The High Court ordered John and Deirdre Billane to pay the legal costs of the Financial Services and Pensions Ombudsman after their appeal against the Ombudsman’s decision failed. It made no order for costs in favour of RSA Insurance Ireland Limited, which participated as a notice party.
Mr Justice Max Barrett delivered the costs judgment on 9 February 2022, following the court’s judgment of 23 November 2021. The judgment identified the matter before it as an application for costs; it did not revisit the outcome of the appeal.
The judge said the Ombudsman had not been shown to have acted wrongly: it had legitimately resisted the Billanes’ criticisms and succeeded in court. He therefore considered that the Ombudsman should receive its costs.
The court also considered circumstances weighing against an order for RSA’s costs. It noted that the Billanes were consumers and that they could not obtain home insurance after a claim was declined on grounds of material non-disclosure. The Ombudsman’s decision had found no deliberate concealment or misrepresentation, the judgment said.
The judge considered the Billanes’ argument about “OTC” insurance a reasonable ground for appeal because the Ombudsman accepted that it had not determined that issue. The argument failed because the contract was not the kind of “Aro Road-style” OTC insurance at issue, the judgment said.
The court criticised the complexity and volume of documentation involved in selling what it described as a relatively simple insurance product. It also described RSA’s conduct over court-ordered discovery as “decidedly less than impressive,” noting that a motion seeking attachment and committal was ultimately required to obtain compliance. The judge said he did not consider that RSA’s active participation in the proceedings had achieved anything.
In an additional observation, the judge said insurers should take account of section 8 of the Consumer Insurance Contracts Act 2019 when drafting consumer insurance documents, while clarifying that the provision did not apply in this case.