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



## Asphyxia (29 Jun 2015)

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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## Asphyxia (30 Jun 2015)

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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## ClubMan (30 Jun 2015)

What is the normal process for questioning a court judgement if you think it's wrong?


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## Raging Bull (30 Jun 2015)

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!!


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## Asphyxia (1 Jul 2015)

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,


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## ClubMan (1 Jul 2015)

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?


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## Asphyxia (1 Jul 2015)

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 )


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## ClubMan (1 Jul 2015)

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?


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## WizardDr (1 Jul 2015)

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.


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## ClubMan (1 Jul 2015)

So perhaps anybody with any media contacts could flag it?
I've done my small bit for what it's worth.


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## Asphyxia (2 Jul 2015)

Charlie Weston seems to be the only one, maybe the others are all tongue tied, fearing their masters wrath.


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## Descart (7 Jul 2015)

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.


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## Asphyxia (13 Jul 2015)

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.


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## baltic (13 Jul 2015)

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.............


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## Asphyxia (22 Jul 2015)

Baltic,

I believe there are later Danske Bank reports that do Danske Bank no favours and show them in quite a disingenious light.


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## Bronte (23 Jul 2015)

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.


 
So you are saying that you know the law better than the judges?


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## WizardDr (23 Jul 2015)

@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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## Asphyxia (23 Jul 2015)

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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## Bronte (23 Jul 2015)

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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## Bronte (23 Jul 2015)

Asphyxia said:


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


 
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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## ClubMan (23 Jul 2015)

I'm with Bronte on this. The fact that there seems to be no discussion (other than here) of this judgement being flawed or erroneous on a point of law would suggest to me that it may not be flawed at all. Otherwise one would have expected some expert in this area to flag the issue.


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## Asphyxia (23 Jul 2015)

Bronte,

Do like I asked you to do in relation to the Geoghegan judgment, then comment. Try to be informed as possible. Read my article on variation clauses and how the European Court of Justice has now issued guidance on the matter.  Judge Hogan is more qualified than these other Judges, this is fact or are you going to dispute this.


Oh by the way, this is what the law says in relation to the interpreting of contracts:-

*Interpreting contracts in English law* is an area of English contract law, which concerns how the courts decide what an agreement means. It is settled law that the process is based on the *objective view of a reasonable person*, given the context in which the contracting parties made their agreement. This approach marks a break with previous a more rigid modes of interpretation before the 1970s, where courts paid closer attention to the formal expression of the parties' intentions and took more of a literal view of what they had said.

The process of interpretation was often skewed by courts who tried to construe contracts in a way that was fair. Before the Unfair Contract Terms Act 1977, the courts had not developed a jurisdiction to strike down unfair terms. When faced with harsh exclusion clauses they would often "interpret their way out" of the plain meaning of the clause through a process of strict construction against the party relying on a clause (in Latin, _contra proferentum_). This would often run contrary to the common sense meaning of a contractual document, and embodied a strained approach.

Finally read up on the "Sheedy" affair in relation to political interference and the separation of powers, it might change your naive view of the world we live in. 

"Mr Justice Cyril Kelly of the High Court followed Supreme Court judge Hugh O'Flaherty today, when he became the second senior member of the judiciary to resign in the Sheedy controversy. Mr Justice Kelly said he bore no ill will to any person connected with the matter and had sought at all times to behave as a judge should in these circumstances. The Bar Council said they deeply regretted the circumstances that led to the resignation. It added that they were extremely concerned by recent events."


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## Asphyxia (23 Jul 2015)

Hopefully the Millar's will lodge an application to appeal to the Supreme Court. I doubt Bronte that you have ever been in their position, where you must way up an injustice and the likely costs associated with rectifying the injustice.

Clubman,

 there were a view journalistic articles about the Judgement and indeed scholarly discussions about the Judgement in the Law library, but I agree, it would be nice if the case got more attention.


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## WizardDr (23 Jul 2015)

@Bronte some of us have legal knowledge as well.
It turned on two words - market conditions. And when I read the judgment it was down to the 'subjective' v 'objective' test.  I would have thought that market conditions are not particularly issues affecting one participant,  but participants generally. And this is where Kelly simply took a view. Being kind if one is a master of law, there may be a deficit on another area. It could be that the original basis of the case did not get constructed using financial experts (after all it was a 'consumer') and was based on contract law and its interpretation. Kelly J may also have viewed the case as a 'ruse' to get out of paying the mortgage.

