Financial Services and Pensions Ombudsman

Financial Services and Pensions Ombudsman – Does It Have the Final Say in a Dispute?

The Financial Services and Pensions Ombudsman (“FSPO”) in its current form was established in 2017 with the aim to provide a service that was impartial and accessible to customers and one which delivers fair, transparent and timely outcomes to disputes between customers and financial service and pension providers, thus limiting the number of disputes of this nature before the Courts.

In the case of Lloyds Insurance Co SA v Financial Services and Pensions Ombudsman [2022] IEHC 290, Lloyds Insurance Co SA (“Lloyds”) lodged statutory appeal against a decision made by the FSPO following a dispute with a customer of the insurance provider. The case addresses three important issues:-

  1. Challenging FSPO decisions;
  2. The jurisdiction of the FSPO;
  3. The lawfulness of compensation;

Background to the Case

This case originates from a complaint by the Claimants/Notice Parties, Joanna Donnelly and Harm Luijkx (“the Claimants”), who purchased a home from a developer in 2006 and entered into a contract with Lloyds for insurance cover relating to potential structural defects in the property. Two defects subsequently became apparent; 1) damage to the structure caused by pyrite and 2) damage to the structure of the roof. The Claimants submitted a claim to Lloyds in respect of both issues.

Lloyds accepted the claim in relation to pyrite but rejected the claim for damage to the roof. Lloyds adopted the position that the damage to the roof was not inherently a structural defect, but instead was caused by a leak from a water tank which had not been properly fitted, i.e., a workmanship defect. The Claimants submitted a complaint to the FSPO in 2020 following a 6-year period spent seeking resolution to the matter with Lloyds, who maintained their position throughout.

The FSPO upheld the complaint made by the Claimants on the basis that the rejection of the claim by Lloyds was unreasonable, unjust and improper and directed that compensation of €20,000 be paid to the Claimants.

The Appeal to the High Court

In line with section 64 of the Financial Services and Pensions Ombudsman Act 2017, Lloyds proceeded to challenge the decision of the FSPO before the High Court on the basis that the FSPO erred in their finding which benefitted the Claimants, that the FSPO exceeded their jurisdiction and that the compensation was disproportionate. Judge Siobhán Phelan of the High Court found in favour of the FSPO, providing useful commentary as to the remit and jurisdiction of the FSPO.

  1. Challenging FSPO decisions

Judge Phelan held that in order for a financial services provider to be successful in its challenge to a decision made by the FSPO, the provider must prove that a serious and significant error has been made by the FSPO in arriving at its decision. This standard has been consistently applied since 2006 (see Ulster Bank Investment Funds Ltd v Financial Services Ombudsman [2006] IEHC 323). In Lloyds, this threshold was extended to include a material error of law.

The standard of review that is to be adopted is to be one “not dissimilar” to Judicial Review as outlined in Verschoyle-Greene v Bank of Ireland Private Banking and FSO [2016] IEHC 236. The Court will not re-examine matters from the beginning or adopt the role of the FSPO. Instead, a decision made by the FSPO will not be deemed to be a serious and significant error if sufficient evidence put before the FSPO could reasonably lead to the decision made by it. In Lloyds, conflicting reports as to the cause of the damage to the roof was submitted by numerous engineers, therefore it was considered reasonable for the FSPO to arrive at its conclusion on foot of the evidence provided.

On that basis, the Court will not intervene to set aside decisions where it disagrees with the determination of the FSPO so long as no serious and significant error has been made in reaching this decision.

  1. The jurisdiction of the FSPO

Lloyds is an instructive case in setting out the jurisdiction of the FSPO. The purpose of the FSPO is to afford an “informal, expeditious and inexpensive” way to resolve complaints made against financial services and pension providers, without the parties having to resort to the Courts in pursuit of a resolution.

