The High Court has sent an insurance complaint back to the Financial Services and Pensions Ombudsman for review by a different decision-maker, and granted the Ombudsman leave to seek a Court of Appeal review on three questions of law.
In a consequential judgment delivered on 10 February 2021, Mr Justice Garrett Simons directed that the complaint be reconsidered having regard to the court’s principal judgment. That earlier judgment, Utmost Paneurope DAC v Financial Services and Pensions Ombudsman [2020] IEHC 538, found that the Ombudsman had erred in upholding W’s complaint about the handling of a claim under an income protection policy. The court had indicated that it would set aside the Ombudsman’s decision and direction.
The Ombudsman sought remittal so the Office could reconsider the complaint. Utmost Paneurope opposed, arguing that there was nothing left for the Ombudsman to decide because the High Court had found its criticisms of the insurer unjustified. The judge said the court’s more significant finding was that the Ombudsman had failed to consider the Central Bank’s Consumer Protection Code. The complaint should be reviewed in light of that finding, he said. The setting aside of the original decision and remittal for reconsideration were not mutually exclusive.
The court also granted the Ombudsman leave to apply to the Court of Appeal for review of the principal judgment on three legal questions. They concern whether the Ombudsman must consider applicable Central Bank codes when assessing a financial services provider’s reasonableness; whether the Ombudsman can direct an insurer to accept and pay an insurance claim without finding a breach of contract; and whether the High Court can draw different inferences from documents than the Ombudsman in a statutory appeal.
The judge said the legislation required a stateable basis for review on a point of law and that the Ombudsman had established arguable grounds on these issues. Granting leave does not determine the questions: they are for the Court of Appeal if an application is made.
The Ombudsman was ordered to pay Utmost Paneurope’s costs of the proceedings, including the remittal and leave applications. The costs are to be assessed if the parties cannot agree, and the order is stayed pending an appeal to the Court of Appeal or an application for leave to appeal to the Supreme Court.
W did not participate. A court order restricts publication or broadcasting of W’s name and address.