What it does is make the whole area of the FSO a hostile environment where the so called guardian of the Consumer takes an appeal against a consumer that was actually widening its powers with a moderate slap on the wrist always struck me as a plot already lost.  90% of cases are upheld in favour of Banks. Having seeing some of the behaviours particularly on tracker mortgages, you can also see why Bank of Ireland in particular have given the proverbial 'Harvey Smith' on variable rates. They have concluded that the establishment is weak and have understood this faster than anybody. Any Bank that can reverse an order to  a sell New Ireland after being ordered by the EU Commission to dispose it as a condition for accepting State Aid is a formidable opponent. They simply see the Central Bank and the Department of Finance as weak opponents that do not want a battle. 

It has set the bar at a height that cannot now be achieved by a Consumer. That is the real pity.


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## Bronte (23 Jul 2015)

Asphyxia said:


> Hopefully the Millar's will lodge an application to appeal to the Supreme Court. I doubt Bronte that you have ever been in their position, where you must way up an injustice and the likely costs associated with rectifying the injustice.
> 
> .


 
Actually I was in the position with making a decision in relation to the Financial Ombudsman and I contacted a barrister who said I had a 30% chance and no way was I risking that.  The Millar's would have needed an opinion that was a lot higher than that to proceed and without it they should not have continued.  EXCEPT if they had nothing to lose.  Court costs in Ireland are only for the very rich or the very poor.

We are not of course privy to what legal advice they received.  Not sure if they have the right to the Supreme court as hasn't that changed.

Now I know the odds with the ombudsman were stacked against me anyway, even though I got some compensation, but it wasn't worth the stress.

In relation to your comments to Clubman, the court case was mentioned extensively in the media and on other websites.


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## Bronte (23 Jul 2015)

Here's the discussion from AAM

http://www.askaboutmoney.com/thread...illar-case-upholds-fsos-finding.194510/page-2

[broken link removed]

From reputable legal firm Eversheds:

http://www.lexology.com/library/detail.aspx?g=f10ef592-06d2-42e8-a035-241b0de9aeb2


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## Asphyxia (23 Jul 2015)

Bronte,

The Millar's are left with the option of an application for an appeal to the Supreme Court, costs in relation to these appeals can be very high, however having examined the case, their legal team could certainly make the argument that the matter is of significant public importance, as indeed it is. If this be the case they would not have to pay costs. You should also examine the statutory legislation regarding the Financial Ombudsman's office and revert to me regarding Justice Geoghegan's judgement in relation to Justice Hogans interpretation of the Act ( paragraph 24 of her judgement refers ). I would be interested to hear what you have to say about the matter.


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## Sarenco (23 Jul 2015)

Asphyxia said:


> Hopefully the Millar's will lodge an application to appeal to the Supreme Court. I doubt Bronte that you have ever been in their position, where you must way up an injustice and the likely costs associated with rectifying the injustice.
> 
> Clubman,
> 
> there were a view journalistic articles about the Judgement and indeed scholarly discussions about the Judgement in the Law library, but I agree, it would be nice if the case got more attention.


 
As previously pointed out, there is no automatic right of appeal from the Court of Appeal to the Supreme Court.

Decisions of the Court of Appeal are, in the ordinary course, final. Permission to bring a further appeal may be sought from the Supreme Court. However, the Supreme Court will only grant such permission if is satisfied that (i) the decision of the Court of Appeal involves a matter of general public importance; and/or (ii) the interests of justice require that a further appeal be heard by it. 

In my opinion, there is no realistic likelihood that the Supreme Court would hear an appeal in this matter.

"Scholarly" discussions in the law library (or on internet forums) may pass the time but in this jurisdiction our judiciary interpret and apply the law of the land. 

As things stand, the judgment of the Court of Appeal on this matter is final.


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## Asphyxia (23 Jul 2015)

Sarenco,

As things stand!


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## Asphyxia (23 Jul 2015)

Sarenco,

I am interested in why you are of the view that there is no realistic likelihood that the Supreme Court would hear the appeal. How do you draw such conclusions and validate same! Are you a Supreme Court Judge!


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## Sarenco (23 Jul 2015)

Asphyxia said:


> Sarenco,
> 
> As things stand!


