F
Fin Crusader
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I was wondering why the FSO has appealed the Millar ruling in the High court to the new Appeals court ?
Brendan Burgess
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Presumably because their legal opinion is that the judgement was wrong.
Brendan
Brendan
Gerry Canning
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Fin Crusader.
Brendan has put in a thread on High Court finding against FSO in todays Times.
From your threads I gather that you are not an FSO fan.
You appear to have a very strong consumer focus.
Ring me sometime please for a chat. 0872437139.
We may have knowledge we can put on AAM.
F
Fin Crusader
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The FSO is meant to be a self financing body, however we, the taxpayer, have forked out millions of euro this year, keeping the financial regulatory system afloat. As far as I can see they provide lip service for the consumer so that the consumer does not take to the streets. Seeing that Danske bank have already appealed the decision, why waste more money on legal fees wading in behind them. Senior and junior counsel do not work for free, oh I forgot, we will end up paying for this with our universal social charge, the hypocrisy of it all. The F.S.O - the consumer champion !
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Brendan Burgess
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The FSO has very little choice in the matter.
The ruling leaves the FSO in a very difficult position. The mortgages were variable rate mortgages not trackers. It would be fairly impossible for the FSO to rule on other cases. He is absolutely right to get the Appeals Court guidance. If the Appeals Court backs up the High Court, then the FSO will be in a much clearer position on other cases.
Brendan
The ruling leaves the FSO in a very difficult position. The mortgages were variable rate mortgages not trackers. It would be fairly impossible for the FSO to rule on other cases. He is absolutely right to get the Appeals Court guidance. If the Appeals Court backs up the High Court, then the FSO will be in a much clearer position on other cases.
Brendan
F
Fin Crusader
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Why not let Danske Bank legal eagles take on the appeal and the EXPENSE, and spare the TAXPAYER further expense and a probable further bail out of the FSO. The decision is been appealed anyway !
By the way Brendan, have you any idea of how many decisions have been appealed by the FSO to the Supreme Court ( as the new Appeals court is only newly formed ) when a High Court judgment found against the FSO and a major bank, in favour of the little guy, the consumer ? I think the answer is zero
By the way Brendan, have you any idea of how many decisions have been appealed by the FSO to the Supreme Court ( as the new Appeals court is only newly formed ) when a High Court judgment found against the FSO and a major bank, in favour of the little guy, the consumer ? I think the answer is zero
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Gerry Canning
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Gerry Canning
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Just a comment.
In essence the appeals system means more delays and more lack of justice within an acceptable time frame.
I am not taken with FSO going to get more legal rulings (not just in this case which I do not know).
I think if the Consumer Protection codes was used as FSO,s benchmark ,particularly on the need for any provider to act {in the best interests of the consumer} by now, both Fso and providers would have stopped these legal delays.
Otherwise the Consumer Code is of minimal value, and to use Fins view, bluffs consumer so as consumer will not {take to the streets}.
There is no way, an average consumer can risk Court costs.
In essence the appeals system means more delays and more lack of justice within an acceptable time frame.
I am not taken with FSO going to get more legal rulings (not just in this case which I do not know).
I think if the Consumer Protection codes was used as FSO,s benchmark ,particularly on the need for any provider to act {in the best interests of the consumer} by now, both Fso and providers would have stopped these legal delays.
Otherwise the Consumer Code is of minimal value, and to use Fins view, bluffs consumer so as consumer will not {take to the streets}.
There is no way, an average consumer can risk Court costs.
Hi all
I am not one to defend the position of the FSOB in this matter but I believe matters are a bit confused here. There are 2 appeals taking place here one from the FSOB and one from Danske. I actually brought this up in a recent meeting in the Office of the FSOB when I stated that the public perception is not helped with the papers linking both Danske and the FSOB together in any appeal. THIS IS NOT THE CASE. Both have their reasons for appealing but they are as such separate. Just thought it might be worthwhile clarifying things
Padraic
I am not one to defend the position of the FSOB in this matter but I believe matters are a bit confused here. There are 2 appeals taking place here one from the FSOB and one from Danske. I actually brought this up in a recent meeting in the Office of the FSOB when I stated that the public perception is not helped with the papers linking both Danske and the FSOB together in any appeal. THIS IS NOT THE CASE. Both have their reasons for appealing but they are as such separate. Just thought it might be worthwhile clarifying things
Padraic
F
Fin Crusader
Guest
Just a coincidence that both organisations lodged their " separate appeals " within 24 hours of each other. Pad kiss, do you know why the FSO is appealing the case ?
