The High Court has upheld the Financial Services Ombudsman’s findings in a complaint about EBS’s handling of an architect’s mortgage, concluding that the Ombudsman made no serious or significant error in deciding the case or its remedy.
In a judgment delivered on 26 April 2013, Ms Justice Iseult O’Malley dismissed the appeal brought by Angela T. Carr under section 57CL of the Central Bank Act 1942. EBS Building Society, named as a notice party, did not participate in the High Court hearing. The appeal did not challenge the Ombudsman’s finding in Carr’s favour about EBS’s service between September 2008 and April 2010.
Carr had asked EBS in 2008 to switch her mortgage to interest-only payments while she considered work opportunities outside Dublin and proposed renting out her home. EBS’s response said the change required converting the tracker mortgage to a commercial base rate and cancelling payment protection insurance. Carr agreed in writing. She later told EBS that two job offers had fallen through and that she was in financial difficulty. Her mortgage remained classified as a commercial investment property until it was changed back to a domestic home loan in September 2009.
The Ombudsman found in 2011 that EBS had acted reasonably on Carr’s original written instructions, but had failed to provide a proper level of service after her financial difficulties became apparent. He concluded that EBS should have reviewed the arrangements by September 2008 and changed the account to a tracker or residential variable rate. In a supplementary finding in 2012, he directed EBS to reduce the arrears by €4,142.36 and pay €2,500 for distress and loss linked to the service failure. He did not accept that the failure caused Carr’s claimed health and career losses.
Carr argued that the Ombudsman had not properly considered the Consumer Protection Code, failed to hold an oral hearing, and did not award appropriate compensation. Justice O’Malley said it would be desirable for Ombudsman decisions to address the Code, but found that the Ombudsman had reasonably treated Carr’s original request as instructions rather than a request for advice. On that basis, the Code’s relevant exemptions would have applied; the more rigorous 2012 provisions could not be applied retrospectively.
The judge also found no material factual dispute requiring an oral hearing. She expressed serious doubts that the Ombudsman had jurisdiction over substantive personal-injury claims, while accepting that he could award relatively modest sums for stress or distress as inconvenience. The court did not set aside or remit the findings. It held that the Ombudsman was entitled to his conclusions on both the original request and redress.