This briefing summarises recent cases, developments and trends
relevant to ongoing efforts to resolve the mortgage arrears
crisis. Mortgage arrears and repossessions are a key area of
focus in the 2016 Programme for Partnership Government.
Recent Cases
Should the Courts consider whether mortgage terms
are "unfair", even if not asked to do
so?
Barrett J delivered his judgment in Allied Irish Banks PLC v Counihan on 21
December 2016 in which he stated that the Court has a general
obligation to establish if any terms in a mortgage contract are
unfair, even if the Court has not been specifically asked to do so.
This was on the basis of the decision of the European Court of
Justice in Aziz, in which the ECJ ruled that a national
court should assess (even if not asked to do so) whether any term
of a contract that is within the scope of the Unfair Contract Terms
Directive is unfair.
