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

Sophrosyne,

Some excellent points raised by you in this and in other threads relating to the Millar Judgment, you also raised a very valid point in relation to Justice Geoghegan interpretation of the F.S.O.Act 2014 ( para 24 of her judgment refers ) which could also be open to legal challenge, as likewise, I believe it is flawed.
 
Descart

The case cited by you in the above post was heard by the Supreme Court on appeal from the High Court. You could have picked from thousands of other cases where the Supreme Court exercised its appellate jurisdiction so I am unclear what you think this particular case demonstrates in this regard.

The appeal in the Millars case was heard by the Court of Appeal and there is no right of appeal from that decision. The Supreme Court may, on an exceptional basis, permit an appeal to be heard from a decision of the Court of Appeal, if it is satisfied that the jurisdictional thresholds have been met.

As stated above, I do not believe there is any realistic likelihood that the Supreme Court would consider that the jurisdictional thresholds would be met in this case. I am unaware of any reported cases to date where the Supreme Court has granted its permission for an appeal to proceed from the Court of Appeal. This is unsurprising as the decisions of the Court of Appeal are intended to be final in the absence of unusually compelling circumstances. You are obviously entitled to form your own opinion in this regard.

Incidentally, I have yet to find the thread that you mentioned previously that reports that Senior Counsel for the Millars had sought a consultation with Asphyxia. Could you direct me to the relevant thread?
 
Sarenco said:
Descart

The case cited by you in the above post was heard by the Supreme Court on appeal from the High Court. You could have picked from thousands of other cases where the Supreme Court exercised its appellate jurisdiction so I am unclear what you think this particular case demonstrates in this regard.

Sarenco,

I picked this particular case, as well you know, because the matter in dispute was a European Directive, similar in respect to the Millar's case, as Unfair terms in Consumer contracts Regulations, is also a European Directive ( whether the Millars sought to argue the unfairness of the term is irrelevant, there is an ECJ determination on Directive 93/13/EEC ( unfair terms ), which obliges a National Court on it's own motion to consider the directive regardless ). The case referred to, went to the Supreme Court, as it was a dispute regarding a European Directive, and under Article 29 of the Irish Constitution must be regarded as law until rescinded. If, for example, the Supreme Court had sided with Nama, I believe they would have first referred the matter to the ECJ for a determination, before issuing a judgment.

Secondly, it is likely that you have not heard of any appeal from the Appeal Court to the Supreme Court as the Appeal Court was only formed on the 20th July 2014, hardly time for any appeal to make it through to Judgment stage at the Supreme Court, so this argument is redundant.

I do agree with you that the Supreme court will only hear an appeal from the Appeal Court in exceptional circumstances, having said that, I believe the Millar's case is exceptional, in the fact that three Appeal Court Judges ignored an ECJ determination as to how they must act when considering contractual clauses, that being, Unfair terms in contract regulations. There can be no getting away from this exceptional and terminal error. I would go as far as to say, the Supreme Court is constitutionally bound to hear this appeal if or when they receive an application.

Finally, I believe the conversation referred to, took place in conversation mode, I was not privy to this, but I heard it from someone who was a party to the conversation.
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Sarenco,

I think that Asphyxia, Descart and others are motivated by a high sense of justice and fair play.

Though you may summarily dismiss their posts as "entertaining" and of "no practical value" potential litigants who visit this website might find them informative and insightful in planning their approach to their lender, the FSO and the courts.

EU Directives are not trivia, which Irish courts, nor indeed the Irish State, can afford to ignore or fail to enforce.

Sarenco said:
I do not believe there is any realistic likelihood that the Supreme Court would consider that the jurisdictional thresholds would be met in this case. I am unaware of any reported cases to date where the Supreme Court has granted its permission for an appeal to proceed from the Court of Appeal.
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"Because a thing seems difficult to you, do not think it impossible for anyone to accomplish" - Marcus Aurelius
 

Descart

There have been any number of appeals before the Supreme Court that involved public bodies and/or the interpretation of domestic laws or regulations implementing EU Directives. There is nothing to distinguish this case in this regard.

There was no EU Directive "in dispute" in the Millars case. I appreciate that you are of the view that the relevant Directive should have been raised or considered but this clearly did not take place. Again, the Millars were seeking to enforce a particular contractual loan term - not to invalidate or otherwise avoid the application of that term.

A judgment of the Supreme Court would not have to handed down before we would know whether the Court has permitted an appeal from the Court of Appeal to proceed.

As you know, I am of the opinion that there is no realistic likelihood that the Supreme Court would consider the jurisdictional thresholds to have been met in the Millars case to permit an appeal to proceed. You clearly take a different view, which is your prerogative, but ultimately it's the opinion of the Supreme Court that matters (on this or any other constitutional provision).

