O'Connell v Financial Services and Pensions Ombudsman (Approved)

Factual and Procedural Background

The Appellant appealed the decision of the Respondent Ombudsman regarding a complaint about a life assurance provider allegedly wrongfully or unfairly cancelling two life insurance policies in February 2016. The Ombudsman’s decision partially upheld the complaint and directed the provider to offer six options to the Appellant, including reinstatement of the policies or a compensatory payment of €300 plus interest if not paid within 35 days. The decision was legally binding subject to appeal within 35 days of notification.

The Appellant initially wrote to the provider in February 2016 concerning the declining value of the policies. Two cheques sent by the provider were encashed on 3 March 2016, and after waiting six months, the Appellant made a complaint first to the provider and then to the Ombudsman. Following an unsuccessful mediation, the complaint was formally investigated starting July 2018. The Ombudsman’s decision was issued on 14 August 2019.

The appeal was commenced by notice of motion, but the Respondent raised preliminary objections, including the failure to specify any infirmity with the Ombudsman’s decision and the introduction of issues not part of the original complaint. The Appellant declined to file further affidavits to comply with procedural rules. The Appellant also filed a “Grounds of Appeal” document without court authorization, which broadly challenged the Ombudsman’s procedures and findings.

Legal Issues Presented

1. Whether the Ombudsman’s decision partially upholding the complaint and directing specific remedies was legally valid and properly made under the Financial Services and Pension Ombudsman Act 2017.
2. Whether the Appellant complied with procedural requirements under Order 84(c) of the Rules of the Superior Courts in formulating and presenting the appeal.
3. Whether the Appellant demonstrated any serious and significant error in the Ombudsman’s decision warranting its setting aside.
4. Whether issues raised belatedly by the Appellant outside the original complaint could be considered on appeal.
5. Whether the Ombudsman was correct in declining to hold an oral hearing.

Arguments of the Parties

Appellant's Arguments

• The Ombudsman erred by not holding an oral hearing to resolve conflicts of fact.
• The Ombudsman failed to consider all aspects of the complaint.
• Incorrect application of statutory provisions, including the Central Bank Act 1942 and the FSPO Act 2017.
• The Ombudsman’s decision was unconstitutional in relation to certain statutory provisions.
• Procedural unfairness and mis-selling by the provider were not properly addressed.
• The Ombudsman incorrectly applied time restrictions to dismiss parts of the complaint.
• The provider was not held accountable under consumer protection laws.
• Allegations that the policy was opportunistic, unsuitable, unnecessary, and not properly explained.
• Claims that the policy was induced to secure a mortgage and breached family home protection legislation.

Respondent's Arguments

• The Appellant failed to specify any valid infirmity with the Ombudsman’s decision.
• The Appellant raised multiple issues not part of the original complaint, which cannot be entertained.
• The Appellant declined to comply with procedural rules by refusing to file further affidavits.
• The Ombudsman’s discretion not to hold an oral hearing was lawful and within jurisdiction.
• The appeal is not a rehearing of the complaint but a review of the Ombudsman’s decision for serious and significant error.
• The Appellant’s broad and scattergun approach to grounds of appeal was improper and did not comply with procedural requirements.

Table of Precedents Cited

Court's Reasoning and Analysis

The court emphasized the procedural requirements under Order 84(c) of the Rules of the Superior Courts, noting that the Appellant failed to properly specify the reliefs sought or the statutory grounds authorizing relief. The Appellant’s failure to file further affidavits and reliance on a non-authorized “Grounds of Appeal” document was fatal to his case.

The court reiterated that an appeal under the 2017 Act is not a rehearing of the complaint but a review for serious and significant errors, requiring the Appellant to meet a high threshold of proof. The Appellant did not demonstrate any such errors, nor did he show what additional evidence would have emerged from an oral hearing that the Ombudsman did not already consider.

The court rejected the introduction of new issues not part of the original complaint, emphasizing that allowing such would render decision-making impossible and undermine the finality of the Ombudsman’s adjudication.

Precedents were applied to underscore that litigants in person receive no special procedural advantages and that courts must defer to the Ombudsman’s expertise and discretion unless clear error is shown. The court found no credible basis to overturn the Ombudsman’s decision.

Holding and Implications

The court REFUSED each of the reliefs sought in the Appellant’s notice of motion, thereby upholding the Ombudsman’s decision.

The direct effect is that the Ombudsman’s determination remains binding and enforceable, including the remedies directed against the provider. No new precedent was established, and the case reinforces the procedural and substantive standards applicable to appeals from the Financial Services and Pensions Ombudsman determinations.