Why do Banks offer different svr mortgages for new as oppose to existing customers

[advice]

Sophrosyne

Somewhat, there is a very close linkage between promissory estoppel and legitimate expectations especially at the pre contractual information stage.

 

[Sarenco]

Sophrosyne

Yes, there is a very close linkage between promissory estoppel and legitimate expectations especially at the pre contractual information stage.

At the risk of being accused of being supercilious again, this is not accurate.

The doctrine of legitimate expectation was developed by the Courts as a ground of judicial review in administrative law to protect a procedural or substantive interest when a public authority rescinds from a representation made to a person. By way of an example, a plaintiff might be found to have a legitimate expectation that a particular policy would not be changed without adequate notice. The UK's FSO was clearly using the term in a more colloquial sense in his report, which is entirely appropriate as an ombudsman is not a court and is required is required to act in an informal manner and according to equity, good conscience and the substantial merits of the complaint without regard to technicality or legal form.

In his judgment, Mr Justice Hogan stated that in the particular context under discussion "In that respect, the common law rules regarding collateral contracts have affinities with their equitable cousin, the doctrine of promissory estoppel." The equitable doctrine of promissory estoppel provides that if a party changes his or her position substantially either by acting or forbearing from acting in reliance upon a gratuitous promise, then that party can enforce the promise although the essential elements of a contract are not present.

To be frank, you are selectively plucking phrases from different sources and extrapolating broad legal principles from your combination of these words. Again, I have absolutely no difficulty with you expressing an opinion or building an argument (whatever I might think of the argument) on any point. My difficulty is your insistence on implying that your opinions reflect the established legal position on a point where this is not the case. I regard this as misleading.

 

[advice]

Sarenco

You need to read various titles on legitimate expectation by Christopher Forsyth, Professor of Public and Private Law, Cambridge and revert back to me. Legitimate expectation has grown from the early days of public law, and like all law has evolved over time, your mantra of " you signed the contract " is out of date. European Laws to which we signed up to ( Treaty of Rome ) are leaning towards those of equity as oppose to common law. Having said that, thank you for your minature lecture on estoppel and legitimate expectation, every 1st year law student should have benefitted from your wisdom.

I would despair if my opinions reflected the legal established position, otherwise the law would never evolve and we still would have Oliver Cromwell's common law, warts and all. No one would seek to challenge the actions of mischievous banks because every solicitor would say " you signed the contract and that's that ". The Millars would not have challenged the established legal position with regard to their respective variable rate mortgage clause. There would be legal stagnation.

Sarenco, you and you alone, are the master of plucking quotes that suit you from articles, sure you displayed this very art to your full advantage earlier on in this thread. I corrected you though.

I feel that we are getting off the subject matter of the thread. Honestly, do you believe that the F.S.O.. in Ireland would tackle the banks with regard to two separate svr rates like the F.S.O. did in the UK utilising equity ,good conscience and the colloquial usage of legitimate expectation?

 

[Sarenco]

What are you talking about? The Treaty of Rome has nothing to do with common law or equitable doctrines applied by our Courts.

 

[advice]

The treaty of Rome basically sets out that European law, trumps private, public and even Constitutional law. If the ECJ rules that a contract, to which a consumer has signed is unfair, that particular clause in the contract is void. So, for example an Irish Consumer takes a complaint to the E.C.J stating that the variable rate mortgage clause to which they signed up to is unfair, due to a,b,or c. The E.C.J agrees with them, then whether they signed the contract or not becomes irrelevant and the term cannot stand. Equity ( on which European Law is based ) triumphs over common law

 

[Sarenco]

In answer to the question in the final paragraph of your edited post, yes, I believe it is highly likely that the Irish FSO would have come to the same decisions as the UK FSO if presented with the same sets of facts as outlined in the report linked to your first post. I have previously said that I think most reasonable people would struggle to find fault with any of these decisions.

I would like to thank you for acknowledging that your opinions do not represent the established, settled legal position on the relevant issues. That is really all I asked for.

 

[Sarenco]

The treaty of Rome basically said that European law, trumps private, public and even Constitutional law.

If you are saying that EU law takes primacy over the national laws of member states, we are in agreement. However, I would point out that our constitution was amended on several occasions prior to the ratification of the various EU treaties.

 

[advice]

Sarenco,

There is no such thing as a settled legal position in the purest sense, if there was, the law would not be able to evolve as society does.

I thank you for your exchanges today, kept my brain alert. What is your view on the Millars case, will they win?

 

[Sarenco]

The treaty of Rome basically sets out that European law, trumps private, public and even Constitutional law. If the ECJ rules that a contract, to which a consumer has signed is unfair, that particular clause in the contract is void. So, for example an Irish Consumer takes a complaint to the E.C.J stating that the variable rate mortgage clause to which they signed up to is unfair, due to a,b,or c. The E.C.J agrees with them, then whether they signed the contract or not becomes irrelevant and the term cannot stand. Equity ( on which European Law is based ) triumphs over common law

Sorry, European Law is not based on equity. Most European countries operate a codified, civil law system and do not recognise equitable doctrines that have developed in common law jurisdictions. Again, you are conflating different legal concepts in a haphazard fashion to advance your argument.

You are of course correct that ECJ is the final arbitrar on matters of EU law, although an Irish consumer cannot bring a complaint to the ECJ as suggested.

 

[Sarenco]

Sarenco,

There is no such thing as a settled legal position in the purest sense, if there was, the law would not be able to evolve as society does.

I thank you for your exchanges today, kept my brain alert. What is your view on the Millars case, will they win?

Fair question.

The reasoning in the High Court decision looks sound to me so I would be inclined to think that the chances of the FSO succeeding in its appeal are remote. Having said that, the precise demarcation between the jurisdiction of the Courts and the FSO is fraught with difficulty so I could be completely wrong.

Whether or not the Millars will ultimately succeed in demonstrating that sufficient evidence exists to indicate that their mortgage contract should be interpreted in their favour is really anybody's guess. However, I certainly wish them well in their efforts - the way their lender has conducted itself has been pretty reprehensible in my opinion.

 

[advice]

Have you looked at the latest ecj rulings on variation clauses, very interesting reading.

In relation to European directive 93/13/eec on unfair terms in consumer contract regulations and also 2002/65/EU Distant Contract for the supply of Financial Service Regulations there seems to be some quantum of the law of equity within the regulations, but you are right when you say European Law is primarily based on codified civil law. However I must state that I do not have any argument to advance. Just bringing to readers attention what the F.S.O. in the UK is doing in relation to greedy banks. Interesting! Someone impacted by a high svr mortgage should complain to the F.S.O. here, in relation to any bank operating within the State that has two different svr mortgage rates.


In relation to consumer complaints, every citizen within the European Union can bring a complaint to the European Commission about a Member States non compliance or incorrect transposition of an EU Regulation or Directive. If the EU Commission finds in the consumer favour and the Member State does not correct its error, the matter is then referred to the ECJ, the alternative route to the ECJ is from a referral on a question of a matter of European Law from a superior court within a Member State.