High Court Considers Standing To Bring FSPO Appeal

• Published date: 09 March 2023
• Subject Matter: Finance and Banking, Insurance, Financial Services, Insurance Laws and Products
• Law Firm: William Fry
• Author: Mr Derek Hegarty, Hilary Rogers, Gail Nohilly and Joanne Ryan

The FSPO Decision

The FSPO dismissed a complaint made by an insured against their insurance provider (Decision). The insurance provider (Appellant) declined cover in respect of business disruption at the insured premises during the Covid-19 pandemic. The FSPO decided three points of contractual interpretation in favour of the insured, but ultimately held that the insured had failed to produce evidence that there was a likelihood that Covid-19 would occur at the insured premises.

In an unusual turn of events, the successful Appellant appealed to the High Court, Chubb European Group SE v FSPO [2023] IEHC 74.

High Court Appeal

Although the Appellant was the successful party in terms of the formal outcome before the FSPO, it maintained that the Decision contained potentially prejudicial findings. Specifically, the Appellant contended that the Decision gave a particular interpretation to wording in an Insurance Policy (Policy) that was used in other insurance policies entered into by the Appellant. The Appellant also submitted that the Decision triggered certain obligations under the Central Bank's supervisory framework for business interruption insurance. This, it argued, obliged the Appellant to carry out a beneficial impact assessment of the Decision to identify other persons in similar positions to the insured.

The FSPO submitted that the appeal was inadmissible where the Financial Services and Pensions Ombudsman Act 2017 (Act), does not allow for a "winner's appeal".

Precedent and FSPO Decisions

Simons J found that he did not need to resolve a question of whether the doctrine of precedent applies to FSPO decisions. Rather, the FSPO must act reasonably, which implies a general obligation to act consistently in deciding cases. Simons J found that whilst a previous decision is not determinative of a subsequent complaint, as there may be distinguishing grounds to justify a departure, FSPO decisions are of "persuasive" precedent.

Substance of Appeal

The FSPO argued that only the outcome of a decision was appealable. This was rejected, having regard to the wording of section 60 of the Act, under which the concept of a "decision" is given a wide meaning. Applying, section 60(3), the concept of a "decision" includes

• the decision itself,
• the grounds for the decision, and
• any direction given by the FSPO.

Simons J found that the statutory right of appeal under the Act embraces the outcome, and the grounds for that outcome.

Standing

The FSPO's substantive...