 
Yes, as things stand. 

In my opinion, there is no realistic likelihood that the Supreme Court would hear an appeal in this matter.  However, that is just my opinion and it is possible that the Supreme Court would take a different view.


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## Asphyxia (23 Jul 2015)

Sarenco,

Thank you for you in depth study into the intricacies of how our Court system work, much appreciated. But how did you form such an opinion!


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## Asphyxia (23 Jul 2015)

Bronte,

Reputable legal firm Eversheds do a lot of equally reputable work for Danske Bank.


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## Sarenco (23 Jul 2015)

I am simply of the opinion that the Supreme Court would not be satisfied that the relevant jurisdictional thresholds set out in Article 34 5 3° and Article 34 5 4°, respectively, have been met.

Again, this is simply my opinion - ultimately its the decision of the Supreme Court that matters.


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## Asphyxia (23 Jul 2015)

So the Millars could have a likelihood of an appeal to the Supreme court, or do you know of any landmines that might prevent this. The case is a matter of significant public importance, you would have to agree, as it's outcome could have the potential to affect 300,000 borrowers being overcharged by the banks on their variable rate mortgages. The Millar's would thus not have to satisfy the jurisdictional thresholds as set out in Articles 34 5 4 as referred to by you. Do you agree!


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## Sarenco (23 Jul 2015)

Asphyxia said:


> Sarenco,
> 
> Thank you for you in depth study into the intricacies of how our Court system work, much appreciated. But how did you form such an opinion!


 
I am simply of the opinion that the Supreme Court would not be satisfied that the relevant jurisdictional thresholds set out in Article 34 5 3° and Article 34 5 4°, respectively, have been met.
Again, this is simply my opinion - ultimately, its the decision of the Supreme Court that matters. 

In the meantime, the decision of the Court of Appeal is final.

But please do carry on with you academic theories - I'm sure I'm not alone in finding them very entertaining.


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## Sarenco (23 Jul 2015)

Asphyxia said:


> Do you agree!


 
No, I don't.


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## Asphyxia (23 Jul 2015)

Sarenco,

Without getting off the topic, what I find actually amusing is that if anyone challenges your viewpoint you go into slagging mode, which is beneath you. I have only posted in relation to 58 threads on this forum, which in itself, is time consuming; you on the other hand must spend an awful lot of time on the AAM site as you have posted your "opinion" and "viewpoint" in relation to 798 separate threads. I do not know what you do but on the face of it you appear to have some consumer protection focus, but for you to say the Millar's case is not a matter of general public importance beggars belief. Let me just say, that for a consumer advocate who dispenses a lot of advice I find viewpoint in relation to this case most perplexing.


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## Sarenco (23 Jul 2015)

Asphyxia said:


> Sarenco,
> 
> for you to say the Millar's case is not a matter of general public importance beggars belief


 
Except that I didn't say that. 

I gave my opinion that the Supreme Court would not permit an appeal from the Court of Appeal decision in this matter on the basis that it would not be satisfied that (i) the decision of the Court of Appeal involves a matter of general public importance; and/or (ii) the interests of justice require that a further appeal be heard by it.

Whether or not I would come to a different conclusion, if the decision was mine to make, is irrelevant.


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## Asphyxia (23 Jul 2015)

Sarenco said:


> In my opinion, there is no realistic likelihood that the Supreme Court would hear an appeal in this matter.




So, if you believe the Millar Judgement does involve matters of general public importance, as I do, how do you come to the conclusion above. Have you any experience of the thresholds needed to make an application from the High Court or the Appeal Court to the Supreme Court so that the Supreme Court will hear the appeal ?

Significantly, the 2014 Act explicitly empowers the Supreme Court to decide applications for leave to appeal (either from the Court of Appeal or by leapfrog appeal from the High Court) on the papers without an oral hearing, which if properly presented by the Millar's legal team ( based on the unusual circumstances of the case ) will probably succeed.


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## Sarenco (23 Jul 2015)

Asphyxia said:


> Significantly, the 2014 Act explicitly empowers the Supreme Court to decide applications for leave to appeal (either from the Court of Appeal or by leapfrog appeal from the High Court) on the papers without an oral hearing, which if properly presented by the Millar's legal team ( based on the unusual circumstances of the case ) will probably succeed.


 
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.


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## Asphyxia (23 Jul 2015)

Sarenco said:


> 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.



