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

Brendan Burgess

Brendan Burgess

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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 €200k in costs for yourself and the other side.

The Ombudsman is a much more consumer friendly process than the legal system
The Ombudsman process is largely by written submission, while the High Court decides in a court hearing
The legislation specifies that the Ombudsman must act in an informal manner. You will not be ambushed in public by a Senior Counsel. You make your complaint in writing. The other side responds. You get time to think about their response. You make a written response. You can get advice from others about how they handled similar issues.

The High Court is very frustrating and time consuming for the complainant
There are many preliminary hearings which are difficult to understand. It is hard to know when the case is actually going to be heard. You can turn up in court expecting to have your case heard, only for the other side to get a postponement. You can turn up in court waiting for your case to come up, only to find they don't get around to it and you get a date some months away. As an expert witness, I turned up twice for a court case and hung around all day on each day, only for us not to get on. We only got on, on the third day, after hanging around again, for most of the day.

This all adds to the extreme worry that you will lose your case and have costs awarded against you.

You do not need to use a solicitor with the Ombudsman
Because it's an informal process, you can submit and process a claim by yourself. The other side may well use a solicitor but that should not affect you. You may choose to get help from a solicitor or from some other professional, but it's not essential unless it's a complex case for a large amount.

Of course, you can represent yourself in the High Court as a lay litigant, but the process is so formal and legalistic that it is very difficult for a layman to proceed.

The Ombudsman is confidential - The High Court is public
 
Should I go to the Ombudsman of the High Court?

The disadvantages of the Financial Services Ombudsman/The advantages of the High Court

The maximum award is €250,000 - The High Court is unlimited
For smaller claims, the complainant could go to the lower courts.

A financial services provider is much more likely to settle a High Court case early
If the High Court upholds a complaint, it forms a precedent for other cases. So if there are other similar cases, the bank will seek to settle the case before it is decided in public. Even if it expects to win the case, it may well settle it to avoid the risk of an adverse finding.

If the financial services provider gets a favourable ruling from the High Court, the claimant can appeal to the Supreme Court on a matter of law. The financial services provider may settle this before the appeal takes place, so that the High Court ruling in its favour stands.
The financial services provider has a huge advantage as it is held in private
The financial servcies provider will have dealt with similar cases before and will know the thinking of the Ombudsman. So they can adapt their defence in the light of previous cases. While previous cases do not form a precedent, it is likely that the Ombudsman aims for consistency in cases.

Say a claimant argues that they did not realise that they would lose their tracker by breaking out of a fixed rate. They argue that the paperwork supplied by the bank was unclear. Assuming it was the same paperwork in every case, the lender will know from the first case how the Ombudsman views the paperwork. If the Ombudsman decides that the paperwork was clear and dismisses the complaint, then the bank will base their defence on that issue. If the Ombudsman decides that the paperwork was unclear, the bank may try other arguments in their defence. Or the bank may make an offer of less than restoration of the full tracker to induce the complainant to settle. The complainant, unsure about the outcome, may accept less than they were going to get from the Ombudsman.

By comparison, if the High Court decides on an issue, the thinking of the High Court is known but it also acts as precedent for other cases.
 
Should I go to the Ombudsman of the High Court?

Where are you more likely to get a fairer hearing?

This is very difficult to answer.

Around 30% of complaints are upheld by the Ombudsman, so 70% of the complainants probably think that the Ombudsman favours financial services providers.

Many posters on Askaboutmoney have been very satisfied with the Ombudsman's approach
NIB told to put investment properties back on the home loan rate

The High Court has overturned only two appeals against the Ombudsman on substantive issues. Other cases have been overturned by the High Court, but only on procedural issues e.g. the Ombudsman did not offer an oral hearing or the Ombudsman did not disclose information to the other side.

