In the trustees we trust

The judge concluded that "the decisions in the internal dispute resolution procedure are by way of review of the initial decision based on the evidence and material available at that time, rather than a fresh decision taking account of additional evidence subsequently produced."

In summary, what the ombudsman investigates is not the internal dispute resolution procedure, but the underlying complaint which has not been resolved by the internal dispute resolution procedure. The only relevant question is whether the initial internal dispute resolution procedure decision is valid.

The court has granted permission to appeal. Any appeal would be likely to focus on the decision to limit the use of evidence to that which is available to trustees at the time of the first stage internal dispute resolution procedure decision. No such limitation is expressly stated to apply in either the former or current internal dispute resolution procedure legislation.

We expect that an appeal, if launched, would also challenge the assertion that the second stage of an internal dispute resolution procedure is simply a review of a first stage decision. The statutory provisions that applied to internal dispute resolution procedure in this case, under the former internal dispute resolution procedure regime, refer to the second stage as a "reconsideration of the disagreement", rather than a review of the initial decision.

The new regime describes the second stage internal dispute resolution procedure in similar terms, providing that in a two-stage procedure, the first stage decision may be confirmed or replaced after "reconsidering" the "matters in dispute". It is certainly arguable that the trustees at the second stage should therefore reconsider the dispute from scratch, which might require trustees to consider evidence which has come to light since their first decision.

Monica Ma is a partner of Simmons & Simmons