Walsh & Office School & Computer Supplies Ltd

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date27 June 2012
Neutral Citation[2012] IEHC 258
Judgment citation (vLex)[2012] 6 JIC 2703
CourtHigh Court
Date27 June 2012

[2012] IEHC 258

THE HIGH COURT

Record No.: 107MCA/2011
Walsh & Office School & Computer Supplies Ltd v Financial Services Ombudsman & Anor
IN THE MATTER OF SECTION 57 CL OF THE CENTRAL BANK ACT 1942 (AS INSERTED BY SECTION 16 OF THE CENTRAL BANK AND FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004)

BETWEEN

DAVID WALSH, URSULA WALSH AND OFFICE SCHOOL AND COMPUTER SUPPLIES LIMITED
APPELLANTS
-AND-
THE FINANCIAL SERVICES OMBUDSMAN
RESPONDENT
-AND-
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
NOTICE PARTY

CENTRAL BANK ACT 1942 S57 CM (2)(B)

CENTRAL BANK & FINANCIAL SERVICES AUTHORITY OF IRELAND ACT 2004 S16

CENTRAL BANK ACT 1942 S57 CM (2)(C)

CENTRAL BANK ACT 1942 S57 CM (3)

CENTRAL BANK ACT 1942 S57 CM (3)(B)

CENTRAL BANK ACT 1942 PART VII(B)

CENTRAL BANK ACT 1942 S57 CI(4)

CENTRAL BANK ACT 1942 S57 CL

ULSTER BANK INVESTMENT FUNDS LTD v FINANCIAL SERVICES OMBUDSMAN UNREP FINNEGAN 1.11.2006 2006/56/11976 2006 IEHC 323

CENTRAL BANK ACT 1942 S57 CI(4)(A)

CENTRAL BANK ACT 1942 S57 CI(4)(D)

SQUARE CAPITAL LTD v FINANCIAL SERVICES OMBUDSMAN 2010 2 IR 514

DE PAOR v FINANCIAL SERVICES OMBUDSMAN UNREP MCGOVERN 20.12.2011 2011/11/2670 2011 IEHC 483

Practice and procedure - Commercial law - Banking - Appeal - Compensation - Whether the respondent's decision regarding the appellants' complaints against the notice party was vitiated by a serious and significant error or series of such errors - Section 57 CM of the Central Bank Act 1942 (as inserted by Section 16 of the Central Bank and Financial Services Authority of Ireland Act 2004).

Facts The first and second named appellants were directors of the third named appellant, who as a result of deterioration in their business relationship with the notice party submitted a complaint to the respondent. The respondent found that the complaint was partly substantiated and that the notice party was guilty of several instances of maladministration which had caused considerable inconvenience to the appellants. The appellants herein sought an order pursuant to s. 57 CM of the Central Bank Act 1942 as amended setting aside the direction of the respondent requiring the notice party to pay to the appellants the sum of €2500 in recognition of the various lapses of customer service/administration of the notice party as found by the respondent. The appellants also sought an order pursuant to s. 57 CM remitting the finding of the respondent to the respondent for review in accordance with the directions of this court. The appellants submitted that the respondent's finding was vitiated by a number of serious and significant errors and in particular the respondent erred in not making any of the directions sought by the appellants, erred in awarding wholly inadequate damages which did not reflect the stress and damage caused to the first appellant's health and erred in only partially substantiating the appellant's complaint and by dealing with issues that had previously been resolved between the parties.

Held by Hedigan J. in dismissing the appeal: That the appellants did not explicitly seek certain directions in their complaint form to the respondent. In any event, the decision whether to grant directions was classically a decision for an expert tribunal and the court had regard to the degree of expertise and specialist knowledge of the respondent in such matters. There was no evidence of an ongoing practice by the notice party which was causing damage to customers. It was not for this court to intervene. It was not the role of the respondent to measure general damages like the High Court does and it was not the role of this court to treat this appeal like an appeal on quantum in the usual sense. The appellants did not write to the respondent and ask for the matters that had been resolved to be disregarded and consequently the respondent was simply being prudent in addressing all the issues. In any event there was no practical benefit in having the finding, which was a private matter between the parties amended.

1

Judgment of Mr. Justice Hedigan delivered the 27th of June 2012

2

1. The first and second-named appellants are directors of the third-named appellant, Office School and Computer Supplies Limited. They reside at Clonea Lower, Garranbane, Co Waterford. The respondent is a statutory officer who deals independently with complaints from consumers about their individual dealings with all financial services providers. The notice party is the Governor of the Bank of Ireland whose registered office is located at 40 Mespil Road, Dublin 4.

3

2. The applicant's seek the following relief:-

4

1. An Order pursuant to s. 57 CM (2)(b) of the Central Bank Act 1942 (as inserted by s.16 of the Central Bank and Financial Services Authority of Ireland Act 2004) setting aside the direction in the finding of the respondent dated 21 st March 2011 (Ref 09/ 46361) that the notice party pay to the appellants by way of cheque the sum of €2500 in recognition of the various lapses of customer service/ administration of the notice party as found by the respondent in the finding of the respondent dated 21 st March 2011 (Ref 09/46361).

