F.S.O. v Millar court ruling ( errors abundant)

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Asphyxia

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I wish to comment on Judge Finlay Geoghegan's ruling in this instance.

I am particularly concerned for Judge Geoghegan's reasoning in relation to Judge Hogan's views regarding the following.

In her Judgment she states:


23. Secondly the trial judge decided at paragraph 29:-


    • “In any event, if the construction of clause 3 urged by Danske were to prove to be correct, the Ombudsman was nonetheless in error in failing to examine whether it would be broadly fair and reasonable for Danske to apply such a construction having regard to his enhanced statutory powers in s. 57BK(4) and s. 57CI(2): see, by analogy, my own reasoning in Koczan.”
24. It appears implicit in this part of the judgment that the trial judge considered s. 57BK(4) and s. 57CI(2) imposed a mandatory obligation on the Ombudsman to consider in relation to Mr. and Mrs. Millar’s complaint whether reliance by a bank on contractual terms was “broadly fair and reasonable”. I regret, I cannot agree with such a statutory interpretation. The complaint herein was not made on that basis. The essential complaint was that the Bank was in breach of the loan agreements. Whilst, pursuant to s. 57BK(4) and s. 57CI(2), the Ombudsman may consider and decide a complaint from such a broader perspective, he is not obliged by the terms of the sections to do so. Whether or not he is in error in failing to do so will depend upon the complaint and facts before him. In my judgment he was not in error in failing to consider such issue herein having regard to the terms of the complaint made by Mr. and Mrs. Millar.


The Central Bank and Financial Authority of Ireland Act 2004 states in relation to section 57BK(4)


(4) The Financial Services Ombudsman is entitled to perform the functions imposed, and exercise the powers conferred, by this Act free from interference by any other person and, when dealing with a particular complaint, is required to act in an informal manner and according to equity, good conscience and the substantial merits of the complaint without regard to technicality or legal form.

and in relation to 57CI(2)

(2) A complaint may be found to be substantiated or partly substantiated only on one or more of the following grounds: (a) the conduct complained of was contrary to law; (b) the conduct complained of was unreasonable, unjust, oppressive or improperly discriminatory in its application to the complainant; (c) although the conduct complained of was in accordance with a law or an established practice or regulatory standard, the law, practice or standard is, or may be, unreasonable, unjust, oppressive or improperly discriminatory in its application to the complainant; (d) the conduct complained of was based wholly or partly on an improper motive, an irrelevant ground or an irrelevant consideration; (e) the conduct complained of was based wholly or partly on a mistake of law or fact; (f) an explanation for the conduct complained of was not given when it should have been given; (g) the conduct complained of was otherwise improper.

It can be seen that Judge Geoghegan's narrow interpretation of the legislation concerned, can, in certain circumstances encompass section 57CI(2), however, it does not in relation to section 57BK(4).

In relation to section 57BK(4) I have been advise by legislative drafters, both in this Country and in the Hague as to the most likely interpretation of " is entitled to perform" in the legislative context of the Act. Both agreed, that the most likely interpretation of first line of section 57BK(4) that being:

"The Financial Services Ombudsman is entitled to perform the functions imposed, ..."

is

"The Financial Ombudsman is lawfully mandated to perform the function imposed..."

With regard to the meaning of the term "required" within section 57BK(4), I am not going to attempt to explain to readers what this term means within the context of the said clause, as it would be an insult to their intelligence, save to say to our learned Judges in the Appeals court " Shame on you".

It appears that Justice Geoghegan is attempting to put a round peg into a square hole. The reasoning in this part of her judgment, even to a lay person, is erroneous and should be appealed.


Finally the Financial Service Ombudsman Office is a statutory body set up by an Act of the Oireachtas. It's decisions are binding on the parties involved in the dispute, save for an appeal to the High Court, whose decision is final. Either party can appeal the High Court decision but only for a determination on a point of law.

Therefore in determining a dispute, the Financial Services Ombudsman Office ( A Public Body ) is obliged to take cognizance of all applicable European directives that may affect it's decision making process, as well as it's statutory powers. To do otherwise, would leave the Irish State open to litigation, for failing to properly transpose European directives according to it's Treaty obligations.

Consequently, in relation to the above complaint from the Millar's, the Financial Ombudsman is obliged to deal with the complaint having regard to all applicable European directives irrespective of it's statutory duties. These Directives would include Unfair terms in contract regulations 2005 as amended, Distant Marketing of Consumer Financial Services Regulations 2004 as amended, etc. For example, Dublin City council is obliged to abide by European Directives regarding waste management on top of it's statutory obligations regarding same.

In conclusion, it is without doubt that the Financial Services Ombudsman Office erred in its decision making process regarding the Millar's complaint, if breached it's own statutory provisions, that being section 57BK(4), also it did not take cognizance of the various European Directives applicable to it, when reaching it's decision on the matter. The same error has vitiated the Appeal Judges decision. ( remember E.C.J. Pannon judgment c-243/08 )
 
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Asphyxia,

Have been viewing threads of Sophrosyne and yourself, both of you are making some very valid points, I hope the Millar's have the courage to appeal to the Supreme Court. I think there are a lot of flaws in both Judge Kelly's and Geoghegan's judgments for Mr Langwallner to exploit. I think there is also breaches of statutory instrument 485/2014, with regard to procedural issues and due process.
 
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