F
Fin Crusader
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Sorry, must disagree with you, Judge Gerard Hogan, basically told the FSO that they were wrong in their legal assessment that a term in the variable rate mortgage clause, that being " in response to market conditions " was clear, when indeed it is far from clear. He also alluded to the FSO being able to have regard to the wider matrix of fact with regard to possible collateral contracts formed by Danske bank through the wording in their mortgage marketing brochures and website pages. Judge Gerard Hogan rarely, if ever, oversteps the law, that is why when you train to be a solicitor or barrister you study his published works.
Hi In appealing a case the appeal is that there was an error made in coming to the decision not the decision itself and in my reading of the case this is what is being appealed I am not a legal person so I may be wrong but it is my understanding in any appeal of an FSOB decision must be in showing there was an error made in coming to the decision. I read that the case was sent back to return with a decision not unlike the judges finding or something to that effect which would result in the appeal. I may of course be wrong but we will know soon enough and the result has a major bearing on a lot of accounts relating to this area of what is the 'Standard Variable Rate' and the current overcharging that is going on in all lenders
F
Fin Crusader
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To Barneyg,
Yes, I believe the decision will probably be upheld, but why is the FSO wasting taxpayers funds in appealing this decision. It will cost the taxpayer many 100,000 of euro. Judge Gerard Hogan has actually been recently promoted to the Appeals court. There are 11 Judges in total in this court, of course he will be disbarred from hearing his own appeal.
In relation to Padkiss views, the decision of the High court only has a bearing on Danske banks , variable home loan rate. The Judge did not rule on SVR's in general terms.
Yes, I believe the decision will probably be upheld, but why is the FSO wasting taxpayers funds in appealing this decision. It will cost the taxpayer many 100,000 of euro. Judge Gerard Hogan has actually been recently promoted to the Appeals court. There are 11 Judges in total in this court, of course he will be disbarred from hearing his own appeal.
In relation to Padkiss views, the decision of the High court only has a bearing on Danske banks , variable home loan rate. The Judge did not rule on SVR's in general terms.
Brendan Burgess
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I don't know anything about Danke's appeal.
The decision was made by the Financial Services Ombudsman.
The borrower appealed that decision to the High Court.
The ruling of the High Court was to the Ombudsman
So it's up to the Ombudsman whether to appeal or not. It's not up to Dankse, although they might be a notice party.
The fact that they lodged their appeals within 24 hours has no significance. They probably did it very close to the deadline for appeals.
The Ombudsman ruled that the expression "in line with market rates" was unambiguous. The Judge ruled that, as a matter of fact, it was ambiguous. The judge ruled that the Ombudsman must take fairness into account and not just the law. He ruled that the Ombudsman review the case in the light of this judgement.
If the Ombudsman accepts the ruling, he sort of has to rue that all mortgage rates must track the ECB rate. But we all know that all mortgages are not trackers. So the Ombudsman would be put into an impossible position. If the Supreme Court expresses the view that all mortgage rates must follow the ECB rate, then so be it. But I don't think that the Ombudsman could make that decision on his own.
The decision was made by the Financial Services Ombudsman.
The borrower appealed that decision to the High Court.
The ruling of the High Court was to the Ombudsman
So it's up to the Ombudsman whether to appeal or not. It's not up to Dankse, although they might be a notice party.
The fact that they lodged their appeals within 24 hours has no significance. They probably did it very close to the deadline for appeals.
The Ombudsman ruled that the expression "in line with market rates" was unambiguous. The Judge ruled that, as a matter of fact, it was ambiguous. The judge ruled that the Ombudsman must take fairness into account and not just the law. He ruled that the Ombudsman review the case in the light of this judgement.
If the Ombudsman accepts the ruling, he sort of has to rue that all mortgage rates must track the ECB rate. But we all know that all mortgages are not trackers. So the Ombudsman would be put into an impossible position. If the Supreme Court expresses the view that all mortgage rates must follow the ECB rate, then so be it. But I don't think that the Ombudsman could make that decision on his own.
Brendan has outlined the commercial implications of Millar, which are potentially huge. There are also serious procedural and jurisdictional implications for the FSO's office, so I think it makes sense that they appealed the judgment. For clarity if nothing else. My own gut feeling is that the appeal will succeed.
Also, my understanding is that the FSO is funded by a levy on financial providers, rather than receiving money from the taxpayer.