I have seen a few decisions by the Ombudsman and I have agreed with most of them. The complaints were not upheld in most of the cases I have seen. The complainant felt aggrieved but I thought that the High Court would have arrived at the same conclusion as the Ombudsman. I have strongly disagreed in only three cases where I thought that the Ombudsman was clearly wrong in their findings. In one case, they rejected a complaint which seemed to me to be valid. In two other cases, they found in favour of the complainant, in cases where I would have rejected the complaint.
 
Should I go to the Ombudsman of the High Court?

Where many are affected by the same issue, it is probably better to go to the High Court

PTSB customers who borrowed to invest in properties thought than they were borrowing interest-only for the full period of the loan. After 5 years, PTSB sought capital and interest payments and pointed out a clause in the contract which said that the interest-only period lasted for only 5 years. A solicitor, Walter Odlum, is taking to the High Court.

This is a far better course of action than going to the Ombudsman. I have discussed how test cases work in this thread: How do test cases work in Ireland?

Advantages:

  • The costs of the cases may, by agreement, be split between all those affected
  • If the High Court finds in favour of the test cases, the other claimants will have a much better chance of victory in their cases.
  • If the High Court rules against the test cases, the others will know not to bother with their cases.
  • A group of people can pool their knowedge, experience and ideas and can combine this with good legal advice to maximise their chances of winning their case.
A case should meet the following criteria to be worth taking as a test case

  • The main issue in dispute should apply to all cases e.g. the wording of a clause.
  • The remedy should be similar for all those affected e.g. all customers go back on interest-only for the full term of the mortgage. If the damages need to be decided by a judge, it would be less suitable.
  • A large group of people should be affected
  • The individuals should be prepared to contribute to the cost of the test case
 
The advantages of going to a court other than the High Court

I am not a lawyer, so corrections on this welcome

Her are the limits for the other courts

Small Claims|€2,000
District|€6,000
Circuit|€38,000
Advantages


  • Quicker than the Ombudsman's service
  • Costs if you lose are much smaller
  • If you lose in the District Court, you can appeal to the Circuit Court, whereas if you lose an Ombudsman's case, you can appeal only to the High Court at enormous expense and risk.
 
The other advantage of the ombudsman is that as the submissions are in writing you have plenty of time to research your response and seek advice from people in a similar situation on forums such as this, you are responding to your case with the collective knowledge of the members here.

The important point is not to rely on precedence, i.e. you need to prepare for and fight each case on its own grounds no room for complacency.

Also the fact that there means that there is no precedence means that with careful homework you could win a case someone else lost.
 
DingDing said:
The other advantage of the ombudsman is that as the submissions are in writing you have plenty of time to research your response and seek advice from people in a similar situation on forums such as this, you are responding to your case with the collective knowledge of the members here.
Click to expand...

Excellent point, which I have now incorporated in the first post.
 
You can also go to the high court if the ombudsman finds against you. Nothing to lose if you are thinking of going to court anyway.
 
Brendan Burgess said:
Excellent point, which I have now incorporated in the first post.
Click to expand...

Thanks Brendan, This was key in my case as it gave me the information and confidence to launch a successful case.

Just to clarify, I was successfull with the ombudsman not the courts.

http://www.askaboutmoney.com/showthread.php?t=170932

A summary of my case is in the link above.

There is a more detailed thread here which may also be of use.

http://www.askaboutmoney.com/showthread.php?t=104951

There was also an article in the Irish Independent on the case.

http://www.independent.ie/business/irish/follow-larissas-lead-and-phone-the-financial-watchdog-for-help-with-banks-3180604.html

And

http://www.independent.ie/business/irish/nib-may-have-to-refund-hundreds-of-buyto-let-investors-3180599.html
 
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Question: If you win your case with the Ombudsman, and the other party takes it to the High Court and wins, do you have to pay the cost?
 
Time said:
The loser would have to pay i.e. the ombudsman.
Click to expand...

Is this the absolute rule?

Or is this not the general guide?

