Brendan Burgess
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In a case today, of Alan and Deirdre Grant vs. Permanent TSB with the Ombudsman as notice party, Justice Hedigan set down the basis on which the High Court would overturn the Ombudsman's decision. I think that this is a very clear setting out of the approach. In summary - unless the Ombudsman's decision is bizarre, we are not going to interfere with it.
The nature of the appeal to the High Court is now well established. The classic statement thereof is that by Finnegan P. in Ulster Bank v. Financial Services Ombudsman & Drs. [2006J IEHC 323:
"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 will have regard to the degree of expertise and specialist knowledge of the Defendant. The deferential standard is that applied by Keane C.l in Orange v The Director of Telecommunications Regulation & Anor and not that in The State (Keegan) v Stardust Compensation Tribunal."
The Orange test to which Finnegan P. referred is as follows:
"In short, the appeal provided for under this legislation was not intended to take the form of a re-examination from the beginning of the merits of the decision appealed from culminating, it may be, in the substitution by the High Court of its adjudication for that of the first Defendant.
It is accepted that, at the other end of the spectrum, the High Court is not solely confined to the issues which might arise if the decision of the first Defendant was being challenged by way of judicial review. In the case of this legislation at least, an applicant will succeed in having the decision appealed from set aside where it establishes to the High Court 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 arriving at a conclusion on that issue the High Court will necessarily have regard to the degree of expertise and specialised knowledge available to the first Defendant."
The nature of the appeal to the High Court is now well established. The classic statement thereof is that by Finnegan P. in Ulster Bank v. Financial Services Ombudsman & Drs. [2006J IEHC 323:
"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 will have regard to the degree of expertise and specialist knowledge of the Defendant. The deferential standard is that applied by Keane C.l in Orange v The Director of Telecommunications Regulation & Anor and not that in The State (Keegan) v Stardust Compensation Tribunal."
The Orange test to which Finnegan P. referred is as follows:
"In short, the appeal provided for under this legislation was not intended to take the form of a re-examination from the beginning of the merits of the decision appealed from culminating, it may be, in the substitution by the High Court of its adjudication for that of the first Defendant.
It is accepted that, at the other end of the spectrum, the High Court is not solely confined to the issues which might arise if the decision of the first Defendant was being challenged by way of judicial review. In the case of this legislation at least, an applicant will succeed in having the decision appealed from set aside where it establishes to the High Court 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 arriving at a conclusion on that issue the High Court will necessarily have regard to the degree of expertise and specialised knowledge available to the first Defendant."
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