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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Governey -v- Financial Services Ombudsman & anor [2015] IESC 38 (06 May 2015)
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Cite as: [2015] IESC 38
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Judgment
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THE SUPREME COURT [Appeal No: 43/14] McKechnie J. Clarke J. Laffoy J. In the Matter of an Appeal pursuant to Part VII (B) of the Central Bank Act 1942 and Chapter 6 and Section 57 CL thereof (as amended and inserted by the Central Bank and Financial Services Authority of Ireland Act 2004)
Hugh Governey Appellant and
Financial Services Ombudsman Respondent and
IBRC Assurance Company Limited Notice Party/Respondent Judgment of Mr. Justice Clarke delivered the 6th May, 2015. 1. Introduction 1.2 Prior to the establishment of the Court of Appeal, the Constitution guaranteed a right of appeal from all decisions of the High Court to this Court unless excluded by law. In that context, over the past decade or so, a number of laws were passed which had the effect of limiting the right of appeal between the High Court and this Court. While there is no longer a constitutional right of appeal from the High Court to this Court, the same constitutional regime relating to appeals now exists in respect of appeals from the High Court to the Court of Appeal and, by and large, the same limitations which previously existed in relation to appeals to this Court from the High Court now apply in respect of appeals to the Court of Appeal. While the specific issues which arise on this appeal will no longer be relevant to appeals to this Court, those same issues will continue, in the main, to arise in respect of appeals to the Court of Appeal. 1.3 Many of the limitations which were imposed on the right of appeal from the High Court to this Court required a certificate of the High Court in order that an appeal might be brought. Proceedings in the fields of immigration and the environment provided the most common examples. However this case involves a different statutory scheme. In circumstances which it will be necessary to set out in a little more detail, the applicant (“Mr. Governey”) made a complaint to the respondent (“the F.S.O.”) arising out of a financial product which he had purchased. Ultimately the matter came before the High Court on appeal. The High Court rejected Mr. Governey’s appeal and he now wishes to appeal to this Court. Section 57CM of the Central Bank Act 1942 as amended (“the 1942 Act”), as that legislation provided at the time of the making of this application, states that “a party … may apply to the Supreme Court to review the determination on a question of law (but only with the leave of either of those Courts)”. The reference in the section in question to a determination is to a relevant decision of the High Court and, thus, the phrase "leave of either of those courts" refers to the leave of either the High Court or this Court. Therefore, the statutory scheme which applies in respect of an appeal such as that which Mr. Governey wishes to make is, at least at the level of very broad principle, clear. Such an appeal can only be brought with the leave of either the High Court or this Court. Mr. Governey sought the leave of the High Court but same was refused. Mr. Governey has now applied to this Court for leave. 1.4 Two broad sets of issues, therefore, arise. The first concerns the proper approach of the Court to the question of whether to grant leave. For reasons which I sought to address in Fitzgibbon v. Law Society [2014] IESC 48, one of the difficulties which is increasingly to be found in respect of appeal regimes both to and within the courts is a level of vague generalisation in the legal instruments governing certain appeals which gives little clue as to the type of appeal which may be open. That precise problem does not arise here, as the appeal provided for in the relevant legislation is specified as being an appeal "on a question of law" which is a term which has come to have a reasonably clear meaning. What is, however, not at all clear is the criteria by reference to which leave should be granted. Neither is it clear, given that either the High Court or this Court can give leave, as to what the interaction between an application to one or the other or, indeed, as in this case, both courts should be. It is in that context that the Court will have to address the question of the proper approach. 1.5 In the light of whatever approach is deemed appropriate, it will secondly be necessary to address the issues which Mr. Governey would wish to raise on appeal to determine whether they are sufficient for the grant of leave in the light of whatever criteria might ultimately be determined to be appropriate. 1.6 In order to address the first question it is necessary to set out the relevant statutory scheme and the procedural history of this case. 2. The Statutory Scheme and Procedural History “The principal function of the Financial Services Ombudsman is to deal with complaints made under this Part by mediation and, where necessary, by investigation and adjudication.” 2.2 Section 57CL(1) of the 1942 Act, as also inserted by s. 16 of the 2004 Act, concerns appeals from decisions of the F.S.O. It provides:— “If dissatisfied with a finding of the Financial Services Ombudsman, the complainant or the regulated financial service provider concerned may appeal to the High Court against the finding”. 2.3 Section 57CM of the 1942 Act, as again also inserted by s. 16 of the 2004 Act, sets out the process by which decisions of the F.S.O. may be appealed to the High Court. It provides:-
