High Court: Extension of time to bring judicial review proceedings granted after stamping error

About this case:

• Citation:
  [2023] IEHC 228
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment in the case, Mr Justice Garrett Simons held that it was appropriate to extend time to bring the proceedings. It was held that the applicant would have been able to open his application before the court within time if the stamping error had not been made. Further, it was noted that the Covid-19 restrictions at the time meant that only 14 matters were listed each day, which contributed to the delay.

Background

The applicant was a litigant-in-person who had made a complaint to the FSPO regarding financial services provided by Danske Bank. On 13 December 2021, the Ombudsman delivered a “preliminary decision” in which he decided to discontinue the investigation of the complaint.

In the decision letter, the Ombudsman rejected allegations made by the applicant that the FSPO was biased. It was said that “I cannot complete the adjudication of your complaint in such circumstances where you do not believe that the investigation has been carried out in a fair and impartial manner”. Accordingly, the Ombudsman closed the investigation.

In seeking to challenge the decision, the applicant filed a statement of grounds and a verifying affidavit in the Central Office on 14 March 2022. The three-month time limit would ordinarily have required the application to be moved by 13 March 2022, but the 13th fell on a Sunday.

The paperwork had been prepared on 10 March 2022 but the applicant was unable to file these documents where incorrect stamp duty was paid. The applicant maintained that this arose due to an error by the official in the Office and that this was a circumstance outside his control.

Additionally, at the time of filing, special procedures were in place to govern the listing of applications for leave to apply for judicial review. Specifically, the maximum number of applications for any particular Monday was 14, which was meant to control the number of people in court during the pandemic.

As such, even though the paperwork was lodged within time, the application for judicial review was only listed on 28 March 2022. The High Court directed that the respondent should be put on notice of the application. The inter partes hearing took place in February 2023.

The primary basis on which the FSPO objected to the extension of time related to the reasoning of the Ombudsman. It was said that, pursuant to section 52 of the Financial Services and Pensions Ombudsman Act 2017, the FSPO could discontinue an investigation where there was an alternative and satisfactory means of redress available to an applicant.

In this case, it was said that the applicant was not barred from taking legal proceedings against Danske Bank and, accordingly, the FSPO was entitled to discontinue the investigation.

High Court

Mr Justice Simons began by outlining the terms of Order 84 RSC which required judicial review proceedings to be taken within three months of the decision/event which was sought to be challenged. The court stated that, for the purpose of the rule, an ex parte application was only “made” where it was open before a court (see Heaney v. An Bord Pleanála [2022] IECA 123).

The court emphasised that, in the ordinary course, the applicant would have to have made his application by 13 March 2022, since the decision was taken on 13 December 2021.

The court went on to outline that an extension of time for leave to bring judicial review proceedings could be granted. Such extensions were in the discretion of the court, subject to the court being satisfied that there was good and sufficient reason for the extension and that there were good reasons which justified the failure to bring the application within time (see M. O’S. v. Residential Institutions Redress Board [2018] IESC 61).

In the present case, the court was satisfied that the criteria for an extension of time had been met. It was held that, but for the error in the stamping office and the listing restrictions in place at the time, the matter could have been assigned a hearing date of 14 March 2022.

The applicant was not to blame for the listing delays, the court said. Further, the delay of 14 days was relatively short and there was no suggestion of prejudice caused to the FSPO or Danske Bank.

Finally, it was said that the proceedings raised a point of law of general public importance which justified the extension. To this extent, the court noted that the decision letter of 13 December 2021 did not cite the FSPO’s discretion to discontinue an investigation because other avenues of redress were available to the applicant.

As such, there were arguable grounds for saying that the FSPO’s “11th hour decision” to discontinue the investigation was unreasonable, the court said.

Conclusion

The court granted the extension of time and made directions for the delivery of an originating notice of motion. The court expressed the provisional view that the applicant was entitled to his costs of expenses and outlay.

Donnelly v. Financial Services and Pensions Ombudsman [2023] IEHC 228