Flavio Jr Suarez v Financial Services and Pensions Ombudsman
| Jurisdiction | Ireland |
| Judge | Mr. Justice Garrett Simons |
| Judgment Date | 29 March 2022 |
| Neutral Citation | [2022] IEHC 133 |
| Court | High Court |
| Docket Number | 2021 No. 1 MCA |
In the Matter of the Financial Services and Pensions Ombudsman Act 2017
[2022] IEHC 133
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 principal judgment in the proceedings was delivered on 8 February 2022: [2022] IEHC 46. Simons J held 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. Following upon the delivery of the principal judgment, the parties exchanged written submissions in respect of costs. Those written submissions were supplemented at a short oral hearing on 15 March 2022. The position of the Ombudsman was that costs should follow the event, and that, accordingly, the Ombudsman should recover his costs as against the applicant in circumstances where the proceedings had been dismissed. The Ombudsman submitted that the procedural irregularity, on the basis of which the proceedings were ultimately dismissed, had been expressly pleaded in the statement of opposition; even before that, the Ombudsman had by letter dated 12 January 2021 put the applicant on notice of the fact that the Ombudsman would seek his costs were the proceedings to be unsuccessful. It was submitted that, notwithstanding his having been given fair warning, the applicant nevertheless pursued the proceedings to full hearing. The applicant, in reply, submitted that the Ombudsman could not be entitled to his costs in circumstances where there had been no adjudication by the High Court on the underlying merits of the proceedings. It was further submitted that the Ombudsman should agree to the High Court determining the substantive issues raised in the proceedings, in particular, the correct interpretation of the provisions governing the Ombudsman’s jurisdiction to entertain a complaint. The applicant further submitted that the Ombudsman did not inform him that “the default position or exclusive or mandatory procedure” to challenge the decision of a public authority is that provided for under Order 84 of the Rules of the Superior Courts.
Held by Simons J that the three distinguishing features of the case were as follows: first, the applicant had made it known at all times that he wanted a ruling from the High Court as to the interaction between the statutory complaints mechanism provided for under the Financial Services and Pensions Ombudsman Act 2017 and legal proceedings in respect of the same subject-matter; secondly, the fact that the applicant moved with such alacrity to institute the proceedings meant that – had the procedural irregularity been brought to his attention – it would have been possible for him to correct the procedural irregularity and institute fresh proceedings in proper form within the three month time-limit prescribed under Order 84; thirdly, the precise basis upon which the proceedings were ultimately dismissed was slightly different from that agitated for on behalf of the Ombudsman. Simons J held that, having regard to those three peculiarities, it would not be appropriate to require the applicant to pay the Ombudsman’s legal costs.
Simons J held that an order would be made, pursuant to Order 124 of the Rules of the Superior Courts and/or the inherent jurisdiction setting aside the proceedings as irregular in form and, having regard to the very unusual features of the case, the interests of justice were best served by making no order as to costs; the parties should, instead, each bear their own costs.
No order as to costs.
The Applicant represented himself
Mark William Murphy for the Ombudsman instructed by Eversheds Sutherland
JUDGMENT of Mr. Justice Garrett Simons delivered on 29 March 2022
The principal judgment in these proceedings was delivered on 8 February 2022 and bears the neutral citation [2022] IEHC 46. This supplementary judgment addresses the allocation of the costs of the proceedings.
Following upon the delivery of the principal judgment, the parties exchanged written submissions in respect of costs. These written submissions were supplemented at a short oral hearing on 15 March 2022.
The position of the Ombudsman is that costs should follow the event, and that, accordingly, the Ombudsman should recover his costs as against the Applicant in circumstances where the proceedings have been dismissed. The Ombudsman submits that the procedural irregularity, on the basis of which the proceedings were ultimately dismissed, had been expressly pleaded in the statement of opposition. Even before that, the Ombudsman had by letter dated 12 January 2021 put the Applicant on notice of the fact that the Ombudsman would seek his costs were the proceedings to be unsuccessful. It is submitted that, notwithstanding his having been given fair warning, the Applicant nevertheless pursued the proceedings to full hearing.
The Applicant, in reply, submits that the Ombudsman cannot be entitled to his costs in circumstances where there has been no adjudication by the High Court on the underlying merits of the proceedings. It is further submitted that the Ombudsman should now agree to the High Court determining the substantive issues raised in the proceedings, in particular, the correct interpretation of the provisions governing the Ombudsman's jurisdiction to entertain a complaint. The Applicant further submits that the Ombudsman did not inform him that “ the default position or exclusive or mandatory procedure” to challenge the decision of a public authority is that provided for under Order 84 of the Rules of the Superior Courts.
Much of the Applicant's submissions on costs were taken up with a detailed criticism of the principal judgment. The making of such submissions was misplaced: the only matter outstanding before the High Court is the issue of costs. If the Applicant wishes to challenge the principal judgment, then he has a right of appeal to the Court of Appeal.
Having regard to the nature of the submissions made in respect of costs, it is necessary to rehearse, briefly, the basis upon which the principal judgment was decided. The within proceedings raised a number of legal issues in respect of the Ombudsman's jurisdiction to entertain a complaint in circumstances where there had been parallel legal proceedings before the Circuit Court between the same parties. These issues are significant and would have necessitated this court ruling upon the correct interpretation of a number of sections of the Financial Services and Pensions Ombudsman Act 2017 which have not yet been the subject of judicial consideration. In the event, however, the within proceedings were ultimately resolved on a narrow procedural ground as follows. This court held that the form of the proceedings was irregular in that an application under Order 84B of the Rules of the Superior Courts was not authorised.
Order 84B allows for a “ relevant application”, as defined, to be made by way of an originating notice of motion. The Applicant had sought to rely on the following limb of the definition of “ relevant application” as allowing him to invoke Order 84B:
“an application (otherwise than by way of appeal) to the [High] Court by a person authorised by any enactment so to apply, to annul or set aside a decision of a relevant authority or remit the decision to the relevant authority concerned”
There is nothing in the Financial Services and Pensions Ombudsman Act 2017 which authorises a person, such as the Applicant, to apply to the High Court to annul or set aside a decision of the Ombudsman on a question of jurisdiction. A decision on a question of jurisdiction is treated differently from other types of decision by the Ombudsman. As explained at paragraphs 24 to 29 of the principal judgment, the statutory right of appeal...
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