(2) The orders that may be made by the High Court on the hearing of such an appeal include (but are not limited to) the following: (a) an order affirming the finding of the Financial Services Ombudsman, with or without modification; (b) an order setting aside that finding or any direction included in it; (c) an order remitting that finding or any such direction to that Ombudsman for review. (3) If the High Court makes an order remitting to the Financial Services Ombudsman a finding or direction of that Ombudsman for review, that Ombudsman is required to review the finding or direction in accordance with the directions of the Court. (4) The determination of the High Court on the hearing of such an appeal is final, except that a party to the appeal may apply to the Supreme Court to review the determination on a question of law (but only with the leave of either of those Courts).” 2.5 Mr. Governey appealed the decision of the F.S.O. to the High Court. The High Court (Hedigan J.) dismissed the appeal (see Governey v. Financial Services Ombudsman [2013] IEHC 403), and held that the F.S.O. had relevant evidence before him on which the decision could reasonably be based. Mr. Governey made an application to the High Court under section 57CM(4) for leave to appeal the decision to this Court on a question of law. The application was refused. Mr. Governey now seeks leave of this Court to appeal the decision of the High Court on a question of law, again under section 57CM(4). 2.6 Against that background, it is necessary to turn first to the issue which concerns the basis on which leave should be granted. 3. The Application for leave 3.2 First, what are the criteria for giving leave? Second, is the proper approach of this Court to an application for leave to appeal to be any different to the approach of the High Court in dealing with an application for leave in a similar case and, in particular, is the approach of this Court to vary in any way having regard to whether or not an application was first made to the High Court or, as here, where such an application was made but refused? 3.3 On the first question, the argument put forward on behalf of Mr. Governey was that leave should be granted where the potential appellant establishes a stateable or arguable basis for an appeal. The counter argument, advanced by both the F.S.O. and Anglo, was to the effect that it must be taken to have been implied, by the fact that the Oireachtas chose to require leave before an appeal could be brought to this Court, that some criteria above and beyond stateability or arguability must be established. 3.4 The starting point must be to acknowledge that, at the time when this application was brought, there was a constitutional right, subject to statutory exclusion, to bring an appeal from the High Court to this Court. It has consistently been held (see for example, People (A.G.) v. Conmey [1975] I.R. 341, Holohan v. Donohoe [1986] I.R. 45, Hanafin v. Minster for the Environment [1996] 2 IR 321, A.B. v. Minister for Justice, Equality and Law Reform [2002] I.R. 296 and Clinton v. An Bord Pleanála [2007] I.R. 272) that any such exclusions or restrictions are, because of the then constitutional status of an appeal from the High Court to this Court, to be narrowly construed. While much of the jurisprudence in this area is concerned with cases where there was an assertion that a relevant statute excluded any entitlement to appeal, it seems to me that the same general principle must necessarily apply to the criteria to be applied for granting leave to appeal. In other words, given that the default position is that the Constitution guaranteed a right of appeal to this Court, then any leave provision which narrowed that constitutional right should be strictly construed in a manner designed to confer rather than deny the constitutional entitlement to appeal. Where, for example, as in the immigration field, it is necessary that a point of law of exceptional public importance be raised in order that an appeal can be brought, a court must be satisfied that such a point arises in the case in question. In those circumstances, there is clear statutory wording which is constitutionally permitted and which must be given full effect. The point which I wish to emphasise is not that there is anything inappropriate about legislation restricting or, in appropriate cases, excluding a right of appeal. Rather, the point is that where such restriction or exclusion is sought to be achieved, it should be done by clear wording. Where the restriction involves a leave application, or a certification process which amounts to much the same sort of thing in practice, then the criteria should be clear, and if not, the legislation should be interpreted in a way which confers the wider entitlement to appeal. 3.5 Against that background, it is necessary to note that no criteria of any sort are specified in s. 57 CM(4) of the 1942 Act (as inserted). That section simply speaks of the requirement for leave of either the High Court or this Court without specifying any particular criteria by reference to which that leave is to be granted or refused. 