I am familiar with the legislation and I strongly disagree with your assessment of the probability of success.
I did not express any personal beliefs as they are irrelevant.
Was the FSO's V Millar's appeal of the High Court decision lawful?
I am familiar with the legislation and I strongly disagree with your assessment of the probability of success.
I did not express any personal beliefs as they are irrelevant.
A
Asphyxia
Guest
Well, you need to study the case from start to finish before commenting and giving your opinion, which I might add is your personal belief.
I have read the judgments in full.
You suggested I believed that the "Millar Judgement does involve matters of general public importance". Again, I expressed no such belief.
Yes, I stated repeatedly that in my opinion there is no realistic likelihood that the Supreme Court would hear an appeal in this matter.
You are obviously free to form whatever opinions you see fit.
A
Asphyxia
Guest
Clubman,
good point, I am just highlighting this point which I might add Sarenco finds amusing, which is quite sad really. I hold a masters degree in law and specialise in European law. I wonder about Sarenco's legal credentials. I'd guess from reading his articles he may be some sort of financial consultant.
good point, I am just highlighting this point which I might add Sarenco finds amusing, which is quite sad really. I hold a masters degree in law and specialise in European law. I wonder about Sarenco's legal credentials. I'd guess from reading his articles he may be some sort of financial consultant.
Asphyxia
I said I found your academic theories entertaining. Was there any other purpose to your posts?
The Court of Appeal has made its decision and there is no right of appeal from that decision. As such, the matter is settled for now and any commentary on the decision is of purely academic interest.
Finally, I would ask you to respect my privacy stop speculating as to my profession.
If I might respectifully say that if you have such qualifications I find it odd you don't seem to know about the recent changes in the courts structure in Ireland. It is my understanding that recently the procedure is to take cases out of the Supreme Court and make the Court of Appel the final court - in general. European law would not of course make that clear to one. I'm out of the country but that is my understanding of what has happened.
D
Descart
Guest
Sarenco,
I am still waiting on your views on Asphyxia's point re the Pannon ruling from the ECJ ?
I am still waiting on your views on Asphyxia's point re the Pannon ruling from the ECJ ?
Sophrosyne
Registered User
- Messages
- 1,538
The differences of opinion of posters notwithstanding, I think people should be concerned about the Millar case in relation to the terms written into their own mortgage contracts.
If they feel that a term is unfair, where precisely do they go?
Should they have to incur costs to obtain a determination?
Should unfair terms be permitted in standard mortgage contracts in the first place, given that a borrower might not have the necessary knowledge or experience to realize that a term(s) is/are unfair to him or her?
If they feel that a term is unfair, where precisely do they go?
Should they have to incur costs to obtain a determination?
Should unfair terms be permitted in standard mortgage contracts in the first place, given that a borrower might not have the necessary knowledge or experience to realize that a term(s) is/are unfair to him or her?
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I know somebody with a BoI mortgage.
The wording of this contract seems much more explicitly unfair than that in the Millar case.
I have helped the person to make a complaint to the BoI.
If/when (as I expect) BoI reject the complaint and issue a final response I will help them to take it up with the FSO.
Just to reiterate the wording is not the same and is much more explicit than in the Millar case.
No.
[broken link removed]
Sorry to keep you waiting but it's a moot point if there's no right of appeal from the Court of Appeal judgment.
D
Descart
Guest
Sarenco,
I think that is exactly the breach of European law that Asphyxia is referring to.
In the Pannon judgement the ECJ explains that," in the field covered by Directive 93/13/EEC, the role attributed to the national court ( that bring the Appeal Court in this instance ) is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task." I personally believe the Appeal Court failed in it's obligation to so examine, it was certainly armed with the legal and factual elements necessary to make such a determination. This failure alone is enough to warrant the Supreme Court granting an application to appeal. Breaches of European law are certainly not moot as the Irish Government has found out to it's cost.
I think that is exactly the breach of European law that Asphyxia is referring to.
In the Pannon judgement the ECJ explains that," in the field covered by Directive 93/13/EEC, the role attributed to the national court ( that bring the Appeal Court in this instance ) is not limited to a mere power to rule on the possible unfairness of a contractual term, but also consists of the obligation to examine that issue of its own motion, where it has available to it the legal and factual elements necessary for that task." I personally believe the Appeal Court failed in it's obligation to so examine, it was certainly armed with the legal and factual elements necessary to make such a determination. This failure alone is enough to warrant the Supreme Court granting an application to appeal. Breaches of European law are certainly not moot as the Irish Government has found out to it's cost.