It is set out in Molyneaux v Financial Services and Pensions Ombudsman [2021] IEHC 668, the FSPO enjoys a “hybrid jurisdiction” which extends to both the adjudication of alleged acts of maladministration and to make determinations in respect of disputes of fact or law. The FSPO has jurisdiction over cases centred around the assertion of legal rights, but cannot make determinations in cases where a financial services provider has acted unlawfully.

  1. The lawfulness of compensation

In the Lloyds judgment, Judge Phelan outlined that the FSPO enjoys a wide discretion regarding compensation up to a higher limit of €250,000. The €20,000 compensation payable to the Claimants in Lloyds was held to be reasonable on the basis that the delays in repairing the roof issue interfered with the Claimants occupation and enjoyment of the home and therefore the personal rights of them as homeowners. It was noted that the FSPO cannot and should not compensate for ‘stress’ but instead can justify making an award based on inconvenience.

Key Learnings

  • The FSPO aims to provide an impartial and accessible complaints handling service that seeks to resolve issues between financial services and pension providers and customers without the need to commence legal proceedings, which is an expensive and time-consuming process;
  • The case of Lloyds reiterates that the FSPO is an independent service which has jurisdiction to handle a range of complaints with interference from the Court only where sufficiently serious and significant errors are made;
  • Financial services and pension providers, therefore, have a significant hurdle to overcome in order to sustain a challenge to the decisions of the FSPO and will therefore likely bring fewer challenges before the Courts in the future;
  • The boundaries created by Lloyds regarding the required criteria to be established by financial and pension providers in order to succeed in a legal challenge to decisions of the FSPO therefore now provide customers with a welcome sense of closure and finality in decisions made in their favour when dealing with the FSPO.
If you would like any further information and legal advice, please contact Deirdre Farrell at, telephone 01 213 5940 or your usual contact at Amorys.

Dealing With Tenant Inability To Pay Rent In Commercial Leases During COVID-19

Dealing With Tenant Inability To Pay Rent In Commercial Leases During COVID-19

As business activity has reduced and cash-flow stopped in many sectors as a result of the COVID-19 restrictions, tenant inability to pay rent is an inevitability. In order to survive the economic impact, Landlords and Tenants alike will be eager to work through this time in a way that protects their investments and businesses and without resorting to potentially expensive litigation with no realistic prospect of achieving the desired result. Open communication between both parties at an early stage is critical and it is important that all concessions, variations of lease agreements and guarantees are documented in writing.

This article explores practical ways of dealing with tenant inability to pay rent in commercial leases as a result of the adverse impact of COVID-19 restrictions.

  1. Concession by way of a Side Letter

Usually, concession arrangements are documented by way of a 1-2 page side-letter so they are quick to put in place and consequently offer immediate relief. Depending on an arrangement with its funder/s, a Landlord could be in a position to offer a commercial tenant a ‘rent-free’ or ‘rent suspension’ period during say Q2 (1 April to 30 June) or Q3 (1 July to 30 September) of 2020 by way of a side letter.

Any agreement reached regarding the responsibility to pay rent must be clear. A ‘rent free’ period is very different to a ‘rent suspension’ period. The latter infers that rent will be payable at some point in the future and interest on late payment may apply – which should be documented in the side-letter. Landlords could also consider moving from quarterly to monthly rent payments. Whilst the rent for occupying the premises could be suspended or written off by the Landlord entirely (subject to its funder’s requirements), it is strongly recommended that a tenant’s obligation to pay insurance, rates and service charges remain in place to ensure the Landlord’s valuable asset is maintained in accordance with good estate management practice. Business interest groups in affected sectors such as retail are reported to be lobbying the government for a waiver of rates for 12 months and it is important for a Landlord to ensure a Tenant would be in a position to avail of any reliefs in this regard.

The parties need to consider the circumstances in which the concessions would fall away – for example, consecutive non-payment of rent by the Tenant, persistent breach of other lease provisions or assignment to another tenant.

