Brian Lenihan Jnr (Dublin West, Fianna Fail)

To deal with the particular amendments proposed by Deputies Richard Bruton, Ó Caoláin and Boyle, subsection (3)(a) which the Minister introduced on Committee Stage already addresses the danger which the Deputies have raised. It means that if a financial institution acts in bad faith by commencing legal proceedings in order to frustrate the actions of the ombudsman, the ombudsman can still deal with the complaint. This provision goes as far as we can reasonably go without risking a legal challenge based on the constitutional prerogatives of the courts.

I refer Deputies to the precise wording of subsection (3) of section 57BX which states, "A consumer is not entitled to make a complaint if the conduct complained of — (a) is or has been the subject of legal proceedings before a court or tribunal...". To some extent, this answers the point raised by Deputy Burton.

To take the example of a financial institution which takes court proceedings to recover an amount allegedly due from a customer, nothing in the subsection suggests that this should prevent the customer from complaining to the ombudsman that, for example, the institution had mis-sold the financial product concerned. That said, there is a six-year limitation of time backwards in the legislation. However, I hope Deputies can accept that subsection (3) addresses the concerns they have raised.

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