# Ombudsman calls for consistency in High Court decisions



## Raging Bull (25 Nov 2013)

Is this a case of the pot calling the kettle black?

http://www.irishtimes.com/news/crim...cises-incoherence-in-the-high-court-1.1606016

I think all people are simply looking for is to be treated fairly and rationally.


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## mercman (25 Nov 2013)

If you heard Bill Prasifka on the radio at lunchtime yesterday whilst he was been interviewed, his own commentary on his office decisions were quite poor and pathetic. When he was asked why there was a different finding for two cases similar the answer offered was quite appalling. He wasn't being asked the differences between Bananas and oranges but he traversed from any ability to be correct.

In fairness to the Interviewer, I think he has put him on notice that his decisions are been monitored. Personally, I do believe that this will eventually come down to the Vox Populi.


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## Time (25 Nov 2013)

If the Ombudsman was making fair decisions to begin with, then people would not be going to the High Court to get justice.

It is a case of the pot calling the kettle black.


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## Monksfield (25 Nov 2013)

Bill Prasifka talks a good talk but the idea of him being critical of the High Court for inconsistency given the decisions coming out of his office is laughable.

The FSO was a very good idea but is now discredited as a fair way of getting redress.


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## Brendan Burgess (26 Nov 2013)

Time said:


> If the Ombudsman was making fair decisions to begin with, then people would not be going to the High Court to get justice.



The problem with this argument is that the High Court has rarely overturned an Ombudsman decision on a fundamental issue. 

The Ombudsman loses very few appeals to the High Court and the ones he has lost have been on the basis of process e.g. failure to offer an oral hearing; going beyond his authority in ordering compensation. 

Brendan


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## Bronte (26 Nov 2013)

mercman said:


> If you heard Bill Prasifka on the radio at lunchtime yesterday .


 
What station was that?


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## Sue Ellen (26 Nov 2013)

Bronte said:


> What station was that?



Is this it here under the photo?


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## Bronte (26 Nov 2013)

Thanks SE. I see our own poster Padkiss was on that programme as well. Well done him.  

Here on AAM we know that the ombudsman's office is not consistent and that banks are playing a percentages game with the ombudsman's office, in addition to letting his office be their complaints department. 

And what nonsense is the ombudsman sprouting when he said 'come and talk to us ' if you feel a decision is unfair. I mean that's just crazy, in their final decision letter it quite clearly states that if you're not happy you must go to the High Court. 

Why doesn't he just sort out his office by telling the staff to follow the decisions that were made in similar cases. If they know say X bank has messed around with trackers, then he should just say from now on all customers with the same complaint gets the same decision. It's just making work if you look at each case that is similar as if it were a brand new case. And what's worse, you can get two different outcomes.


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## Gerry Canning (26 Nov 2013)

Bronte;

You are on the money with your comments.

I think the word Ombudsman lulls our Media into a sense that since it is Ombudsman ,it must be fair and consistent.
On my (pet-hate) ppi ; on the Review the Banks are DELIGHTED to advise those that do not get paid on Review to go to Mr Ombudsman...
The ONLY consistency the Ombudsman has is a consistency to find in an inordinate manner for Banks.


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## Raging Bull (27 Nov 2013)

The High Court wont overturn a decision by FSO because its unfair or daft. You need to show that they interpreted law incorrectly or did not follow a fair or constitutional process. So Brendans point is correct

 Ulster Bank v Financial Services Ombudsman and Others (2006) IEHC 323 where Finnegan P stated: 
 “…the plaintiff must establish as a matter of probability that, taking the adjudicative process as a whole, the decision reached [by the Ombudsman] was vitiated by a serious and significant error or a series of such errors”.


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## Gerry Canning (28 Nov 2013)

Raging Bull; 
You are 100% correct . 
It means it is dangerous to rely on Ombudsman if as it appears ,too many of his decisuions are (daft) (unfair)


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## Raging Bull (28 Nov 2013)

Which is why the whole article is ironic. The Courts are simply stating that the deliberation must be simply fairly transparent, conducted in accordance with constitutional norms.

 A basic premise of law inherited from Roman times is the principle of *Audi alteram partem.*

*This means to hear both sides. *

_Its impossible to say FSO is doing that when ample cases discussed on these threads demonstrate that they accept everything verbally that a Financial Institution says. The only chance it seems to me that one can win a case is if there is something massively wrong in contract or paperwork. In those cases if it was me again I would go to a Court unless I had no money to go that route_


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## Gerry Canning (28 Nov 2013)

Raging Bull; 

You are again correct.

In essence I cannot afford to trust Ombudsman.


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## Bronte (5 Dec 2013)

Ombudsman's office and statue of limitations

I've recently been reading a High Court Judgment in relation to a different matter, but it may be of significance for the statute of limitations and taking claims. 

