The High Court has set aside proceedings brought by Flavio Jr Suarez challenging the Financial Services and Pensions Ombudsman’s refusal to investigate his complaint about a housing loan mortgage with Permanent TSB plc. The court did not decide whether the Ombudsman was right to find that the complaint fell outside its jurisdiction.
The Ombudsman had ruled in December 2020 that section 50(3) of the Financial Services and Pensions Ombudsman Act 2017 prevented an investigation because the same matter had been before the Circuit Court. Those Circuit Court proceedings, brought by Permanent TSB for possession, were later struck out without a decision on the merits. Suarez disputed the Ombudsman’s characterisation of the proceedings and the interpretation of the legislation. He also argued that the 2017 Act should not apply retrospectively to his 2016 complaint.
The court found that the 2017 Act applied to the complaint in general under its transitional provisions. It did not decide whether the Act’s separate mechanism for seeking a stay of court proceedings applied to this legacy complaint, saying that question was unnecessary to resolve the case.
Suarez brought his High Court challenge by originating notice of motion under Order 84B of the Rules of the Superior Courts. The court held that Order 84B was unavailable because the Act did not provide for that type of application to challenge the Ombudsman’s jurisdiction decision. The Ombudsman accepted that such a decision could be challenged by judicial review under Order 84.
The court said the procedural error had not caused actual prejudice to the Ombudsman: Suarez’s affidavit set out his grounds, and the papers were served in January 2021, earlier than notice might have been given through judicial review. But the procedure failed to ensure that all directly affected parties were notified. Permanent TSB was directly affected because a successful challenge could have revived the complaint against it. The court found that this created potential prejudice and denied the bank fair procedures.
The proceedings were therefore set aside in their entirety as irregular. The judge’s provisional view was that each party should bear its own costs, but either party could file written submissions seeking a different order within three weeks of the judgment, delivered on 8 February 2022.