# FS&PO and adjudicated decisions



## WhiteCoat (14 Sep 2020)

When the mediation bit has run aground, how does the adjudication bit work with the Ombudsman?

What are the advantages & disadvantages of going the adjudication route versus going directly to the High Court?

Can one back out of the adjudication route at any stage?

Any insights into any of this appreciated.

Also, how have people found the Ombudsman's decisions generally - fair, well reasoned, other?


----------



## TrackerThieves (20 Sep 2020)

The way I believe the process to work is as follows. The first phase is the resolution or mediation phase. Either party can opt out of this and proceed to the the 2nd/investigation phase which in turn leads to adjudication. I'm not sure why anyone would want to opt out at the adjudication stage. If you have gotten to this stage surely you would like to know what decision the fspo has come to and if you still disagree then proceed with the courts. I don't see the point of getting this far to back out. Maybe I'm missing something


----------



## Brendan Burgess (20 Sep 2020)

TrackerThieves said:


> Maybe I'm missing something



Yes, you are.

If the Ombudsman hands down a decision,  you can go to the High Court on very limited grounds. The High Court will not second guess the Ombudsman's decision on a point of fact or opinion. There would have to be a huge legal error or a series of very big judgemental errors for the High Court to quash the Ombudsman's decision.

If you go directly to the High Court, the case is heard from the beginning and you would just have to prove your facts on the balance of probabilities.

Brendan


----------



## Brendan Burgess (20 Sep 2020)

WhiteCoat said:


> What are the advantages & disadvantages of going the adjudication route versus going directly to the High Court?







__





						Key Post - Should I go to the Ombudsman or to Court?
					

The advantages of the Financial Services Ombudsman over the High Court   The Ombudsman is free Both sides pay their own costs. So if the Ombudsman dismisses your complaint, you do not have to pay the other side's costs. This is a huge advantage over the High Court where you could get caught for...



					www.askaboutmoney.com
				




This thread is a bit out of date, but the principles are still the same.

Brendan


----------



## WhiteCoat (20 Sep 2020)

Thank you, Brendan

If someone commences the adjudication route and gets second thoughts about it (mentioned, not so, hypothetically!) - can I back out or is it a case that, once I've engaged, I am committed to seeing it through?


----------



## Brendan Burgess (20 Sep 2020)

I understand that you can withdraw at any time up to the issue of the Preliminary Decision. 

For example, Ulster Bank will sometimes go right up to the brink, and then ask the Ombudsman to put the case on hold while they attempt to resolve it directly with the borrower.  They then settle it in full, and their name does not get published so they avoid being named and shamed. And the decision is not published so others who might benefit from it never get to see it.

Brendan


----------



## WhiteCoat (20 Sep 2020)

Thanks again, Brendan - your time is much appreciated.

It seems clear to me that you are as familiar with this stuff as pretty much anyone.

Maybe it's a language thing - but "I understand" suggests to me an element of doubt and this feeds into my main observation.

The FSPO website talks about the principle of "transparency". I should not have to come on this site to ask my original question and an expert, like you, should KNOW the position. This point should be clearly set out in the FSPO website. This is not, in the slightest, any criticism of you.

Also, the process is not transparent in one other critical aspect which you have mentioned above and also in the referenced thread earlier. The banks know the "game" (the process) inside out - but consumers, by definition the party with a grievance, do not have anywhere near the same visibility, which puts them at a distinct disadvantage. Something really should be done to improve the transparency from the consumers' perspective.

Take the Ulster Bank approach referred to above. Are you saying that UB proceed with the Adjudication process and then ask for an opportunity to go back to mediation? Is this allowed? - where is this stated? - I had thought that once the Adjudication process had commenced, mediation options had expired?


----------



## Brendan Burgess (20 Sep 2020)

Hi White Coat

The Ombudsman is constrained by law in what they can say.

I am less constrained.  I can tell you that in reality, there is no point in going to the High Court after the Ombudsman makes his decision. The Ombudsman obviously can't say that. 

Ulster Bank does not go back to mediation. It says that it would like an opportunity to settle this directly with the customer.  The Ombudsman will notify the customer accordingly and the customer is free to say "I have no wish to engage in direct dealing with UB - please continue with the adjudication decision."  But if Ulster Bank offers you what you had asked for - e.g. a return to the tracker and compensation - you would be foolish not to accept it. 

I agree with you fully that the customer is at a disadvantage. However, they are at a much bigger disadvantage in the courts system. 