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.


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## Sarenco (23 Jul 2015)

Asphyxia said:


> 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.


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## ClubMan (24 Jul 2015)

I'm not a lawyer but ... if the original judgement is so obviously flawed (according to some) then what is the problem in proving/correcting this?


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## Asphyxia (24 Jul 2015)

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.


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## ClubMan (24 Jul 2015)

So with your extensive specialist legal background maybe you could answer my question?


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## Sarenco (24 Jul 2015)

Asphyxia said:


> 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.



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.


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## Bronte (24 Jul 2015)

Asphyxia said:


> 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.


 
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.


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## Descart (24 Jul 2015)

Sarenco,

I am still waiting on your views on Asphyxia's point re the Pannon ruling from the ECJ ?


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## Sophrosyne (24 Jul 2015)

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?


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## ClubMan (25 Jul 2015)

Asphyxia said:


> Clubman, what question would that be?



http://www.askaboutmoney.com/thread...rt-decision-lawful.194590/page-3#post-1438364
http://www.askaboutmoney.com/thread...rt-decision-lawful.194590/page-3#post-1438489


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## ClubMan (25 Jul 2015)

Sophrosyne said:


> 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?


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.



> Should unfair terms be permitted in standard mortgage contracts in the first place


No.

[broken link removed]


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## Sarenco (25 Jul 2015)

Descart said:


> Sarenco,
> 
> I am still waiting on your views on Asphyxia's point re the Pannon ruling from the ECJ ?


 
Sorry to keep you waiting but it's a moot point if there's no right of appeal from the Court of Appeal judgment.


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## Sarenco (25 Jul 2015)

Bear in mind that the Millars' argument was that their lender breached a term of their loan agreement.  They did not seek to argue that the provision was unfair or otherwise invalid.


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## Descart (25 Jul 2015)

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.


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## Asphyxia (25 Jul 2015)

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.


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## Sarenco (25 Jul 2015)

Descart said:


> Sarenco,
> 
> I think that is exactly the breach of European law that Asphyxia is referring to.



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.


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## Descart (25 Jul 2015)

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 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.*
*Comment

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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## Descart (25 Jul 2015)

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.


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## Sophrosyne (26 Jul 2015)

ClubMan said:


> 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.


 
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.


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## Descart (26 Jul 2015)

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.


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## Sarenco (26 Jul 2015)

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?


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## Descart (26 Jul 2015)

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.
> 
> ...


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## Descart (26 Jul 2015)

sorry, error occurred in last posting


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## Sophrosyne (27 Jul 2015)

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.


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


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## Sarenco (27 Jul 2015)

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.


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## Sarenco (27 Jul 2015)

Sophrosyne said:


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



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.


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## Gerry Canning (27 Jul 2015)

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 .


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## Sarenco (27 Jul 2015)

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.


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## Asphyxia (27 Jul 2015)

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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## Asphyxia (27 Jul 2015)

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.


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## Sarenco (27 Jul 2015)

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?


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## Asphyxia (27 Jul 2015)

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.


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## Sarenco (27 Jul 2015)

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.


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## Sophrosyne (27 Jul 2015)

Sarenco said:


> I've absolutely no issue with anybody expressing their opinion and I assume you similarly have no such problem.



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.



Well at least, it is now clear why you think what you think.


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## Sarenco (27 Jul 2015)

Sophrosyne said:


> Well at least, it is now clear why you think what you think.



Could you elaborate on that?  Are you suggesting my opinion on the jurisdictional issue is somehow dependant on this opinion?


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## Sophrosyne (27 Jul 2015)

Sarenco said:


> Could you elaborate on that?  Are you suggesting my opinion on the jurisdictional issue is somehow dependant on this opinion?



No!

I don't see the point in elaborating. Your mind is clearly made up.


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## Sarenco (27 Jul 2015)

Sophrosyne said:


> No!
> 
> I don't see the point in elaborating. Your mind is clearly made up.



My mind is made up about what?  I don't understand what you are saying or implying.


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## Descart (27 Jul 2015)

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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## Descart (27 Jul 2015)

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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## Sarenco (27 Jul 2015)

Descart

My opinion that there is no realistic likelihood that the  Supreme Court would permit an appeal from the Court of Appeal in this matter obviously cannot pre-date the establishment of the Court of Appeal!

