The High Court has refused John O’Brien an extension of time to appeal a 2014 decision by the Financial Services Ombudsman (FSO) dismissing his complaint about an insurance claim. The judgment addressed only the extension application; it did not determine the underlying appeal.
Mr Justice Noonan said the appeal was brought on 7 January 2017, almost three years after the FSO’s determination on 27 January 2014. The ordinary appeal period was 21 days. The parties had agreed that the extension question would be decided first.
Mr O’Brien, a retired school teacher, had claimed benefits under a group permanent health insurance policy after retiring in 2012 on grounds of alleged ill health. His doctors supported his claim, while two psychiatrists arranged by Irish Life concluded that he was not disabled from teaching. Irish Life declined the claim, and the FSO later dismissed his complaint. Those decisions were background to the extension application, not matters decided in this judgment.
The judge said Mr O’Brien knew of the 21-day limit. He had decided not to appeal at the time after receiving advice from others that a High Court case could cost at least €100,000 if unsuccessful and was unlikely to succeed. He instead pursued arbitration, relying on a policy brochure that incorrectly stated arbitration was available after an FSO decision. Irish Life declined to arbitrate in February 2014, though the judge said Mr O’Brien did not appear to learn of that refusal then. It was clear by August 2015 at the latest that arbitration would not proceed.
Mr O’Brien later had legal advice. In February 2016, his solicitor asked the FSO to reopen the case and said that, if it refused, instructions had been given to appeal. The FSO refused to reopen it, but the appeal was not filed until January 2017.
The judge accepted for this application that Mr O’Brien’s proposed grounds were at least arguable. They included complaints that the FSO should have held an oral hearing to address conflicting medical opinions and had relied partly on a scheme-membership requirement that Irish Life had not used to reject the claim. The court did not decide whether those grounds would succeed.
Mr Justice Noonan said the delay was unprecedented and would require truly exceptional circumstances to justify an extension. He found no good and sufficient reason for missing the deadline, and said there was no cogent evidence that Mr O’Brien’s depression had prevented him from appealing. He also noted the long delay after he had obtained legal advice and after his solicitor had instructions to appeal. The court dismissed the application to extend time.