16. This is underscored by the provisions of s.57Cl(2) which,in effect, enables the Ombudsman tonmeasure the general fairness of a contractual provision or action taken pursuant thereto by reference to general principles ("improper motive", "unjust", "unreasonable", "discriminatory" and so forth) which have been clearly transposed from the realm-ofpublic law and which would not ordinarily apply to a purely private contract.
The powers which are conferred by both s. 57BK( 4) and s.57CI(2) of the 1942 Act are accordingly those which go far beyond the traditional boundaries of the law of contract. As [ pointed out in Koczan, it is these particular novel powers which call for the application of the specialist skill and judgment of the Ombudsman so far as financial dealing is concerned and it is in this respect that the courts should show appropriate deference to that specialist skill and judgment in the application of these wider principles to the facts of a given case.
26. In any event,the Ombudsman would have been entitled, over and above the ordinary rules regarding the interpretation of contracts, to have regard to such relevant material to assist in ascertaining the objective intentions of the parties given that s. 57BK empowers the Ombudsman to have regard to wider principles(" ... the substantial merits of the complaint without regard to technicality or legal form ...") which go beyond the strict confines of the substantive law of contract.
29. In any event, if the construction of clause 3 urged by Danske were to prove to be correct, the Ombudsman was nonetheless in error in failing to examine whether it would be broadly fair and reasonable for Danske to apply such a construction measured by reference to his enhanced statutory powers ins.57BK(4) and s.57Cl(2)~ see, by analogy, my own reasoning on this very point in Koczan. In that case I held that the Ombudsman had erred in law in failing to analyse the automatic lapsing clauses provisions of an income protection policy by reference to these enhanced statutory powers.Just as in that case,I would emphasise that the application of these statutory powers calls for the application of the Ombudsman's particular expertise and nothing in this judgment is intended to express any view as to how these powers should be exercised in this case.
31. I will accordingly make an order pursuant to s.57CM(2)(b) of the 1942 Act setting aside the decision of the Ombudsman of 10th December 2013. I will further make an order pursuant to s. 57CM(2)(c) remitting the matter to the Ombudsman for a fresh determination of the complaint in a manner not inconsistent with this judgment.