No, I do not believe Irish contract law trumps any valid legislative provision, whether of European origin or otherwise. 

You now seem to be arguing that Ireland has not properly implemented the Unfair Contracts Directive.  I disagree, but you can certainly make your case in this regard to the Commission.

You are obviously entitled to your personal view that the Supreme Court would permit an appeal from the Court of Appeal to proceed on this matter.  I obviously disagree with your personal view in this regard and furthermore I do not agree that there is anything exceptional about this case such that permitting an appeal from the Court of Appeal to proceed would be warranted.


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## Descart (27 Jul 2015)

Sarenco,

Firstly, will you admit that your views of what a consumer is, in respect to unfair terms in contract regulation are incorrect and without foundation ( your previous thread refers ) You are wrong! and I would like you to admit same, instead of continuing with your mantra regarding the unlikelihood of a Supreme Court appeal. The forum has heard your views, ( again and again ) now let us have someone else's input on this forum.

Secondly, I would not be making any case to the European Commission, as I am not party to the proceedings, that would be the prerogative of the Millar's and their legal team, if they are so inclined.


Finally, unless you have something new to say, with regard to the Miller case, please stop posting your same opinions over and over again, it becomes boring.


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## Sarenco (27 Jul 2015)

Descart said:


> 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;
> ...



I am fully aware of the definition of "consumer" in the Regulations - there is no need for you to "enlighten" me in this regard.

I do not agree that the Millars would necessarily be considered consumers within the meaning of these Regulations.  Again, I did not express any believes in this regard - I simply said that it was not entirely clear to me that the Millars would have been considered consumers in this context.  

I am also fully aware of the Healy decision, which I would suggest turned on its own facts.  You may also wish to consider the subsequent cases of ACC v Quinn and/or AIB v Fahy or indeed any of the preceding line of cases on this issue.  In any event, that is not the only reason why I am of the view that the Unfair Contract Terms Directive would not have been applicable in the Millars case.

Again, I would emphasise that I am of the opinion that the Supreme Court would not permit an appeal to proceed from the decision of the Court of Appeal in this case so the foregoing is purely academic.


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## Sarenco (28 Jul 2015)

Descart said:


> Sarenco,
> 
> Firstly, will you admit that your views of what a consumer is, in respect to unfair terms in contract regulation are incorrect and without foundation ( your previous thread refers ) You are wrong! and I would like you to admit same, instead of continuing with your mantra regarding the unlikelihood of a Supreme Court appeal. The forum has heard your views, ( again and again ) now let us have someone else's input on this forum.
> 
> ...



No, I will not "admit" that my "views" as to what constitutes a consumer are incorrect and without foundation (my previous post refers).   Equally, I don't accept that I am "wrong" in this regard but I obviously have absolutely no problem with anybody else expressing an opinion.

Anybody can make a complaint to the Commission - that is not a judicial process.  If you are of the opinion that Ireland has not fully implemented a Directive then you are as entitled as anybody else to make a complaint to the Commission in this regard.

I assume you have no problem with me expressing an opinion simply because it contradicts your own.  To be frank, I don't find your opinions particularly interesting but I have no problem whatsoever with you expressing same.


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## Sophrosyne (28 Jul 2015)

I think we can all agree that everyone is entitled to their opinion, interesting, pedantic or otherwise.


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## Bronte (28 Jul 2015)

Asphyxia said:


> 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.


 
Is there any chance you'd just tell us simple what the point of appeal is rather than going on about this or that EU directive etc  it would be interesting to know the actual point of appel to the Supreme Court that you see so clearly but that so far I've not actually understood from your posts.


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## Descart (28 Jul 2015)

Bronte,

That is simple, to overturn the decision of the Appeal Court.


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## Bronte (28 Jul 2015)

Descart said:


> Bronte,
> 
> That is simple, to overturn the decision of the Appeal Court.


 
I understand that, ie what needs to be done for the Millers is to overturn the Appeal Court decision.  BUT HOW?  On what legal basis.  What is the actual ground for the appeal?


