Category: The Courts

Financial Services Ombudsman: a preference for “talk” over rights?

Late last year the Financial Services Ombudsman made some remarkable comments about High Court judgments affecting his office. He acknowledges that powerful agencies should be accountable to the courts, but believes that judicial decisions have been inconsistent and/or incoherent. The tone of the comments is alarming, given that the Ombudsman deals with complaints made by consumers.

FSO

The Ombudsman provides a form of binding arbitration which does not impose costs (either up front or as a consequence of losing) and so it is obviously attractive to consumers. However, the sting in the tail is that a decision of the Ombudsman can only be appealed to the High Court, which would otherwise only deal with cases worth more than €75,000.

An appeal from a decision of the Ombudsman must be lodged within 21 days. The Ombudsman’s website helpfully informs visitors that parties wishing to appeal should contact the Central Office of the High Court. Appeals are not simple: they will probably involve complicated issues of fact and law. The complainant may not have had legal or professional advice during the course of the complaint but would reasonably seek at this stage.

The Ombudsman is affronted by the outcome of some of these appeals.

He said findings that he should hold an oral hearing if there was a “conflict of material fact” in a case were “not compatible” with the operation of his office. “If we have to hold an oral hearing in every such case, I hope our political establishment has the intellectual honesty to abolish the office because otherwise it is simply a charade,” he said.

This is a surprising argument: it is not “compatible” with the operation of his office to hold oral hearings, so therefore decisions saying that oral hearings might be necessary are incoherent or, at least, somehow incorrect. When dealing with these appeals the High Court is considering issues of fair procedures and the correct application of the law, not the convenience of a State body. Whether or not the holding of oral hearings is compatible with the Ombudsman’s office is a question for the executive, not the courts.

Mr Prasifka said if the logic of one judgment was followed, “potentially every one of the thousands of decisions made since we have set up is constitutionally challengeable”.

One might think that such a decision suggests that the practice or the law needs changed. Instead, the Ombudsman takes the view that these decisions are “incompatible” with his office and therefore wrong. By contrast, he believes that financial institutions should “learn” from their experience of complaints decided on by his office. He does not appear to consider the possibility of financial institutions taking the view that decisions by his office are “incompatible” with their own business (as, in fact, seems to be the attitude of certain financial institutions).

The Ombudsman, however, appears to betray his true feelings by suggesting that perhaps the Ombudsman system just won’t work in Ireland because “rights are much too important”. This is an extraordinarily dismissive attitude to the rights and interests of complainants. One must wonder what is more important than rights? Perhaps bureaucratic efficiency or satisfying some particular group over the interests of individual rights holders. Bear in mind: the statement was made by the  “most powerful office of the ombudsman in the world”.

William Prasifka

The Ombudsman was subsequently interviewed on RTÉ’s This Week radio show. First, however, Padraic Kissane was interviewed and discussed his extensive experience of Ombudsman complaints. He said that he had dealt with a number of identical complaints to the Ombudsman that resulted in inconsistent decisions.

[The banks] take the view that they really have nothing to lose by getting a case referred to the Ombudsman because  … the win percentages of the Ombudsman for complainants is so low in Ireland, compared to the UK for example, and I have seen and have in my files inconsistent decisions from the Ombudsman’s office relating to the identical terms and conditions of an application and they were both within three months of each other. So it’s the inconsistency of the whole issue.

Mr Kissane refers to the “win percentage” for complainants. The win percentage for financial institutions has gone from 63% in 2009 to was 73% in 2012.

A significant issue for the operation of an office like the Ombudsman is that while it purports to be in the interests of consumers by providing a cost-effective means to pursue a complaint, the reality is that it is pitting those consumers against seasoned professionals. Not only that: consumer complaints are being arbitrated by an office that does not want to be constrained by having to respect the rights of the people who generate the complaints.