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A
Asphyxia
Guest
Descart,
Thank you for your supportive threads, there are also other valid legal arguments that the Millar's legal team can present in an application to the Supreme Court to be granted an appeal.
Thank you for your supportive threads, there are also other valid legal arguments that the Millar's legal team can present in an application to the Supreme Court to be granted an appeal.
The Millars sought to argue that their lender was in breach of a term of their loan agreement by not lowering their interest rate in line with market conditions. Obviously they could not have simultaneously argued that the contractual term that they were seeking to rely on was invalid on the basis that it was unfair.
An alleged breach of EU law is not a basis upon which the Supreme Court can permit an appeal from the Court of Appeal to proceed under our constitution. As such, any arguments in this regard are moot in the context of this issue.
D
Descart
Guest
Sarenco,
I cannot believe you just posted such gibberish, you are of course completely wrong, an application for an appeal to the Supreme Court will be accepted if the Court believes the appeal is in the interests of justice or of public importance. The Millar case is unusual in that it ticks both these boxes but also the following:
European Community Law
Ireland is a dualist State, Article 29.6 of the Constitution providing that international agreements have the force of law to the extent determined by the Oireachtas. This means that international treaties entered into must be incorporated into domestic law by legislation before they are applicable within the State (for example, incorporation of the Vienna Conventions on Diplomatic and Consular Immunities was effected by the Diplomatic Relations and Immunities Act 1967). The exception to this is European Community law, which, under the terms of Article 29 of the Constitution, has the force of law in the State. This means that any law or measure, the adoption of which is necessitated by Ireland's membership of the European Union, may not, in principle, be invalidated by any provision of the Constitution. Therefore, any application for an appeal to the Supreme Court citing a valid breach of European Community Law ( that being unfair terms in contract regulations ) which is also in the interests of justice and of public importance must be allowed by the Supreme Court as not to allow same would in fact be unconstitutional ( breach of article 29 ).
This is a recent Supreme Court ruling in relation to a public body, not unlike the F.S.O. ,whose decision was appealed by NAMA all the way to the Supreme Court with regards to NAMA's obligation to comply with a European Directive.
Court rules NAMA is a “public authority” with obligations to provide environmental information (14 July 2015)
In NAMA v Commissioner for Environmental Information [2015] IESC 51, the Supreme Court held that NAMA is a "public authority" and subject to public access requests for environmental information under the European Communities (Access to Information on the Environment) Regulations 2007 (the Regulations).
The Supreme Court found that NAMA performs "public administrative functions under national law” for the purposes of Article 3(1)(b) of the Regulations, as it is a body “vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”.
Background
A journalist made a request for environmental information to NAMA, which was refused on the grounds that NAMA did not consider itself to be a "public authority" within the meaning of the Regulations. The journalist appealed this decision to the Commissioner for Environmental Information.
The Regulations implement Directive 2003/4/EC on public access to environmental information (the Directive) into Irish law, and contain a similar definition of the term "public authority". Paragraphs (a) to (c) of Article 3(1) of the Regulations correspond to the definition in Article 2(2) of the Directive. However, the Regulations then expand on the Directive, by adding "and includes" certain entities listed at subparagraphs (i) to (vii). At subparagraph (vi) is "a board or other body (but not including a company under the Companies Acts) established by or under statute".
The Commissioner held that the term "public authority" extended to all of the types of entities listed in subparagraphs (i) to (vii), regardless of whether such entities would also be captured by the categories at paragraphs (a) to (c). She found that NAMA was a public authority under Article 3(1)(vi) of the Regulations. NAMA appealed against the Commissioner's decision on the grounds that she had erred in law.
High Court Decision
At the High Court, Mac Eochaidh J. dismissed the appeal, finding that the Commissioner's decision should be upheld. He noted that, save within a narrow margin, a Minister making Regulations is not authorised to expand a definition beyond that identified in a parent directive. However, he followed Cooke J., in M.S.T and J.T. v Minister for Justice, Equality and Law Reform [2009] IEHC 529, that there is a presumption that the legislative purpose is to give full effect to EU law, and no more. Mac Eochaidh J. therefore presumed that the entities listed at subparagraph (vii) were public authorities within the meaning of the Directive. He concluded that NAMA had failed to rebut that presumption, because it had failed to argue that it did not come within the definition of public authority in the Directive. NAMA appealed to the Supreme Court.
Supreme Court Decision
The Supreme Court dismissed the appeal. O’Donnell J. held (Denham CJ, Murray J, Hardiman J and Dunne J concurring) that:
The Supreme Court's decision helpfully provides a clearer definition of what constitutes a "public authority" for the purposes of the Regulations. It should assist other bodies in determining whether they fall under the scope of the Regulations. I believe the F.S.O. comes within the scope of the definition of a "public authority".