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## Descart (28 Jul 2015)

Sarenco,

You quoted case law in relation to how a court assesses whether you are a consumer or not. In Acc v Quinn, as you know, the contract signed, prevented the Quinn's from being treated as consumers. In AIB v Fahy the said loans where undoubtably for business purposes which precluded Fahy from being treated as a consumer under the regulations. You know this, so why do you keep alluding to case law that is not pertinent to this case. Justice Hogan, Justice Kelly, Justice Peart, and Justice Geoghegan did not have any concerns about the Millar's being regarded as consumers in this regard, but hang on a second, Sarenco did, so there must be a problem!
You are a legend in your own imagination, you have been proved to be wrong on this thread, but will not admit to same, a terrible flaw in ones personality.

Whether you agree or not as to whether the Millar's are consumers or not under the regulations is irrelevant to me and all viewers of this post, as this matter has been decided upon by persons eminently more qualified than you to make such decisions. I was just highlighting your pomposity.

Again, if the Millar's make an application to appeal to the Supreme Court, in the circumstances, it will probably be acceded to.


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## Descart (28 Jul 2015)

o


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## Descart (28 Jul 2015)

O


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## Descart (28 Jul 2015)

K


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## Sarenco (28 Jul 2015)

Descart

Do you always resort to personal abuse when somebody disagrees with you?

In any event, the decision in _Quinn_ re-stated the well-established principle which existed prior to _Healy _(see _ACC Bank plc v McEllin & ors;_ _Zurich Bank v Jim Mc Connon; and Allied Irish Banks v Brian Higgins and Others)_ that commercial investors are *not* consumers. 

You are of course correct that the judge in _AIB v Fahy _took the view that the application for the relevant loan facility in that case was made for _"unquestionably business purposes"_ but what makes you so sure that a similar view would not be taken by a Court in respect of the Millars’ loan agreements?

I would also refer you to the ECJ case of_ Benincasa v Dentakit, _which held that the concept of a consumer was confined to a person acting in a private capacity and that only contracts concluded for the purpose of satisfying an individual’s needs in terms of private consumption are protected. I think it is very unlikely that a Court would consider multiple loan agreements relating to a substantial portfolio of investment properties (the factual position in the Millars’ case) as being solely for the purpose of satisfying individual needs in terms of private consumption.

Again, I would emphasize that I simply said that it was not entirely clear to me that the Millars would be considered consumers in this context.  I don’t see how you could possibly be definitive that the Millars would be considered consumers in view of the above case law.  At an absolute minimum, the point is debatable and not clear cut as you keep insisting.

I don't see how you could possibly know that the relevant judges "did not have any concerns about the Millar's being regarded as consumers" - the issue simply did not arise in their case.

Similarly, I don’t see how you could possibly know in advance that the Supreme Court would permit an appeal to proceed in this matter.  You can certainly have a view in this regard and I hope you won’t be offended if others disagree with that view.


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## Bronte (28 Jul 2015)

Descart said:


> You are a legend in your own imagination, you have been proved to be wrong on this thread, but will not admit to same, a terrible flaw in ones personality.
> 
> I was just highlighting your pomposity.
> 
> Again, if the Millar's make an application to appeal to the Supreme Court, in the circumstances, it will probably be acceded to.


 
What's with all the comments to Sarenco.  And the O O K ones?

On what basis will an appeal succeed.


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## Descart (28 Jul 2015)

Bronte,

That's for the Supreme Court to decide upon. But nice fishing exercise.


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## Descart (28 Jul 2015)

Sarenco,

This was not an issue in the Millar's case. The Millars could have four children and also be using the investment properties as a source of funding into their retirement for all I know. I do know that this matter did not preclude the Millar's taking legal action and they were considered consumers by the courts. You have been shown to be wrong during these exchanges.


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## Bronte (28 Jul 2015)

Descart said:


> Bronte,
> 
> That's for the Supreme Court to decide upon. But nice fishing exercise.


 
Fishing exercise on what?


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## Sarenco (28 Jul 2015)

Descart said:


> Sarenco,
> 
> This was not an issue in the Millar's case. The Millars could have four children and also be using the investment properties as a source of funding into their retirement for all I know. I do know that this matter did preclude the Millar's taking a legal action and that you have been shown to be wrong during these exchanges.



What matter precluded the Millars from taking a legal action?


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## Descart (28 Jul 2015)

What we have been talking about in the last few posts, being consumers under the regulations, silly.


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## Sarenco (28 Jul 2015)

Descart said:


> What we have been talking about in the last few posts, being consumers under the regulations, silly.