NB:  A Landlord and Tenant may consider agreeing ‘rent-free’, ‘rent suspension’ or ‘rent reduction’ periods in consideration for an extension of the term of the Lease or the removal of a Tenant break clause, for example. Whilst it is possible to incorporate the foregoing into a side letter, an agreement to vary the lease would be more appropriate. Both parties are reminded that if a Guarantee is in place, any variation of the Lease regarding term or rent will in most cases need to be agreed and confirmed by the Guarantor. Failure to do so could invalidate the guarantee.

  1. Variation of Lease by Agreement

Variation of Lease Agreements are more detailed documents which may be necessary if a Guarantee is in place (as described above) or the recent agreement reached between the Landlord and Tenant in principle is intended to last long-term or it affects key operational clauses of the Lease which requires careful scrutiny. For example, a Landlord may agree to dispense with a ‘keep open’ clause in consideration for a Tenant agreeing to put and keep business interruption insurance in place which might require a knock-on amendment of the definition of Tenant ‘insured risks’ in the Lease. A Variation of Lease Agreement is similar to a Lease in that it must be executed ‘as a deed’ by both parties and if there is a Guarantor, it should be a party too or confirm the agreement by way of a separate document.  In addition, a Landlord funder’s consent to the variation will in most cases be required. However, Revenue has confirmed that no stamp duty is payable upon the execution of a Variation of a Lease Agreement and a stamp duty return is not required.

  1. Mortgages

It perhaps goes without saying that Landlords will be required to engage with their lending institution before reaching any concession or variation of lease in principle. A letter of consent to the variation of the lease agreement will be required in most cases where a funder is involved. It is not in the interests of a lender to enforce against commercial landlords who are in arrears due to the COVID-19 crisis as the lender will be faced with the same problems as the landlord if it was to take possession – engagement may well be positive as a result. In addition, the Banking Payments Federation of Ireland has reported a joint plan of five pillar banks (AIB, Bank of Ireland, PTSB, KBC Bank Ireland plc and Ulster Bank) to introduce working capital supports for businesses affected by the impact of COVID-19 restrictions and Tenants with cash flow shortages are encouraged to avail of all available reliefs at this time.

It is extremely important that all concessions and variation of lease agreements are documented carefully in writing and that Guarantors and Lending Institutions agree to all relevant amendments.  An experienced solicitor in this area could assist a Landlord in protecting its valuable asset and a Tenant by ensuring the agreement reached reflects a fair and workable solution to the issues it faces during this difficult and uncertain time.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Dealing With Tenant Inability To Pay Rent In Commercial Leases During COVID-19”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

Record Damages for Discrimination and Gender Pay Gap

Female army Captain, who served in the army for 9 years was awarded record damages for discrimination when all of her Captain colleagues (who were male) were promoted to Commandant after 9 years in accordance with the Defence Forces Regulations when she was on maternity-leave. The Captain first applied to the High Court to judicially review the decision of the Minister for Defence not to promote her to Commandant. The High Court found the Minister for Defence had breached the Equal Treatment Directive between men and women in not automatically promoting Ms Byrne to Commandant due to her maternity-leave.

As the Captain had left the Army, the Minister for Defence argued the Court should only consider the Captain’s loss of earnings due to the failure to promote her to Commandant in making an award. But the Court found it was foreseeable that Ms. Byrne would leave the army as a result of not being promoted as she was excluded from the promotion process due to her maternity leave. Ms. Byrne was not told that there was a Board being established to consider the issue of promotion. She was treated in a less favourable manner to her work colleagues who were all male. The Court found Ms. Byrne should receive damages for loss of earnings as a result of leaving the army which included pension loss, overseas duties for future duties, bringing it to a total amount of €412,397. This was doubled to take into account taxation to of €824,794. It also took into account her earnings in her new employment.

