The High Court has set aside proceedings brought by Flavio Jr Suarez against the Financial Services and Pensions Ombudsman, finding they were irregular in form, but ordered each side to bear its own costs.
In a supplementary judgment delivered on 29 March 2022, Mr Justice Garrett Simons said the proceedings had been dismissed on a narrow procedural ground. The court had found that an application under Order 84B of the Rules of the Superior Courts was not authorised for challenging the Ombudsman’s decision on jurisdiction. The appropriate route was judicial review under Order 84.
The court’s principal judgment, delivered on 8 February 2022, had not ruled on the underlying merits of the complaint or the broader questions about the Ombudsman’s jurisdiction. The judge said the proceedings were set aside because the financial services provider involved in the complaint had not been joined as a notice party and could be affected if the Ombudsman’s decision were overturned.
The Ombudsman sought its costs, arguing that it had succeeded in having the proceedings dismissed and that the procedural objection had been pleaded. It also pointed to a letter sent to Suarez on 12 January 2021 warning that it might seek to recover its legal costs.
Suarez argued that the Ombudsman should not receive costs because the court had not decided the substantive issues. He also said the Ombudsman had not told him that judicial review was the procedure to challenge the decision.
The judge said the usual starting point was that a party entirely successful in proceedings could recover costs. But he found this case had unusual features that justified departing from that position. The Ombudsman’s January letter warned about costs but did not identify the defect in the form of the proceedings, even though the court said that defect would have been apparent to a lawyer. By the time the procedural objection was pleaded, the three-month period for bringing judicial review was almost over. The judge also said the basis for dismissal ultimately rested on potential prejudice to the financial services provider, rather than prejudice to the Ombudsman.
The court therefore made no order as to costs. It said the Ombudsman was not under a general obligation to advise complainants on court procedures; the costs decision turned on the particular circumstances of this case.
The order set aside the proceedings as irregular in form under Order 124 of the Rules of the Superior Courts and/or the court’s inherent jurisdiction. Suarez represented himself. The Ombudsman was represented by Mark William Murphy, instructed by Eversheds Sutherland.