Supreme Court Clarifies Test For Appeals From Financial Services Ombudsman

Author:Mr John Breslin and Malachi Sweetman
Profession:Maples and Calder

The powers and functions of the Financial Services Ombudsman of Ireland ("FSO") are set out in Section 57BK of the Central Bank Act, 1942 (the "Act"). 

The FSO's service offers aggrieved customers of financial service providers a forum for the resolution of their complaints.  The key features of the FSO's powers are as follows: 

(a) The power to find that a complaint has been substantiated even if the conduct complained of was in accordance with a law or regulatory standard but was nonetheless unreasonable, unjust, oppressive, or improperly discriminatory, based on a mistake or an irrelevant consideration or was otherwise improper.

(b) The power to direct the financial service provider to rectify, mitigate or change the conduct in question or its consequences, provide reasons, change a practice relating to the conduct, pay compensation for any loss suffered as a result, or take any other lawful action.

(c) There is no requirement for legal representation before the FSO, and no provision for the FSO to make costs orders, either in favour of or against the customer in respect of the FSO process.

(d) The FSO may decline to have an oral hearing to determine a complaint.

(e) The FSO may decline to hear a complaint where exactly the same rights and obligations could be brought before the appropriate court with jurisdiction to determine such matters.

(f) Where the FSO cannot dispose of a complaint through mediation, and where the FSO has not exercised its power to decline to hear a complaint, the FSO must proceed to rule on the complaint. 

Where a complainant is dissatisfied with a finding of the FSO, he or she can appeal the finding to the High Court.  The High Court can, amongst other things, affirm the finding of the FSO with or without modification, set aside the finding, or remit it to the Ombudsman for review.  The standard of review for statutory appeals is well established (as per Finnegan J. in Ulster Bank Investment Funds v Financial Services Ombudsman1).  The test for the High Court to vary or set aside the finding of the FSO is whether, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors.  Furthermore, in applying the test regard must be had to the FSO's expertise and specialist knowledge (this is commonly referred to as curial deference). 

The Act provides that the determination of the High Court is final, save that a party may apply to either the...

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