So you're suggesting that the Millars were somehow precluded from taking a legal action (about some matter that you have not specifed) because of they considered themselves to be consumers?

Sorry, Descart, but that makes absolutely no sense whatsoever.


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## Descart (28 Jul 2015)

Bronte,

Fresh cod!


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## Descart (28 Jul 2015)

Sarenco,
Look at the post again ( typo in same ). Hope it clarifies matters.


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## Sarenco (28 Jul 2015)

Eh, nobody suggested that consumers are precluded from taking legal actions (or from bringing complaints to the FSO for that matter).  The Courts did not make any determination whether or not the Millars were consumers.  No idea what point you're trying to make here.


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## Descart (28 Jul 2015)

Sarenco,

The Millar's must have been deemed consumers under the F.S.O. Act 2014 for them to be allowed to make a complaint to the F.S.O. in the first instance. The High court and Appeal court did not take issues with the Millar's being consumers. Therefore the unfair terms in consumer contract regulations apply to the Millar's. Therefore the Pannon judgment of the ECJ applies to the Courts, in that the Court is obliged to consider the contractual term ( danske bank's variable rate clause ), in their own motion, in terms of the unfairness of the term. This, the Appeal Court failed to do. This was a terminal error, and in the interest of justice, the judgment cannot be allowed to stand.

We have gone around in circles, hope this clarifies matters.


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## Bronte (28 Jul 2015)

Descart said:


> Bronte,
> 
> Fresh cod!


 
I'm not even going to bother reporting you but I'm surprised you've lasted this long.


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## Descart (28 Jul 2015)

Do not ask stupid questions of me. A Supreme Court appeal will succeed on the basis that the lower court erred in law or statutory practice. Oh and get a sense of humour.


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## Sarenco (28 Jul 2015)

Descart

Again, the Courts did not make any determination as to whether or not the Millars were consumers in respect of the various investment loans.  In fact, the Courts did not express any views at all on the eligibility of the Millars to make a complaint to the FSO - it simply was never raised as an issue in the case and the Courts were not required to make any decisions in this regard.

The fact that the FSO heard the Millars' case does not deem them to be consumers as suggested.

As previously stated, I don't agree that the Unfair Contracts Directive would have had any application in this case and not simply because it is not clear to me that the Millars would have been considered consumers.  You have obviously convinced yourself that there was something obviously, or at least potentially, unfair about the variable rate clause in the Millars' loan agreements.  This was clearly not obvious to the Millars as they were seeking to enforce the very clause that you consider unfair (or at least potentially unfair).


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## Descart (28 Jul 2015)

Sarenco,

Eureka, that is the whole trust and cut of the Pannon judgment from the ECJ, which, you need to study again, as the penny has not dropped. The Millar's do not have to complain that the said term is unfair, the obligation is on the actual court to examine the unfairness of the contractual term in dispute, on their own motion. Here is brief synopsis of the judgment.

Pannon Judgment

In its judgment the Court explains that, in the field covered by Directive 93/13/EEC, the role attributed to the national court 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.


The Court also points out that, for the court to find that an unfair contract term is not binding on the consumer, it is not necessary for the consumer to have explicitly contested it.

DO YOU GET IT NOW!


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## Sarenco (28 Jul 2015)

Descart said:


> Sarenco,
> 
> Eureka, that is the whole trust and cut of the Pannon judgment from the ECJ, which, you need to study again, as the penny has not dropped. The Millar's do not have to complain that the said term is unfair, the obligation is on the actual court to examine the unfairness of the contractual term in dispute, on their own motion. Here is brief synopsis of the judgment.
> 
> ...


 
Again, the relevant variable rate clause was not in dispute (as you keep insisting).  The Millars were trying to enforce a contractual term - they were not disputing its validity.

I am familiar with the Pannon judgment and I would appreciate it if you could stop telling me what I need to do.


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## Descart (28 Jul 2015)

Sarenco,

Read the Pannon judgment in full and revert. The judgment applies to all contractual terms, whether in dispute, seeking to enforce, seeking to amend, etc.,  in other words, the court must examine the unfairness of any contractual term before it, if it has the legal and factual means to do so. End of story.


