Governey v Financial Services Ombudsman

 
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[2015] IESC 38

THE SUPREME COURT

McKechnie J.

Clarke J.

Laffoy J.

[Appeal No: 43/14]

In the Matter of an Appeal pursuant to Part VII (B) of the Central Bank Act 1942 and Chapter 6 and Section 57 CL thereof (as amended and inserted by the Central Bank and Financial Services Authority of Ireland Act 2004)

Hugh Governey
Appellant
and
Financial Services Ombudsman
Respondent

and

IBRC Assurance Company Limited
Notice Party/Respondent

Constitutional & administrative law – Courts – Right of appeal – Limitation

Judgment of Mr. Justice Clarke delivered the 6th May, 2015.
1. Introduction
1.1

There have been significant changes in the structure of appeals in the superior courts in recent times. Not the least of these has been the introduction of the Court of Appeal. The application to which this judgment relates predates the establishment day on which the new constitutional arrangements providing for the establishment of the Court of Appeal came into force. However this application does raise an aspect of a set of issues concerning appeals which have arisen more frequently in recent times.

1.2

Prior to the establishment of the Court of Appeal, the Constitution guaranteed a right of appeal from all decisions of the High Court to this Court unless excluded by law. In that context, over the past decade or so, a number of laws were passed which had the effect of limiting the right of appeal between the High Court and this Court. While there is no longer a constitutional right of appeal from the High Court to this Court, the same constitutional regime relating to appeals now exists in respect of appeals from the High Court to the Court of Appeal and, by and large, the same limitations which previously existed in relation to appeals to this Court from the High Court now apply in respect of appeals to the Court of Appeal. While the specific issues which arise on this appeal will no longer be relevant to appeals to this Court, those same issues will continue, in the main, to arise in respect of appeals to the Court of Appeal.

1.3

Many of the limitations which were imposed on the right of appeal from the High Court to this Court required a certificate of the High Court in order that an appeal might be brought. Proceedings in the fields of immigration and the environment provided the most common examples. However this case involves a different statutory scheme. In circumstances which it will be necessary to set out in a little more detail, the applicant (‘Mr. Governey’) made a complaint to the respondent (‘the F.S.O.’) arising out of a financial product which he had purchased. Ultimately the matter came before the High Court on appeal. The High Court rejected Mr. Governey's appeal and he now wishes to appeal to this Court. Section 57CM of the Central Bank Act 1942 as amended (‘the 1942 Act’), as that legislation provided at the time of the making of this application, states that ‘a party … may apply to the Supreme Court to review the determination on a question of law (but only with the leave of either of those Courts)’. The reference in the section in question to a determination is to a relevant decision of the High Court and, thus, the phrase ‘leave of either of those courts’ refers to the leave of either the High Court or this Court. Therefore, the statutory scheme which applies in respect of an appeal such as that which Mr. Governey wishes to make is, at least at the level of very broad principle, clear. Such an appeal can only be brought with the leave of either the High Court or this Court. Mr. Governey sought the leave of the High Court but same was refused. Mr. Governey has now applied to this Court for leave.

1.4

Two broad sets of issues, therefore, arise. The first concerns the proper approach of the Court to the question of whether to grant leave. For reasons which I sought to address in Fitzgibbon v. Law Society [2014] I.E.S.C. 48, one of the difficulties which is increasingly to be found in respect of appeal regimes both to and within the courts is a level of vague generalisation in the legal instruments governing certain appeals which gives little clue as to the type of appeal which may be open. That precise problem does not arise here, as the appeal provided for in the relevant legislation is specified as being an appeal ‘on a question of law’ which is a term which has come to have a reasonably clear meaning. What is, however, not at all clear is the criteria by reference to which leave should be granted. Neither is it clear, given that either the High Court or this Court can give leave, as to what the interaction between an application to one or the other or, indeed, as in this case, both courts should be. It is in that context that the Court will have to address the question of the proper approach.

1.5

In the light of whatever approach is deemed appropriate, it will secondly be necessary to address the issues which Mr. Governey would wish to raise on appeal to determine whether they are sufficient for the grant of leave in the light of whatever criteria might ultimately be determined to be appropriate.

1.6

In order to address the first question it is necessary to set out the relevant statutory scheme and the procedural history of this case.

2. The Statutory Scheme and Procedural History
2.1

Section 57BK of the 1942 Act, as inserted by s. 16 of the Central Bank and Financial Services Authority of Ireland Act 2004, (‘the 2004 Act’), sets out the functions and powers of the F.S.O. Subsection (1) provides:-

The principal function of the Financial Services Ombudsman is to deal with complaints made under this Part by mediation and, where necessary, by investigation and adjudication.

2.2

Section 57CL(1) of the 1942 Act, as also inserted by s. 16 of the 2004 Act, concerns appeals from decisions of the F.S.O. It provides:-

If dissatisfied with a finding of the Financial Services Ombudsman, the complainant or the regulated financial service provider concerned may appeal to the High Court against the finding’.

2.3

Section 57CM of the 1942 Act, as again also inserted by s. 16 of the 2004 Act, sets out the process by which decisions of the F.S.O. may be appealed to the High Court. It provides:-

(1) The High Court is to hear and determine an appeal made under section 57CL and may make such orders as it thinks appropriate in light of its determination.

(2) The orders that may be made by the High Court on the hearing of such an appeal include (but are not limited to) the following:

(a) an order affirming the finding of the Financial Services Ombudsman, with or without modification;

(b) an order setting aside that finding or any direction included in it;

(c) an order remitting that finding or any such direction to that Ombudsman for review.

(3) If the High Court makes an order remitting to the Financial Services Ombudsman a finding or direction of that Ombudsman for review, that Ombudsman is required to review the finding or direction in accordance with the directions of the Court.

(4) The determination of the High Court on the hearing of such an appeal is final, except that a party to the appeal may apply to the Supreme Court to review the determination on a question of law (but only with the leave of either of those Courts).

2.4

Mr. Governey entered into a single premium life assurance policy that he contends was marketed by the notice party, then known as Anglo Irish Assurance Company Limited (‘Anglo’), as an investment opportunity linked to the Kennet Shopping Centre in Newbury, England. In passing it should be noted that, as a result of orders made in November, 2013, the name of the notice party was changed in the title of these proceedings to the form in which it now appears. As the events to which these proceedings relate occurred when the Anglo name was in use I will use that term in this judgment. In any event, the investment was not profitable. Mr. Governey proceeded to make a complaint to the F.S.O., alleging that Anglo had acted unlawfully in failing to comply with its legal obligation of uberrima fides by failing to disclose material facts to Mr. Governey in relation to his investment. In July, 2012, the F.S.O. found that there had not been misrepresentation and that there was no material non-disclosure of risk.

2.5

Mr. Governey appealed the decision of the F.S.O. to the High Court. The High Court (Hedigan J.) dismissed the appeal (see Governey v. Financial Services Ombudsman [2013] I.E.H.C. 403), and held that the F.S.O. had relevant evidence before him on which the decision could reasonably be based. Mr. Governey made an application to the High Court under section 57CM(4) for leave to appeal the decision to this Court on a question of law. The application was refused. Mr. Governey now seeks leave of this Court to appeal the decision of the High Court on a...

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