The decision also shows that in applying and interpreting any provision of the Regulations, regard should be had to the Directive and the Aarhus Convention. It highlights that as the Regulations are secondary, rather than primary, legislation, they can go no further than implementing the Directive. Anything more will be unconstitutional.
Sarenco, you need to stop posting spurious legal comment, it is quite obvious that you have not got a legal mind and your assertions have no basis in law
I cannot believe you just posted such gibberish, you are of course completely wrong, an application for an appeal to the Supreme Court will be accepted if the Court believes the appeal is in the interests of justice or of public importance. The Millar case is unusual in that it ticks both these boxes but also the following:
European Community Law
Ireland is a dualist State, Article 29.6 of the Constitution providing that international agreements have the force of law to the extent determined by the Oireachtas. This means that international treaties entered into must be incorporated into domestic law by legislation before they are applicable within the State (for example, incorporation of the Vienna Conventions on Diplomatic and Consular Immunities was effected by the Diplomatic Relations and Immunities Act 1967). The exception to this is European Community law, which, under the terms of Article 29 of the Constitution, has the force of law in the State. This means that any law or measure, the adoption of which is necessitated by Ireland's membership of the European Union, may not, in principle, be invalidated by any provision of the Constitution. Therefore, any application for an appeal to the Supreme Court citing a valid breach of European Community Law ( that being unfair terms in contract regulations ) which is also in the interests of justice and of public importance must be allowed by the Supreme Court as not to allow same would in fact be unconstitutional ( breach of article 29 ).
This is a recent Supreme Court ruling in relation to a public body, not unlike the F.S.O. ,whose decision was appealed by NAMA all the way to the Supreme Court with regards to NAMA's obligation to comply with a European Directive.
Court rules NAMA is a “public authority” with obligations to provide environmental information (14 July 2015)
In NAMA v Commissioner for Environmental Information [2015] IESC 51, the Supreme Court held that NAMA is a "public authority" and subject to public access requests for environmental information under the European Communities (Access to Information on the Environment) Regulations 2007 (the Regulations).
The Supreme Court found that NAMA performs "public administrative functions under national law” for the purposes of Article 3(1)(b) of the Regulations, as it is a body “vested with special powers beyond those which result from the normal rules applicable in relations between persons governed by private law”.
Background
A journalist made a request for environmental information to NAMA, which was refused on the grounds that NAMA did not consider itself to be a "public authority" within the meaning of the Regulations. The journalist appealed this decision to the Commissioner for Environmental Information.
The Regulations implement Directive 2003/4/EC on public access to environmental information (the Directive) into Irish law, and contain a similar definition of the term "public authority". Paragraphs (a) to (c) of Article 3(1) of the Regulations correspond to the definition in Article 2(2) of the Directive. However, the Regulations then expand on the Directive, by adding "and includes" certain entities listed at subparagraphs (i) to (vii). At subparagraph (vi) is "a board or other body (but not including a company under the Companies Acts) established by or under statute".
The Commissioner held that the term "public authority" extended to all of the types of entities listed in subparagraphs (i) to (vii), regardless of whether such entities would also be captured by the categories at paragraphs (a) to (c). She found that NAMA was a public authority under Article 3(1)(vi) of the Regulations. NAMA appealed against the Commissioner's decision on the grounds that she had erred in law.
High Court Decision
At the High Court, Mac Eochaidh J. dismissed the appeal, finding that the Commissioner's decision should be upheld. He noted that, save within a narrow margin, a Minister making Regulations is not authorised to expand a definition beyond that identified in a parent directive. However, he followed Cooke J., in M.S.T and J.T. v Minister for Justice, Equality and Law Reform [2009] IEHC 529, that there is a presumption that the legislative purpose is to give full effect to EU law, and no more. Mac Eochaidh J. therefore presumed that the entities listed at subparagraph (vii) were public authorities within the meaning of the Directive. He concluded that NAMA had failed to rebut that presumption, because it had failed to argue that it did not come within the definition of public authority in the Directive. NAMA appealed to the Supreme Court.
Supreme Court Decision
The Supreme Court dismissed the appeal. O’Donnell J. held (Denham CJ, Murray J, Hardiman J and Dunne J concurring) that:
- The Commissioner had incorrectly interpreted the word "include" in the Regulations, as extending the definition of "public authority" as defined by the Directive (which would be beyond the Minister’s powers). O'Donnell J. held that the word "include" here was not used to extend the meaning of paragraphs (a) to (c), but rather to illustrate the type of body included within the core definition.
