The High Court has dismissed an appeal by Martin O’Brien against a Financial Services Ombudsman finding on his complaint about a €45,000 investment in a property fund. The court held that the Ombudsman was entitled to decide the complaint without an oral hearing and that the €5,000 award was compensation for shortcomings in the sales documentation, not an assessment of investment losses.
Mr O’Brien invested in the fund in 2006 after meeting an insurance and investments manager at a bank branch. His complaint alleged that he had sought a safe investment, was assured his capital could not be lost, and was classified as an “Active Growth Investor” despite his risk-averse financial history. The company denied mis-selling the product and said the documents warned that the investment was not guaranteed.
In January 2013, the Ombudsman partly substantiated the complaint and directed the company to pay €5,000. The Ombudsman found insufficient explanation of how Mr O’Brien’s attitude to risk had been assessed and considered that the phrase “Active Growth Investor” could cause confusion. The finding also referred to an €8,000 long-term investment recorded in a review document; Mr O’Brien said that record was wrong.
Mr O’Brien appealed, arguing that the conflict over what was said at the 2006 meeting required an oral hearing. He also challenged the Ombudsman’s reliance on the €8,000 entry and said the compensation did not reflect his loss. The Ombudsman maintained that a hearing was unnecessary and that no crystallised loss figures had been provided.
Ms Justice Iseult O’Malley said the Ombudsman’s letter had made clear that the case would proceed to adjudication unless further submissions were made. Mr O’Brien’s solicitor did not respond or request a hearing. The judge said the Ombudsman could take that into account, and that the signed investment documents meant the Ombudsman could conclude the meeting account would not determine the complaint, even if Mr O’Brien’s evidence about it were accepted.
The judge also rejected the challenge concerning the €8,000 entry. Mr O’Brien and his representative had an opportunity to dispute it during the complaint process but did not do so, and the Ombudsman was not required to check the accuracy of every relevant item in those circumstances.
On compensation, the judge said the Ombudsman was not compensating Mr O’Brien for investment loss. No crystallised statement of loss had been submitted, and the Ombudsman had not found that any loss was necessarily caused by improper conduct. The award reflected unclear documentation about the risk classification and whether other investment options had been discussed.
The court concluded that Mr O’Brien had not established a serious or significant error and dismissed the appeal.