Utmost Paneurope DAC v Financial Services and Pensions Ombudsman

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 10 February 2021
• Neutral Citation: [2021] IEHC 23
• Docket Number: 2019 No. 286 MCA
• Court: High Court
• Date: 10 February 2021

IN THE MATTER OF AN APPEAL UNDER SECTION 64 OF THE FINANCIAL SERVICES AND PENSIONS OMBUDSMAN ACT 2017

BETWEEN

UTMOST PANEUROPE DAC

APPELLANT

AND

FINANCIAL SERVICES

AND

PENSIONS OMBUDSMAN

RESPONDENT

W.

NOTICE PARTY

[2021] IEHC 23

Garrett Simons

2019 No. 286 MCA

THE HIGH COURT

JUDGMENT of Mr. Justice Garrett Simons delivered on 10 February 2021

INTRODUCTION

1 This judgment addresses a number of consequential matters arising out of the principal judgment delivered in these proceedings, Utmost Paneurope DAC v. Financial Services and Pensions Ombudsman [2020] IEHC 538. Specifically, it addresses whether the matter should be remitted to the Office of the Ombudsman for reconsideration, and whether leave to apply to the Court of Appeal for a review should be granted.

2 The shorthand “ the Ombudsman” and “ insurance provider” will be used to refer to the parties to the proceedings.

3 The insured party, W, did not participate. An order has been made pursuant to section 27 of the Civil Law (Miscellaneous Provisions) Act 2008 restricting the publication or broadcasting of the name and address of the insured party (the notice party to these proceedings). This order is appropriate in circumstances where it had been necessary for the purposes of the principal judgment to set out the notice party's sensitive medical history in detail.

APPLICATION TO REMIT MATTER TO OFFICE OF THE OMBUDSMAN

4 Section 64 of the Financial Services and Pensions Ombudsman Act 2017 addresses the form of orders which the High Court may make in respect of an appeal against a decision of the Ombudsman as follows.

(3) The orders that may be made by the High Court on the hearing of an appeal under this section include (but are not limited to) one or more of the following:

(a) an order affirming the decision or direction of the Ombudsman, subject to such modifications as it considers appropriate;

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

(c) an order remitting that decision or any such direction to the Ombudsman for review with its opinion on the matter;

(d) such other order in relation to the matter as it considers just in all the circumstances;

(e) such order as to costs as it thinks fit;

(f) an order amending the decision or direction of the Ombudsman, as the case may be.

[…]

(5) Where the High Court makes an order remitting to the Ombudsman a decision or direction of the Ombudsman for review, the Ombudsman shall review the decision or direction in accordance with any directions of the court.

5 As appears from the principal judgment, this court held that the Ombudsman had erred in upholding a complaint made by the notice party in respect of the processing of her claim for payment pursuant to an income protection policy. The principal judgment went on to indicate that an order would be made, pursuant to section 64(3)(b), setting aside the Ombudsman's decision and direction in their entirety.

6 The Ombudsman now seeks an additional order remitting the matter to his Office for review in accordance with the findings of the court. The insurance provider opposes remittal on the grounds that there is, in effect, nothing remaining for the Ombudsman to decide, given the findings made by this court in its principal judgment. Emphasis is placed on the fact that this court held (at paragraphs 71 to 80 of the judgment) that the criticisms made of the insurance provider by the Ombudsman were unjustified.

7 I am satisfied that this is an appropriate case in which to make an order for remittal. Whereas it is correct to say that this court made certain findings in respect of the correspondence between the insurance provider and the independent medical consultant, the more significant finding had been that the Ombudsman had erred in failing to have regard to the Central Bank's Consumer Protection Code. The notice party's complaint should now be reviewed in light of this latter finding. As counsel for the Ombudsman put it in submission, there is still a “job” to be done. Accordingly, I direct that the matter be remitted to the Office of the Ombudsman to be reviewed (by a different decision-maker within the Office) having regard to the Consumer Protection Code.

8 Finally, for the sake of completeness, it is necessary to address a separate, procedural objection raised by the insurance provider. In essence, it is suggested that the possibility of a remittal is foreclosed by the fact that this court, in its principal judgment, indicated that an order would be made setting aside the Ombudsman's decision and direction in their entirety. It is further suggested that the Ombudsman is inviting this court to make an entirely different order (as opposed to an additional order) than that proposed in the judgment.

9 This suggestion was, very sensibly, not pressed at the hearing on 3 February 2021. The setting aside of a decision and the making of an order for remittal are not mutually exclusive. Indeed, it would seem to follow, by analogy with the approach taken to judicial review proceedings, that an order setting aside a decision is a necessary first step to the making of an order for remittal. The initial decision would have to be set aside to allow the Ombudsman to embark upon a reconsideration.

LEAVE TO APPLY FOR REVIEW TO COURT OF APPEAL

10 The principal judgment had been delivered in the context of a statutory appeal pursuant to section 64 of the Financial Services and Pensions Ombudsman Act 2017. Sub-section 64(6) provides as follows.

(6) The decision of the High Court on the hearing of such an appeal is final, other than that a party to the appeal may apply to the Court of Appeal to review the decision on a question of law (but only with the leave of either of those courts, as appropriate).

11 As appears, a party who is dissatisfied with a decision of the High Court is entitled to apply to the Court of Appeal “to review” the decision on a “question of law”. (This is subject to either the High Court or the Court of Appeal granting “leave”). The statutory language is precise, and appears to envisage something less than a full blooded appeal. Of course, it is ultimately a matter for the Court of Appeal to define the scope of its appellate role, and I propose to say no more in relation to same.

12 The High Court's function at this stage is confined to determining whether or not to grant “leave” to apply to the Court of Appeal for a review. The Financial Services and Pensions Ombudsman Act 2017 is silent as to the criteria to be considered by the High Court in this regard. Notably, there is no requirement that the “question of law” meet a threshold of “exceptional public importance” or “public interest”. This is in marked contrast to other legislative provisions which limit access to the Court of Appeal, such as, for example, under the planning legislation or the immigration legislation.

13 The threshold to be applied under the equivalent provision of the precursor to the Financial Services and Pensions Ombudsman Act 2017 has been authoritatively defined as follows by the Supreme Court in Governey v. Financial Services Ombudsman (No. 1) [2015] IESC 38; [2015] 2 I.R. 616. Having noted that no criteria of any sort had been specified under the provision, Clarke C.J. then stated as follows (at paragraphs 18 to 20).

“[…] That section simply speaks of the requirement for leave of either the High Court or this court without specifying any particular criteria by reference to which that leave is to be granted or refused.

In the light of the general principles applicable to the construction of legislative provisions which restrict or exclude a right of appeal otherwise constitutionally provided, I am satisfied that a...