This is, in many respects, the contemporary blueprint for justice. The Personal Injuries Assessment Board is another low-cost, modern alternative to courts but one which again encourages individuals to enter a forum, alone, in which they are faced with heavyweight professionals. There are calls for the establishment of a similar body to deal with medical negligence claims. It is popular, if not populist, to essentially seek the removal of lawyers from the equation, but does that protect the interests and rights of citizens? In addition: each time a new dispute resolution forum is established the supposed failings of the courts system remain unaddressed.

One of the consumer’s rights is the right, already referred to, to appeal a finding of the Ombudsman to the High Court. Whether to do so is a serious question. Such an appeal would not be expensive and risky. Many would seek legal advice and services and might not have had those services when first dealing with the complaint. So the complainant and their lawyers have only 21 days in which to weigh up the situation and make a decision.

Given the Ombudsman’s statements about High Court decisions it might not be surprising that he does not appear to be in favour of people taking such appeals.

If anyone thinks that we’re inconsistent they should come and talk to us and in certain cases where people have come to talk to us about this we found that on a closer examination there are actually important differences between the cases and that explained by and large the different result. But look, we always seek to improve our decision making and anyone who has a concern about that is really free to come and talk to us.

I don’t know how available the Ombudsman’s staff are to people who want to “come and talk” but it would seem to be an unhelpful approach to suggest that people who have 21 days in which to decide whether to appeal a decision should first consult the other side in this manner.

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Procedural changes to the courts system in the Courts Bill 2013

The Minister for Justice has published the Courts Bill 2013 (explanatory memorandum here) which will change two aspects of how the courts system works in Ireland: (1) reporting of certain cases ordinarily held in private and (2) the monetary jurisdiction of the lower courts.

(1) Relaxation of the rules on private hearings

The changes in the Bill on private hearings will commonly be described as relaxing the in camera rule. In fact, what the Bill does is add to the list of cases which must be heard otherwise than in public but to which bona fide members of the press may attend, so long as nothing which might identify the parties is published. (There is a slight technical difference between cases heard “in camera” and those heard “otherwise than in public”, but it’s not relevant here.) The change will essentially allow for court reporters to publish accounts of family law* proceedings, including applications for domestic violence orders although judges will retain the power to exclude the press in certain circumstances. Interestingly, a judge will have the power to exclude the press from hearing evidence which may contain commercially sensitive information. This provision is likely to be relied on in many family law cases, justifiably or otherwise. The aim is to increase public confidence in the judicial system by partially removing the veil which ordinarily hangs over such cases.

It is somewhat disappointing to see that while the Bill proposes to allow court reporters to attend hearings at which an application for a domestic violence order is made, the Bill does not close off the loophole whereby breach prosecutions can be fully reported. I wrote last October:

if a domestic violence order is breached, a criminal prosecution is brought and held in public. Anyone can attend the hearing and the media can report on it. After years of this unacceptable position being tolerated, it appears that situation will change.

The Department informed me that it was intended to close off the loophole in a Criminal Law (Miscellaneous Provisions) Bill but I do not see why it could not be included in the Courts Bill. I assume that breach prosecutions will be made subject to the new rules in the Courts Bill, so that the press can attend hearings and publish reports so long as they do not identify the parties. Nevertheless, it is hoped that the restriction on reports of breach prosecutions will be introduced soon.

* Family includes, in this context, cases involving civil partners and cohabitants.

(2) Increase in civil jurisdiction of the lower courts

The Bill will increase the jurisdiction of the District Court from the current €6,348.69 to €15,000. Over that amount the Circuit Court will hear cases with a value up to €75,000 (up from €38,092.14), beyond which cases will be dealt with in the High Court. This should have the effect of reducing legal costs: as a rule of thumb, the higher the court the higher the cost and by bringing more cases into the lower courts the costs of those cases will be reduced while the burden of the High Court will also be lessened.

