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

[Sarenco]

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.

 

[Descart]

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.

 

[Sarenco]

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.

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.

 

[Sarenco]

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.

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.

 

[Sophrosyne]

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

 

[Bronte]

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.

 

[Descart]

Bronte,

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

 

[Bronte]

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?

 

[Descart]

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.

 

[Descart]

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[Descart]

O

 

[Descart]

K

 

[Sarenco]

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.

 

[Bronte]

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.

 

[Descart]

Bronte,

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

 

[Descart]

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.

 

[Bronte]

Bronte,

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

Fishing exercise on what?

 

[Sarenco]

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?

 

[Descart]

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

 

[Sarenco]

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.