Joseph Baynes and Ann Baynes v Financial Services and Pensions Ombudsman

• Jurisdiction: Ireland
• Judge: Mr Justice Cian Ferriter
• Judgment Date: 11 January 2023
• Neutral Citation: [2023] IEHC 2
• Court: High Court
• Docket Number: Record No. 2021 907 JR

Between

Joseph Baynes and Ann Baynes

Applicants

and

Financial Services and Pensions Ombudsman

Respondent

[2023] IEHC 2

Record No. 2021 907 JR

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Substantive orders – Costs – Applicants seeking an order of certiorari of the entire decision of the respondent under challenge – Whether the order sought by the applicants would not reflect the fact that the applicants were unsuccessful in respect a number of their key grounds of challenge

Facts: Following the judgment of the High Court (Ferriter J) of 2 December 2022 ([2022] IEHC 678), the parties furnished written submissions on the question of final orders and costs. The applicants, Mr and Ms Baynes, sought an order of certiorari of the entire decision of the respondent, the Financial Services and Pensions Ombudsman (FSPO), under challenge and also sought their full costs on the basis they said they were entirely successful. The FSPO contended that the applicants lost on two of the three grounds of challenge advanced (and abandoned a fourth) and had only been partially successful in relation to their challenge to the FSPO’s decision (losing on the core challenge to its decision under s. 51(2)(a)(ii) of the Financial Services and Pensions Ombudsman Act 2017) such that certiorari was only warranted in respect of its decision under s. 51(2)(a)(iii) of the 2017 Act. The FSPO also submitted that a partial costs order of no more than 50% would be appropriate in the circumstances.

Held by Ferriter J that the FSPO was correct in its contention that the orders sought by the applicants would not reflect the fact that the applicants were unsuccessful in respect a number of their key grounds of challenge and in particular were unsuccessful in their challenge to the decision made by the FSPO under s. 51(2)(a)(ii) of the 2017 Act. Accordingly, Ferriter J held that certiorari would not be appropriate in respect of the decision under s. 51(2)(a)(ii) which he had found was lawfully arrived; rather the order of certiorari should be confined to the decision under s. 51(2)(a)(iii) of the 2017 Act. Ferriter J held that as the applicants had not been entirely successful in respect of their case, this was not a situation to which s. 169(1) Legal Services Regulation Act 2015 applied and he approached the question of costs on that basis. In weighing the question of costs, while the applicants were unsuccessful in respect of a number of their grounds of challenge, Ferriter J took into account the fact that: (i) much of the pleading and affidavit evidence would have been required in any event in order to ground that part of the case in respect of which they were successful; (ii) written submissions would still have been required but on a more net basis; and (iii) the hearing concluded in a little over a day but would likely have taken most of a day even if the applicants had confined their case to the s....