Was the FSO's V Millar's appeal of the High Court decision lawful?

A

Asphyxia

Guest
I would like to bring this matter to the forum's attention:

Firstly, let us look at the relevant legislation available to the Financial Services Ombudsman's Office, in their ability to appeal a High Court Decision; that being the Central Bank and Financial Services Authority of Ireland Act 2004, and in particular Section 57(cm)4 of the act, which states:




Orders on appeal to the High Court relating to Financial Services Ombudsman's finding.

57CM.—(1) The High Court is to hear and determine an appeal made under section 57CL and may make such orders as it thinks appropriate in light of its determination.

(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).


Now let us refer to Justice Kelly's Judgment paragraph 11 to 13 inclusive, which states:

11. Section 57CM(4) provides that 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 Court of Appeal to review the determination on a question of law, but only with the leave of either of those courts.

12. In the present case, it was the High Court that granted leave pursuant to subs. (4), hence this appeal.

13. Unfortunately, the question of law is not identified in the order. In future where leave is granted under subs. (4) the question of law for determination should be clearly identified in the court order.

Paragraph 13 on the Judgment raises very serious questions as to whether the F.S.O. complied with its own statutory provisions in seeking the appeal. The F.S.O. also appear to have erred with regards to Order 86(a) of the rules of the Superior Courts. In particular to seeking the appeal lawfully. ( order 86a section 12 (1)(i) and (ii) refer)

Should Justice Kelly have heard the appeal at all, I think not. The matter should have been referred back to the F.S.O. or indeed the High court, seeking clarification as to the particular question of law which required the appeals court's determination. Instead Justice Kelly allowed the appeal in it's broadest sense. His judgment certainly refers to matters of fact as well as matters of law. This is particularly important given the res judicata nature of the matters in question.

The F.S.O. breached it's own statutory legislation in submitting an invalid appeal. Consequently, this put the Milllar's at a huge legal disadvantage in that; the case having been heard in the High Court, was once again, heard in it's entirety, in the Court of Appeal. The Millar's have had their constitutional right to fair procedures violated. In fact they have also had their human rights, with regard to seeking effective remedy, violated and may seek recourse through the European Court of Human Rights. The Appeal therefore, cannot in conscience, be allowed to stand!
 
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So, in a nutshell, the F.S.O. breached section 57(cm)4 of it's own statutory provision in applying to the Appeals Court, in that, the question of law was not identified within the order of appeal to the Appeals court. Therefore the strict terms of section 57(cm)4 were not complied with. This error was then compounded by Justice Kelly opening up the appeal in its entirety. Finally I must add that the F.S.O. being a statutory body within the State, is also duty bound to consider all disputed matters concerning contractual obligation by reference to the (Unfair terms in Consumer Contract) regulation 1995. This is the law. I believe Judge Finlay Geoghegan judgment in relation to this matter is also erroneous. The law is the law, even if it is a bit inconvenient to vested interests. I might add that Judge Hogan seldom if ever, issues erroneous judgments, given the facts placed before him. He has the integrity and fortitude to make sound legal based judgments that may run the risk of upsetting the apple cart. This is the type of Judge we need in the Supreme court. I fear others will be condemned to a twilight of regret in their latter years.
 
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What is the normal process for questioning a court judgement if you think it's wrong?
 
The other thing about the unfair terms legislation is that in law the only person who can make a determination in the legislation is the High Court. ..this in itself is a breach of EU law principles of Equivalence and Effective ness the FSO should have power but don't and here the High Court followed the law by making a determination the contract was unfair but was then overruled by Court of Appeal whom per the legislation like the FSO has no power to do so...law is being bended to suit when needs be!!
 
To Clubman,

In relation to an appeal from the Appeal Court to the Supreme Court one of the following conditions must be applicable:

The jurisdiction of the Supreme Court is as follows:

  • It hears appeals from the Court of Appeal if the Supreme Court is satisfied that:
    - the decision involves a matter of general public importance or
    - in the interests of justice it is necessary that there be an appeal to the Supreme Court
as it can be seen, the Millar's case cannot be interpreted as anything other than a matter of great general public importance, as the final determination of the court will affect 100,000's of individual citizens. The are also legal procedural errors that were compounded by terminal breaches of statutory law by the F.S.O., which turned the F.S.O.'s appeal, from a determination of a question of law into a complete judicial review,
 
Thanks but I don't understand all the legal intricacies but ... surely if there was such an obvious mistake made then somebody in the legal (or political?) arena would be on top of this even if only to make a name for themselves?
 
The breach of Section 57(cm)4 did occur, Justice Kelly alludes to same in paragraph 13 in his judgment. He further erred in opening a statutory appeal by a public body on a determination of a question of law, turning it into some quasi judicial review. This breached the Millar's Constitutional ( right to fair procedure ) and indeed human rights (article 13 E.C.H.R ( right to effective remedy ) refer )
 
I'm still not clear on what anybody (e.g. you) can do in the circumstances to flag any perceived error in the case/judgement?
 
It would be a Supreme Court appeal.
At worst the judges might have a better appreciation of public interest litigation, which Kelly J did not agree with.
They may also overturn the Judgment.
But this judgment really does highlight the so called 'access to justice'.
Frankly clubman if the meejah got worked up it would bring Government action.
The Fair Rate campaign is having success without dipping into to trouser pocket to pay legal costs of other side!
Once the media bite on to a case - regardless of its merit - they will get results.
 
So perhaps anybody with any media contacts could flag it?
I've done my small bit for what it's worth.
 
Charlie Weston seems to be the only one, maybe the others are all tongue tied, fearing their masters wrath.
 
