In the latest leg of a bitter legal dispute dating back to 2011, the Financial Services Complaints Limited (FSCL) has won High Court approval to apply once more for ‘ombudsman’ status.
The ruling handed down last week by Justice Grice in the Wellington High Court sets aside a 2019 decision by the Chief Ombudsman (CO) to deny FSCL rights to use the protected official title.
Justice Grice found the CO “predetermined FSCL’s application for approval [to use the ‘ombudsman’ title]”.
“Therefore, the decision is unlawful and must be set aside,” the ruling says.
FSCL, one of the four official complaints bodies approved under a 2008 law to handle complaints against financial services firms, began its decade-long battle to win rights to access the ‘mana’ associated with the ombudsman tag in 2011.
The complaints service, formed in 2010, specifically argued for equal treatment as applied to the long-established Banking Ombudsman Service (BOS) and its more direct competitor, the Insurance and Financial Services Ombudsman Scheme (IFSO).
Furthermore, FSCL objected to IFSO – previously known as the Insurance and Savings Ombudsman – inserting ‘financial services’ in its new name.
The CO declined the original FSCL application, triggering a relentless round of appeals, denials and counter-moves argued in various legal venues over the next decade. In 2018 FSCL won a court decision forcing the CO to reconsider its bid for ombudsman naming-rights.
After a drawn-out 15-month process, the CO, Peter Boshier, again knocked back the FSCL application. At the same time during 2019, the NZ government enacted a new law further restricting the use of the ombudsman title, which Boshier was involved with.
While the 2019 law ultimately included a potential avenue for further FSCL appeals, evidence in the latest court case showed Boshier was hoping the new legislation would put the matter to bed before his final decision.
In particular, an August email exchange with the Speaker of the House in Parliament, Trevor Mallard, indicated that “on the balance of probabilities”, the CO had already “predetermined” his final call on the FSCL application, Justice Grice ruled.
“… the comment that if Parliament had made a move it “would reinforce [his] hand that much more” indicates that a decision to refuse FSCL’s application had already been made by the Chief Ombudsman, and he was looking for material in order to support that decision and would delay giving the final decision to obtain that evidence,” the ruling says.
The finding sets aside the 2019 final decision, sending the FSCL application back once more for reconsideration. Awkwardly, however, the case would land again in Boshier’s jurisdiction – although Grice urged all parties to develop a practical work-around solution to the obvious conflict.
“… in the present circumstances it is an option for another Ombudsman to do an investigation and make a recommendation to the Chief Ombudsman on the issue,” the ruling says.
According to the court documents, in 1962 NZ was the first country outside Scandinavia to introduce the ombudsman concept, granting a higher status to complaints-handling bodies – first in parliament and later to various external organisations.
Ombudsmen now dwell “in many countries”, the ruling says.
The title “was originally the name given to a Swedish institution established with the function of ensuring the executive was observing the country’s laws”.
Grice suggested “counsel may be able to agree on costs” in the FSCL v CO case.
Undoubtedly, the 10-year legal saga has incurred a considerable smörgåsbord of expenses for both government and FSCL with more to come in the still-live scandi-noir drama.