The High Court has set aside an order granting R.J.G. (Holdings) Limited leave to seek judicial review of a finding by the Financial Services Ombudsman, after ruling that key documents were not disclosed when leave was sought ex parte.
The judgment, delivered by Mr Justice Herbert on 31 October 2012, concerned the Ombudsman’s June 2011 finding that the company’s complaint against Danske Bank A/S, trading as National Irish Bank, was not substantiated. The complaint arose from a proposed lease of premises at 32 and 33 Blessington Street, Dublin. The company alleged, among other things, that the bank delayed consent to the lease and breached oral agreements about loan repayments and a €100,000 deposit. The bank disputed the complaints. The Ombudsman resolved them without an oral hearing.
The company obtained leave for judicial review on 7 December 2011. The Ombudsman later applied to set that order aside, arguing that there had been material non-disclosure, that judicial review was being used to avoid the 21-day statutory appeal period, that the application was delayed and that an appeal was the more appropriate remedy.
The court considered two groups of documents omitted from the leave application. It found that letters exchanged after the Ombudsman’s finding in June and July 2011 should have been disclosed because they might have been relevant to timeliness. However, the judge found that this omission was not significant or culpable enough to justify setting aside leave.
The court reached a different conclusion about the company’s 2008 debenture, two demands for payment dated November and December 2011, and a receiver and manager’s appointment deed dated 22 November 2011. The judge found their omission both significant and culpable. The documents could have affected whether the company had authority or standing to bring the case following the receiver’s appointment, issues the court said it had to consider at the leave stage.
The judge inferred that the omission was not a deliberate attempt to mislead the court, but said the applicant and its advisers were not entitled to decide for themselves that the documents were irrelevant. The judgment accepted, for this application, the company’s statement that it did not receive a second appointment deed dated 7 December until 9 December 2011.
The court set aside the 7 December order granting leave. It did not decide whether the Ombudsman’s finding was legally flawed, whether an oral hearing was required, or the Ombudsman’s other grounds for setting aside leave. The judgment therefore determined the leave order on the non-disclosure issue; it did not resolve the underlying complaint about the bank.