Banks Beware! High Court ups the ante on consumer protection

20-04-2017

Author: Keith Smith and Deirdre O’Mahony



The decision of the High Court in Allied Irish Banks plc v Peter Counihan and Mary Counihan [2016] IEHC 752 has the potential to make it more difficult for financial institutions to enforce loans.

Background

AIB applied to the High Court for summary judgment against Peter and Mary Counihan for default of a 2009 loan. The Counihans’ loan – a refinance of a previous loan used to purchase farmland – was documented as a business loan. However, the Counihans later claimed that they were, in fact, acting as consumers and they sought to have the loan invalidated on the basis that it contained unfair terms within the meaning of the Directive 93/13/EEC on unfair terms in consumer contracts (the “Unfair Terms Directive”). They also claimed that AIB was estopped from enforcing the loan because it had made representations that it would not enforce the full debt and would not seek to enforce its security over the family home.

By judgment delivered on 21 December 2016, Barrett J. declined summary judgment and instead, transferred AIB’s application to plenary hearing.

Read the full briefing here.

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