R
rosullivan2
Guest
I have seen a case where three people invested in the same product at the same time and alleged they were overcharged fees by the bank involved. The facts of each of the three investments were the same. Two findings issued from the Ombudsman and one from the Deputy Ombudsman. All three findings found that the bank was not entitled to charge the particular fee. However, in two of the cases the FSO found that the bank was entitled to rely on a Receipt and Discharge which they obliged all three investors to sign before getting their proceeds of investment - the bank did not have to repay the disputed fees in those cases. In one finding, the FSO decided to imply a term into the same Receipt and Discharge that exempted the disputed fees and the bank had to repay them.
Three cases - same facts - two different adjudicators in the FSO and two entirely different outcomes. Go figure. Even leaving aside the two different outcomes, it seems to be to be entirely illogical for the FSO to decide that (1) the bank had wrongly charged the fees when it was not entitled to and (2) even so, the bank could keep the ill-gotten fees.
And here is the problem. Everyone says "That is totally illogical. Why don't you appeal to the High Court? You are bound to win!" Well, the fees involved in these three cases are relatively small - less than €5,000. They are a lot of money to the people involved, but not enough to justify the risky rolling-of-the-dice that would be involved in going to the High Court to appeal the FSO's findings. Imagine taking an appeal to the High Court and losing. You could end up with a bill for tens of thousands of euro in fees. It is just not worth the risk.
For as long as the only appeal against an illogical FSO finding is to the High Court only (rather than the District Court), the average person will simply not be able to afford the risk, particularly when the amount being claimed is relatively small. Many decisions of other statutory bodies are appealled to the District Court - but not the FSO. The banks can afford the High Court, but the consumer can't. If the bank loses, it chalks it up to experience and moves on. If the consumer loses, s/he could face bankruptcy.
It is all well and good having a theoretical avenue of appeal, but most ordinary people could not seriously even consider an appeal to the High Court - the risk of having to pay costs is just too serious. And this is before even considering the legal test for appealling a finding of the FSO as set out by the High Court in previous cases - the Courts are very reluctant to interfere except in the most outrageous cases.
Three cases - same facts - two different adjudicators in the FSO and two entirely different outcomes. Go figure. Even leaving aside the two different outcomes, it seems to be to be entirely illogical for the FSO to decide that (1) the bank had wrongly charged the fees when it was not entitled to and (2) even so, the bank could keep the ill-gotten fees.
And here is the problem. Everyone says "That is totally illogical. Why don't you appeal to the High Court? You are bound to win!" Well, the fees involved in these three cases are relatively small - less than €5,000. They are a lot of money to the people involved, but not enough to justify the risky rolling-of-the-dice that would be involved in going to the High Court to appeal the FSO's findings. Imagine taking an appeal to the High Court and losing. You could end up with a bill for tens of thousands of euro in fees. It is just not worth the risk.
For as long as the only appeal against an illogical FSO finding is to the High Court only (rather than the District Court), the average person will simply not be able to afford the risk, particularly when the amount being claimed is relatively small. Many decisions of other statutory bodies are appealled to the District Court - but not the FSO. The banks can afford the High Court, but the consumer can't. If the bank loses, it chalks it up to experience and moves on. If the consumer loses, s/he could face bankruptcy.
It is all well and good having a theoretical avenue of appeal, but most ordinary people could not seriously even consider an appeal to the High Court - the risk of having to pay costs is just too serious. And this is before even considering the legal test for appealling a finding of the FSO as set out by the High Court in previous cases - the Courts are very reluctant to interfere except in the most outrageous cases.