3.6 In the light of the general principles applicable to the construction of legislative provisions which restrict or exclude a right of appeal otherwise constitutionally provided, I am satisfied that a statutory provision which provides for appeal only on leave, but which is silent as to the leave criteria, must be interpreted as meaning that leave should be granted provided that a stateable basis for appeal has been established. No higher criteria should be implied in the absence of express provision. 3.7 In addition, in the context of this case, it must also be noted that the stateable basis for the appeal sought to be brought must, of course, be a stateable basis within the scope of the type of appeal allowed. As this case can only involve an appeal on a point of law, it follows that it is necessary for Mr. Governey to establish that he has a stateable appeal on a point of law. If the scope of appeal permitted under the 1942 Act were wider, then, of course, the type of appeal which might meet a stateabillity test might itself be wider. 3.8 Next, it is necessary to turn to the second question. Given that the section simply refers to the leave “of either” of the High Court or this Court, how should this Court approach a leave application in circumstances where the High Court has been asked, but has refused, to grant leave? There does not seem to be any basis for suggesting that the legislation contemplates any different role for this Court in considering a leave application in circumstances where, on the one hand, no application was made to the High Court as opposed to where, on the other hand, an application was made and refused. Clearly, if an application is made to the High Court and succeeds, then the question of seeking leave from this Court would not arise. 3.9 Where there is a reasoned judgment of the High Court declining leave then it must, of course, be the case that this Court would consider the reasoning of the trial judge in refusing leave as part of its overall consideration of whether a stateable basis for bringing an appeal on a point of law has been made out. However, I cannot see that this legislation creates the type of situation where this Court is required to afford any particular level of formal deference to the view of the trial judge. There is nothing in the legislation which suggests that a leave application to this Court is, in any way, a form of appeal from, or review of a decision of the High Court on a similar leave application. Rather, this Court is given its own independent power to give leave. In those circumstances it seems to me that this Court must reach its own conclusion as to whether there is a stateable basis for suggesting that an appeal on a point of law might succeed. In so doing, this Court should, of course, consider any reasons which persuaded the High Court that leave to bring such an appeal should not be granted. However, in giving all proper consideration to the views of the High Court, this Court should not depart from its own independent task of deciding whether, in the view of this Court, such a stateable basis for appeal has been established. 3.10 In those circumstances, it seems to me that the sole question which this Court should ask itself on a leave application such as this is as to whether Mr. Governey has made out a stateable basis for suggesting that he may have a valid appeal on a point of law against the decision of the High Court in this case. In answering that question, this Court should, of course, consider the reasons given by the trial judge for coming to the conclusion that such a stateable basis did not exist. 3.11 In order to consider the merits of this leave application, it is necessary to say something more about the factual background, although, for reasons which I will now address, I do not propose to go into the merits of this appeal to any great extent. 4. The Background 4.1 I have come to the conclusion, for reasons which will be set out later in this judgment, that leave to appeal should be granted. Given that, in those circumstances, a full appeal on the points of law raised will be argued before this Court, it does not seem to me to be appropriate to go in to the merits of the issues raised save to the extent absolutely necessary to explain why I have come to the view that there is at least an arguable basis for appeal. A different situation might arise in circumstances where the Court was not persuaded to grant leave to appeal and where, therefore, the merits were not going to be addressed again. 4.2 For those reasons I will be very brief about the background facts and the law. In his complaint to the F.S.O., Mr. Governey argued that certain material facts had not been disclosed to him by Anglo. He alleged that this non-disclosure constituted a breach of the duty of uberrima fides (which ordinarily arises in the context of insurance or assurance contracts). 4.3 Mr. Governey contended that the issue which the F.S.O. had to decide was whether certain facts were “material”, so that Anglo’s failure to disclose these facts constituted non-disclosure of material facts so as, in turn, to void the contract entered into between the parties and to thereby entitle him to have his premium returned. 4.4 The particular facts alleged by Mr. Governey before the F.S.O. to be material and undisclosed by Anglo were specified as follows: (a) that Anglo had been advised by Savills that the Parkway Shopping Centre, which was due to be opened in Newbury, represented a risk to the Kennet Shopping Centre; (b) that Anglo had been advised that Newbury was a town in long term decline; (c) that the figure of 19% for the number of tenants in Kennet Shopping Centre with break clauses exercisable within five years was incorrect as the correct figure was in the region of 36%. 