There are costly implications for employers who fail to treat male and female employees equally. The recent spotlight on the gender pay gap in broadcasting is bringing differences of payment for like work between male and female employees to the fore. Consultation on steps to be taken to address the Gender Gap has been opened today and is advertised in the Independent Newspaper. Employers should take note.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

For further information and advice in relation to “Record Damages for Discrimination and Gender Pay Gap”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

Auctioneer’s Liability for Sales Brochure Clarified

On 1st June 2017 the Supreme Court delivered a long-awaited judgment in David Walsh v Jones Lang LaSalle, 2017 overturning a previous decision of the High Court to hold an auctioneering firm liable in damages to a purchaser for inaccurate and misleading measurements contained in a sales brochure.  The decision will no doubt be welcome for auctioneering and estate agent firms alike as it places the onus firmly on purchasers to verify details in a sales brochure when there is a disclaimer contained therein.

The Facts

Mr Walsh, who had 20 years’ experience in the property market at the time claimed his offer to purchase a two-storey north Dublin city centre commercial property was based on a “back of an envelope” calculation of the rent he would receive calculated on a value per square foot basis by reference to the measurements contained in the selling agent’s sales brochure. Mr Walsh’s offer was accepted and he completed the purchase of the property.  However it subsequently transpired that the actual floor area of the property was overstated by approximately 20% in the sales brochure.  Mr Walsh claimed damages for misrepresentation in tort against the auctioneering firm on the basis that it breached a duty of care to him to ensure that the sales brochure was accurate.

The Sales Brochure /The Disclaimer

The following paragraph, disclaiming liability, was included in small print at the bottom of the front page of the Sales Brochure:

“Whilst every care has been taken in preparation of these particulars, and they are believed to be correct, they are not warranted and intending purchasers/ lessees should satisfy themselves as to the correctness of the information given.”

The agent sought to rely on the waiver in the brochure and in addition argued that irrespective of the sales brochure it did not owe a duty of care to the purchaser as there was insufficient ‘proximity’ or closeness of relationship between the two parties.

The High Court Decision

In 2007 the High Court found the auctioneering firm owed Mr Walsh a duty of care to ensure that measurements in the sales brochure were correct and found that the terms of the disclaimer were inadequate to exonerate the firm from liability.

The selling agent appealed the decision to the Supreme Court.

The Supreme Court Decision

In finding that the auctioneering firm was not liable to Mr Walsh for economic loss caused by negligent misstatement three judges of the Supreme Court held that the selling agent did not owe a duty of care to Mr Walsh as Jones Lang LaSalle Limited did not assume responsibility for ensuring that the dimensions described in the sales brochure were correct.

The Supreme Court held that the High Court erred in law in holding that the disclaimer inferred that Jones Lang LaSalle assumed responsibility for details in the brochure and that the disclaimer was inadequate to exclude that liability.

Regarding the Sales Brochure and the disclaimer therein Ms Justice Laffoy of the Supreme Court stated:

“Where the person giving the information in so doing has expressly included a disclaimer in the brochure or advertisement, in my view, the core issue in determining whether a duty of care exists is whether the existence of the disclaimer by reference to its terms has the effect that there is no assumption of responsibility for the task for furnishing correct information on the part of the estate agent giving information to the recipient.”

“…. there was no assumption of responsibility on the part of JLL in relation to the task of furnishing the accurate internal measurements to Mr Walsh and that the consequence was that the law imposed no duty of care on JLL.”


The decision is a welcome clarification of the law in this area which up until now was uncertain. Prior to the Supreme Court judgment, it was not clear how far a selling agent’s duty of care to a purchaser reached in the sales campaign process or indeed how or to what extent a selling agent could disclaim that liability. Now it is clear that a selling agent will not be held liable for loss caused by incorrect particulars contained in a sales brochure where a waiver included.  Even where no disclaimer is made available the decision is authority for enabling a selling agent to avoid liability for inaccuracies contained in a sales brochure (even contained on a website) on the basis that it would not be ‘fair and reasonable’ to hold that a duty of care is owed given that a sales brochure is generally made publicly available.