Some excellent point raised by the posters, also how are Danske bank going to defend their increase in variable mortgage interest rates by 0.65% in 2013, when their own market conditions and bank cost of funds were improving ? Checkmate Danske Bank.
 
Descart,

I have looked at the mortgage interest rate increases by Danske bank in 2011 and 2013 with interest. I will speak to you in conversation mode as you have per chance, alluded to something which can form a valid legal argument against Danske bank regarding unjust enrichment. But in do not wish to let this genie out of the bottle, in an open forum.
 
I've been following this with interest.
I note from the judgement that Danske alluded that the increase in interest rates was due to increased funding costs. Having looked at the Danske Annual Report 2008 (page 32),
in relation to Market Conditions in Ireland, it states:

Financial summary
Total income grew 13%. Growth in both deposits and lending and wider lending margins more than compensated for higher funding costs, lower fee income and the keen competition in the Irish market that caused a further narrowing of deposit margins.

Notwithstanding this, variable interest rates increased.............
 
Baltic,

I believe there are later Danske Bank reports that do Danske Bank no favours and show them in quite a disingenious light.
 
Asphyxia said:
So, in a nutshell, the F.S.O. breached section 57(cm)4 of it's own statutory provision in applying to the Appeals Court, in that, the question of law was not identified within the order of appeal to the Appeals court. Therefore the strict terms of section 57(cm)4 were not complied with. This error was then compounded by Justice Kelly opening up the appeal in its entirety. Finally I must add that the F.S.O. being a statutory body within the State, is also duty bound to consider all disputed matters concerning contractual obligation by reference to the (Unfair terms in Consumer Contract) regulation 1995. This is the law. I believe Judge Finlay Geoghegan judgment in relation to this matter is also erroneous. The law is the law, even if it is a bit inconvenient to vested interests. I might add that Judge Hogan seldom if ever, issues erroneous judgments, given the facts placed before him. He has the integrity and fortitude to make sound legal based judgments that may run the risk of upsetting the apple cart. This is the type of Judge we need in the Supreme court. I fear others will be condemned to a twilight of regret in their latter years.
Click to expand...

So you are saying that you know the law better than the judges?
 
@Bronte I think what has been said is that the law is interpreted by Kelly J as such that it turned on what 'market conditions' means. Kelly J has decided that subjective conditions without any real evidence were sufficient to justify the rate increases by Dankse Bank. For the avoidance of doubt, subjectivity is simply whatever I think it is even if its unreasonable.

Donoghue v Stephenson going the other way was viewed as remarkable and went against what was viewed as a certain 'privity of contract case'. This is like the reverse of that. No real intellectual thought process except to stymie it and is a lazy judgment by Kelly.

To say one knows the law better is not really the point. Some of use have considerable understanding of banking financial management which raises questions as to how the judge reached the conclusion that he did.

What I can say is that the conditions under which Dankse Bank operated as regards funding its loan book would not stand up to justify putting the rates up. Its a poor judgment.

The Judge followed the tiresome route of the 'floodgates' principle.

We now have a Financial Services Omudsman that is no more than a subsidiary of Bank of Ireland. For it operates in the same way. This will be just left there and is effective now for consumers as a eunuch would be for increasing the population.
 
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Bronte,

Thank you so much for your troll like question, but let me reply. I would like you to look up the Central Bank and Financial Services Authority of Ireland Act 2004, in particular look at section 57 BK(4) and 57 CI(2) and then look at Geoghegan judgment paragraph 24. A layperson would see that Justice Geoghegan's viewpoint does not stand up to any scrutiny. The judge is simply trying to put a square peg into a round hole. This part of her judgment is simply erroneous.

Also, like it or not, the appointment of Judges in this Country is political. The Irish Government would not have liked Judge Hogan's judgment to stand as it would affect the pending sale of AIB, PTSB, EBS etc.

Finally, I might add that Judge Hogan, who is now in the Appeals Court, is a Professor of Law and is eminently more qualified than the three Judges who presided over this charade of a judgment. This so called reserved Judgment could have been given in a week seeing that the Judgment delivered, was very basic in its structure. However methinks there must a been a lot of phone calls as it took 4 months to deliver the abomination.
 
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I saw no analysis of this judgement that said it was flawed, you are saying it is as is the other poster. If it is then the Miller's presumably will be taking it further. What makes you think it's a lazy judgement by Kelly? Having banking financial management experience doesn't make one an expert on the law of contracts presumably. All I see is a judgement that basically says a bank can set the rates it charges customers. Which they can. Unless the contract says otherwise.
 
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Asphyxia said:
Bronte,

Thank you so much for your troll like question, but let me reply.

Also, like it or not, the appointment of Judges in this Country is political. The Irish Government would not have liked Judge Hogan's judgment to stand as it would affect the pending sale of AIB, PTSB, EBS etc.

Finally I might add that Judge Hogan, who is now in the Appeals Court, is Professor of Law and is eminently more qualified than the three Judges who presided over this charade of a judgment.
Click to expand...

Just because you don't like the judgement doesn't mean I cannot comment on it. I actually hoped the Millars would win. If it's as clear cut as you're making out I'd like a top lawyer or expert to do an article in something like the Sunday Business Post (maybe they did).

You've now gone further and are insinuating that because judges appointments are political it means that judges are somehow politically influenced in their judgements. Given the separation of powers I don't see that. And I'd be most surprised if Kelly got it wrong. But you're saying three judges no less are wrong.

As for your remarks about Hogan, you like his judgement so of course you've saying to us he's a better judge.
 
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