Two things are interesting in this part of the Bill:

  1. The Circuit Court will have jurisdiction in personal injury cases only to a maximum of €60,000. The Minister’s justification is as follows: “As a further measure to deal with concerns relating to possible inflation of awards and a consequent effect on insurance costs, I am proposing to restrict the jurisdiction of the Circuit Court to €60,000 in respect of personal injury actions.” I don’t know what this means other than suggesting that the insurance industry lobbied for the lower limit.
  2. In 2002 the Government changed the law to increase the District Court jurisdiction to €20,000 and the Circuit Court to €100,000 (with no lower personal injury limit specified) (I wrote about it here). The relevant sections of the Courts and Court Officers Act 2002 were never commenced (ie. activated) on the basis that the Government wanted to monitor the impact of the Injuries Board. They are now increasing jurisdiction by only 75% of what was decided on 11 years ago, for reasons unknown.

Nevertheless, the changes are good as the existing limits of the jurisdiction of both lower courts is too low. The greatest impact may be on the District Court which, due to the historic low limit, has tended not to have a significant civil law list. That will now change.

We can’t all access the courts. We should at least have access to court documents.

Seth Barrett Tillman had an excellent oped in yesterday’s Irish Independent on the question of open justice and, in particular, access to documents filed in court by litigants. It is taken for granted in many jurisdictions that journalists and members of the public can see written arguments, allegations and facts submitted by parties in advance of court hearings but, in Ireland, an iron curtain of secrecy protects documents filed.

Why should you care? First, the current position of the Irish courts is inconsistent with modern notions of transparency, access to information, and simple fairness.

It is also inconsistent with prevailing western good governance norms. Judges are government functionaries and filings in lawsuits are, when all is said and done, an effort to lobby them — most frequently by private parties.

The public has every right to know who or what entities are lobbying the judiciary, what factual and legal arguments they are making, and what relief they are seeking.

Second, these submissions often form the basis of hearings, oral arguments, and other trial court or appellate proceedings. But such proceedings are incomprehensible (or nearly so) without advance access to these documents.

A judge will frequently refer to these documents during such proceedings; likewise, attorneys frequently frame their answers by referencing the arguments and factual assertions made in their submissions or those of their opponent.

Although the public can attend all such hearings under the Irish Constitution’s “open courts” provision, the right to “hear” such proceedings is not meaningful without access to the parties’ briefs. This is particularly true in so-called complex litigation, involving multiple parties, multiple issues, and multiple jurisdictions.

Third, competition for legal services is stifled by the lack of public access to these documents. Attorneys who wish to practise in a specialty which is new to them lack access to a library of written filings to use as models.

Tillman is absolutely correct in arguing that the lack of public access to court documents effectively limits public access to the courts and therefore the citizen’s right to see justice being done. In addition, it must obviously make life unnecessarily difficult for journalists who must rely on what is said in court along with whatever information the parties are willing to share. In fact, it is often difficult or impossible to even obtain a copy of a written judgment resulting from court proceedings.

Anyone who has spent time in court will agree with Tillman’s statement that proceedings are incomprehensible without seeing at least some of the case documentation in advance. At a very practical level, it can even be hard to make out what is being said.

Tillman suggests that an amendment providing for greater transparency could be inserted into the Legal Services Regulation Bill. On the basis that no-one knows when that legislation will be passed, I would go one further and suggest that the Government could include it in a Civil Law (Miscellaneous Provisions) Bill before the year is out.

Oaths: at best embarrassing and at worst offensive

Eamon de Valera
Renowned Irish expert on oaths.

When giving evidence in an Irish court or being sworn in as a juror, why is the default oath still religious? In fact, why is an oath required at all? Over 20 years ago, the Law Reform Commission recommended that oaths were not required and should be abolished but their report has largely been ignored.

Irish law generally requires that evidence be given viva voce (ie. live in court) and, according to Murdoch’s Legal Dictionary, the purpose of that requirement is “to ensure that such evidence is true by the provision of a moral or religious and legal sanction against deliberate untruth”. The oath used in Irish courts calls upon the Christian god to witness that evidence is true. As an alternative, a solemn affirmation can be used which doesn’t involve any religious element.

The Law Reform Commission, in its 1990 report on oaths and affirmations, describe the oath as “security for the truth”, the historical reasoning being that human self-interest creates a conflict in the mind of the witness, necessitating that evidence be supported “by the indispensable security of the fear of an avenging God.” But, as Mary Kotsonouris, in her memoirs of her time as a District Court judge, rightly notes:

[T]hose who tells lies without qualm are not going to be put off by the prospect of doing so with their hand on the Bible or the Koran. Ironically, it is the witnesses who ask to affirm rather than swear who show that they are the ones taking the idea of religion seriously.