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “Auctioneer’s Liability for Sales Brochure Clarified”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

Corporate Manslaughter Bill 2016

The Corporate Manslaughter Bill 2016 which is making its way through the Oireachtas at the moment creates 2 new criminal offences which will have significant impact on healthcare service providers. Firstly, an offence of “Corporate Manslaughter” is created when a person’s death is caused by gross negligence by an organisation. Corporate manslaughter can be committed by an “undertaking” which is a company, or corporate body, charity, government department or statutory body and can result in a large fine for the organisation. Secondly, management employees may be in addition charged with a criminal offence of “grossly negligent management causing death” in an organisation which has been convicted of Corporate Manslaughter. This occurs when a member of staff (“high managerial agent”) knew or ought to have known of risk of death or serious personal harm, and failed to take reasonable efforts to eliminate the risk which contributed to a death. This means a Director, Manager or Senior Official in a company or state body could also be charged and given a jail sentence in the event of a death.

Corporate Manslaughter occurs when an organisation which has a duty of care to an individual fails to meet the standard of care required to prevent substantial risk of death or serious personal harm, and to take all reasonable measures to anticipate and prevent risks. The size and circumstances of the organisation will be taken into account. The duty of care applies to all employers, subcontractors, owners/occupiers of property, producers of goods and service-providers. A Court will take a number of factors into account in assessing whether there is a breach of the standard of care required and specifically the management, rules, policies, allocation of responsibilities, training and supervision of staff, previous response of the organisation to other incidents involving death or serious personal harm, the organisation’s goals, communications, regulation, assurance systems and whether it is a licensee or contractor.

All management and officeholders should be aware that they might come within the definition of a “high managerial agent”. A “high managerial agent” is a Director, manager or officer of an organisation or someone acting in that capacity. A Court will consider the actual and stated responsibilities of the employee to establish if the employee should have known of the risk, and whether it is in the power of the employee to eliminate the risk. If it is not in the power of the employee to eliminate the risk, whether the employee passed information on the risk to others who can eliminate the risk in considering a charge of “grossly negligent management causing death”. Prosecutions for the 2 offences are on indictment in the Circuit Court. An organisation which is convicted of Corporate Manslaughter will be liable for a substantial fine. A “high managerial agent” convicted of “grossly negligent management causing death” will be liable for a fine and or term of imprisonment of up to 12 years.

In addition to other sanctions, a Court may make a Remedial Order to address the problems identified to prevent any recurrence and can consult with relevant trade unions and regulatory and enforcement authorities in considering the conditions. The organisation may be subject to a Community Service Order or Adverse Publicity Order where it is required to publicise its conviction for Corporate Manslaughter, the fine and any Remedial Order online or by other means. A “high managerial agent” who is convicted of “grossly negligent management causing death” can also be disqualified from acting in a management capacity for up to 15 years on indictment or subject to a fine of a maximum of 5 million euro and or up to 2 years in prison. The Court is entitled to enquire into the financial circumstances of an individual in setting the fine. If an organisation has been dissolved and reformed and the Court is satisfied the purpose of this is to avoid criminal liability, the Court can disregard the fact that an organisation has changed name.

This is a summary of the bill which has been published and specific legal advice should be obtained in any situation. If you have any comment on this article or would like any further information, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

The Monkey Selfie Lawsuit in the US – how would the High Court of Ireland decide a similar case?

“Monkey Sees, Monkey Sues”

Last month a federal court* in San Fransisco, California held that a macaque monkey who took several selfies could not be declared the owner of the images’ copyright either under Unites States legislation or its Constitution.

The case

The case** arose out of a dispute between the animal rights organisation the People for Ethical Treatment for Animals (PETA) and wildlife photographer David Slater whose camera the monkey used to take the images.

