The High Court has quashed a Financial Services Ombudsman decision rejecting Val O’Driscoll’s complaint about a €350,000 investment in the Broad Street Geared and Property Life fund, and sent the matter back to the Ombudsman for further consideration.
Mr Justice Birmingham ruled on 20 October 2014 that the process had been vitiated by a series of significant errors. He did not decide whether the investment advice was negligent or resolve the disputed accounts of how the investment came about.
Mr O’Driscoll said he was approached by Liam Mullins, managing director of Mallow Mortgage Company Limited, and that Mr Mullins and an Irish Life representative, Donal O’Connell, described the fund positively and said they had invested in it. Mr Mullins disputed who approached whom and denied making those statements before Mr O’Driscoll invested. He accepted that he later told Mr O’Driscoll he had invested. The judgment records that Mr Mullins invested on 23 January 2007, three days before Mr O’Driscoll.
The Ombudsman had rejected the complaint, finding that Mr O’Driscoll had withheld financial information from Mr Mullins and that the adviser could not assess suitability without it. The Ombudsman also concluded that Mr O’Driscoll had received relevant risk information and had invested on his own initiative. The High Court said the disagreement about the circumstances of the investment was fundamental and that specific findings were needed about what was said before the investment. Given the stark conflict between the accounts, an oral hearing would have been desirable, the judge said.
The court also considered the handling of a separate intended complaint against Irish Life. The Ombudsman’s office had advised Mr O’Driscoll to make separate complaints, then told him to proceed only against the broker. After he began the High Court appeal, the office said he could pursue the Irish Life complaint only if he withdrew the appeal. No substantive investigation of that complaint had taken place. The judge said the office had to accept some responsibility for that outcome.
The judgment allowed the appeal and quashed the Ombudsman’s decision dated 9 July 2013. The matter was remitted for further consideration. The court made no final determination of the underlying complaint.