4.5 In his application to the High Court, Mr. Governey submitted that the decision of the F.S.O. did not fully consider the particular facts, did not explain the rationale for the decision, and that the F.S.O. made an error of law in failing to give due consideration to the duty of uberrima fides which was said to be applicable to life assurance contracts. In relation to the latter point, Mr. Governey relied on the decision of the House of Lords in Banque Financière de la Cite S.A. (Formerly Banque Keyser Ullmann S.A.) v. Westgate Insurance Co. Ltd. (Formerly Hodge General & Mercantile Co. Ltd.) [1991] 2 A.C. 249 in which it was held, quoting the judgment of Slade L.J. in the Court of Appeal in that same case which is reported as Banque Keyser Ullmann S.A. v. Skandia (U.K.) Insurance Co. Ltd. and Others [1990] 1 Q.B. 665, at p. 772, that the duty of disclosure of an insurer, arising from the obligation of utmost good faith, must at least extend to requiring the insurer:- “…disclosing all facts known to him which are material either to the nature of the risk sought to be covered or the recoverability of a claim under the policy which a prudent insured would take into account in deciding whether or not to place the risk for which he seeks cover with that insurer” It was also argued that the F.S.O. had given insufficient reasons. 4.6 In the High Court, as an independent ground for resisting Mr. Governey’s appeal, the F.S.O. argued that he had acted within his jurisdiction; that the findings of the F.S.O. are not required to be thorough or as detailed as that of a judgment of a court; and that Mr. Governey was attempting to add new complaints through his written submission which were not adduced before the F.S.O. 4.7 In relation to the question of uberrima fides, the F.S.O. argued that there is no authority which suggests that uberrima fides extends to a brochure relating to an investment, as the brochure is an advertising mechanism. Further, the F.S.O. argued that the duty does not apply to collateral matters, as here where the property venture was styled as a life assurance policy for tax efficiency purposes. On that basis, the F.S.O. contended that Mr. Governey incorrectly relied on Banque Financière. 4.8 Anglo adopted the position of the F.S.O. in relation to the scope of the appeal, and made submissions in relation to the sufficiency of the disclosure made and the principle of uberrima fides, which Anglo argued did not apply in this context. 4.9 Hedigan J., relying on the decision of Finnegan P. in Ulster Bank Investment Funds Ltd. v. Financial Services Ombudsman and ors [2006] IEHC 323, determined that the Court could only interfere with the decision of the F.S.O. on such an appeal if, taking the adjudicative process as a whole, “the decision reached was vitiated by a serious and significant error or series of such errors”. The burden of proof was held to lie on the appellant in such an application with the onus of proof being the civil standard. The trial judge noted that the test required the Court to adopt “a deferential standard” as regards the expertise and specialist knowledge of the F.S.O. 4.10 Hedigan J. held that it was only open to the court to quash the decision of the F.S.O. if he was persuaded that the F.S.O. could not have reasonably come to his decision based on the facts before him. 4.11 Hedigan J. concluded that there was relevant evidence before the F.S.O. on which he could reasonably have come to his decision and in particular it was reasonably open to the F.S.O. to conclude that no material non-disclosure of risk occurred. Additionally, the written finding of the F.S.O. was held to comply with the requirement to give reasons as it was held to have considered the central complaints made by Mr. Governey and dealt with each of those complaints. 4.12 Mr. Governey, in his written submissions to this Court, argued that the F.S.O. failed to address the relevant issue of law and that the F.S.O. decided the case on the basis that Mr. Governey had been afforded “sufficient notice” of the high-risk nature of the investment. In that context, he argued that the F.S.O. had incorrectly equated or conflated disclosure of the degree of risk with disclosure of facts pertaining to that risk. Mr. Governey also contended that F.S.O. had not given sufficient reasons for his finding that the facts at issue were not viewed as “material”. Finally, Mr. Governey queried the alleged failure of the F.S.O. to address the break clause figures which Mr. Governey had disputed. 5. Discussion 5.2 First, and in my view most importantly, section 57CI specifies the basis on which the F.S.O. can make a finding that a complaint is substantiated. The grounds are set out in s.57CI(2). The first possible basis, as set out in subsection (a), is that the conduct complained of was contrary to law. However, it is clear from many of the remaining subsections of s.57CI that the remit of the F.S.O. goes well beyond determining legal rights and obligations. For example, subsection (c) allows a complaint to be substantiated where the conduct of the relevant financial institution is held to be, for example, unreasonable even though in accordance with law. In addition, generally unreasonable, oppressive or discriminatory conduct can result in an adverse finding under subsection (b), while subsection (g), in very general terms, allows the F.S.O. to find that a complaint is substantiated where the conduct complained of "was otherwise improper". For completeness, it is true that at least one other subsection, being subsection (e), which, amongst other things, allows an adverse finding in the case of conduct which is based "wholly or partly on a mistake of law". 