Thanks for clarifying that there was in fact was no thread that reported that the Millars's Senior Counsel had sought a consultation with Asphyxia. Perhaps Asphyxia could clarify, in due course, whether he/she has in fact been consulted and whether the Senior Counsel has expressed any view as to the likelihood that the Supreme Court would permit an appeal to proceed in this matter.
 
Sophrosyne said:
Sarenco,

I think that Asphyxia, Descart and others are motivated by a high sense of justice and fair play.

Though you may summarily dismiss their posts as "entertaining" and of "no practical value" potential litigants who visit this website might find them informative and insightful in planning their approach to their lender, the FSO and the courts.

EU Directives are not trivia, which Irish courts, nor indeed the Irish State, can afford to ignore or fail to enforce.



"Because a thing seems difficult to you, do not think it impossible for anyone to accomplish" - Marcus Aurelius
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Sophrosyne,

I haven't questioned the motivation of Asphyxia/Descart and I certainly don't think EU Directives are trivia.

I've absolutely no issue with anybody expressing their opinion and I assume you similarly have no such problem.
 
With Zilch legal knowledge ,a view.
We can talk law/legal etc but

1. Our banks always in my lifetime, have, with the connivance of Government/Regulator/Ombudsman managed to rob and steal from society.
That is a factual comment not heresay,
I can go back to when our Government/Regulator permitted them to divide deposit accounts to save , due tax.ie 1970,s.
I can go back to when the shuffle over non-resident accounts.1980,s.
I can move to overcharging . 1990,s.
I can move to ppi,bonds . 2000,s.
I can move to 2000+ rate fixing etc etc.

I have not seen many Bankers jailed.

My point.
Sadly , whilst Millars seem to have good (laymans) case , the (power) lies within a Golden Circle and all that changes are the people fronting this (circle)it.
There will not be an appetite in (power) to tackle Banks.
I really hope Millars have some case via Europe .
 
Gerry

Don't get me wrong, the Millars certainly had a good case - the fact that the High Court found in their favour demonstrates that they had a good case.

However, the FSO also had legitimate counter-arguments to the Millars' position and, ultimately, the Court of Appeal found in the FSO's favour. To be honest, I was personally somewhat surprised at the Court of Appeal ruling but the matter is now settled.

I am simply querying the practical value of what our US friends call "Monday morning quarterbacking" by raising alternative legal arguments that did not form part of the Millars' case.
 
Gerry Canning,

In layman terms you have called it as it is. However, having said that, the Irish State is part of the European Union. As a Member State, we have signed up to several European Treaties, Rome, Lisbon, Nice, Amsterdam and Maastricht to name but a few. These treaties obligate the Irish State to behave according to the various European laws, Directives and regulations. The Treaties are binding obligations between Member States. Under the Treaties the EU institutions can adopt legislation, which the Member States must then implement. The C.J.E.U. ( European Court of Justice ) is the final court of determination within the EU, it's determinations are final and supersede all National Laws within Member States. The C.J.E.U. has given a determination in relation to how National Courts are now obliged to assess the unfairness of contractual terms, in their own motion, irrespective of whether the original complainant's case is based on the unfairness of a contractual term ( see Pannon judgement case c-243/08 ). This is the law and under the Irish States obligations in relation to the various Treaties we signed up to, we are obliged to conform with these obligations. The Appeal Court erred in relation to this C.J.E.U. ruling on unfair contractual terms and so, as a consequence, any Judgment issued from it, is without merit and open to legal challenge. The Supreme Court, in my opinion, are obliged to hear an Appeal ( from whatever Court ) if they are of the view that a C.J.E.U determination has not been applied to the case by a lower Court. This is obviously the case, so any application for an appeal by the Millar's, on this point alone, is likely to be received favourably by the Court.



Under Article 256 (ex Article 225) of the Treaty on the Functioning of the European Union, appeals on judgments given by the General Court may be heard by the Court of Justice only if the appeal is on a point of law. If the appeal is admissible and well founded, the Court of Justice sets aside the judgment of the General Court. Where the state of the proceedings so permits, the Court may itself decide the case. Otherwise, the Court must refer the case back to the General Court, which is bound by the decision given on appeal. ( Pannon Judgment )
 
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Sarenco,

Yet again ,you err in Law. I can only lead a horse to water, I cannot make him drink it. You are that horse.
 
Asphyxia

Personal abuse aside, I have obviously not made any judicial or quasi-judicial determination on this matter so I cannot have erred in law.

I have expressed an opinion as to the likelihood that the Supreme Court would permit an appeal to proceed in this matter. You may disagree with this opinion but you cannot say that I have erred in law.

