Ulster Bank Investment FundsLimited v Financial Services Ombusdman

• Jurisdiction: Ireland
• Judge: Finnegan P.
• Judgment Date: 01 November 2006
• Neutral Citation: [2006] IEHC 323
• Court: High Court
• Date: 01 November 2006

ULSTER BANK INVESTMENT FUNDS LTD v FINANCIAL SERVICES OMBUDSMAN

IN THE MATTER OF

THE CENTRAL BANK ACT 1942 AS AMENDED AND

IN THE MATTER OF

PART VIIB THEREOF AND

IN THE MATTER OF

AN APPEAL PURSUANT TO SECTION 57CL

THEREOF

BETWEEN

ULSTER BANK INVESTMENT FUNDS LIMITED

PLAINTIFF

AND FINANCIAL SERVICES OMBUDSMAN

DEFENDANT

AND

ANDREW McCARREN, JOY McCARREN, MARIE O'DONOHOE, DEIRDRE LYNCH, BRIAN WYNNE, TERESA WYNNE, PAT DOHERTY AND MARITA DOHERTY

NOTICE PARTIES

[2006] IEHC 323

NO. 87SP/No. 2006

THE HIGH COURT

Abstract:

Administrative law - Statutory appeal - Appellate jurisdiction conferred by statute - Appeal to High Court from finding of Financial Services Ombudsman - Scope of appeal - Standard of review - Evidence - Whether additional evidence admissible - Central Bank Act 1942, section 57CL.

section 57CL of the Central Bank Act 1942, as amended, provides, inter alia, that “(1) if dissatisfied with a finding of the Financial Services Ombudsman, the…regulated financial service provider may appeal to the High Court against the finding. (2) The…Ombudsman can be made a party to the appeal…” The plaintiff appealed a finding of the defendant to the High Court. The High Court gave a preliminary judgment on the scope of the appeal and how it was to proceed before it, particularly in respect to the materials that it could consider.

Held by Mr Justice Finnegan in ordering that the appeal should proceed on the basis of the materials that had been before the defendant only that there should be consistency in the standard of review on statutory appeals to the High Court. To succeed on an appeal under section 57CL of the Act of 1942, as amended, the plaintiff had to establish as a matter of probability that, taking the adjudicative process as a whole, the decision reached was vitiated by a serious and significant error or a series of such errors. In applying that test, the Court should have regard to the expertise and specialist knowledge of the defendant. However, the court retained a discretion to permit further evidence be introduced, on application to it, where it was necessary or appropriate in the interests of justice.

Reporter: P.C.

CENTRAL BANK ACT 1942 S57(C)(L)

CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004 S16

CENTRAL BANK ACT 1942 S57(C)(K)

CENTRAL BANK ACT 1942 S57(C)(M)

DUNNE v MIN FISHERIES 1984 IR 231

FISHERIES (CONSOLIDATION) ACT 1959 S11

FISHERIES (CONSOLIDATION) ACT 1959 S11(1)(D)(II)

WADE ADMINISTRATIVE LAW 5ED P34

CENTRAL BANK ACT 1942 S57(C)(M)(4)

GLANCRE TEO v CAFFERKEY 2004 3 IR 401

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1976 S27

PLANNING & DEVELOPMENT ACT 2000 S160

LOCAL GOVERNMENT (PLANNING & DEVELOPMENT) ACT 1963 S5

ORANGE LTD v DIRECTOR TELECOMS (NO 2) 2001 4 IR 159

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111(2)(B)(I)

EUROPEAN COMMUNITIES (MOBILE & PERSONAL COMMUNICATIONS) REGS 1996 SI 123/1996 REG 4

EEC DIR 97/13

DIRECTOR OF INVESTIGATION & RESEARCH, CANADA v SOUTHAN INC 1997 1 SCR 748

M & J GLEESON & CO v COMPETITION AUTHORITY 1999 1 ILRM 401

COMPETITION ACT 1991 S9

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S111

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

CARRICKDALE HOTEL LTD v CONTROLLER OF PATENTS DESIGNS & TRADE MARKS & PHONOGRAPHIC PERFORMANCE (IRL) LTD 2004 3 IR 410 2004 2 ILRM 401

COPYRIGHT ACT 1963 S41(3)

MURPHY v MIN DEFENCE 1991 2 IR 161

1 Judgment of Finnegan P. delivered on the 1st day of November 2006

2 This is an appeal pursuant to the provisions of the Central Bank Act 1942section 57CL as inserted by the Central Bank and Financial Services Authority of Ireland Act 2004 section 16. The issue to be determined at this point is the scope of the appeal provided for.

3 The relevant statutory provisions are as follows —

4 2 57CK.—(1) When dealing with a complaint, the Financial Services Ombudsman may, on that Ombudsman's own initiative or at the request of the complainant or the regulated financial service provider concerned, refer for the opinion of the High Court a question of law arising in relation to the investigation or adjudication of the complaint.

5 (2) The High Court has jurisdiction to hear and determine any question of law referred to it under this section.

6 (3) If a question of law has been referred to the High Court under this section, the Financial Services Ombudsman may not—

7 a ( a) make a finding to which the question is relevant while the reference is pending, or

8 b ( b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the High Court on the question.

9 2 57CL.—(1) 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.

10 (2) The Financial Services Ombudsman can be made a party to an appeal under this section.

11 (3) An appeal under this section must be made—

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

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

14 2 57CM.—(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.

15 (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:

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

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

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

19 (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.

20 (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).

21 The issue is between the Plaintiff and the Defendant the Notice Parties having opted not to take part in the proceedings at this point.

22 In Dunne v Minister for Fisheries and Forestry 1984 I.R. 230 Costello J. was concerned with the provisions of the Fisheries (Consolidation) Act 1959section 11 which provided for an appeal to the High Court against a bye law made by the Minister pursuant to the Act. Section 11(1)(d)(ii) of the Act provided that the High Court on appeal could confirm or annul the instrument. Costello J. distinguished between the exercise by the Court of its powers at common law of judicial review and an appellate jurisdiction conferred by statute and cited Wade's Administrative Law (Fifth Ed p. 34) with approval —

"The system of judicial review is radically different from the system of appeal. When hearing an appeal the Court is concerned with the merits of the decision under appeal. When subjecting some administrative act or order to judicial review the Court is concerned with its legality. On an appeal the question is "right or wrong?" On review the question is "lawful or unlawful?"

23 He went on to say at p. 237

"However, this does not mean that in every case the Court's jurisdiction on a statutory appeal is the same; in every case the statute in question must be construed. In construing a statute it does not seem to me to be helpful to apply by analogy the rules of judicial review since, by granting a statutory appeal, the legislature must have intended that the Court would have powers in addition to those already enjoyed at common law."

24 The following matters appear from the statutory provisions in issue here —

25 1. Section 57CL provides for an appeal to the High Court by...