Tony Cottrell t/a Ferrybank Financial Services v. The Irish Financial Services Regulatory Authority. - The Irish Financial Services Appeals Tribunal

IFSAT
IRISH FINANCIAL SERVICES APPEALS TRIBUNAL

Record No. 002 / 2008

BETWEEN:

TONY COTTRELL
t/a Ferrybank Financial Services

Appellant

– and –

THE IRISH FINANCIAL SERVICES REGULATORY AUTHORITY

Respondent

SUMMARY OF PROCEEDINGS

Background

1. The Appellant trades under the name Ferrybank Financial Services as a provider of financial services.

2. The Respondent is the public body with competence for authorising the provision of certain financial services within the State. In particular, the Respondent may authorise the provision of services as a “Mortgage Intermediary” under Section 116 of the Consumer Credit Act 1995, and as an “Investment Business Firm” under Section 10 of the Investment Intermediaries Act 1995.

3. Under Section 57G(1)(a) of the Central Bank Act 1942, where a person is affected by a decision of the Respondent, he or she may appeal such decision to this Tribunal.

4. On 12 November 2008, the Respondent refused two applications which had been submitted to it by the Appellant, namely:

i. An application for authorisation as a Mortgage Intermediary under Section 116 of the Consumer Credit Act 1995 (which application had been submitted on 5 August 2005, and again on 25 April 2007); this application was refused on the ground that the Appellant was not a fit and proper person to carry on business as a mortgage intermediary;

ii. An application for authorisation as an Investment Business Firm under Section 10 of the Investment Intermediaries Act 1995 (which application had been submitted on 31 May 2004); this application was refused on the ground that the Appellant had failed to satisfy the Respondent as to the Appellant’s probity and competence to be the manager of an investment business firm.

5. On 11 December 2008, the Tribunal received a Notice of Appeal from the Appellant.

Preliminary Matters

6. Under Section 57H of the Central Bank Act 1942, the Tribunal shall consist of three members for the hearing of an appeal. One member of the Tribunal must be either the Chairperson or the Deputy Chairperson, either of whom must preside over the appeal. Under Rule 4(7) of S.I. No. 224 of 2008, the Chairperson shall be responsible for designating the membership of the Tribunal for any particular appeal, or any interlocutory application within the context of an appeal. On 12 December 2008, Frank Murphy (Chairperson of the Tribunal) assigned Inge Clissmann SC (Deputy Chairperson of the Tribunal), John Fish and Liam Madden to hear the appeal proper.

7. On 17 December 2008, the Tribunal (consisting, for the purpose of these particular applications, of Frank Murphy, Inge Clissmann SC, and Geraldine Clarke) sat to consider applications which had been made by both the Appellant and the Respondent, namely:

i. An application made on 16 December 2008 by the Appellant under Rule 5(3) of S.I. 224 of 2008 for the waiver by the Tribunal of the appeal fee (amounting to €5,000);
ii. An application made on 15 December 2008 by the Respondent under Rule 4(6) of S.I. 224 of 2008 for an extension of time for the purpose of the preparation of a response.

In the circumstances, the Tribunal granted both applications, waiving the appeal fee and extending the time limit for the Respondent’s response to 19 January 2009. The said response was received by the Tribunal on 19 January 2009.

8. The Tribunal, consisting of Inge Clissmann SC, John Fish and Liam Madden, sat for a preliminary hearing on 13 February 2009. The following time limits were directed by the Tribunal:

i. By 25 February 2009 at 5 pm
Statements from all witnesses to be furnished to the Registrar
ii. By 27 February 2009
Submissions of the Appellant to be delivered to the Registrar
iii. By 4 March 2009 at 5 pm
Any matters arising out of the witness statements to be delivered to the Registrar
iv. By 6 March 2009
Replying Submissions of the Respondent to be delivered to the Registrar

In addition, the Tribunal set 9 March 2009 (and, if necessary, 10 March 2009) for the hearing of the appeal.

9. Whilst the Respondent furnished the Tribunal with witness statements on 25 February 2009 and legal submissions on 6 March 2009, neither statements nor submissions were received from the Appellant within the timeframe which had been specified at the preliminary hearing on 13 February 2009.

10. On 9 March 2009, the date set for the hearing, the Appellant applied for an adjournment of the proceedings. In addition to granting the application and setting a new hearing date of 28 April 2009, the Tribunal directed as follows:

i. The Appellant was to furnish witness statements and submissions by 31 March 2009;

ii. The Respondent was granted liberty to reply to the submissions by 21 April 2009.

11. The Appellant’s legal submissions were duly received on 31 March 2009. Witness statements were then received from the Appellant on 9 April 2009.

12. On 20 April 2009, the Tribunal directed that documentation in the possession of the Respondent which had previously been furnished to the Appellant in redacted form now be furnished to the Appellant in unredacted form.

The Hearing

13. The hearing was held on 28 April 2009, with Inge Clissmann SC (Deputy Chairperson of the Tribunal), John Fish and Liam Madden constituting the Tribunal.

At the outset of the hearing, Counsel for the Respondent applied to have the appeal struck out on the ground that the directions given by the Tribunal on 9 March 2009 had not been complied with by the Appellant. Counsel for the Respondent pointed out that the witness statements which had been received from the Appellant were incomplete. It was further pointed out that the said witness statements had not been received within the timeframe agreed on 9 March 2009.

In response, Counsel for the Appellant stated that her instructions were that there had been email difficulties on the day of the deadline for the furnishing of witness statements. As far as Counsel was aware, however, the statements had been sent within the time limit agreed. As to the issue of the incompleteness of the witness statements received, Counsel for the Appellant stated that she had hitherto been unaware of their incompleteness.

The Deputy Chairperson held that, in light of the previous adjournment granted to the Appellant on 9 March 2009 and the importance of complete statements being before the Tribunal, Counsel for the Appellant should take instructions in regard to both the lateness and incompleteness of the witness statements furnished to the Tribunal.

14. Counsel for the Respondent then pointed out that the legal submissions which had been prepared by Counsel for the Appellant contained submissions based on factual assertions which had not been substantiated in the witness statements. He applied to the Tribunal for such factual assertions to be inadmissible in the course of the hearing, and provided examples of such assertions.

15. Counsel for the Appellant sought to deal with the issues raised in the legal submissions in advance of the hearing of the case. It was then put to Counsel for the Appellant that it would not be possible to hear and consider her preliminary legal submissions in the absence of agreed facts or proven evidence.

16. The Appellant then opted not to participate further in the appeal. The Tribunal considered the stance taken by the Appellant, and held that it had no alternative but to strike out the appeal for want of prosecution.

Costs

17. After hearing argument from both sides as to the issue of costs, the Tribunal awarded costs of €20,000.00 plus VAT against the Appellant, with a stay of four calendar months on the said Order.