I believe Justice Kelly has taken the view, that because the Millars did not make an argument to the F.S.O. initially, in relation to the existence of a collateral contract regarding the meaning of the term " variable interest rate ", they could not now rely on same.
He states " That was not a case that was sought to be made and did not arise."
If this legal argument had been raised by the Millar's with the F.S.O., then I believe a different outcome may have occurred.
I am however, still somewhat perplexed by Justice Kelly's interpretation of "market conditions" Judge Hogan in his High Court Judgment 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."
Justice Hogan, I believe was indirectly alluded to the fact that if Danske Bank's argument that the term "market Conditions" referred to "Danske Bank's market conditions" then the term would fall foul of The European Communities (Unfair terms in consumer contracts) regulations 1995, SI 27/1995 refers. He is of course completely correct, moreover, a recent European Court of Justice determination in relation to a disability insurance contract in relation to two mortgages ( Van Hove V CNP Assurance c-96/2014) may add fuel to the fire in relation to how a National Court must assess, plain intelligible language, within a contract.
In this Judgment the ECJ stated: "The court therefore declares that terms that relate to the main subject-matter of an insurance contract may be regarded as being drafted in plain, intelligible language if they are not only grammatically intelligible to the consumer, but also set out transparently the specific functioning of the insurance arrangements, taking into account the contractual framework of which they form part, so that that consumer is in a position to evaluate, on the basis of precise, intelligible criteria, the economic consequences for him which derive from it. If not, the national court may assess the possible unfairness of the term at issue."
This appears to be at odds, with Justice Kelly's interpretation of a term in a contract.
Finally, in relation to interpretation of contract,
Interpreting contracts in law is an area of
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 Sale of Goods, Supply of Services
Act 1980, 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.