5.3 Thus it may be seen that, while the F.S.O. is given a jurisdiction to consider, and if appropriate to find substantiated, complaints which involve issues based purely on questions of legal rights and obligations, the jurisdiction is much broader than the determining of such legal questions. It is absolutely clear that the F.S.O. retains a jurisdiction to find a complaint substantiated even though there has been no breach of the legal entitlements of the complainant. 5.4 It is also clear from the provisions of section 57CI(4) that the range of remedies which can be imposed by the F.S.O. in the event that a complaint is substantiated are wide and go beyond (but do include) the form of redress which might be available in the case of someone whose legal rights have been interfered with. 5.5 In the context of that analysis, two further provisions of the legislation are worth noting. The first is section 57BZ which sets out circumstances in which the F.S.O. is entitled to decline to investigate a complaint. Many of those circumstances are concerned with cases which are either trivial, vexatious or remote. However, subsection (1)(d) permits the F.S.O. to decline to investigate a complaint where there is "an alternative and satisfactory means of redress in relation to the conduct complained of". 5.6 I draw attention to these provisions for the purposes of observing that the range of issues which the F.S.O. can investigate and the range of remedies available go far beyond the type of case which can be brought to a court as a result of an alleged breach of legal rights or failure to meet legal obligations. But the remit of the F.S.O. does, potentially, include cases which involve (and may only involve) the establishment and determination of such rights and obligations and the payment of compensation for loss in respect thereof. Obviously, some cases might be such as could be considered hybrid with some issues involving legal questions but others involving the general reasonableness of the course of conduct between the relevant financial institution and the complainant. However, there are some cases where the sole, or virtually only, issue raised by the complainant may be one which is based on an assertion of legal rights. Such cases are, of course, within the jurisdiction of the F.S.O., and it is for the F.S.O. itself to decide whether to determine them. However, it is important to record that the F.S.O. does not have an obligation to determine by adjudication a complaint where the substance of the matters complained of is that a relevant financial institution has acted unlawfully in its dealing with the complainant and where, therefore, exactly the same issues of legal rights and obligations could be brought before a court. The legislation, therefore, permits, but does not require, the F.S.O. to deal with such complaints, being cases which are, in reality, matters which might otherwise be pursued by an appropriate form of court proceedings before whatever court might have jurisdiction to deal with the issues concerned. 5.7 I draw attention to that analysis of the legislation for two reasons. First, it seems to me to be at least arguable that the proper scope of a review by the courts (whether the High Court or the Court of Appeal or this Court on appeal) of a decision of the F.S.O. may depend, at least to some extent, on whether the issues raised are ones which fit into the category of complaint which could just as easily have been brought in the form of legal proceedings. It seems to me to be at least arguable that, in such cases, and in relation to questions either of law or of the application of the law to agreed or established facts, there may be less of a case for the courts affording the F.S.O. any particular level of deference. 5.8 There may well be a case for affording deference to the view which the F.S.O. takes as to, for example, the unreasonableness of lawful conduct on the part of a financial institution. But it does not necessarily follow that a court is bound to afford similar deference to the F.S.O. on its view of the law or the application of the law to facts which task is, after all, one of the core functions to be found in the administration of justice. 5.9 The second observation concerns the process which must be adopted by the F.S.O. Issues have arisen from time to time about the extent to which it may be necessary for the F.S.O., in considering a complaint, to hold oral hearings or the like and, to an extent, to conduct its inquiry in a manner which, at least in some respects, may mirror what might happen in a court. It is, in the context of that debate, important to note that the F.S.O. is not obliged to take onto itself the task of resolving disputes which are, fundamentally, legal cases between a complainant and a financial institution. But if the F.S.O. chooses to exercise its entitlement to take on such cases, then that task may well carry with it many obligations as to the manner in which those proceedings (which will, in substance, involve the establishment of legal rights and obligations) are conducted. 