Indeed Judge Hogan puts Danske Bank on notice that if he viewed their variable rate clause in any other way, it would be unfair. He states:

23. In its more common usage the term “market conditions” may be taken to refer to “market conditions generally.” While I agree that the term might also in some contexts refer to particular market conditions experienced, for example, by one undertaking in the relevant market, I should have thought that this was a less frequent usage. If, moreover, the construction urged by Danske were correct, it would mean that its interest rate could be varied by reference to special factors which were peculiarly within its own knowledge, the details of which it would not be obliged to disclose and which, as the Ombudsman himself acknowledged, the customer would have been obliged to accept more or less at face value. If this was, indeed, what was intended by the term “in response to market conditions”, one might have supposed that more explicit language along these lines might also with advantage have been used.

He is of course correct.


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## Sarenco (28 Jul 2015)

Descart

There is no dispute that the ECJ ruled in Pannon that the Unfair Contract Terms Directive must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand.

However, the Millars were seeking to *enforce* a contractual term.  Leaving aside the question as to whether or not the Millars were consumers in the first place, it would have been perverse for an Irish appellate court to review the fairness of a contractual term that a (supposed) consumer was actually trying to rely on to make their case.  The Unfair Contract Terms Directive is designed to protect consumers - not to prevent consumers from pursuing their contractual entitlements.

In my opinion, you are torturing the text of the judgement in the Pannon case to make your argument.  You are obviously entitled to take another view.


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## Sarenco (28 Jul 2015)

Descart said:


> He is of course correct.


 
Not according to the Court of Appeal!


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## Descart (28 Jul 2015)

They erred in not complying with their obligations re the Pannon Judgment.


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## Sarenco (28 Jul 2015)

Descart said:


> They erred in not complying with their obligations re the Pannon Judgment.


 
Says who?  Your good self?


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## Descart (28 Jul 2015)

For someone who is likely employed by AAM, you take a very anti consumer approach and it is an open forum, not a court.


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## Descart (28 Jul 2015)

It is not my opinion that they erred, the fact are; based on their respective judgments, that they did.


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## Sarenco (28 Jul 2015)

Descart said:


> It is not my opinion that they erred, the fact are; based on their respective judgments, that they did.


 
In the absence of a Court decision to this effect, I'm afraid this is indeed only your opinion.


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## Sarenco (28 Jul 2015)

Descart said:


> For someone who is likely employed by AAM, you take a very anti consumer approach and it is an open forum, not a court.


 
As far as I know, this forum does not have employees.  Did anybody suggest this forum was a court?

You may well perceive yourself as being a champion of consumer rights.  I don't consider you to be anything of the sort.


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## Descart (28 Jul 2015)

Sarenco,

The Pannon judgment speaks for itself. You, on the other hand, speak for the banks.


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## Sarenco (28 Jul 2015)

Descart said:


> Sarenco,
> 
> The Pannon judgment speaks for itself. You, on the other hand, speak for the banks.



More nonsense.  No, I am not representing anybody other than myself on this forum.


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## Descart (28 Jul 2015)

Sure thing.


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## Sarenco (28 Jul 2015)

Descart

You are obviously completely incapable of being civil to other forum users.

For the record, if I was representing anybody's interests other than my own or had any conflict of interest on any matter under discussion, I would happily disclose same.  Whether or not you accept that is of no consequence to me.


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## Descart (28 Jul 2015)

People in glass houses should not throw stones, you have a good few tetchy and provocative replies to other posters as well as to myself.


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## Sarenco (28 Jul 2015)

There is a world of difference between being provocative in the context of a debate and being abusive towards another poster.  You obviously don't understand the distinction.


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## Descart (28 Jul 2015)

Sorry for any offence caused, but it's like talking to the wall. Let us agree to disagree.


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## Sarenco (28 Jul 2015)

You haven't caused me any offence but I would ask you to try and be civil to other posters.  Attack the argument by all means but not the person making it.


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## Descart (28 Jul 2015)

I do not like attacking arguments, I prefer to unravel the opposing argument logically utilising current law ( including European law ).


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## Sarenco (28 Jul 2015)

Descart said:


> I do not like attacking arguments, I prefer to unravel the opposing argument logically utilising current law ( including European law ).



Interesting.  Would you mind displaying some of that logic on this forum?


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## Descart (28 Jul 2015)

Tetchy, but I believe I have done so.


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## Brendan Burgess (29 Jul 2015)

A number of posts have been reported as being abusive.

I am too busy to review them, so I am closing the thread

Brendan


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## Descart (29 Jul 2015)

.


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