Kiernan v Financial Services and Pensions Ombudsman (Approved)

Factual and Procedural Background

The Applicant initiated judicial review proceedings challenging a determination by the Financial Services and Pensions Ombudsman ("the ombudsman") that it lacked jurisdiction to entertain a complaint due to the Applicant's lack of standing. The complaint concerned access to banking records of the Applicant's deceased mother, whose bank accounts were initially solely in her name and later converted to joint accounts with the Applicant's sister. The mother died on 28 May 2015, and a dispute arose between the Applicant and his sister regarding entitlement to the funds in the accounts, hinging on whether the sister was entitled by right of survivorship or whether the funds formed part of the deceased estate.

Both the Applicant and his sister were named executors in the deceased mother's will, but only the sister obtained a grant of probate dated 8 August 2017, reserving the rights of the other executor (the Applicant). The Applicant sought information from the financial service provider on the accounts but was refused access based on the grant of probate. The Applicant then lodged a complaint with the ombudsman on 23 February 2023, alleging failure by the financial service provider to provide information.

The ombudsman issued a preliminary opinion on jurisdiction on 24 July 2023, followed by a final determination on 19 September 2023, concluding that the Applicant was not the "appropriate person" under section 45 of the Financial Services and Pensions Ombudsman Act 2017 ("FSPO Act 2017") to make the complaint, as he was not the formally appointed personal representative. The Applicant sought judicial review challenging this determination, filing papers on 11 April 2024 and obtaining leave on 10 June 2024. The substantive hearing occurred on 6 March 2025.

Legal Issues Presented

1. Whether there are grounds for granting an extension of time for bringing the judicial review proceedings.
2. Whether a non-proving executor, who has reserved his rights, has standing to pursue a complaint before the ombudsman regarding denial of access to a deceased person's banking records.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed the procedural issue of the application being out of time. The judicial review was instituted well beyond the three-month time-limit prescribed by Order 84, rule 21 of the Rules of the Superior Courts. The Applicant failed to provide any affidavit explanation for the delay, which is a mandatory requirement for extension of time applications. Given the length of the delay and absence of justification, the court found no good and sufficient reason to extend time.

Despite this, the court proceeded de bene esse to consider the substantive issue of standing. The court analysed the statutory framework under the FSPO Act 2017, focusing on the definition of "complainant" and "actual or potential beneficiary," which includes the legal personal representative of a deceased consumer. The court examined whether a non-proving executor who has reserved rights qualifies as a legal personal representative.

Relying on the Succession Act 1965 and authoritative commentary, the court explained that a non-proving executor who has reserved rights does not have immediate status as a legal personal representative. Only those who have obtained a grant of probate possess that status. The reservation of rights allows the non-proving executor to apply for probate later (e.g., double probate), but until then, they lack standing to act as a legal personal representative.

Therefore, the Applicant did not have the requisite standing to bring the complaint before the ombudsman. The ombudsman's conclusion that it lacked jurisdiction was correct, although the court found the ombudsman’s reliance on section 45 of the FSPO Act 2017 was legally erroneous. The court declined to remit the matter to the ombudsman for reconsideration, as the ultimate outcome would remain unchanged.

The court also confirmed that judicial review was the appropriate procedure, given the statutory appeal mechanism does not extend to preliminary jurisdictional determinations.

Holding and Implications

The court DISMISSED the judicial review application on the basis that it was out of time and no extension of time was warranted. Additionally, on the substantive merits, the court held that a non-proving executor who has reserved rights does not have standing as a legal personal representative under the FSPO Act 2017 and therefore cannot pursue a complaint before the ombudsman concerning denial of access to a deceased person's banking records.

The direct effect is that the complaint remains inadmissible and the ombudsman correctly lacked jurisdiction. No new precedent was established beyond clarifying the statutory interpretation of standing in this context. The court provisionally decided that each party should bear its own costs, recognizing the public importance of clarifying the law despite the Applicant's unsuccessful challenge.