The High Court has set aside a Financial Services Ombudsman finding on John O’Shea’s home insurance complaint and remitted the matter to the Ombudsman for an oral hearing. The court did not decide whether AXA Ireland Limited was contractually obliged to pay O’Shea’s storm damage or subsidence claims.
O’Shea, who lives on Achill, said a storm in December 2009 damaged his home. He submitted a storm damage claim in May 2010 and a subsidence claim in July 2010. AXA declined both. The Ombudsman’s November 2013 finding held that AXA had breached the Consumer Protection Code in its dealings with O’Shea, but rejected his central complaint that the insurer had failed to meet its contractual obligations.
O’Shea appealed to the High Court, arguing, among other things, that the Ombudsman should have held an oral hearing because of significant factual disputes. These included disagreements about expert evidence and which policy documents governed the claims. The court found that fairness required an oral hearing in this case, given the differences between the accounts and professional opinions, and uncertainty about whether the finding had considered all those conflicts.
The court directed that the matter be returned for an oral hearing on the factual divergences identified by O’Shea, with one exception: the missing transcript of a telephone conversation had since been provided and did not represent a factual dispute. The judgment noted that the Ombudsman may decide some complaints without oral hearings, but found this case’s complexity required one.
The court also said the Ombudsman should give fuller attention in any new finding to which policy documentation applied when the damage occurred. It observed that O’Shea’s complaint raised potential issues under the Consumer Protection Code about disclosure and the provision of renewal terms, but did not determine whether further breaches had occurred.
On the reports from AXA’s nominated contractors, the court found that AXA had given inconsistent explanations about whether individual reports existed. It accepted that this appeared to be human error, and said the relevant information had been provided to O’Shea in another form. The Ombudsman had already required AXA to pay €150 for a Consumer Protection Code breach relating to information provision; the court said that regulatory censure was separate from the underlying insurance claims.
The court rejected O’Shea’s allegations of bias and deficiencies in the structure of the Ombudsman’s finding. The judgment was delivered by Mr Justice Max Barrett on 11 January 2016.