The oath used in Ireland involves repeating the following while having a hand on a copy of the bible:

I swear by Almighty God that the evidence I shall give shall be the truth the whole truth and nothing but the truth.

A similar oath is used when juries are sworn in. The statutory law on oaths, which originates in the 1800s, provided for a procedure of inquiring into the faith of the witness and formulating an oath which would be appropriately binding on his or her conscience. The most common alternative to the oath is the affirmation:

I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

But it is likely that the religious oath precedes the evidence given by the majority of witnesses in Ireland. Ireland is around 87% Roman Catholic and while no statistics on oaths are available, I would be surprised if 13% of witnesses opted for the affirmation.

There are many reasons why the oath is unsatisfactory and the Commission’s report concluded that many forms of oath are “at best embarrassing and at worst offensive”. The most significant objection is the risk that a juror might be prejudiced against a witness who affirms or who refuses to take the oath. This Commission report noted that this risk was identified by lawyers across many jurisdictions.

Aside from the people “who tell lies without qualm” referred to by Kotsonouris, what of the atheist who gives evidence on oath? Section 3 of the Oaths Act 1888 closes the loophole, at least in so far as terrestrial consequences are concerned: the fact that the witness does not have any religious belief or has beliefs contrary to the oath will not affect the validity of the oath.

The Commission report suggested that the oath is a formality to be “rattled off” and which has no special significance even for Christians; that “it has become a technical adjunct to the law of perjury, “more a genuflection performed out of habit than a ceremony sacred or significant to the law”.” A report of the New South Wales Law Reform Commission is quoted which suggests that the evolution of Christian beliefs in the modern era and the move away from belief in hell and damnation has meant that, even for devout Christians, the oath is deprived of much of its force. In addition, the swearing of an oath in judicial proceedings is contrary to the beliefs of some Christians on the basis of scripture.

The oath is, therefore, an empty formula. So what’s the point?

It would surely be more logical for the affirmation to be the default and, in the interests of efficiency if nothing else, only form of words used. After all, it should be sufficient that evidence given in a civil court be subject to civil law. One could go further and abolish oaths and affirmations entirely, something suggested by Kotsonouris.

The offence of perjury is lying to the court. While it may also be a sin, it is a crime. If, instead, a judge was obliged to tell all witnesses individually, including the police, of their obligation to tell the truth, to inform them of the penalties for perjury and to ask if they understood, it might take a little longer, but it might also put the fear of God – and of punishment – into some liars, while removing a cause of scandal to the pure heart.

The final recommendation by the Commission report was as follows:

Having reviewed all these factors, and in particular having regard to our conclusion that the oath offers little or no greater security for the truth than a statutory affirmation, the Commission considers that the potential prejudice to witnesses and jurors who choose to affirm, together with the great attraction of providing for a universal and simplified procedure which would place all persons on an equal footing, weighs in favour of the abolition of the oath generally.

This recommendation, that the oath be abolished and replaced by a modified affirmation, has never been implemented. For now, the oath is another aspect of public life in Ireland which remains theistic by default.

Thankfully, this can be changed by any reform-minded government. The oath required of a judge before taking office is, however, a different matter. Article 34 of the Constitution sets out the text of the declaration:

In the presence of Almighty God I, [judge’s name] , do solemnly and sincerely promise and declare that I will duly and faithfully and to the best of my knowledge and power execute [my] office … without fear or favour, affection or ill will towards any man, and that I will uphold the Constitution and the laws. May God direct and sustain me.

This oath does not involve swearing on the bible and merely states that it is made “in the presence” of God, calling upon him to “direct and sustain” the judge. Nevertheless, many categories of citizen might reasonably object to taking such an oath. Article 34, however, provides that any judge who declines or neglects to take this specific oath “shall be deemed to have vacated his office.”