As you know, I strongly disagree that any application to the Supreme Court for permission to proceed with an appeal is likely to be successful. In fact, I am firmly of the opinion that there is no realistic possibility that any such application would be successful.

Would you be prepared to let us know whether you have been consulted by the Millars' Senior Counsel as suggested elsewhere? If so, could you let us know the Senior Counsel's opinion on this jurisdictional point?
 
Sarenco,

You have erred in your interpretation of European Community Law. You have not taken in the gravity of the situation, our Appeal Court has failed in its obligation to assess a contractual term in dispute, in terms of it's unfairness (SI 27/1995 refers). This is in direct violation of an ECJ determination on the very matter. It does not get any worse than this in terms of European Law breaches. Hope the Dept of Finance/ Justice is reviewing this thread.

My conversations with others are not for discussion on a public forum. Hope you understand this.
 
Asphyxia

Firstly, I simply asked if you would be prepared to let us know whether you were consulted by the Millars' Senior Counsel on this matter. You are clearly not prepared to do - which is obviously perfectly fine - but I think it is important to note that Descart's earlier suggestion in this regard and all that was implied has not been confirmed or otherwise substantiated.

Secondly, you are not in a position to determine whether I have erred in my interpretation of anything. You can certainly disagree with my opinions but it is for the Courts to determine the correct interpretation of any particular legislative or contractual provision.

Thirdly, I have not sought to give any interpretation on any provision of EU law. I have simply given my opinion that there is no realistic likelihood that the Supreme Court would permit an appeal from the Court of Appeal to proceed in this matter given the jurisdictional thresholds contained within our constitution.

For what it's worth, I don't agree that the Unfair Contract Terms Directive could ever have had any application in the circumstances of this case. It's not at all clear to me that the Millars would have been considered consumers in the first place (their loans were primarily taken out for investment purposes) and I struggle to see what contractual term even potentially could have been considered unfair and therefore invalid (unless you consider all variable rate mortgages to be invalid) such that it warranted further consideration. At an absolute minimum, there is no "clearcut" breach of anything.

Please bear in mind that the contractual loan term in the Millars' case was not in dispute as suggested. The matter in dispute in that case was whether the lender had correctly applied the relevant contractual term in increasing the applicable rate of interest. There was no dispute as to the validity of the term itself.

In any event, I do not believe there is any realistic likelihood that the Supreme Court will hear an appeal in this matter so this is all entirely academic. Furthermore, there is no avenue of appeal to the CJEU from the Court of Appeal.

The Commission can of course take action if they are of the view that Ireland has not fully implemented the Directive but that is obviously not relevant to this case.
 
Sarenco said:
I've absolutely no issue with anybody expressing their opinion and I assume you similarly have no such problem.
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Correct, I have no problem with that.

Sarenco said:
For what it's worth, I don't agree that the Unfair Contract Terms Directive could ever have had any application in the circumstances of this case. It's not at all clear to me that the Millars would have been considered consumers in the first place (their loans were primarily taken out for investment purposes) and I struggle to see what contractual term even potentially could have been considered unfair and therefore invalid (unless you consider all variable rate mortgages to be invalid) such that it warranted further consideration. At an absolute minimum, there is no "clearcut" breach of anything.
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Well at least, it is now clear why you think what you think.
 
Sarenco,

Your views are stuck somewhere pre 1995, before European directive 93/13/EEC became law in Ireland. You believe Irish Contractual law trumphs European law, in the fact that an Irish Court does not have to consider an ECJ ruling in relation to contractual terms.

If it be the case that there is no avenue of appeal for the Millars, due to the inadequacies of the structure of the Irish Court system with regards to an Appeal Court issuing a judgment, blatantly in breach of an ECJ determination regarding it's obligation, on it's own motion, to consider the fairness of the contractual term in dispute, then the Irish State will be held liable and the Millars will be able to seek substantial compensation from the Irish State for Ireland's inadequate transposition of a European Directive. ( direct effect ) The yearly fines for the Irish State for the incorrect transposition of an European directive can run into millions of euro. Money talks.

However, I personally am of the view, that if the Supreme Court receives an application for an appeal from the Millars legal team, it will be acceded to by the Court due to the exceptional nature of the case.
 
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With regard to your knowledge of the European law, let me enlighten you as to your views regarding what a consumer is under the EC (Unfair terms in Contract Regulations) 1995. The regulations state:


A "consumer" means a natural person who is acting for purposes which are outside his business;

The Millars are consumers within the terms of the regulations, as they do not engage in property investment as their business.

You can look up case law, Ulster Bank V Healy [2014] IEHC 96 for legal direction in this regard, which was issued by Justice Barton, whom coincidently, used to be head of legal enforcement at Danske Bank.
 
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