A FINANCIAL Services Ombudsman official should have allowed a man appeal her decision that an insurance company was right to refuse to pay out on his stolen trailer, the High Court has ruled. The official clearly erred in finding the man’s policy did not cover him for the theft, it said.
Mr Justice Bryan McMahon said Mark Little, Lynden Court, Ballyfin Road, Portlaoise, Co Laois, should have his case re-heard by the ombudsman.
If that did not happen, Mr Little was entitled to an extension of time to bring an appeal to the High Court, he ruled. The case was adjourned to later this month to allow Paul Anthony McDermott, for the financial services ombudsman, take instructions.
Mr Little submitted a claim to Axa Ireland Ltd, with whom he had car insurance, over the theft of his trailer from the Midland Machinery yard in Portlaoise on March 8th, 2008.
The insurance company refused the claim on the basis the trailer was not within his “care, custody and control” when it was stolen.
He complained to the ombudsman, who agreed with AXA. In his decision, Mr Justice McMahon said the relevant section of the policy stated the trailer had to remain in his “care, custody or control”. But Mary Rose McGovern, acting deputy financial services ombudsman at the time of the claim, had used the phrase “care, custody and control” eight times during her analysis of the claim.
This was an obvious error, he said. It was clear the official made her determination on the basis Mr Little did not have “control” of the trailer. Little or no attention was paid by her to the “care” and “custody” elements.
When this became obvious, the judge said he was surprised the ombudsman, given the nature of her office, should have opposed Mr Little’s application for an appeal on grounds he had not submitted it within the statutory 21-day limit.
When one bears in mind the financial services ombudsman was, under law, cast as the “consumer’s champion”, it seemed somewhat strange that in a case like this, where she had made an obvious error in her decision, she should invoke the 21-day time limit to prevent Mr Little from appealing, the judge said.
