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

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.
 
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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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.
 
@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.
 
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.

.
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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.
 
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.
 
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.
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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.
 
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!
 
Asphyxia said:
Sarenco,

As things stand!
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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.
 
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!
 
Bronte,

Reputable legal firm Eversheds do a lot of equally reputable work for Danske Bank.
 
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.
 
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!
 
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!
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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.
 
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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Asphyxia said:
Sarenco,

for you to say the Millar's case is not a matter of general public importance beggars belief
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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.
 
Sarenco said:
In my opinion, there is no realistic likelihood that the Supreme Court would hear an appeal in this matter.
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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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