FS&PO and adjudicated decisions

WhiteCoat said:

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

Click to expand...

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

Ah Brendan,

We'll have to agree to differ!

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.

Click to expand...

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.

MaxGordon said:

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

Click to expand...

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

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.

MaxGordon said:

Genuine question: can you see the difference?

Click to expand...

Hi Max

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

Brendan

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.

MaxGordon said:

there really isn't any point in engaging further.

Click to expand...

Correct.

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?.

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?

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.

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.

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.

White Coat

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

Brendan

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.

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.

Click to expand...

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:


I picked one at random and read it.


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

Hi Brendan,

Brendan Burgess said:

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

Click to expand...

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.

Click to expand...

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.

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?

Click to expand...

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

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.

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.

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