Ombudsman to ‘vigorously oppose’ FBD action to halt investigation

The Financial Services and Pensions Ombudsman will "vigorously oppose" FBD's bid to halt the investigation of a publican's complaint over the insurer's refusal to pay out for a business interruption claim due to the Covid-19 pandemic, the High Court has heard.

FBD Insurance last week secured permission from the High Court to seek to have the ombudsman's investigation of a complaint made by Phil Flannery's of Denmark Street Ltd judicially reviewed.

In that action the insurer claims the investigation should be halted on grounds including that the same issue is the subject of separate High Court proceedings brought by pubs against the insurer.

Four test cases, brought by pub owners from Dublin and Athlone, are due before the Commercial Court in early October.

As well as seeking an order halting the investigation, FBD also seeks an order staying the investigation pending the outcome of the other legal cases.

At the High Court on Monday, counsel Francis Kieran, for the ombudsman, said that the entirely unprecedented challenge to his client’s jurisdiction to investigate a complaint made against the provider of a financial services would be “vigorously opposed”.

He added that the ombudsman was also opposing any attempt to put a stay on the investigation.

Gary Compton, for the complainant, which is a notice party to the proceedings, said his client was “equally appalled” by FBD’s bid to halt the investigation of its complaint. Counsel added that the pub owner will also oppose the insurer’s judicial review action.

In reply, Remy Farrell SC for FBD said his client was entitled to bring the challenge against the decision to investigate the claim.

In adjourning the case, the judge was informed that the parties were anxious that the hearing of the matter be expedited.

The action will return before the court in two weeks.

Test cases

FBD, which earlier asked the Ombudsman to discontinue its investigation on the basis that the four test cases raised the same issue, claims the courts are a more appropriate forum to determine the dispute. FBD claims the ombudsman has refused to halt its investigation, forcing the insurer to deal with the same issue at multiple forums.

FBD claims this decision is not appropriate, nor proportionate, and will result in the insurer having to engage in needless duplication at additional cost. It says that the ombudsman’s decision to continue with its investigation is also in breach of fair procedures.

In its action FBD seeks various orders, including one quashing the decision to investigate the complaint. It also seeks various declarations including that the ombudsman lacks jurisdiction to investigate the complaint.

It also wants a declaration that the ombudsman has acted contrary to law by failing to discontinue the investigation of a complex complaint where the courts are a more appropriate forum.