5.10 Having made those observations, I now turn to the specific issues of disclosure which are relied on by Mr. Governey for suggesting that he has a stateable basis for appeal to this Court. I might start, again, by making two general observations. The first is to repeat the point made earlier that the precise level of deference to be afforded by the High Court to the F.S.O. is at least arguably different in cases where the F.S.O. is concerned with the establishment of legal rights and obligations. On that basis, it is arguable that the trial judge adopted an overly deferential attitude in relation to the determination of the F.S.O. in this case. 5.11 Second, there were clearly issues both before the F.S.O. and before the High Court as to the precise effect, on the legal rights and obligations which arise in this case, of the form as opposed the substance of the transaction entered into between Mr. Governey and Anglo. As noted earlier, that form, doubtless for tax reasons, was in the shape of a single premium life assurance policy. The difficulties which arise in applying the doctrine of uberrima fides (which requires both parties to insurance or assurance contracts to make full disclosure in the utmost good faith) to a case such as this are fairly obvious. In the ordinary way, such policies are concerned with the financial institution agreeing to pay monies to a customer (the insured or assured) on the occurrence of an adverse event. The risk which is normally spoken of in that context is, obviously, the risk of that event occurring. In life assurance, the risk which needs to be assessed is the risk to the life of the assured, and the disclosure which must be made concerns matters material to the assessment of that risk. In insurance, the disclosure is related to the risk to be covered, such as the driving record of someone seeking motor insurance or the configuration of a house for the purposes of assessing the risk of burglary in the context of a contents insurance policy. 5.12 Just how those concepts fit in with a case where the substance of the arrangement is an investment in the guise of a life assurance policy is certainly debateable. However, for present purposes I am satisfied that it is arguable or stateable that, by choosing to offer an investment product in the form of a life assurance policy, a financial institution takes onto itself a much greater degree of obligation of disclosure than might ordinarily be the case. 5.13 It is certainly clear that Anglo disclosed that the investment was high risk. The case which Mr. Governey wishes to make is that the extent of disclosure required, in the context of an uberrima fides obligation, is either a matter of law or at the very least a mixed question of law and fact. In that context, and put at its simplest, he wishes to argue that the F.S.O. was wrong in holding that a general disclosure of the overall level of risk was sufficient when there was not, it is argued, a disclosure of material facts which would allow that risk to be assessed. In that sense, Mr. Governey wishes to argue that the F.S.O. decision conflates disclosure of the degree of risk with disclosure of the facts on which an independent assessment of that degree of risk could be made. In my view, again, that proposition of law is arguable, as is its application to the facts of this case. 5.14 So far as the decision of the High Court is concerned it is, in substance, sought to argue that the High Court was obliged to examine any determinations of law by the F.S.O. and reverse same if wrong. On that basis it is said that the High Court, by applying a test of rationality to a decision of the F.S.O. without examining the legal issues which Mr. Governey raised, was in error. In substance, it is said that the F.S.O. was wrong in law on the materiality question, that the High Court should not have afforded any deference to the F.S.O. on that legal issue, and that the High Court was, therefore, also wrong. I am satisfied that Mr. Governey has met the threshold of arguability or stateabillity in respect of those issues. 5.15 Likewise, in the context of the legal issues which seem to me to arise, I am satisfied that Mr. Governey has met the threshold of arguability or stateabillity on the subsidiary question which he raises concerning the adequacy of the reasons given by the F.S.O. To an extent, the reasons which must be given by any decision-maker are somewhat dependent on the issues which that decision-maker must determine. At a very general level reasons must be sufficient to enable a party affected to decide whether the decision made was legally correct and to assist such a person in being able to decide whether the decision concerned is capable of being challenged either by judicial review or in any appellate process available. If Mr. Governey is ultimately found to be correct on the submissions which he makes concerning the materiality issue, it is also arguable that the reasons set out by the F.S.O. fail to adequately state why, in the view of the F.S.O., the failure of disclosure alleged in this case did not meet a materiality test. 6. Conclusions 6.2 For the reasons set out earlier, I am satisfied that Mr. Governey meets that, admittedly low, threshold, and should be given leave to appeal in accordance with his application to this Court. | ||||||||||||||||||||||||||||||||||||