- The High Court Judge's approach to resolving the case through a presumption of faithful transposition which had not been rebutted was undesirable. It left unresolved the fundamental legal issue as to whether NAMA was actually captured by the provisions of the Regulations as properly construed. It also rendered the decision of virtually no effect as a precedent for the Commissioner and for any member of the public dealing with NAMA. Furthermore, the Trial Judge was wrong to conclude that no attempt had been made to rebut the presumption of faithful transposition, as the entire thrust of NAMA's arguments was to the effect that it did not fall within paragraphs (a) to (c) and the definition of public authority in the Regulations (and therefore the Directive).
- In determining whether NAMA was a "public authority" under the Regulations, it was necessary to consider the scope and meaning of the definition within the Directive (and the Aarhus Convention). The definition section of the Directive is unclear. O'Donnell J. stated that he would have considered it necessary, at the time of the High Court decision, to refer a question to the Court of Justice of the European Union (CJEU) as to whether a body such as NAMA was a public body, for the purpose of the Directive, which performed public administrative functions.
- However, the CJEU's decision in Fish Legal v The Information Commissioner and others (C-279/12) has since provided an authoritative interpretation of the Directive. That case interpreted "Any natural or legal person performing public administrative functions under national law" (Article 3(1) (b)) as meaning a person or body "vested with special powers well beyond those which result from the normal rules applicable in relations between persons governed by private law." Based on that interpretation, NAMA was a public authority exercising public administrative functions, for the purposes of Article 3(1)(b) of the Regulations.
- Although, like the water companies in Fish Legal, NAMA is obliged to act commercially, it clearly has special powers beyond private law powers.
The Supreme Court's decision helpfully provides a clearer definition of what constitutes a "public authority" for the purposes of the Regulations. It should assist other bodies in determining whether they fall under the scope of the Regulations. I believe the F.S.O. comes within the scope of the definition of a "public authority".
The decision also shows that in applying and interpreting any provision of the Regulations, regard should be had to the Directive and the Aarhus Convention. It highlights that as the Regulations are secondary, rather than primary, legislation, they can go no further than implementing the Directive. Anything more will be unconstitutional.
Sarenco, you need to stop posting spurious legal comment, it is quite obvious that you have not got a legal mind and your assertions have no basis in law
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D
Descart
Guest
Sarenco,
The same analogy or logically legal approach, can be applied to the F.S.O., a statutory body ( public authority ) and indeed the Appeal Court vis a vis, their non compliance with the E.C.J. Pannon ruling i.e. the obligation to consider unfairness in contractual terms ( EU Directive 93/13/EEC refers ). There is an onus on the F.S.O. and the Appeal Court to comply with all European Directives and ECJ rulings in this regard. The whole point of the ECJ Pannon ruling is that a complainant does not have to simultaneously argue that a contractual term is unfair, the obligation is on the statutory body or indeed court to make such an assessment. In the Millar's case this did not happen. An ECJ determination trumps all Irish Law even Irish constitutional law. Irish contract law would be way down the pecking order but our learned Judges of the Appeal court did not take cognisance of this fact.
The same analogy or logically legal approach, can be applied to the F.S.O., a statutory body ( public authority ) and indeed the Appeal Court vis a vis, their non compliance with the E.C.J. Pannon ruling i.e. the obligation to consider unfairness in contractual terms ( EU Directive 93/13/EEC refers ). There is an onus on the F.S.O. and the Appeal Court to comply with all European Directives and ECJ rulings in this regard. The whole point of the ECJ Pannon ruling is that a complainant does not have to simultaneously argue that a contractual term is unfair, the obligation is on the statutory body or indeed court to make such an assessment. In the Millar's case this did not happen. An ECJ determination trumps all Irish Law even Irish constitutional law. Irish contract law would be way down the pecking order but our learned Judges of the Appeal court did not take cognisance of this fact.
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Sophrosyne
Registered User
- Messages
- 1,538
Good luck with your case.
It will be interesting to see how it is handled by the FSO.
What I meant in the final paragraph of my previous post was that given the EU Directive, the FSO and the central bank should play a more proactive role in policing standard mortgage contracts so that the likelihood of unfair terms is minimised.
Given also that the EU Directive emphasizes transparency and good faith, they should also pay attention to explanatory material, which might mislead potential borrowers.
As mentioned, an average borrower would not have the legal training to realize the import of a subtle difference in terminology.
From the published judgment of the Court of Appeal in the Millar case, it would appear that the FSO did not ask Danske to explain the discrepancy between its website's explanatory note and also staff assurances, which referred to "general interest rates" on the one hand and the contract term, which referred to "market conditions" on the other hand.