High Court tells Ombudsman to look at Danske Bank's rate increase

My understanding is that judgment in Millar v FSO was 'reserved'. Those that read the initial judgment will know that Justice Hogan delivered the initial High Court judgment and that his judgment is hugely significant because it essentially tells the FSO that if they are simply interpreting contracts in a legalistic fashion - which is what they were doing - then there is little point to having the office. It went further and said that sometimes the legal interpretations are simply wrong. What it amounts to is what many of us thought should have been the case - that he weighs up the matters and does not have to be overly legalistic as opposed to fair.

As the behaviour of Banks' on the tracker matter is so devoid of principles of fairness and honesty it would be difficult not to see the 6 year rule be put aside following this landmark case when Banks' unethical and unprincipled behaviour is finally established.
 
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I would think that that case applies only to the Millers.

I see no power or requirement for Court of Appeals to move beyond that case.
If Millers win it is up to customers to apply for funds back from Danske or indeed any other similar Variable Rate term with any Bank and if need be cite Millers case as legal precedent.
I would then be worried that statute of limitations may block claims.
 
Gerry Canning said:
I would think that that case applies only to the Millers.

I see no power or requirement for Court of Appeals to move beyond that case.
If Millers win it is up to customers to apply for funds back from Danske or indeed any other similar Variable Rate term with any Bank and if need be cite Millers case as legal precedent.
I would then be worried that statute of limitations may block claims.
Click to expand...
Wizard.
Hadn,t seen your thread before I posted.

On the 6 year rule .
Law Reform commission circa 2 years ago recommended it be changed , Government normally take Law Reform recommendations on board.
Government havn,t done anything thus far to update 6 year rule.
M Mc Grath Fianna Fial, and I believe P Doherty Sinn Fein have bills in on this.

Variable Rate shenanigans by Banks were and are patently unfair.
However I do not see any appetite in Government to be on voters as distinct from Bankers/Ombudsman/Regulators/Central Bank side.!
 
WizardDr said:
As the behaviour of Banks' on the tracker matter is so devoid of principles of fairness and honesty it would be difficult not to see the 6 year rule be put aside following this landmark case when Banks' unethical and unprincipled behaviour is finally established.
Click to expand...

Even if the 6 year rule is not put aside, you should be able to make a complaint for the previous 6 years only, I managed to do it, admittedly on a different issue.

6 years refunds are way better than none, If the 6 year rule is ever changed, you could then put in another complaint for the previous years if applicable.

http://www.askaboutmoney.com/threads/successful-case-against-aviva-on-unit-linked-whole-of-life-policy-6-year-rule.184733/
 
There is a fundamental point here that I think everyone is missing and Justice Hogan has being forceful in pointing out to FSO.

The FSO by its own admission focuses on the contract and documents and on occassions has fallen foul of legal contract interpretations of law.

While reviewing contracts should form part of the decision making process it is not the be all and end all. In fact its legal mandate or raison d'etre is to act according to Equity and Good Conscience....its spelt out in the legislation
 
Equity and Good Conscience = Aex Aequo et Bono

Google it and then look at why the FSO is losing High Court Cases and you will see why
 
I believe the Millar's Judgment will be given in late May early June 2015. The Judgment will not be a rehearing of the case per say, but a ruling on a matter of law regarding Judge Gerard Hogan's Judgment.
 
Piggybank,

in your last post you have hit the nail on the head so as to speak, there was in fact a full rehearing of the case by the Appeals Court which was prejudicial to the Millar's constitutional rights. The statutory provisions of the Central Bank and Financial Services Ombudsmans Act 2004 namely, section 57 CK(4), was also breached; as well as a fundamental breach of Order 86a of the Superior Courts; which states:



Rules of the Superior Courts


Order: 86A

Appeals to the Court of Appeal in civil proceedings : S.I. No. 485 of 2014
see also rules 1 to 6 of S.I. No. 485 of 2014
I. POWERS OF COURT OF APPEAL ON CIVIL APPEALS


III. APPLICATIONS FOR LEAVE TO APPEAL

Conduct of applications for leave to appeal
6. (1) Where under statute leave to appeal to the Court of Appeal is required to be sought, application for such leave shall be brought by notice of application (in this rule called the “application for leave to appeal”) in the Form No. 2, which shall include the grounds on which leave to appeal is sought and, where relevant, the reasons why it is alleged that the conditions for leave to appeal are satisfied, and to which shall be appended a draft of the proposed notice of appeal. A return date before the Court of Appeal shall be assigned to every application for leave to appeal issued under this rule.

