Man to have case reheard by ombudsman

A FINANCIAL Services Ombudsman (FSO) official should have allowed a man appeal her finding that an insurance company was right to refuse to pay out on his stolen trailer because she was in “obvious error” that his policy did not cover him for the theft, a High Court judge has ruled.

Mr Justice Bryan McMahon said Mark Little, Lynden Court, Ballyfin Road, Portlaoise, Co Laois, should have his case reheard by the FSO and in the event that this does not happen, he was extending the time limit for him to bring an appeal to the High Court.

The case was adjourned to later this month to allow Paul Anthony McDermott BL, for the FSO, to take instructions.

Mr Little submitted a claim to AXA Ireland Ltd, with whom he had car insurance, over the theft of his trailer from the Midland Machinery yard in Portlaoise on March 8, 2008.

The insurance company refused the claim on the basis that the trailer was not within his “care, custody and control” when it was stolen. He complained to the FSO who agreed with AXA.

However, Mr Justice McMahon said, the relevant section of the policy stated the trailer had to remain in his “care, custody or control”.

Mary Rose McGovern, acting deputy FSO at the time of the claim, used the “care, custody and control” phrase eight times during the course of her analysis of the claim, the judge said.

This was an error and it was clear she had made her determination on the basis Mr Little did not have “control” of the trailer while little or no attention was paid by her to the “care” and “custody” elements of phrase, he said.

When this became obvious, the judge said he was surprised that the FSO, given the nature of her office, should have opposed Mr Little’s application for an appeal on the basis that he had not submitted it within the statutory 21 days after her decision was issued.

Mr Little said the delay in not putting in the appeal on time was partly due to the fact that he was out of the country due to work commitments and also did not have money to pay lawyers, the judge noted.

While he was not prepared to allow financial difficulties as a reason for Mr Little not pursuing his appeal, he was also “not moved” by the FSO’s argument that she would be prejudiced if the appeal was allowed in circumstances where a “patent error” had been made.

Neither was he impressed by the argument that the “floodgates” (for similar late appeals) would be opened if Mr Little was allowed appeal.