The Irish Financial Services Appeals Tribunal
("IFSAT") is a statutory appeal tribunal
which decides appeals from a broad range of decisions made by the
Central Bank of Ireland ("CBI"). The
statutory source of its powers and functions is Part VIIA of the
Central Bank Act 1942 ("CBA
1942"). The types of appeal it deals with
include refusals to grant certain types of authorisation or
licence, the revocation of certain types of authorisation or
licence, the imposition of administrative sanctions and the making
of certain types of direction.
Procedure and Process
IFSAT comprises a Chairman (a former Supreme Court judge)
and a Panel of Appeal Member (comprised of lawyers mainly from
non-banking/financial services areas of practice). IFSAT also has a
Registrar. None of its staff are full-time as it is an ad hoc
tribunal.
CBA 1942 requires IFSAT to deal with cases as expeditiously and
cost-effectively as possible consistent with requirements of basic
fairness. Its procedures are intended to be as informal as
possible. It is not bound by the rules of evidence. Unlike a judge,
the tribunal members can inform themselves separately of issues
– although fair procedures would require them to tell the
parties and invite submissions.
In spite of this, IFSAT does act with a certain degree of formality
consistent with ensuring effective case management. It has its own
rules of procedure: the Irish Financial Services Appeals Tribunal
Rules 2008 ("IFSAT
Rules"). In practice, IFSAT's procedures
are not dissimilar to those employed by the Commercial Court. For
example, there will usually be an initial hearing to give
directions and CBI may well be ordered to make discovery (as may
the appellant) and the parties will be exhorted to agree as many
issues as possible in advance of the hearing. An appeal is
instituted by a particular form and CBI will respond on a set form.
Time periods are tight and are, of course, expected to be followed.
Although the IFSAT Rules allow for interlocutory hearings on issues
as required, the tendency is to have a single directions hearing
and the full hearing as soon as possible thereafter.
Although the process is paper-based to a significant extent, oral
evidence is usually heard at the hearing. However, as noted, the
tribunal will have read the papers in advance and will expect the
parties to narrow the issues – otherwise it can take the
initiative in this regard.
CBA 1942 requires the hearing normally to be in public but IFSAT
has preserved the anonymity of appellants in two cases.
IFSAT usually issues its rulings quickly. A ruling will generally
follow a matter of weeks after the hearing. IFSAT has full power to
make whatever costs orders it deems appropriate.
Standard of Review
This is the most interesting aspect of the process. Unlike
a number of statutory tribunals which are enjoined to afford a
degree of deference to the original decision maker, or exercise
restraint, IFSAT enjoys a very broad standard of review. Its task
is to identify what the "correct and preferable" decision
is within its statutory jurisdiction. In cases other than appeals
against an administrative sanction, IFSAT is obliged (if it holds
for the appellant) to remit the matter back to CBI for a fresh
decision. IFSAT can give directions to CBI as to how it should deal
again with the matter. (It might also be noted that IFSAT can remit
the matter back to CBI for reconsideration at any stage of the
appeal.) IFSAT's broadest jurisdiction is in respect of
appeals against an administrative sanction where it can set aside a
sanction and remit to CBI, or it can vary CBI's decision, or
substitute its own decision for that of CBI.
In addition, IFSAT can rely on evidence or material which was not
before CBI when it made its decision.
IFSAT's standard of review may be compared with the standard
which applies to those statutory tribunals whose standard of review
is not articulated in statute. The High Court has held that the
"default" standard of review is that the appellate
tribunal may interfere with the decision in question where the
decision maker has made an error, or series of significant errors,
which go to the root of the decision. The leading case in the
financial services context is Ulster Bank v The Financial
Services Ombudsman ([2006] IEHC 323). Although this standard
of review is clearly more interventionist than the judicial review
standard, it is narrower (by a considerable margin) than the
standard of review applicable to IFSAT.
Appeal and Case-stated
IFSAT has the power at any stage during an appeal to state
a case to be referred to the High Court.
As regards the substantive appeal, each party has a right of appeal
to the High Court. An appeal must be brought within 28 days of
IFSAT's decision. It seems clear that the High Court will be
bound by the "default" standard of review – i.e. it
will only interfere with IFSAT's decision where it is satisfied
that IFSAT has made an error, or series of errors, going to the
root of the decision under appeal.
What Can We Learn from IFSAT Decisions
In broad terms, the key point is that IFSAT has no
predisposition to uphold the decision of CBI. It brings a
generalist perspective. Equally, it takes on board policy
objectives sought to be achieved by CBI. A key issue for it is to
see that the statutory procedures are adhered to. Whether CBI
decision is proportionate is also an important part of IFSAT's
analysis. IFSAT decisions to date have been delivered
expeditiously, have been fully reasoned and pragmatic in
approach.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
