Making an Appeal to the Irish Financial Services Appeals Tribunal
30 Jan 2014
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 ( 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 IFSATs decision. It seems clear that the High Court will be bound by the "default" standard of review - i.e. it will only interfere with IFSATs 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.