(2) Subject to any provision to the contrary in any enactment which applies to the particular category of appeal, where under any enactment leave to appeal to the Court of Appeal may be sought in the court below or in the Court of Appeal, any application seeking leave to appeal may be made to the Court of Appeal only after the court below has refused to grant leave to appeal.

(3) Subject to any provision to the contrary in any enactment which applies to the particular category of appeal, and to the provisions of this Order, the application for leave to appeal and an attested copy of the order of the court below shall be lodged not later than 28 days from the perfecting of the order of the court below against which leave to appeal is sought.

(4) A copy of the application for leave to appeal (and appended draft notice of appeal) shall be served not later than 14 days before the return date of the application for leave to appeal, on all parties directly affected by the application.

(5) The moving party shall lodge an affidavit of service of the application for leave to appeal on each respondent served.

(6) It is not necessary to serve parties to the proceedings in the court below who are not directly affected by the application for leave to appeal, but the Court of Appeal may direct notice of the application for leave to appeal to be served on all or any of the parties to the proceedings in the court below, or on any other person.

(7) A person served with an application for leave to appeal who intends to oppose the application shall lodge in the Office and serve on the moving party and each other person served with the application for leave to appeal a statement of that person’s grounds of objection to the application for leave to appeal in the Form No. 3, not later than seven days before the return date of the application for leave to appeal.

(8) On the return date of the application for leave to appeal, (or on any adjournment of such hearing), the Court of Appeal may give such directions and make such orders, including the fixing of time limits, for the conduct of the application as appear convenient for the determination of the application in a manner which is consistent with the requirements of Order 86, rule 2, which may include:


    • (a) directions as to the service of the application for leave to appeal on any other person including mode of service and the time allowed for such service (and may for that purpose adjourn the hearing (or further hearing) or determination of the motion to a date specified);
      (b) directions as to the filing and delivery of any affidavit by any party or parties;

      (c) directions as to the filing and delivery of written submissions.
(9) An order granting leave to appeal:

    • (a) shall specify the grounds on which leave is given;
      (b) shall fix a time within which the notice of appeal is to be issued and served, and

      (c) shall fix a date for the directions hearing on the appeal.
(10) When the Court of Appeal has determined an application for leave to appeal, the Registrar shall notify the parties of the determination.



In the Millar's case, there was a fundamental breach of the court order and the Judgment cannot therefore be allowed to stand. The registrar erred in allowing the appeal go forward to the appeals court, indeed, there is statutory provision in the Court of Appeal Act 2014 ( SI 485/2014 refers) for the registrar to refuse the appeal on this ground alone, until the error is corrected.
 
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Here is just one part of statutory law that was being breached in the Millar's case:



SI No. 485/2014 - Rules of the Superior Courts (Court of Appeal Act 2014) 2014.
View PDF
Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 28th October, 2014.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act 1936 , section 67, and reconstituted pursuant to the provisions of the Courts of Justice Act 1953 , section 15, by virtue of the powers conferred upon us by the Courts of Justice Act 1924 , section 36, the Courts of Justice Act, 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act 1961 , section 48), the Courts (Supplemental Provisions) Act 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 9th day of October 2014.



VI. DETERMINATION OF APPLICATION FOR LEAVE TO APPEAL

Determination of application

19. (1) Where the Supreme Court requires the delivery of written submissions by the parties participating in an application for leave to appeal (or any other application for leave to appeal arising from the same proceedings), the Registrar shall notify the parties of that requirement and the times at which such submissions shall be lodged and served by each participating party.

(2) A certificate granting leave to appeal:

(a) shall specify the grounds on which leave is given, and

(b) may be accompanied by directions on delivery of the appeal books in accordance with rule 25 and any applicable statutory practice direction.




the term "shall" in 19(2)(a) means an order, requirement, or obligation. Even Justice Geoghegan cannot wriggle out of this requirement. ( see her Judgment ).
 
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