Mark Little v Financial Services Ombudsman and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice McMahon
• Judgment Date: 11 March 2011
• Neutral Citation: [2011] IEHC 137
• Court: High Court
• Date: 11 March 2011

[2011] IEHC 137

THE HIGH COURT

[No. 267 MCA/2010]

Little v Financial Services Ltd

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

BETWEEN

MARK LITTLE

APPELLANT

AND

FINANCIAL SERVICES OMBUDSMAN

RESPONDENT

AND

AXA IRELAND LIMITED

NOTICE PARTY

Abstract:

Practice and procedure - Financial Services - Time limit - Appeal -Erroneous construction of phrase - Ombudsman - Central Bank and Financial Services Authority of Ireland Act 2004

Facts: The proceedings were primarily concerned with an application to extend time for an appeal against the decision of the Financial Services Ombudsman, handed down in April 2010. The time limits for the appeal were provided for in the Central Bank Act 1942 as amended. S. 57 CL(3) of the Central Bank Act 1942, as inserted by the Central Bank and Financial Services Authority of Ireland Act 2004, provided for a twenty-one day time limit to bring proceedings. The appellant had been refused an insurance claim for a stolen trailer parked in a yard, on the basis that the trailer was not within the "care, custody and control" of the complaint when the trailer was stolen, while the policy provided for "care, custody or control". The Ombudsman had used erroneously the former phrase but had opposed the application for an extension of time, claiming prejudice and potential floodgates as a result.

Held by McMahon J. that in the exceptional circumstances that the Court would allow the extension of time to bring the appeal. Bearing the mind the nature of the office of the respondent, the patent error on the face of the decision, the importance of the misconstrued phrase and the absence of obvious prejudice, the Court would extend the time to bring the appeal to three weeks from the date of the decision. In the event his appeal was remitted to the Ombudsman, the appellant's application would be refused.

Reporter: E.F.

1 JUDGMENT of Mr. Justice McMahon delivered on the 11th day of March, 2011

Introduction

2 1. This is primarily an application to extend time for appeal against the decision of the Financial Services Ombudsman ("the Ombudsman") handed down on 20 ^th April, 2010. In the event, the notice of appeal was ultimately issued on 19 ^th October, 2010. The time limit for bringing such an appeal is set out in the Central Bank Act 1942, as amended ("the Act of 1942"). Section 57CL(3) of the Act of 1942, as inserted by s. 16 of the Central Bank and Financial Services Authority of Ireland Act 2004, states:-

"An appeal under this section must be made -"

3 (a) within such period and in such manner as is prescribed by rules of court of the High Court, or

4 (b) within such further period as that Court may allow."

5 2. The relevant rule of the Rules of the Superior Court ("the Rules") is O. 84C, r. 1(5) which reads:-

"Subject to any provision to the contrary in the relevant enactment, the notice of motion shall be issued -"

(a) not later than twenty-one days following the giving by the deciding body to the intending appellant of notice of the deciding body's decision, or

(b) within such further period as the Court, on application made to it by the intending appellant, may allow where the Court is satisfied that there is good and sufficient reason for extending that period and that the extension of the period would not result in an injustice being done to any other person concerned in the matter."

6 3. Summarising the position, therefore, an appellant must bring his/her appeal:

7 (a) within 21 days of being notified of the decision; or

8 (b) such further period as the court may allow where the court is satisfied that there is good and sufficient reason for extending that period, provided that any such extension of time will not result in an injustice to any other person concerned in the matter; or

9 (c) "within such further period as [the] Court may allow" as permitted under s. 57CL(3)(b) of the Act of 1942.

10 4. With regard to (c), I am of the view that the discretion given there to the court is not an arbitrary one and will in the vast majority of cases be accommodated within (b) - i.e. the discretion under the Rules where the court requires "a good and sufficient reason" to be offered by the appellant. However, I am not satisfied that the provisions in the Rules inevitably exhaust all the circumstances where the court may extend time under this statutory provision if it is moved to do so. This is clearly evident from the wording of O. 84C, r. 1(5) of the Rules as well as the terms of s. 57CL(3)(b) of the Act of 1942.

