The Court of Appeal has dismissed an appeal by a policyholder whose High Court proceedings against Zurich Insurance plc were struck out after a Financial Services Ombudsman determination rejected her insurance claim.
The appeal concerned whether she could pursue fresh plenary proceedings over the insurer’s refusal to pay after the Ombudsman had ruled on the complaint. The court said the statutory scheme made the Ombudsman’s finding binding, subject to an appeal to the High Court. The policyholder did not appeal the finding within the statutory process.
The dispute followed a fire on 25 September 2010 that destroyed the cottage occupied by the policyholder and her family in Newbawn, County Wexford. Zurich declined the claim, relying on a forensic report that attributed the fire to an electric heater left on beside a sofa. The Ombudsman later accepted that conclusion and awarded €900 as a “customer care award”, while rejecting the insurance claim.
The policyholder began High Court proceedings against Zurich in September 2012, seeking payment under the policy and alleging negligence, including negligent misrepresentation. Zurich applied to strike out the proceedings on the basis that the Ombudsman’s determination barred the claim. The High Court granted the application in June 2016. A separate attempt to extend the time to appeal the Ombudsman’s determination was dismissed and was not appealed.
On appeal, the policyholder argued that the Ombudsman process was informal and should not prevent access to the courts. She also relied on alleged special circumstances, including the breadth of her claim, the consequences for her family, and her claimed lack of legal advice during the complaint process. Zurich argued that she was seeking to relitigate the same issue and that established Court of Appeal decisions required the claim to be barred.
The Court of Appeal said its earlier decisions had established that an Ombudsman determination may give rise to res judicata, preventing the same matter from being reopened in separate proceedings. The court said it was bound by that approach and that applying the principle was not a matter of discretion where it applied.
The court also declined to consider the constitutional argument because it had not been raised in the High Court and no challenge to the constitutionality of the legislation was before it. It said negligent misrepresentation had not been pleaded or raised at first instance, so it could not address that point on appeal. The claimed special circumstances could not be entertained in light of the policyholder’s solicitor representation before the Ombudsman’s determination and her failure to appeal it. The appeal was dismissed; the High Court strike-out remained in place.