The High Court has granted Michael Donnelly leave to seek judicial review of the Financial Services and Pensions Ombudsman’s decision to discontinue his complaint against Danske Bank, after extending the time for his application by 14 days.
In a judgment delivered on 8 May 2023, Mr Justice Garrett Simons said Mr Donnelly had shown arguable grounds to challenge the Ombudsman’s decision of 13 December 2021. The court did not decide whether that decision was unlawful. The case was at the leave stage, and the substantive judicial review is to proceed.
The complaint investigation had reached an advanced stage. The Ombudsman had circulated a preliminary decision in September 2020 indicating an intention to direct Danske Bank to pay Mr Donnelly €5,000 in compensation. The Ombudsman later closed the complaint, saying Mr Donnelly did not believe the investigation had been fair and impartial. The Ombudsman’s counsel submitted that the investigation was discontinued because an alternative and satisfactory means of redress was available, potentially through litigation against the bank.
Justice Simons said that rationale was not apparent from the December 2021 decision letter, and the court had not been given an explanation for why the Ombudsman had circulated a preliminary decision if another means of redress was available. He found there were arguable grounds to contend that the late decision to discontinue the investigation was unreasonable or based on considerations outside the statutory criteria. These were grounds for review, not findings that the Ombudsman acted unlawfully.
The court found the application was made out of time. The three-month period ran from 13 December 2021, when the applicant received the decision, and was not reset by later correspondence. Although Mr Donnelly filed his papers on 14 March 2022, the application for leave was not moved before a judge until 28 March.
Justice Simons accepted that the short delay arose from a stamp-duty calculation error and pandemic-era listing restrictions, which were outside Mr Donnelly’s control. He also noted that the papers had been prepared within the time limit, the delay was about 14 days, no prejudice to the Ombudsman or Danske Bank was suggested, and the case raised a point of general public importance.
The court extended time to 28 March 2022 and granted leave on all pleaded grounds for the relief sought. It directed that an originating notice of motion be issued, with the Ombudsman and Danske Bank to be served, and listed the matter for the Judicial Review List on 4 July 2023. Its view that Mr Donnelly should recover allowable costs of the leave application was provisional; either side could make written submissions on costs.