Mr. Paul Joyce:

We agree that it is a difficult question. The first point to make is that the current situation is not satisfactory for a consumer wishing to appeal to the High Court. This is a limited appeal - something that the legislation does not make clear. An ordinary consumer reading the legislation would think an appeal is a full appeal on the merits of the decision. It is not. The High Court, in a series of decisions, has stated that the Financial Services Ombudsman is a specialist tribunal, that it will defer to his expertise and will only overturn his decision if there is an error in law or a serious error of fact. There are a number of decisions to that effect. It is a limited appeal and consumers do not necessarily understand that fact. Many consumers appeal on their own. They are lay litigants who are going down to the High Court and risking an adverse costs order being made against them. I think it is still the practice of the Financial Services Ombudsman to inform an appellant that costs will be pursued. The ombudsman may not necessarily do so in practice but that is the format. It is not satisfactory for consumers to find themselves in that position.

It is not easy to set out what would replace it. If there is a full Circuit Court appeal and financial service providers start to routinely appeal decisions, then there is a potential danger from the consumer's point of view that he or she will be fixed with a costs order in the Circuit Court. The point is that there needs to be an appeal mechanism. Mr. Deering sets out that, for example, in employment law now there is no longer an appeal to the Circuit Court. Under the new system, there are appeals on a point of law to the High Court. However, there is an appeal process in that a full de novoappeal can be made to the Labour Court. In the existing system, there is only one appeal from a decision of the Financial Services Ombudsman and it is a limited one to the High Court. That clearly is unsatisfactory.