commenced legislation. Counsel on his behalf placed particular emphasis on section 48 of the 2017 Act as follows:

“48. The power of the Ombudsman to conduct an investigation under section 47 shall apply to any complaint received by the Financial Services Ombudsman or the Pensions Ombudsman before the establishment day that—

• (a) had not been assessed as to its suitability for consideration by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be,

• (b) was refused as being outside the applicable time limits in the Act of 1942 or the Act of 1990 respectively and that has been resubmitted, on or after the establishment day, or

• (c) was being investigated by the Financial Services Ombudsman or the Pensions Ombudsman, as the case may be.”

16 Counsel submitted that the Ombudsman's jurisdiction extends to complaints in respect of which no jurisdictional decision had yet been made as of 1 January 2018. These were categorised by counsel as complaints which had not yet been assessed as to their suitability for consideration, and thus had not proceeded to investigation. The Applicant's complaint was said to come within this category.

17 Conversely, the Applicant contends that the former ombudsman had already acquired jurisdiction in respect of the complaint in September 2016, i.e. in circumstances where, as of that date, there were no parallel legal proceedings in existence. It is said to follow that section 48 is irrelevant because there is no jurisdictional issue to be reassessed.

18 The Applicant further...