In this case

Rosbeg v LK Shields

At point 61, the statute of limitations was not allowed to be used as a defence as the issue did not come to the attention of the plaintiff until recently. 

(I haven't time to find the case now but when I do I'll add it in as a link)


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## Gerry Canning (5 Dec 2013)

Bronte; Please find and post it .
On PPI most customers did not/were not told what they were really buying , so how could they claim until they were informed that they were probably recipients of an inappropriate/unfair product?


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## Bronte (10 Dec 2013)

This is the Irish Times article on the court case

http://www.irishtimes.com/business/...-register-property-high-court-rules-1.1589158

And this is the court judgment

http://www.courts.ie/Judgments.nsf/...18ef610110db7abc80257c290040b1f1?OpenDocument

and here is a copy paste of point 61

_61. As I have already indicated, I am satisfied that the defendant firm was negligent in not having ensured that the plaintiff's title was properly registered by the time the plaintiff was trying to dispose of the property. It owed the plaintiff company a duty of care in that regard as a result of its retainer to act in the purchase in 1994. Their duty was a continuing one. It failed to bring the problem to the purchaser's attention at any earlier stage. If it had, I have little doubt that the plaintiff company would have been sufficiently concerned to have ensured that the necessary steps were taken to have matters completed. *In as much as the defendant has pleaded the Statute of Limitations in this case, though I have to say it was not pursued with any vigour, if at all, I am completely satisfied that it was not correctly relied upon in this case. The plaintiff did not know of the negligent act until it took steps in response to information provided to it by Mr Harvey on behalf of Mr Harris. The defendant firm ought to have kept the plaintiff appraised of the difficulties which were encountered in the Land Registry but did not. They cannot rely on the plaintiff’s failure to act sooner.*_

The really relevant bit is bolded.

So how is this relevant in other cases. Well it seems to me that because the statute of limitations can not be relied upon if the plaintiff did not know about the negligent act until later it would imply in the case of mis selling, or other wrong doing by banks etc, that when it comes to one's attention, which would be long after the original 6 years were up that if it only came to one's attention then, the bank could not rely on the statute of limitations as a defense. Not sure but I guess what it means is that the 6 years only begins when it comes to one's attention.

Therefore anyone going to the Ombusman if he says you've no case because of the statute of limitations, well you can quote him a High Court judgement which quite clearly is now the law, the definitive decision on the applicaiton of the statute of limitations and the ombudsman, where you can prove that you only knew of the problem/issue recently rather than more than 6 years ago, well Ombudsman will have to ignore the 6 year rule. 

In fact if what I've stated above is correct, the ombudsman should reopen many cases, including my own mis selling case. I had a judgment/decision/ruling from the Ombudsman's office that disallowed my claim because of the 6 year rule. That decision was this year. I'm wondering now what I can do, on radio the Ombudsman did state that poster on her Padkiss could go back to him with any case where he, Padkiss thought the Ombudsman was not being consistent. I wonder can I get my case relooked at.

I'd be very interested in any legal opinions on whether my understanding of Section 61 of this court case is correct. It could have a momentous effect on many things, and is absulutely a good day for consumers and the little people in general. Me being one of them. 

Naturally enough, the above court case could be overturned at Supreme Court state, if appealed, or if this point on the statute of limitations were to come up in another case.


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## Gerry Canning (10 Dec 2013)

Bronte; Excellent, 
As I type I have a ppi focussed Solicitor looking @ this judgment.Will keep you posted of his view.

You are correct , if this type of understanding carries through on ppi cases then all cases are open to re-review.
I can see providers saying they on ongoing statements etc they clearly showed ppi ,therefore customer was advised. 
Still an uphill battle for {the little folk!} .
 But we WILL get there.
Very interesting.

Regards GC.


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## Gerry Canning (10 Dec 2013)

Bronte; 
He had already seen it.
Of the opinion that this is case specific ie cant be relied upon on ppi stuff were customers got (albeit sometimes belated) ongoing info.
What it does mean is that the 6 year rule is open to challenge and if we can get one ppi case through we can win.
The alternative is to KEEP onto local TDS to have it changed.


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## trucker39 (19 Jan 2014)

I understand that the 6 year rule for the FSO is different from that under the Statute of limitations. With the FSO, the 6 years starts ticking when the conduct begins (i.e. when the PPI policy is sold etc), but under the Statute of Limitations it begins when the plaintiff becomes, or ought to become, aware of the conduct (i.e. becomes aware it was missold). The case above was decided under the stature of limitations, not the central bank Act 2004 (which established the FSO)


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## Bronte (20 Jan 2014)

That's interesting Trucker. But there was a poster very recently who managed to get refunded going back 6 years only, as he said it only came to his attention recently, I'll try and find it on AAM.


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## twofor1 (20 Jan 2014)

Bronte said:


> But there was a poster very recently who managed to get refunded going back 6 years only, as he said it only came to his attention recently.