The Ombudsman system, despite its faults, is a huge step forward for customers. 

Brendan


----------



## WhiteCoat (20 Sep 2020)

Thanks again, Brendan,

I do not wish to run the risk of testing the patience of an expert as per your guidelines earlier on in the week! I should probably finish with this post!



Brendan Burgess said:


> The Ombudsman is constrained by law in what they can say.



My point is that there is a gap - an information gap - between what the Ombudsman can say and the Ombudsman actually does say.



Brendan Burgess said:


> I can tell you that in reality, there is no point in going to the High Court after the Ombudsman makes his decision.



I agree. This is true because of the restrictive nature of the appeal which is not obvious when commencing a complaint. Hence the question at what stage can I back out? My supposition is that even you, an expert, are not certain - the info should be clearly available in communication to the complainant and on the Ombudsman's site. Neither is the case.

Is there any way to establish the precise "back-out" point from adjudication, i.e. so that an unrestricted High Court action can be taken?



Brendan Burgess said:


> Ulster Bank does not go back to mediation.....



Have I got this right? UB let the adjudication process commence and then seek to abandon the adjudication process - with the consent of the complainant? By the context, it seems that this tactic has been facilitated by the Ombudsman on multiple occasions. Seems to me like a questionable practice.



Brendan Burgess said:


> The Ombudsman system, despite its faults, is a huge step forward for customers.



Carlsberg! That said, personally, I _definitely_ wish that I had gone for another larger.


----------



## TrackerThieves (21 Sep 2020)

Brendan Burgess said:


> Yes, you are.
> 
> If the Ombudsman hands down a decision,  you can go to the High Court on very limited grounds. The High Court will not second guess the Ombudsman's decision on a point of fact or opinion. There would have to be a huge legal error or a series of very big judgemental errors for the High Court to quash the Ombudsman's decision.
> 
> ...


Thanks Brendan
That makes sense, i couldn't think of any reason why it would be beneficial to skip adjudication.


----------



## MaxGordon (26 Sep 2020)

New poster here. I saw this thread earlier on in the week and have decided to register to comment on it or at least recount my tale. Just to say also that I like this site very much.

The thread reminded me of my own disappointment with the Ombudsman's decision. He made some statements that were just wrong but my biggest gripe was the black and white nature of the decision.

I felt that my case was not described properly in the final decision. Full disclosure: I saw the final decision and the provisional decision almost at the same time as I had been working overseas on a project. In the letter with the provisional decision, I was given an opportunity to respond by a certain date but because I had been overseas for a few weeks, by the time that I got back, I had only 2 or 3 days to reply to the provisional decision and just didn't get around to it. Truth be told, I was so deflated by the initial decision that I felt that there wasn't much point in replying anyway.
From memory, there was also something about any appeals only being allowed on very limited grounds.

It was a bit strange though that after waiting something like 2 years for the judgement that I effectively only had 2 days to reply to it. I know that I was away for a few weeks but if I had known that it was on its way, I could have asked my mother or sister to keep an eye on my post.

Regarding the decision itself, my feeling was that the Ombudsman had decided the outcome and then quoted parts of my submission and parts of the banks submission to support his decision.

I know that other posters on here have been very pleased with the current Ombudsman and that he is generally seen as an improvement on his predecessor.

I just felt that his judgement was lacking in depth and that it wasn't fair. When you read a judgement from a judge, you can really understand the specific point or points that led the judge to favouring one argument over another. In my case, the Ombudsman found things as "clear" when they were really not clear. It was all very strange. I would have been much more accepting of the decision if he had properly recorded and examined the arguments of both sides and logically explained why one argument was preferred.

I have been following the tracker threads on Askaboutmoney for a long time and I know that my views may not be widely shared. I just think that the Ombudsman's decision in my case should have been more balanced. I remember thinking when I read my decision that if I was a reading the decision in full as a stranger (i.e. as an independent person without knowledge of my case), that I'd have believed (this is me reading it as a stranger) that the complainant (this is me the person who brought the case) was chancing his arm. This is because of the way the decision was written.

I do have one question. Is there somewhere where I can see the judgements of cases where people have appealed the Ombudsman's decisions to the High Court? I would really love to see how a judge evaluated such cases. It won't increase my bank balance or reduce my mortgage repayment but I would have a satisfied smile if there was a line somewhere which goes something like........"there is no rationale basis for the Ombudsman's finding of clarity in this regard, etc...."

Sorry for the long post. If nothing else, even many months later, I still have a deep sense of disappointment with the process and so writing this post has been cathartic.


----------



## Brendan Burgess (26 Sep 2020)

Hi Max

You can't really blame the Ombudsman for your failure to respond to the Preliminary Decision.

The Ombudsman is very flexible. I have never seen a request for an extension on either side refused. In fact, I have seen multiple requests from ptsb for extensions given, long beyond when I think that they should have been. So you could have called the Ombudsman and explained that you had just received the decision and he would have given you a further two weeks.

The courts show what is known as curial deference to the Ombudsman. He is regarded as the expert on fact, and they will not second guess him unless his decision is vitiated by a series of very serious errors.

Both sides have appealed and they rarely succeed. It's usually on a point of law.  I don't know if the current Ombudsman has had any decision changed by the court. I doubt it.

The Ombudsman now publishes the decisions on his website. So you can read the ones for 2018 and 2019 here:
https://www.fspo.ie/decisions/Court-Judgments/  Let us know if you find anything.

You can find the earlier ones by searching https://www.courts.ie/online-searches  although they are very hard to find.

It might be easier to go back and look at the Ombudsman's Annual Report to see if they are listed there. 

Having said that, it would be no benefit to you if the High Court found a ruling by the former Ombudsman unsatisfactory.  It's the current guy you have a problem with.


----------



## Brendan Burgess (26 Sep 2020)

MaxGordon said:


> Regarding the decision itself, my feeling was that the Ombudsman had decided the outcome and then quoted parts of my submission and parts of the banks submission to support his decision.



This is just plainly wrong. 

You had mediation. 
You had an exchange of information. 

The Ombudsman looks at the issues and makes his decision. 

Of course, he gets facts wrong.  But the Preliminary decision allows you to correct them.  If they were material, he would have changed his decision. 

Brendan


----------



## Brendan Burgess (26 Sep 2020)

MaxGordon said:


> if I was a reading the decision in full as a stranger (i.e. as an independent person without knowledge of my case), that I'd have believed (this is me reading it as a stranger) that the complainant (this is me the person who brought the case) was *chancing his arm. *This is because of the way the decision was written.



This is a real problem.

There is no cost in taking a case, so some people are chancing their arm. I doubt that the Ombudsman suspects this in most cases. 

By the way you can read all the decisions of the Ombudsman on his website so you can see what you think of them generally.

Brendan


----------



## MaxGordon (26 Sep 2020)

Brendan Burgess said:


> This is just plainly wrong.


With respect, this is just your opinion. I specifically said that it was my feeling/opinion. I also specifically acknowledged that my views may be in the minority. I remain convinced of the accuracy of my opinion.



Brendan Burgess said:


> You had mediation.


Again, with respect, this is exactly the type of comment that I found in the Ombudsman's decision. The truth is that you can't possibly know if I had mediation or not as I never mentioned mediation in my post. Yet you make a blanket statement which may or may not be true. Why do that? [As it happens, the bank refused mediation so I didn't have mediation.]

I know well that I could have gone back to the Ombudsman but I basically had lost confidence in him such was my disappointment with the quality and manner of his judgement which left me very much deflated.


----------



## Brendan Burgess (26 Sep 2020)

MaxGordon said:


> Again, with respect, this is exactly the type of comment that I found in the Ombudsman's decision.



Hi Max

But that is not a material error.

The vast majority of cases have mediation. OK, I made an error assuming you had.  But it doesn't invalidate anything. 

It's unusual that the bank refused mediation.  One possible reason might be that they saw it as a pointless exercise as there was no case to answer. 

Why don't you summarise your complaint here and you will get views on the merits of your complaint.

Brendan


----------



## MaxGordon (26 Sep 2020)

Just for the record, I didn't say that your error was a material error. I just said it was the type of comment that I found in the Ombudsman's decision. What I meant by that is that a supposedly factual statement is made that has actually no basis in fact whatsoever. That's all. 

I honestly do not have the motivation to revisit the complaint in detail. My main point is that I was not pleased by the quality of the Ombudsman's decision in my case. I can accept that the decision didn't go my way but it was the quality of the rationale used in arriving at the decision that was so annoying. I had gone to him in good faith with a valid complaint.

Again, I accept that my view may well be a minority view but if you do read the decisions, you will see that there are other people who share my unhappiness. I also need to point out that, from my perspective, I would now actually be quite circumspect as to the accuracy of other published decisions. The reason that I say this is because the one case that I know back to front is not accurately recorded in my opinion.


----------



## WhiteCoat (27 Sep 2020)

Hi MaxGordon,

For what its worth, my solicitor has made some similar comments to me about the Ombudsman's decisions. It was this that prompted my OP. My solicitor is a lifelong friend and I greatly value his opinion. That said, I may persist with the Ombudsman because the ultimate downside risk of a High Court action, in terms of costs and stress, are probably disproportionate.


----------



## Brendan Burgess (27 Sep 2020)

WhiteCoat said:


> my solicitor has made some similar comments to me about the Ombudsman's decisions.



Hi WhiteCoat

The legal profession does not like bodies like the Injuries Board and the Ombudsman as it cuts them out. 

Read the published decisions and make up your own mind.

I have seen Ombudsman's decisions which I thought were wrong.  But I have seen far more court decisions which seemed wrong to me. 

The losing side will always think that the Ombudsman is wrong.

Brendan


----------



## WhiteCoat (27 Sep 2020)

Hi Brendan,

I get the feeling that you are a staunch supporter of the Ombudsman!



Brendan Burgess said:


> The legal profession does not like bodies like the Injuries Board and the Ombudsman as it cuts them out.



LOL! I appreciate your point here. That is why I said....



WhiteCoat said:


> My solicitor is a lifelong friend and I greatly value his opinion.



In fairness, I was too subtle here. What I was alluding to is that when a solicitor (or other professional) says something, one certainly does, on occasion, have to be aware of vested interest. As my dad used to put it, you don't ask a barber if you need a haircut. However, my relationship with my solicitor is such that there is not an iota of concern that his comments were in any way conflicted. The "well, he would say that, wouldn't he" reflex is redundant in this case, I believe.


----------



## Brendan Burgess (27 Sep 2020)

WhiteCoat said:


> The "well, he would say that, wouldn't he" reflex is redundant in this case, I believe.



Absolutely not. 

I don't think that solicitors advise people to avoid the Ombudsman although they know he is better.

Their judgement is biased. 

He might be a great friend of yours, but his judgement is biased. 

Brendan


----------



## WhiteCoat (27 Sep 2020)

Ah Brendan,

We'll have to agree to differ!


----------



## MaxGordon (28 Sep 2020)

Thanks for your comments, WhiteCoat. It is comforting that someone understands where I'm coming from.

I forgot to mention one point the other day.



Brendan Burgess said:


> It's unusual that the bank refused mediation.  One possible reason might be that they saw it as a pointless exercise as there was no case to answer.



I don't think that the inference created here is fair because I went to Padraic Kissane for advice and he said that my case was was very strong. I think that we can all agree that Padraic Kissane is a specialist in this whole area.


----------



## Brendan Burgess (28 Sep 2020)

MaxGordon said:


> I don't think that the inference created here is fair



Hi Max

I was not saying it was a pointless exercise. I am saying that the lender thought it a pointless exercise.

What probably happened in this case is that there were other identical cases on which the Ombudsman had already decided. The lender knew this and so it would have been wasting your time and theirs to engage in mediation. 

Brendan


----------



## MaxGordon (28 Sep 2020)

With respect Brendan this is not what you said.

You said that "they saw it as a pointless exercise" because "there was no case to answer".

The "possibility" that you now mention in the above post is a different and distinct "possibility" to the one that you actually mentioned.

Genuine question: can you see the difference? This is the type of thing that I didn't like in the Ombudsman's decision in that words were twisted to mean things that they didn't mean.

As it happens, from reading other decisions, this revised possibility is certainly plausible.


----------



## Brendan Burgess (28 Sep 2020)

MaxGordon said:


> Genuine question: can you see the difference?



Hi Max

What I can see is why the Ombudsman ruled against you if that was the nature of your argument. 

Brendan


----------



## MaxGordon (28 Sep 2020)

Brendan,

I didn't like the inference that I quoted this morning. I thought that it was unfair. When I challenged you on it, you tried to say that you had said something else. I thought that this explanation was also unfair so again, I calmly pointed out what you had actually said and enquired whether you could see the difference?

If you could see the difference, the my criticism of your comment is valid; if you can't or won't recognise the difference, there really isn't any point in engaging further.

The above post isn't nice as it is an attempt to undermine me again.


----------



## Brendan Burgess (28 Sep 2020)

MaxGordon said:


> there really isn't any point in engaging further.



Correct.


----------



## RoseMc (28 Sep 2020)

A friend of mine phoned me about this thread. She knew that I was very upset, about a decision the FSPO made some months back.

In a strange way, whilst I emphasise with Max Gordon, it’s good to feel that I am not alone about the Ombudsman’s decisions, as I felt that I had a very good case and the FSPO let me down. The decision given by the ombudsman in my case, was I felt, very one sided and he ignored much of the evidence that I supplied to back up my position. I am a single lady and felt very vulnerable, that he  ignored crucial points that I had made. I also went to a financial expert and he also felt that I had a very strong case and he was very surprised at the decision reached by the FSpO. I was considering appealing the judgement to the high court, but as Brendan said in the above commentary, it’s very unlikely the High Court would change the FSPO ruling. I also wonder did I take the wrong road by going to the ombudsman, instead, should I have gone to the High Court directly?.


----------



## WhiteCoat (28 Sep 2020)

Two quick comments.

1. Brendan, I spoke with my legal pal........you are not on his Christmas card list!

2. RoseMc - that's very interesting, can you provide any more details and did you appeal the provisional decision of the Ombudsman?


----------



## RoseMc (28 Sep 2020)

As per the last comment I did actually appeal the preliminary decision but it made no difference to the final decision. What really upset me was the lack of transparency in the final decision. There are two sides to every case and I fully acknowledge that, however, in my case the arguments and points that I made weren’t even acknowledged as anyway valid.

I often read previous decisions by the FSPO. When I read some of these decisions, I often wondered why these people took the case in the first place. After reading the decision in my own case, I now understand that what’s published in the final decision does not always give the full facts of the case as set out by the FSPO. In my view there was a severe lack of transparency in my  decision.


----------



## WhiteCoat (28 Sep 2020)

There's another current thread where posters share their bemusement by the lack of rationale in a decision of the Ombudsman. It does seem that he is well capable of abandoning logic. 




__





						Update on the Simple vs. Compound Interest challenge
					

AIB responded to the Ombudsman explaining their methodology.    Although the explanation makes no sense,  the Ombudsman has accepted their explanation that the calculations are in line with his decision.  He has closed the file.   We are reviewing our next steps.  Brendan



					askaboutmoney.com
				




Thanks RoseMc for your posts. It does sound very frustrating. Maybe you would have been better off going the HC route, maybe not. Hard for a solicitor to know for sure even with all the details, impossible for a layman to know without all the details!!

Interestingly, I can still go to the High Court as I understand that I can back out of the adjudication before the preliminary decision is made. To be blunt, I probably can afford to take a High Court case but it's hard to know if it's worth the bet, the time and the stress. The one thing in particular that I don't like about this bet is the extent of the downside risk, i.e. legal fees. I am on vacation this week so I had time today to read through some of the Ombudsman's decisions. To be honest, I'm really not sure what to make of them.


----------



## Brendan Burgess (28 Sep 2020)

White Coat

Don't forget that half of all sides involved in High Court cases are unhappy with the judge's decision!

Brendan


----------



## RoseMc (28 Sep 2020)

Brendan

I note your comments to Whitecoat that 50% of all decisions in a highcourt case will go against one side and this is obviously pure maths. My point, that I was trying to make earlier, is that I do accept that on any topic,  a decision could go against anyone, but it’s the manner in arriving at the decision that really upset me. I have read high court decisions by various judges and at least they assess the pros and cons of the various points. However, in my dealings with the FSPO this was sadly lacking.


----------



## Brendan Burgess (29 Sep 2020)

RoseMc said:


> I have read high court decisions by various judges and at least they assess the pros and cons of the various points. However, in my dealings with the FSPO this was sadly lacking.



Hi Rose 

First of all, High Court decisions tend to be written and are always in great detail and make great reading. 

Most Circuit Court and District Court decisions are not written, although I understand you can ask the judge for a written decision. 

In my experience, the written decisions made by the Ombudsman have been very detailed. In fact, when someone asks me about their case, I usually ask them to send me the Ombudsman decision as the summary of the arguments from both sides is so well laid out and then the discussion of the issues is also set out and the basis for the decision is also set out. 

And, of course, the Ombudsman gets stuff wrong. But he issues a preliminary decision and you can make a submission to correct the facts. 

You can see all the decisions for yourself here: 





__





						Decisions |  Financial Services and Pensions Ombudsman
					





					www.fspo.ie
				




I picked one at random and read it. 



			https://www.fspo.ie/decisions/documents/2018-0143.pdf
		


It's 8 pages long. I have no doubt that the borrower feels hard done by.  But the bank's reasoning and the Ombudsman's reasoning seems valid to me.  I have also no doubt that if the borrower rang me in indignation after receiving the preliminary decision, that it would take at least 30 minutes to get only his side of the story.  Whereas 10 minutes with the Ombudsman's decision gave me the full picture. 

I have told the Ombudsman that it is wrong to describe a decision like this as "partially upheld".   This complaint was completely rejected. 

Brendan


----------



## WhiteCoat (29 Sep 2020)

Hi Brendan,



Brendan Burgess said:


> But he issues a preliminary decision and you can make a submission to correct the facts.



I think RoseMc's point is that her post preliminary decision submission didn't serve any use.



Brendan Burgess said:


> Whereas 10 minutes with the Ombudsman's decision gave me the full picture.



If I understand RoseMc and MaxGordon correctly, one of their key points is that the Ombudsman's decision does not give the full picture. Clearly, they have a different opinion to you. Playing the advocate of the devil, how do you know that the Ombudsman's decision is an accurate reflection of the relative arguments?

As a matter of curiosity and transparency, in any of the Ombudsman's published decisions, has he ever explained where he got a point wrong in his preliminary decision? Part of the reason for this question is my sense that he doesn't really engage in complexity very well. Hopefully, I'll get the time to expand on what I mean in this context later.


----------



## Brendan Burgess (29 Sep 2020)

WhiteCoat said:


> As a matter of curiosity and transparency, in any of the Ombudsman's published decisions, has he ever explained where he got a point wrong in his preliminary decision?



A very good point.

I have seen him refer to the submissions made after the preliminary decision issued, and why he rejected those submissions.

But it would be interesting to find one of the decisions which he changed as a result of a submission.

Brendan


----------



## WhiteCoat (29 Sep 2020)

Thanks Brendan,

For sure it would be interesting to see what outcomes were changed. Actually, even where he doesn't change the decision, it would be better if he said something along the following lines -"in my preliminary decision I had said blah, blah - upon reflection, there was no evidence to support this <particular> assertion - so the rationale of my preliminary decision has been reduced. Nonetheless, blah, blah, blah still applies, etc....."

After all, one can reasonably presume that some of the post preliminary decision submissions must be critical in nature but the level of detail of these submissions, that is provided in the final decision, does not give sufficient information to determine whether such criticisms are valid or not. 

I don't think that it's a question of length either - my sense was that quite a lot of the material in the decision part of the report was, at best, of marginal importance.


----------



## RoseMc (1 Oct 2020)

Whitecoat

I would agree with your comments above and frankly I don’t really have faith in the ombudsman after my experience. What I was referring to in my last post, was not the eloquent language used by High Court judges in making their decisions but rather their reasoning ability.

In my case it doesn’t make much difference how many words or pages the Ombudsman uses to sum up the case, because a lot of the text used in his summary of my case was mostly irrelevant. This is obviously based on my opinion and also my lawyer’s, but I also showed his judgment to some respected professional financial advisers and they couldn’t believe his conclusions.

I think if anyone acts as an independent Ombudsman , they should look at both sides of the argument and then articulate these points in a balanced and logical manner and then eventually make a ruling. I honestly don’t think the present ombudsman has the intellect to weigh up and judge a case such as mine, in a fair and forsenic manner and arrive at a reasonable conclusion based on ‘all’ of the evidence that was presented to him.


----------



## MaxGordon (6 Oct 2020)

Some very interesting comments RoseMc which I unfortunately understand all too well.


----------



## WizardDr (7 Oct 2020)

I was a little surprised at the tone is some of the exchanges and I thought another view might help matters.

Padraic Kissane and Brendan Burgess have a lot of experience in dealing with the FSPO.

All are agreed that the former FSPO chief became overly technical as they had been slapped back by a few judgments and he then decided that he would have to be technical.

As far as I know PK has had a number of cases decided by FSPO overturned by the Courts. [previous chief]

BB has had remarkable success with particularly AIB 'prevailing rate' issue that not alone affects 100s of cases but showed that the AIB Panel were not at the races.  In fact the perverse cases looked at by AIB Panel would suggest that NONE of the original cases would have been upheld by them either. That Panel is a total shambles.

If you do not present key facts the FSPO will not put them in for you unlike UK version. To me this is still a fundamental weakness as professional fees wont be paid but Mr Kissane often has facts from the 100s of successful cases and is worth a referral.

Astonishingly the EU have issued a document in July 2019 on the ancient Unfair Contract Terms and there are some interesting decisions about this and also some decisions imminent that will really upset the Irish Banks.

The notion that a clause in your letter of offer affecting what happens after a fixed rate is now likely to be an unfair term.  This would go the root of many tracker issues as you would have had to dig the old letter of offer out of the attic if you even had it.  That is something that should be changed immediately. 

A consequence of the late arrival (about 6 years late) the Central Bank investigation flipped many decisions_on their head and then there was the thorny issue should not every tracker case that was shot down by former FSPO not be thrown in the bin.  A lacuna as the legal brotherhood would say.

Then there is the issue as to whether the FSPO is bound by the UCT as regards testing for unfair terms regardless of what the complainant put in.  

One thing that was put into law is the ability to get around the 6 year rule which is helpful/.

Do not therefore be surprised that confusion reigns.


----------



## MaxGordon (7 Oct 2020)

WizardDr said:


> I was a little surprised at the tone is some of the exchanges and I thought another view might help matters.
> 
> Padraic Kissane and Brendan Burgess have a lot of experience in dealing with the FSPO.
> 
> If you do not present key facts the FSPO will not put them in for you......



I am not sure if this is directed at me, at least in part.

PK did advise me at the start and told me that my case was rock solid.

My issue is not that I did not present key facts to the FSPO, it's that he didn't interpret the key facts fairly and did not even comment on some of the facts mentioned.

As I said in my first post, I recognise that most people's experience with the current ombudsman has been positive.

It seems like that the fair takeaway is that he often gets it right but that he does make mistakes on occasion. I think that I fall into this latter category and there is really nowhere for me to go now.

Whilst my experience has been bad, I do not wish to question his integrity. Maybe he is just swamped by a massive workload and is trying his best, with limited resources, to sort out the massive mess made by the bankers and doesn't have the time to get into all the detail.


----------



## Brendan Burgess (8 Oct 2020)

MaxGordon said:


> It seems like that the fair takeaway is that he often gets it right but that he does make mistakes on occasion.



That is a very good summary.  And I would add that his hit rate is higher than the courts. 

It could be that the courts are more pro-consumer. They shouldn't be. They should be independent. 

But ma


----------



## WizardDr (9 Oct 2020)

The mess was made by previous office holder. The powers are strengthened but it remains to be seen how matters panout. For example having to be aware of what is in your original letter of offer when making a changea might still seem acceptable to FSPO.  Once again it Europe we turn to instead of FSPO. They should be leading the charge for consuner instead they are laggards.


----------



## Brendan Burgess (9 Oct 2020)

WizardDr said:


> They should be leading the charge for consumer



What? 

The role of the Ombudsman is to be impartial and independent.  He should not be leading the charge for either the consumer or the financial services provider!

Brendan


----------



## MaxGordon (9 Oct 2020)

Totally agree with Brendan.

His job is to be fair and impartial. My criticisms of him were that I felt his judgement was biased in favour of the bank (and that the judgement was written in a way to support his decision). But let's be clear, his job is not to be biased in favour of the complainant either.

What people are looking for is that their case is fairly recorded, considered and adjudicated on. No more, no less.


----------



## WizardDr (11 Oct 2020)

I think when AIB have the biggest legal team outside any Practice the above statements should be the exact opposite.

Most consumers are financially illiterate and relied on the toxic crutch of a bank official who believed what he told the customer.

Some of the former FSPO decisions would not be in keeping with what is evolving in Europe which is catching some by surprise.

If my memory is accurate the extension of six year rule was not in original draft of the proposed law when I read it ..

I think the FSPO has to go a lot further in assisting individuals in structuring their complaints.

That does not mean FSPO is not doing good work but they are not yet doing God's work.

I have examples that are fundamentally biased that you would wonder. For example typographical errors making total sense being upheld as a mistook.


----------



## Brendan Burgess (11 Oct 2020)

Hi Dr
I agree that there is an imbalance between the bank and the complainant. 

But it's the same in a court of law. 

