FSO Appeals: The Approach Of The Courts

Decisions of the Financial Services Ombudsman ("FSO") are often challenged in the courts. An appeal from a decision of the FSO is, in the first instance, brought to the High Court. The High Court decision can be further appealed to the Court of Appeal, but only on a point of law. Furthermore, leave to bring this further appeal must first be obtained from either the High Court or the Court of Appeal.

The criteria to be applied to applications for leave to appeal in such cases were considered by the Supreme Court in Governey v Financial Services Ombudsman & anor [2015] IESC 38.

The application for leave to appeal in Governey was brought before the Supreme Court as it was made prior to the establishment of the Court of Appeal. The principles set down by the Supreme Court in Governey apply equally, however, to applications for leave now brought before the Court of Appeal.

BACKGROUND TO CASE

The applicant made a complaint to the FSO relating to a financial product which he had purchased. The FSO rejected this complaint and the matter came before the High Court on appeal. The High Court heard and rejected the appeal.

The applicant wished to appeal the decision of the High Court and sought leave to do so from the High Court, but was refused. He then applied to the Supreme Court which, at the time and prior to the establishment of the Court of Appeal, dealt with these applications.

ISSUES BEFORE THE SUPREME COURT

The Supreme Court had to consider:

the criteria for granting leave; and the approach the Supreme Court should take when deciding whether or not to grant leave. WHAT ARE THE CRITERIA FOR GRANTING LEAVE TO APPEAL?

The Supreme Court noted that there is a constitutional right to bring an appeal from the High Court to the Supreme Court. This right may be excluded or restricted by statute. However, any such exclusion or restriction must be clearly set out in legislation. The Court reasoned that where the criteria for granting leave are not clear, the relevant legislation should be interpreted in such a way as to confer the wider constitutional entitlement to appeal.

The Court noted that the Central Bank Act, which provides for appeals from decisions of the FSO, is silent in relation to leave criteria. It, therefore, concluded that:

"it must be interpreted as meaning that leave should be granted provided that a stateable basis for appeal has been established. No higher criteria should be implied in the absence of express provision".

The question...