Hi Bronte, my complaint was successful as the Ombudsman found that the original T&c’s were over ridden by undertakings given to me in letters from the provider, not because it only came to my attention recently.

The Ombudsman can only consider matters in dispute that occurred six years prior to the complaint date.

http://www.askaboutmoney.com/showthread.php?t=184733


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## Gerry Canning (20 Jan 2014)

Raging Bull said:


> Which is why the whole article is ironic. The Courts are simply stating that the deliberation must be simply fairly transparent, conducted in accordance with constitutional norms.
> 
> A basic premise of law inherited from Roman times is the principle of *Audi alteram partem.*
> 
> ...


 .................
Raging Bull . 
On PPI we have a review via Central Bank on sales since Aug 2007 .
Principle Audi alteram partem , is ignored.
The Reviewers are ONLY lokking at the documents in the Banks and are NOT contacting customers,
Yet our Central Bank says this is Independent . The cEntral Banks (supposed) brief is to PROTECT consumers.
I try not to give up !!


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## mercman (20 Jan 2014)

twofor1 said:


> The Ombudsman can only consider matters in dispute that occurred six years prior to the complaint date.
> 
> http://www.askaboutmoney.com/showthread.php?t=184733



But there was a case reported last week, where the Ombudsman's bureau looked into a case that was over six years old.


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## Gerry Canning (20 Jan 2014)

Mercman. 
As a near absolute Rule , anything over 6 years gets caught under 6 rule.
In a case where it can be shown there was a strong material change to a case it May be looked at , but sadly the vast bulk of cases do not fall into that scene.


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## mercman (20 Jan 2014)

Gerry, I'm certainly not doubting you, but in cases when matters that cause a material difference to an investment but only became known after the six year rule or where in fact hidden from Investors until after six years, surely this would make a material difference both to the investment and the rules of the Ombudsman ?


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## twofor1 (20 Jan 2014)

mercman said:


> But there was a case reported last week, where the Ombudsman's bureau looked into a case that was over six years old.



Hi mercman,

Is this the case you are referring to ?

http://www.askaboutmoney.com/showthread.php?t=184733


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## mercman (21 Jan 2014)

twofor1 said:


> Is this the case you are referring to ?
> 
> http://www.askaboutmoney.com/showthread.php?t=184733




Yes, that is the one.


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## Bronte (21 Jan 2014)

This being the important bit from that thread:

_I resubmitted my complaint, stating that while the conduct complained of first occurred twelve years ago, this same conduct was repeated every year thereafter to date, and that my complaint now only related to the previous six years. My complaint was then accepted by the Ombudsman as being within his remit. _

So my understanding now is that if the issue doesn't come to one's attention and has been ongoing, then it has to be looked at, but they only go back 6 years. 

I think it's disgusting that despite knowing the wrongdoing goes back further that the organisation doesn't feel that in the interests of good consumer relations that they don't rectify the matter from the beginning and stop weasling out by using the 6 year rule.

If you are mis sold, or misled on any financial product, there should be no 6 year rule.  Who is an ordinary person to take a large organisation to task.  It's nigh on impossible.


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## mercman (21 Jan 2014)

Bronte said:


> It's nigh on impossible.



Not impossible, but damn expensive. 

I have a number of cases pending where information has only come to hand where that either the full information was not disclosed 10 years ago (even to this date), or other investors where favoured with better terms for investment. 

My own personal belief is that Irish Banks should not be allowed to sell Investment products unless a new strict set of guidelines is drawn up and adhered to. 

It really is one matter for world markets to crash. It's another different thing when the Bankers are working on their own self interest.  

This is one instance and case where the present Ombudsman could really make his mark, and bring a new regime to both the Ministers of Finance and Justice for implementation to stop the rot.


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## Bronte (21 Jan 2014)

mercman said:


> My own personal belief is that Irish Banks should not be allowed to sell Investment products unless a new strict set of guidelines is drawn up and adhered to.
> 
> .


 
I agree with that Mercman, but I don't think it's going to happen.  You yourself are constantly in the wars, does it get you anywhere though, you could spend your whole life at it.


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## mercman (21 Jan 2014)

It really is a form of criminality at its very best.


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## twofor1 (21 Jan 2014)

Bronte said:


> So my understanding now is that if the issue doesn't come to one's attention and has been ongoing, then it has to be looked at, but they only go back 6 years.



That’s what happened in my case anyway, in summary;

My initial complaint related to the previous 12 years, the Ombudsman would not investigate, quoting the six year rule.

I resubmitted my complaint for the previous 6 years only, and the Ombudsman investigated, stating in his finding;

‘’This complaint was made on xx/xx/2012 and consequently I can only consider matters in dispute that occurred after xx/xx/2006.

If this 6 year rule is ever scrapped, I will then be lodging a complaint for the previous years.


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