5

2. An order pursuant to s. 57 CM (2) (c) and s. 57 CM (3) of the Central Bank Act 1942 (as inserted by s. 16 of the Central Bank and Financial Services Authority of Ireland Act 2004) remitting the finding of the respondent dated the 21 st March 2011 (Ref 09/ 46361) to the respondent for review in accordance with the directions of this Court.

6

3. If necessary, an order pursuant to s. 57 CM (3) (b)of the Central Bank Act 1942 (as inserted by s. 16 of the Central Bank and Financial Services Authority of Ireland Act 2004) enlarging the time limit within which this appeal may be brought.

Background Facts
7

2 3.1 The first and second-named appellants are directors of the third-named appellant, Office School and Computer Supplies Ltd. Since the appellants started in business, they have banked with Bank of Ireland (the notice party). The proceedings before the respondent arose from a deterioration in the appellants business relationship with the notice party brought about by lapses in customer service and the emergence of incorrect acts by the notice party with regard to the appellant's personal and business accounts. In January 2009, the notice party informed the appellants that it intended to reduce their commercial overdraft limit prompting the appellants to undertake a review of their business with the notice party. As a part of this review the appellants discovered that the notice party had not adjusted the level of the monthly repayments on the appellant's eight commercial mortgage accounts in line with the changes in the variable interest rate. As a consequence of this the appellants were making unnecessary overpayments. The appellants and the notice party resolved the issue of the unnecessary overpayment on the appellant's commercial loans to the appellant's satisfaction prior to the submission of the appellant's Complaint Form to the Ombudsman.

8

3 3.2 A consequence of the notice party's failure to adjust the monthly interest repayments was the placing of additional pressure upon the appellant's commercial overdraft account. The effect of this was that additional interest charges and surcharges were applied to the appellant's commercial overdraft account. The notice party was responsible for the following other instances of maladministration with regard to the appellant's accounts:-

9

(a) On 25 th September 2008, the notice party withdrew the sum of €5716.29 from the appellants' current account without formally advising the appellants of its intention to do so.

10

(b) The notice party improperly switched the first-named appellant's personal current account into the name of the third appellant without written authority from the first named appellant.

11

(c) The notice party attempted to ascribe the responsibility for this to the first appellant.

12

(d) The notice party acted incorrectly by incorrectly crediting a payment of €100,000 by the appellants to a commercial loan instead of to a bridging loan in accordance with the appellant's instructions.

13

(e) In May 2009, the notice party reversed three standing orders on an account that serviced three of the appellant's mortgages with the notice party. This was done by the notice party in circumstances where the account on which the standing order was set up was in credit with sufficient funds to meet the three monthly standing order payments.

14

4 3.3 The respondent issued his finding (Ref 09/ 46361) on 21 st March 2011. The respondent found that the appellant's complaint was partly substantiated. The respondent found that the notice party was "guilty of several instances of maladministration… which have caused considerable inconvenience to the complainants". In particular, the respondent found as follows:

15

(a) By its own admission, the notice party acted incorrectly by incorrectly crediting a payment of €100,000 by the appellants to a commercial loan (account 20931232) instead of crediting the payment of €100,000 to a bridging loan (account 20627310) in accordance with the appellants' instructions.

16

(b) The notice party failed to advise the appellants of increases or decreases in commercial loan repayments in line with interest rate changes. Due to the fact that the notice party did not alter the repayments on the various commercial loans, significant additional reliance was placed upon the appellant's company overdraft account and this resulted in additional interest and surcharge interest being incorrectly charged to the appellant's company overdraft account between 2001 and 2008. The respondent directed that the sum of €10,903.20 be paid to the appellants.

17

a (c)The respondent found that there remained a dispute as...

To continue reading

Request your trial
3 cases
  • Martin O'Brien v Financial Services Ombudsman and Another
    • Ireland
    • High Court
    • 28 Febrero 2014
    ...UNREP MCGOVERN 20.12.2011 2011/11/2670 2011 IEHC 483 WALSH & ORS v FINANCIAL SERVICES OMBUDSMAN UNREP HEDIGAN 27.6.2012 2012/46/13729 2012 IEHC 258 ULSTER BANK v FINANCIAL SERVICES OMBUDSMAN UNREP FINNEGAN 1.11.2006 2006/56/11976 2006 IEHC 323 HAYES v FINANCIAL SERVICES OMBUDSMAN UNREP MACM......
  • Carr v Financial Services Ombudsman
    • Ireland
    • High Court
    • 26 Abril 2013
    ...UNREP MCGOVERN 20.12.2011 2011/11/2670 2011 IEHC 483 WALSH & ORS v FINANCIAL SERVICES OMBUDSMAN UNREP HEDIGAN 27.6.2012 2012/46/13729 2012 IEHC 258 GALVIN v CHIEF APPEALS OFFICER & MIN FOR SOCIAL WELFARE 1997 3 IR 240 1998/7/1929 1997 IEHC 218 CENTRAL BANK 1989 S117 Mortgage – Complaint ag......
  • Smartt v Financial Services Ombudsman
    • Ireland
    • High Court
    • 20 Noviembre 2013
    ... ... See Walsh" v. The Financial Services Ombudsman (the High Court, 27 th\xC2" ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT