FSCL's 'allegations against a very senior parliamentary officer'

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Financial Services Complaints Ltd (FSCL) has been dealt another blow in its long-running battle to call itself an ombudsman scheme.

Tuesday, June 2nd 2020, 6:00AM 3 Comments

Susan Taylor, FSCL

FSCL first applied to use the “ombudsman” name in 2015 and was rejected. In 2016, Chief Ombudsman Peter Boshier agreed to reconsider the application. It was declined again.

The dispute scheme, headed by Susan Taylor, applied for judicial review and had its application dismissed. It appealed to the Court of Appeal, where Boshier was directed to reconsider the application. In June last year, it was declined again.

The scheme argues that not being able to call itself an ombudsman scheme puts it at a disadvantage in the financial disputes resolution scheme environment, in which IFSO and the Banking Ombudsman are both using the term.

FSCL has now gone to the Court of Appeal seeking a review of the latest decision and, if successful, an order that the court substitute its decision for Boshier's, and remove and transfer FSCL's judicial review proceeding against Boshier to the Court of Appeal, from the High Court.

Lawyers for FSCL argued the circumstances of the case were exceptional for three reasons.

The case questions whether Boshier duly considered the applicant’s application under s 28A(1) of the Ombudsmen Act.

It also concerns the question of whether Boshier, as the holder of an important constitutional office, acted in bad faith when he again declined consent for the applicant to use the ombudsman name.

Thirdly, it raises the issue of whether, if a person vested with the exercise of a statutory discretion refuses to exercise the discretion in accordance with law, the court can exercise the statutory discretion itself, or in the alternative declare that an applicant for a statutory consent is entitled to the consent.

Boshier’s lawyers opposed the application to transfer the proceeding to the Court of Appeal, saying that the circumstances were not exceptional, and the Court of Appeal would benefit from findings made in the High Court.

They also said the statement of claim made an allegation that Boshier had acted with a lack of good faith and any adverse finding could have potential reputational consequences.

Because of that, there needed to be one unqualified right of appeal, not the appeal avenue constrained by the Supreme Court's leave criteria.

They also argued that the issue of whether a court could exercise a statutory discretion or direct the decision-maker how to make a decision was not novel. They said the legal position had been settled for years – a court could, in clear and exceptional circumstances, substitute its own view of what decision should be made.

In its ruling, the Court of Appeal judges said the proceeding was one of some importance. It raised issues of compliance with the court’s prior orders and involves allegations of bad faith against a very senior parliamentary officer. “That makes it highly unusual. But it does not mean it is exceptional.

“While FSCL’s judicial review plainly deserves timetabling for urgent trial, it certainly cannot be said that the case is 'unlikely to be determined urgently if the proceeding is heard and determined by both the High Court and the Court of Appeal'. That suggests temporal and economic constraints, and neither apply here, at least on the evidence before us.

“Serious allegations are made against a statutory decision-maker and senior parliamentary officer. The hearing may take some days. A slew of documents has been discovered and there is a lengthy paper trail to be analysed.”

FSCL's counsel told the court there were six volumes of reading material involved, including Ministry of Justice documents.

“The finding of facts at trial is an exacting and time-consuming task. It requires a single-minded sense of purpose, and a clarity of eye in detecting inconsistencies across the whole evidential record. It is more a solitary task than work for a committee. Like most solitary tasks, it is best tackled alone. While we therefore agree with the submission that those tasks are best addressed at first instance by the High Court, with appellate review if needed, it must also be borne in mind that appellate review may not be needed at all. In that case the allocation of two additional judges to the trial will have served little useful purpose, and simply delayed the despatch of other appellate business.”

The application for transfer was declined.

Tags: FSCL

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