MY FAVOURITE CASE:Noeline Blackwell, Director General at Flac (Free Legal Advice Centres)
What is your favourite case?
The case in which Flac acted for Michelle Gabriel, an individual who appealed a decision by the Financial Services Ombudsman to the High Court. It may seem like a very, very small case but it was very important because, ultimately, it resulted in a clarification of the law relating to situations where a person in financial trouble could hand back a car financed through hire purchase (HP).
We had a view that if somebody couldn’t keep up HP repayments, they could, under the law, hand the car back to the finance house. At least then they’re not responsible for the cost of maintaining the car. However, many HP companies were refusing to let individuals return cars until they paid the balance due. This put people under massive pressure to pay their HP.
It was interesting because Michelle first went to the Financial Services Ombudsman who found against her. Then she had to appeal it to the High Court and in full open court reveal private details about her finances.
Why is it your favourite case?
First of all, the outcome of the case mattered to a lot of people who were struggling to juggle their debts. The judgment clarified the law, with the result that Michelle could return the car, and we were then able to circulate this clarification to money advisers all around the country dealing with hundreds of similar cases. As a result, over a period of months, all of these cases started to die away . . . people who needed to return their cars in order to try and get their financial affairs in some kind of order were able to as the finance houses began to recognise the law.
People didn’t have to worry about maintaining, taxing or insuring a car they could no longer afford. Yes, they continued to owe money to the HP company, but at least the worry of keeping a car they no longer wanted and couldn’t afford to run was gone. So it was bigger than just a win for Michelle.
What also attracts me to the case is that it shows where the law is so necessary for people who are struggling.
And finally, there’s great satisfaction in being able to be part of the Flac [Free Legal Advice Centres] team that can support this kind of case and make life a little easier for some people and the law a little clearer.
What problems in the legal system did this case highlight?
The law – the whole law, not just pure human rights or fundamental rights law – can be made available to protect all of the people.
However, the barriers to getting to the courts can be huge. A person in financial trouble, who was at least able to keep her affairs private when she went to the Financial Services Ombudsman, (even though she lost there), was faced with bringing her appeal in a very awkward and intimidating way. She had a short period of time to appeal to the High Court, where the appeal was heard in an open court.
If she lost the case, she risked having an award made against her for the legal team employed by the Financial Services Ombudsman and the separate legal team of the finance house GE Money. So although we were acting on her behalf , if she didn’t win she would be faced with very big costs. This was a huge risk and a worrisome barrier.
This case was part of the reason why we have suggested in our submission on the Legal Services Bill that appeals from administrative procedures should be to the Circuit Court. Going to the High Court is too much for an individual.
In this case, the other side could have appealed the judge’s decision to the Supreme Court – that was the other risk that Michelle ran. People who bring cases like this are normally only doing it once in their lifetime – they’re trying to weigh it up and are depending on other people for advice. They have no idea how it will go and there’s no thanks for trying to identify a better system of law if the judge doesn’t agree with you.
This case was about clarifying the law. There was a real difference of interpretation – we believed that individuals who couldn’t keep up their payments could terminate their HP agreement and hand back the car; the Financial Services Ombudsman, with all their resources, said it was otherwise.
Very often, you’re in unknown territory in these public-interest cases. So it’s very hard for that one person to go and raise the flag high, but this case actually vindicated the rights of hundreds of people who we believe are able to better manage their financial affairs as a result.
In conversation with Caroline Madden