The High Court has sent Abbeyleix Credit Union’s complaint against Hooper Dolan Financial Limited back to the Financial Services Ombudsman for a fresh decision, after finding that the complaint’s eligibility had not been properly considered and that key financial material was not shared with the firm.
Mr Justice John MacMenamin delivered judgment on 15 April 2011 in Hooper Dolan’s judicial review challenge to an Ombudsman finding made on 30 June 2009. That finding upheld the Credit Union’s complaint about an investment and directed Hooper Dolan to refund €100,000, the full original investment. Hooper Dolan also had a statutory appeal pending; the court decided to deal with the judicial review first.
The complaint concerned a €100,000 investment in a Dresdner Bank Bond bought by the Credit Union in January 2005 after Hooper Dolan brought the opportunity to its attention. The Credit Union later questioned whether the bond complied with the Trustee (Authorised Investment) Order 1998. Hooper Dolan maintained that it did and said there had been no mis-selling.
The statutory scheme required the Ombudsman to be satisfied that a complaint fell within its jurisdiction before investigating it. Under the Council’s regulations, incorporated bodies could qualify as consumers if their annual turnover was no more than €3 million. The Credit Union reported annual income of €1,108,516. Its financial statements, however, also showed receipts and disbursements far above €3 million. The Deputy Ombudsman had those statements, but did not send them to Hooper Dolan during the complaint process.
The judge found no evidence that the Deputy Ombudsman had made a reasoned assessment of jurisdiction using the financial material available. He also found that fairness required the full financial statement to be provided to Hooper Dolan. Those omissions were errors going to jurisdiction and rendered the resulting decision a nullity, the judgment said.
The court did not decide whether the Credit Union’s turnover exceeded the regulatory limit or whether it was eligible to complain. It said those evidential and legal questions should be put to the Ombudsman, who must decide them. The judgment also rejected Hooper Dolan’s challenges to the regulations and statutory provisions under the constitutional principles and policies test and on retrospectivity grounds.
Although the judge criticised Hooper Dolan’s delay and conduct, he found those matters did not justify refusing relief. He ordered that the complaint, including the jurisdiction issue, be remitted to the Ombudsman for consideration de novo in accordance with law, and recommended that another officer handle it. The court reserved the form of the order and the question of costs for further submissions.