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!
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!
Last edited by a moderator: