Paschal Donohoe (Dublin Central, Fine Gael) | Oireachtas source

I thank the Deputy for bring this matter to my attention and the attention of the House. One of the functions of the Financial Services and Pensions Ombudsman is that he may advise and, as appropriate, make recommendations to the Government in respect of any proposed legislative changes concerning financial services or pensions.

I sought the ombudsman’s observations on section 44(2) and section 50(3) and he has not identified any difficulty with the operation of either section. Section 44(2) of the Act, among other things, prescribes that a complainant may not make a complaint to the Financial Services and Pensions Ombudsman, FSPO, where the conduct giving rise to the complaint is or has been the subject of legal proceedings before a court or tribunal. I need to stress that it is the conduct giving rise to the complaint that is referred to here. This is considered to be the right approach, as it would not be appropriate for the FSPO to become involved in an issue which has already been, or still remains, before the courts.

The FSPO provides an avenue for resolution of complaints about the conduct of financial service providers or pension providers as an alternative to the courts. It cannot undertake investigations in parallel to an issue which is being litigated or has been litigated before the courts. Subsections (1) and (2) of section 50 provide a counterbalance to this restriction. These allow the ombudsman to investigate a case where he believes the provider has initiated legal proceedings to frustrate an investigation. Section 50(3) prescribes that the ombudsman shall not investigate or make a decision on a complaint where "there are or have been proceedings (other than where the proceedings have been stayed under section 49) before any court in respect of the matter that is the subject of the investigation".

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