I presume that there could be cases where the judge would not give the loser costs e.g. if the appellant wasted time in the handling of the case or if the appellant brought up a lot of irrelevant issues?
 
OK, I am revisiting my views on this.

Between 2011 and 2012, the Ombudsman upheld 11% of complaints. A further 16% were partially upheld.

A one chance in 10 is too low to take your case to the Ombudsman.

Most people can't afford a High Court case, so they have no choice.

But it may be worth going to the District Court or Circuit Court.

If your case is very strong, and your solicitor is prepared to do it on a no foal, no fee basis, then it may be worth trying. If you lose, you will have to pay the other side's costs, but they are limited to ...Anyone have any idea how much they are?

Of course, if you win, the case may well be appealed to the High Court which would expose you to huge fees.
 
Gerry Canning ppi.

I had got nowhere on cases to Ombudsman, so since Dec 12 , I used Solicitors as I felt I may have missed important items. My Solicitor has had ZERO success ?? Go figure ??
We now have blocks of cases going via a Real Court . We won,t get hearings to Autumn but I will be VERY surprised if a Real Court does not find for us in most cases.
 
I had a case with FSO I have pulled it before a decision was made because I had no response when I asked them to seek certain documents without those docs their decision would most likely be flawed while you can appeal to High Ct its very expensive and difficult to win

I took a view it would be easier to win it outright in High Ct in first instance.

As you say the stats are heavily slanted against consumer
 
I wouldn't bother with FSO- it took 18 months for him to come back and say it wasn't under his jurisdiction- I believe it was but it was too controversial and complicated for them to investigate. A waste of time
 
I’ve just had a devastating result from the FSOB. I felt my case was extremely solid and I was able to show faulty paperwork on the part of the Investment Broker involved to back up my case. The FSOB seemed to ignore the evidence I presented and concentrated completely on the Company’s defence. Part of the complaint was time bound and while the Bureau wouldn’t include it for investigation, they still commented on it in favour of the Company even though the company were unable to produce all the required paperwork. The Broker Company involved seemed very happy to see the case go to the FSOB without any attempt to reach a settlement. The time for a High Court challenge has passed while I have been dealing with the trauma and I have no faith in the system anyhow after this result. The Consumer Protection Code made me believe in the process but where do you go to get those principles upheld? The Ombudsman was on Morning Ireland lately saying that ‘you must read the policy’. Is the Code now redundant and does the responsibility lie with the consumer? The stats issued by the Ombudsmans Bureau would suggest that it does.
 
25:14-30.

From Ger Canning PPI.

I COMPLETELY agree with your thoughts . It would appear that Ombudsman accepts what The Company says they have done yet dismisses words written by complainant.
Please view the ppi comments in Ask Abou Money as they give a good view on were our Consumer Code is being turned into a BUYER BEWARE code.!

Think about Ombudsman only finding for 12% ! .
The UK Ombudsman finds for 80% on PPI.

Our Ombudsman MUST not have read the GENERAL PRICIPLES in the Consumer Code?
Our Ombudsman MUST believe that were Code says MUST it only means maybe?

Please get onto your Td . If you want info please mail me gerrycanning@hotmail.com
 
dear all,

we've just received a findings from the FSOB and the conclusion they arrive at is questionable

when we informed the provider of redundancy the provider cant provide any documentation that we notified them - when in fact we called to the branch to inform them. We don't have any email trail ourselves. We received no forms from provider in order to make a claim.

It's interesting to note, that communication in writing from the provider was only instigated sometime after this event i.e. notes written on compliment slips by provider, phone calls etc. were the norm previous to this.

The FSOB has accepted that a complete denial by the provider that we contacted them ( they claim they have no record) is fair.

As an aside, when we started emailing provider, they have never responded to our complaints or other matters in writing - only phone calls were returned.

I have 21 days to appeal this to the High Court. I would like to get some opinions,

I know this is a bit vague but the jist of this is above.

thanks,
Peter
 
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