In 2011, Slater went to a nature reserve on Sulawesi Island, Indonesia to study a family of macaque monkeys.   There, Slater set up his camera on a tripod and deliberately left the remote trigger for the camera accessible to the macaque who subsequently took two famous monkey selfies. The selfies were later published in a book by Slater’s publishing company, Blurb.

PETA issued proceedings on behalf of the monkey against Slater and Blurb seeking a declaration from the US federal court that the macaque monkey was the owner of the selfie and an order granting the assignment of the copyright in the images to the monkey.  The organisation also sought the equivalent of an order appointing it as trustee of the income generated by the images so that it could administer same for the benefit of all of the macaque monkeys on the reserve on the Indonesian island.

The photographer’s copyright not at issue

Slater’s entitlement to the copyright in the images was not at issue in this instance.   The US federal court had to decide as a preliminary issue (i.e. before a hearing of the full trial) whether an animal could own copyright in an image in the United States.  If the court held in the affirmative on that question (which it did not), the case could have then proceeded to a full hearing of the issues between the parties.

Decision in the United States

Unsurprisingly the US federal judge held that US legislation and its Constitution did not extend copyright protection to animals and dismissed the case accordingly.

In Ireland

Unremarkably the monkey and/or PETA are likely to be unsuccessful in any attempt by PETA to establish that the monkey owns the copyright in the images in Ireland.

The law of copyright in this jurisdiction is governed by the Copyright and Related Rights Act 2000 (“the Act”).  Section 23 of the Act states that an “author” of a work shall be the owner of copyright therein and section 21 of the Act states that the “author” means “person” who creates the work which in the case of a photograph means a photographer (i.e. the monkey in this case).  Whilst the Act does not specifically state that a person means an individual or a body corporate section 18 (c) of the Interpretation Act 2005 does so, unfortunately, the monkey and/or PETA on its behalf would not be successful in an argument under the Act.

Similarly an argument that copyright protection should be extended to animals on the basis that such a protection is an unenumerated right guaranteed by our Constitution is likely to fail as the relevant article (40.3) refers to “personal rights” of “citizens” and an animal is not a citizen.

But what about the photographer, would he own copyright in the image in Ireland?

If a court accepted a broader definition of ‘photographer’ to include Slater (as he purposefully left the camera with the monkeys and orchestrated the shot) Slater could have difficulty in proving that the image or work was “original”.

In order for copyright to subsist in a work in Ireland and in member states of the European Union same must be ‘original’ (section 17 (2) (a) of the Act and EU Directive 2001/29/EC) and a work is considered original if it is the result of the author’s own intellectual creation***.

Whilst the answer to this question could be the subject of an article itself, in brief, it is submitted that Slater would be in a weak position trying to assert copyright in the monkey selfies as leaving a camera amongst a family of monkeys would not be a sufficient expression of his intellect to render the images ‘original’.  If Slater used particular photographic techniques or computer software to manipulate the images in some way, it is submitted that he would be in a better position to prove originality in them and that he owned the copyright.

This case highlights the legal difficulties in establishing ownership of copyright in an image and how difficult it is for a monkey to make it in the media industry.  Great story.

NB: In publishing the above image we are availing of the ‘fair dealing’ exemption from infringement set out in section 51 of the Act.

* A federal court in the United States, is a court that has jurisdiction to decide on claims that fall to be determined on the interpretation of the laws, treaties or Constitution of the United States as opposed to internal State laws.

** US District Court, Northern District of California, San Fransisco Division, case reference 15-cv-4324-WHO

*** This is accepted as the harmonised definition of originality in the European Union -see Infopaq International A/S –v- Danske Dagblades Forening C5-08 Court of Justice of the European Union (4th Chamber)

Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.
For further information and advice in relation to “The Monkey Selfie Lawsuit in the US”, please contact Deirdre Farrell, partner, Amorys Solicitors, telephone 01 213 5940 or your usual contact at Amorys.

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