The High Court dismissed Mary Dwyer’s appeal against a Financial Services Ombudsman decision rejecting her complaint about two property investments. The court found no exceptional circumstances that required the Ombudsman to hold an oral hearing.
Ms Dwyer, a farmer’s widow, invested £200,000 in a Canary Wharf property syndicate in 2006 and a further £200,000 in the Bedford Lakes syndicate in 2007. She said the bank had not explained the risks, that she did not understand the investments were high risk, and that they were unsuitable for her. Ulster Bank said its staff had explained them. The investments were classified as high risk, and the judgment records that Ms Dwyer received investment documents setting out risks.
The investments performed poorly, according to the judgment. Ms Dwyer later received drafts of £118,125 following refinancing of the Canary Wharf investment and £46,328.15 following refinancing of Bedford Lakes. The court said those payments significantly mitigated her losses.
The Ombudsman rejected the complaint, finding there was no evidence the investments had been mis-sold. He concluded that the risks had been outlined and Ms Dwyer had chosen to proceed. Ms Dwyer appealed, arguing that conflicts between her account and the bank employees’ accounts required an oral hearing and that the Ombudsman had not adequately considered her factual submissions.
The court applied the established test for appeals under section 57CL of the Central Bank Act 1942: whether, considering the adjudicative process as a whole, a serious and significant error or series of errors had vitiated the decision. It said the Ombudsman had discretion over whether to hold an oral hearing, and the court had to consider the circumstances of the case, including whether a hearing had been requested and whether the complainant had legal advice.
Ms Dwyer was legally represented during her complaint. The bank employees’ accounts had been provided to her before the Ombudsman’s determination, giving her an opportunity to consider them with her advisers and request a hearing. She did not do so. The court also said age alone did not show incapacity, and found no evidence that Ms Dwyer suffered from mental impairment or could not understand the case presented.
The court concluded that the Ombudsman was not required to hold an oral hearing in the circumstances. It dismissed the appeal. The ruling addressed the challenge to the Ombudsman’s process and decision; the court did not make a separate finding that the investments were suitable or that no loss occurred.