That kind of clarifies why they are going to the High Court does it not?
I see both sides in this case, but here is the hill that Ulster Bank must climb
McEvoy & Anor vs FSO and PTSB
3 May 2012
14. There are no unusual features about the case and it is one which can be described as a standard investigation into a standard complaint.
15. The applicable test for an appeal to this Court is that as set out by Finnegan P. in
Ulster Bank v. Financial Services Ombudsman & Ors [2006] IEHC at p. 323, wherein Finnegan P. set out the relevant test:-
"To succeed on this appeal
the plaintiff must establish as a matter of probability that taking the adjudicative process as a whole the decision reached was vitiated by a serious and significant error or a series of such errors. In applying the test the court would have regard to the degree of expertise and specialist knowledge of the defendant. The deferential standard is that applied by Keane C.J. in
Orange v. the Director of Telecommunications Regulation & Anor and not that in
the State (Keegan) v. Stardust Compensation Tribunal."
16. I accept the submission of counsel for the Financial Services Ombudsman that the test as enunciated by Finnegan P. in
Ulster Bank can be broken down as follows:-
(i) The burden of proof is on the appellant.
(ii) The onus of proof is the civil standard.
(iii) The court should not consider complaints about process or merits in isolation but rather should consider the adjudicative process as a whole
(iv) In the light of the above principles the onus is on the appellant to show that the decision reached was vitiated by a serious and significant error or a series of such errors.
(v) In applying this test the court will adopt what is known as a deferential stance and must have regard to the degree of expertise and specialist knowledge of the Ombudsman.
17. It is not the function of this Court to place itself in the shoes of the Financial Services Ombudsman. As MacMenamin J. stated in
Molloy v. Financial Services Ombudsman:
"I would re-emphasise the simple fact that it is not the function of the court to place itself in the shoes of the Financial Services Ombudsman. The jurisprudence militates against such a course of action. The test therefore is whether the decision was vitiated by a serious error or a series of such errors."
18. I do not consider that it would be appropriate for this Court to attempt to second guess the decision of the Financial Services Ombudsman on its merits.
19. The appellants do not satisfy me that taking the adjudicative process as a whole there was any serious or significant error or a series of such errors. I must have regard to the degree of expertise and specialist knowledge of the defendant and in these circumstances the appellants appeal