As the Deputy will be aware, the Financial Services and Pensions Ombudsman is an alternative dispute resolution mechanism to the courts. It would not be proper that the same complaint could be adjudicated simultaneously in two different fora and the 2017 Act addresses this.
Section 50(3) provides that the Ombudsman shall not investigate or make a decision on a complaint where there are or have been proceedings (other than where the proceedings have been stayed under section 49) before any court in respect of the matter that is the subject of the investigation.
Section 49 makes provision for a situation where a complaint is under investigation by the Ombudsman and a party to the complaint commences proceedings in the courts. It allows a court to stay proceedings to allow the Ombudsman to undertake the investigation.
Furthermore, the provision referred to must be considered in light of section 50(1) which specifically provides
"Notwithstanding sections 44(2)(a)(i) and 54(1), the Ombudsman may accept a complaint against a financial service provider or a pension provider that has initiated legal proceedings in relation to a matter to which the complaint relates, where the Ombudsman believes, based on reasonable grounds, that the financial service provider or the pension provider, as the case may be, has begun those proceedings in order to prevent the making of the complaint, or to frustrate or delay its investigation."
Therefore I do not accept that there is a consumer protection anomaly in the legislation when read in its entirety.