F
Fin Crusader
Guest
No Brendan, your missing the whole point of the case. The Millars appealed the FSO decision due to the term in the variable rate clause stating that interest rates may be changed at any time " in response to market conditions." The Millars argued that in November 2011 Danske bank arbitrarily raised their various variable home loan rates by 0.95%, this, at a time when wholesale interest rates where decreasing rapidly. They stated that Danske bank's increase in interest rates on their mortgages was not in line with market conditions. Would you sign a svr mortgage agreement if the lender could increase mortgage rates at any time by reference to specialist factors to which the bank only had knowledge of and to which you where not party to and where not obliged to seek a reason for the increase? I think not. If this where the case, as Danske bank seek to contend, would this term not be an unfair term as set out in S.I. 27/1995. Judge Hogan believed that the term " in response to market condition " was not clear, and as such was ambigious.
The Millars also alluded to mortgage brochures and indeed Danske bank's own website, which stated that variable rate mortgages move in line with general interest rates, it certainly could be argued that Danske bank created a collateral contract with the Millars in this regard. Judge Hogan referred to these matters and stated the it was within the remit of the FSO to take these matters into consideration when coming to a decision on the matter.
IMPORTANT! In the initial arbitration between the Millars and Danske bank, Danske bank informed the FSO that any increases or decreases in the ECB interest rates were irrelevant to them in funding terms, as they did not receive any direct funding from the ECB. The FSO appears to have accepted this statement at face value. However, what Danske bank failed to state to the FSO was the fact that the Danish National Bank pegs the Danish Krone to the Euro, so that any increase/decrease in the ECB rate will result in a likewise increase/decrease in the Danish National bank rate. Since Danske bank varies it's variable rate products in line with increases and decreases in the Danish National bank rate, the variation in the ECB rate is indeed very relevant to Danske bank. If the FSO had investigated the matter a little more thoroughly maybe they may have come to a different conclusion in the first instance. The Court of Appeal would do well to look into this matter, before issuing judgment in the case.
The Millars also alluded to mortgage brochures and indeed Danske bank's own website, which stated that variable rate mortgages move in line with general interest rates, it certainly could be argued that Danske bank created a collateral contract with the Millars in this regard. Judge Hogan referred to these matters and stated the it was within the remit of the FSO to take these matters into consideration when coming to a decision on the matter.
IMPORTANT! In the initial arbitration between the Millars and Danske bank, Danske bank informed the FSO that any increases or decreases in the ECB interest rates were irrelevant to them in funding terms, as they did not receive any direct funding from the ECB. The FSO appears to have accepted this statement at face value. However, what Danske bank failed to state to the FSO was the fact that the Danish National Bank pegs the Danish Krone to the Euro, so that any increase/decrease in the ECB rate will result in a likewise increase/decrease in the Danish National bank rate. Since Danske bank varies it's variable rate products in line with increases and decreases in the Danish National bank rate, the variation in the ECB rate is indeed very relevant to Danske bank. If the FSO had investigated the matter a little more thoroughly maybe they may have come to a different conclusion in the first instance. The Court of Appeal would do well to look into this matter, before issuing judgment in the case.
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Brendan Burgess
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Here is the actual wording of the Judge's conclusion
"
WhethertheOmbudsman's decision shouldbeallowed tostand
28. In summary, therefore,the Ombudsman erred in concluding that the words("...in response to market conditions.... ")in question were clear when they were not.
He further erred in not having regarding to the wider matrix of fact which, assessed objectively, might inform the meaning of these words as they appear in the relevant contractual documents.
Nor did he give consideration to whether the Millars could successfully establish a collateral contract regarding the meaning of these words having regard to the promotional and other material supplied by Danske at the relevant time."
"
WhethertheOmbudsman's decision shouldbeallowed tostand
28. In summary, therefore,the Ombudsman erred in concluding that the words("...in response to market conditions.... ")in question were clear when they were not.
He further erred in not having regarding to the wider matrix of fact which, assessed objectively, might inform the meaning of these words as they appear in the relevant contractual documents.
Nor did he give consideration to whether the Millars could successfully establish a collateral contract regarding the meaning of these words having regard to the promotional and other material supplied by Danske at the relevant time."
F
Fin Crusader
Guest
Barneyg,
The taxpayer had to bail out financial regulatory bodies to the sum of 58 million last year, guess the financial institutions are not paying the levy! See Irish Times article 30/12/2014.
Not many appeals succeed against a Judge Hogan ruling.
The taxpayer had to bail out financial regulatory bodies to the sum of 58 million last year, guess the financial institutions are not paying the levy! See Irish Times article 30/12/2014.
Not many appeals succeed against a Judge Hogan ruling.
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