Supreme Court clarifies test for seeking leave to appeal High Court judgments in respect of Findings by the Financial Services Ombudsman.

On 6 May 2015 Mr Justice Clarke delivered judgment in Governey -v- Financial Services Ombudsman & IBRC Assurance Company Limited [2015] IESC 38. The judgment sets out the threshold an appellant has to meet when seeking leave to appeal a judgment of the High Court.

Background

Mr Governey (the “Appellant”) made a complaint to the Financial Services Ombudsman (the “FSO”) regarding a particular financial product he had purchased. His complaint was not substantiated by the FSO and he subsequently appealed the FSO’s Finding to the High Court. The appeal was heard before Mr Justice Hedigan who rejected the appeal.

The Appellant sought leave to appeal from Hedigan J, who refused his application. Section 57CM of the Central Bank Act 1942, as inserted by section 16 of the Central Bank and Financial Services Authority of Ireland Act, 2004 (the “Act”) provides that a party may apply to the Supreme Court to review the determination of the High Court on a question of law but only with the leave of either of those Courts.

Having been denied leave to appeal by Hedigan J, the Appellant sought the leave of the Supreme Court. This application arose before the establishment of the Court of Appeal however, Clarke J clarified that the same issues will arise in respect of appeals to the Court of Appeal.

Judgment

Clarke J stated that two broad issues arose in the appeal. The first being the proper approach of the Court to the question of whether to grant leave and the second being the determination of whether the issues sought to be raised on appeal were sufficient for the granting of leave to appeal. It is helpful to look at both issues in turn.

Clarke J referred to his judgment in Fitzgibbon -v- The Law Society of Ireland [2014] IESC 48 where he highlighted the difficulties with appeal regimes and in determining what type of appeal may be open to the Court. He noted that this was not a problem in the present case as the legislation specified that an appeal of this nature is an appeal “on a question of law”. He noted however that no criteria exist to assist in the question of whether leave to appeal should be granted. Clarke J also highlighted that there is no guidance on what the interaction between the High Court and the Supreme Court should be in circumstances such as these where the High Court has refused leave to appeal.

Turning to the criteria for granting leave to appeal, Clarke J found that where a statutory provision is silent on the leave criteria it must be interpreted as meaning that leave should be granted provided a stateable basis for appeal has been established. He clarified that this “stateable basis” must be one within the scope of the type of appeal allowed. In the present case an appeal is only permitted on a point of law and so it was necessary for the Appellant to establish a stateable appeal on a point of law only.

Clarke J then turned to the approach the Supreme Court should take in circumstances where the High Court has already refused leave to appeal.

He held that where the High Court has given a reasoned judgment refusing leave, the Supreme Court must take this in to its consideration of the matter. However, he did not find that any particular level of deference should be afford to the view of the High Court Judge. He noted that the Supreme Court has its own independent power to refuse or grant leave.

Clarke J made some useful observations on the FSO’s procedures.

He noted that the FSO has a wide range of powers in which to find a complaint substantiated, including where the conduct complained of is unreasonable, oppressive or discriminatory. Clarke J held that it was clear that the FSO can substantiate a complaint even where the conduct complained of was not contrary to law. He also highlighted that the wide range of remedies available to the FSO, which go beyond those which might be available to someone should they choose to bring proceedings before a court rather than the FSO. Clarke J also noted that the FSO is entitled to decline to investigate a complaint where there is “an alternative and satisfactory means of redress in relation to the conduct complained of”. Having regard to the fact that the FSO could be presented with complaints which might be wholly or largely based on a claim of breach of legal rights and obligations, the Court noted that it was at least arguable that in a case such as this, the degree of deference to be afforded to the expertise of the FSO by the Court should be significantly less.

The Court went on to hold that it was arguable in this instance that the trial judge adopted an overly deferential attitude to the FSO’s Finding.

Clarke J made observations on the process to be adopted by the FSO when investigating complaints and the notion of conducting its investigations in a similar way to what might happen in court. Whilst the Court held that there was no inherent obligation on the FSO to adopt court-like procedures, where the FSO failed to exercise the option to decline to investigate a purely “legal” complaint, it was at least arguable that the FSO would then assume obligations not unlike those applicable in court proceedings.

Based on the specific facts of the complaint and the case before the High Court, Clarke J was satisfied that the Appellant had met the threshold of an arguable and stateable case, whilst recognising that it is a low threshold. He also found that the Appellant had met the threshold of an arguable and stateable case in relation to the question of the adequacy of the reasons proffered by the FSO for his Finding. In this regard, Clarke J noted that the reasons given for a decision reached by a decision-maker must be sufficient to allow a party to decide whether the decision made was legally correct and to allow a party to decide whether the decision is capable of being challenged.

In summary, Clarke J found that the appropriate test to be applied in deciding whether to grant leave of a High Court Judgment was whether an Appellant had reached the test of arguability or stateability. Clarke J found that the Appellant had met this test and granted his application for leave to appeal the decision of Hedigan J.

Comment

The issue of curial deference is a common theme in appeals of Findings issued by the FSO. This judgment (together with the more recent judgment of the Court of Appeal in FSO -v- Millar & Danske Bank set out elsewhere in this newsletter) are quite clear in providing that where the issue before the Court is a purely legal question, little (or no) deference will be afforded to the FSO.

Clarke J’s view that where the FSO fails to exercise the option to decline to investigate a purely “legal” complaint it must arguably assume obligations not unlike those applicable in court proceedings, may well require the FSO to consider the manner in which it will approach complaints made to its office in the future as it would appear to go against one of the objects of the FSO, namely to enable complaints to be dealt with in an informal and expeditious manner.