11 5. Since this jurisdiction is relatively new and relates to the office of the Ombudsman, which was established primarily to keep matters out of the courts, and where a relatively informal procedure prevails, the court, when dealing with matters of delay and extensions of time relating to appeals from the findings of the Ombudsman, should bear in mind that a more tolerant approach may be warranted in such cases.

The Appellant's Case

12 6. The appellant's case is set out clearly in the Ombudsman's finding:-

"The Complainant proposed for car insurance with the Company on 4 May 2004. On 8 March 2008, the Complainant parked his trailer at the Midland Machinery yard in Portlaoise. When the Complainant returned to the yard on 12 March, he realised his trailer had been stolen. It was never found and the Complainant made a claim on his insurance policy on 15 April 2008. However, the Company refused the Complainant's claim on the grounds that the trailer was not within the "care, custody and control" of the Complainant when the trailer was stolen. This is the essence of this complaint; the Complainant asserts that the trailer was within his "care, custody and control" but the Company disagrees."

13 7. The relevant section in the policy stipulates in fact that cover shall be given:-

"Provided that:…such trailer at all times remains in your care, custody or control." (Emphasis added)

14 8. In her finding, however, the Ombudsman analysed the legal issue on the basis that the policy obliged the insured to keep, at all times, the trailer in his "care, custody and control". This, of course, was an error and it was a significant one in her reasoning, since she repeated the phrase "care, custody and control" no less than eight times during the course of her analysis. Although she did not expressly address whether the "or" used in the policy phrase was used disjunctively, it is clear from the final paragraph of her finding, where having determined on the facts that the insured did not have "control", that little or no attention was then paid to the other elements of the clause i.e. "care" and "custody".

15 9. When this became obvious, I am surprised that the Ombudsman, given the nature of her office, should have opposed the present application on the basis that the appellant was out of time. Before examining more closely the nature of the office in more detail, I set out the relevant time line involved in this case to assess the reasonableness of the appellant's delay.

The Time Line

16 10. I set out here the relevant chronology of events necessary for these deliberations.

17 (i) 20 ^th April, 2010: The decision of Financial Services Ombudsman was issued. The decision noted in bold print that an appeal to the High Court had to be made within 21 days.

18 (ii) 22 ^nd April, 2010: The appellant at para. 20 of his affidavit dated 15 ^th October, 2010, averred "that at all times from 22 ^nd April 2010 [he had] instructed [his] solicitors to appeal".

19 (iii) 5 ^th May, 2010: The appellant's solicitor in correspondence to Mr. Mealiff (who was to furnish additional evidence on behalf of the appellant) emphasised the importance of a prompt response because of the limit of 21 days from 20 ^th April, 2010, to make the appeal.

20 (iv) 8 ^th May, 2010: Mr. Mealiff responded to the appellant's solicitor so that the appellant's solicitor had all additional evidence he wished to submit at that time and further the appellant was still in the country on that date.

21 (v) 15 ^th June, 2010: The appellant's solicitor requested the Ombudsman to review her decision. This is the same date on which the appellant left the country (see para. 8 of the appellant's affidavit dated 6 ^th January, 2011).

22 (vi) 17 ^th June, 2010: The Ombudsman wrote to the appellant's solicitor saying her decision was only reviewable on an appeal to the High Court.

23 (vii) 14 ^th October, 2010: The appellant said he returned to Ireland on this date, finalised his affidavit for the appeal and issued a notice of motion on 19 ^th October, 2010.

24 11. It is quite clear from the above that the appellant was fully aware through his solicitor that a 21 day time limit applied, that it was his intention at all times to appeal and that he instructed his solicitor to do so...