There should be a solution to this, but it's not to tell the Ombudsman to be biased towards the consumer.
Brendan


----------



## WizardDr (11 Oct 2020)

@BB you have raised a very good point.  There is a crucial difference and it highlights an inequality of arms.  You have professional representation in court assuming you can pay for it to put your case forward.  I can assure you what is put forward is not similar to what an aggrieved consumer could write.

In relation to FSPO - AIB have a team of lawyers - the complainant has nobody and if he has he cannot claim fees from the FSPO.

Being biased to the consumer  simply means the benefit of the doubt.  That should always be with the consumer.  The alleged typographical error for  example should have been found for the Consumer.  It was an alleged 'mistake' but what was perfect syntax.  In other words was it in fact a mistake. One case was a letter "...ECB +0.75%..." and EBS said the consumer had been told it was something else and this was accepted by the  then FSPO and was the most blatant nonsense I have ever come across.  Needless to say the Consumer lost but later God's work was done by Padraic Kissane. 

If we had money we should name a street where the CBI hang out after him.


----------



## Brendan Burgess (11 Oct 2020)

WizardDr said:


> Being biased to the consumer simply means the benefit of the doubt. That should always be with the consumer.



Hi Doctor

I agree with you, but...

I have seen consumers claiming bizarre interpretations and then saying "contra proferentem". It's only where there really is some doubt. 

Are you saying that neither the lender nor the borrower can ever claim a typo?   We awl make them. I no that in contracts they should be avoided. 

Brendan


----------



## WizardDr (12 Oct 2020)

BB  having looked at some of the FSPO previous decisions it would be clear that standing on his head for the lender was often the case.

For example they have not caught up with EC Court of Justice judgments in that decisions made on those cases are binding here and FSPO should at this stage be using UCT Directive and treating the cases that have preliminary rulings very seriously indeed.

The mistt0oks they have entertained are quite frankly shocking and are off the wall.


----------



## Gregmill (1 Nov 2020)

I just seen this post today and I would agree with Wizard Dr.

I have also seen some shocking decisions by the current FSPO.
It would also be interesting how often the current FSPO has found the bank in breach of the consumer Protection Code and as a result gave the consumer the benefit of the doubt.

I would bet that the above scenario would be very rare indeed.


----------



## WizardDr (3 Nov 2020)

What @BB forgets is that the new FSPO Act _obligates _the FSPO _not _to be totally legalistic. 
@Gregmill many thanks its hard doing battle when @BB gets going. 
There is an ECJ Case pending and its believed for example that referring to the Letter of Offer (which is in the attic or lost) when making a routine adjustment e.g. fixing the rate on the mortgage - is an unfair practice.  It should have been challenged by FSPO and should have been sought to add it to the Contract blacklist that UCT Directive outlined should have been set up (I believe it used to exist but was never used for banking unfair contract terms). 

So the FSPO should be controversial and there should be screams from the Bank then you would know they were doing their job.


----------



## Brendan Burgess (3 Nov 2020)

WizardDr said:


> There is an ECJ Case pending and its believed for example that referring to the Letter of Offer (which is in the attic or lost) when making a routine adjustment e.g. fixing the rate on the mortgage - is an unfair practice.



So the Letter of Offer will have no significance?  It can be used by the borrower to beat the lender, but the lender can never use it to defend themselves.

If you are describing it correctly, it seems very unfair. 

Brendan


----------



## RoseMc (3 Nov 2020)

Doctor,

Do you have a link or reference to this ECJ case please?


----------



## WizardDr (3 Nov 2020)

The Letter of Offer features in proceedings all the time - that is a different matter.
For example with Tracker issue changing to a fixed rate and losing tracker because of a term in a letter of offer should itself have been declared an unfair term.  What I am saying is that if the Bank is relying on a term in your letter of offer when a change is being made then they should produce the Letter of Offer at the time of the transaction.  For example - take a lump sum payment.  Is the  term reduced and payment kept the same? Is the payment reduced and the term kept the same? Is it capable of being redrawn (a very handy facility that KBC had)? Reducing term may not transpire to be in your interest (excuse pun) if rates rise. In most cases it is not clear at all what happens.


----------



## WizardDr (3 Nov 2020)

@RoseMc It is in a footnote of the European Commissions publication on UCT Directive. Search using 'Hogan' for it is his initial judgment as Advocate General or some such. Its preliminary.


----------



## Thinktank (3 Nov 2020)

How did you find mediation? Was it just the final judgement that let you down?


----------

