Ireland: Making An Appeal To The Irish Financial Services Appeals Tribunal

Last Updated: 30 January 2014
Article by John Breslin

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.