The High Court has ruled that an appeal by Ulster Bank Investment Funds Limited against a Financial Services Ombudsman finding must show a serious and significant error in the adjudicative process as a whole. The court also directed that the appeal should proceed on the materials previously before the Ombudsman, subject to a discretion to admit further evidence where necessary or appropriate in the interests of justice.
President of the High Court Finnegan delivered the judgment on 1 November 2006. The appeal was brought under section 57CL of the Central Bank Act 1942. The judgment addressed the scope of that statutory appeal; it did not determine whether the Ombudsman’s underlying finding was right or wrong.
The court rejected both a full hearing from the beginning and the narrower test used in judicial review. It adopted the approach previously stated in cases concerning statutory appeals: the plaintiff must establish, on the balance of probabilities, that the decision was affected by a serious and significant error, or a series of such errors, when the adjudicative process is considered as a whole. In applying that test, the court must have regard to the Ombudsman’s expertise and specialist knowledge.
The judgment said the appeal was not limited to questions of law. It distinguished the High Court appeal from a later possible Supreme Court review, which under the statute could address a question of law with leave.
As to evidence, the court said the appeal should ordinarily be decided on the material that had been before the Ombudsman. It retained discretion, on application, to allow additional evidence if satisfied that this was necessary or appropriate in the interests of justice. In deciding such an application, the court would consider established principles for admitting further evidence while taking account of the nature and less formal procedures of the original decision-making body. The judgment said a more flexible approach than the Supreme Court’s usual approach may be required.
The notice parties named in the proceedings had opted not to take part at this stage. The judgment set the standard and evidence framework for the appeal, but made no determination of the underlying complaint or the Ombudsman’s finding.