# We have decided not to take a public interest case on the Prevailing Rate issue



## Brendan Burgess (26 Sep 2020)

*The original plan*
We would raise €200k to take a case to the High Court
Our objective was to get a tracker at 1.5% for the remaining term of the mortgage
We would not settle it with a non- disclosure agreement
We would win the case
AIB would roll out the decision to the rest of the cohort

*Why we have decided not to proceed with this*
The informal committee explored this at length and we discovered a few problems with the plan

1) Avant has now introduced a mortgage rate of 1.95% which dramatically reduces the value of a tracker at 1.5%. It's quite likely that there will be further reductions, so the benefit of winning a case would diminish further.
2) I had a figure for costs of €100k on our side and €100k for AIB if we lost. But the costs would be uncertain. A contested case could last a few days in the High Court and if we did not win, AIB could get an order for costs of around €350k.   Seems unlikely, but we couldn't ask someone to take that risk.  That would be life destroying for most people.
3) We thought it might be very difficult to raise €200k up front especially as we would be telling the funders, that they would be getting limited feedback and would have no say in the case.
4) Roll on three years and we face a court case with potential costs of €350k and mortgage rates of 1.5% are freely available in the market anyway.  We would have to break the undertaking given to the original funders not to settle.
5) Another scenario is that we could win the case but AIB refuses to roll it out to the rest of the cohort and the Central Bank doesn't force them to.

*So, all things considered, the potential gain simply does not justify the work and risks involved. *


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## Brendan Burgess (26 Sep 2020)

*Of course this does not stop anyone taking a case themselves. *

Many borrowers have already initiated cases against AIB.  Their expectation is that AIB will not want the risk of these going to an open court and losing in that court.  Therefore AIB will probably settle these subject to a non disclosure agreement. 

I understand that two firms of solicitors have taken tracker cases against AIB and other banks  and if you are going to take a case, it would be better to use these firms than your family solicitor who probably doesn't know what a tracker mortgage is.

Lawlor Partners

Anthony Joyce & Co.


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## Brendan Burgess (26 Sep 2020)

*If your primary objective is to get compensation for the stress you have suffered, you should probably go to the Ombudsman instead of the court. *


If you lost your home, if you were in arrears or if the failure to offer you a tracker when your fixed rate ended caused you distress, then you should apply to AIB for compensation. If you are not happy with it, then  complain to the Ombudsman.

If you go to court, your case will be heard from scratch and you will have to prove that AIB broke the contract and that the prevailing rate would have been lower than you were actually charged. This has already been established by the Ombudsman, so you are really only arguing about the level of compensation.

If you go to court, you might lose your case and get nothing except a lot of frustration and a large legal bill

Of course, you could go to court and settle before it goes to trial, but that is a risky procedure.  It's quite possible that someone will insist on going to court and if they argue the case badly, they will lose, and set a bad precedent for everyone else.


*Ombudsman**Court*FreeCould face legal costs of both sidesShould take about a yearCould take up to three yearsYou remain in control of all aspects of the caseYou will be giving up control to a solicitor and barristerThe Ombudsman has already found in favour of Karen on this issueYou will have to establish your case from scratch - that there was a breach of contract and that the rate would have been 1.5%Consumer-friendlyThe courts are not consumer-friendlyConfidentialThe case would be held in publicClear and understandable processArchaic  and complex process

Lawyers argue that the big advantage of going to the court is that the bank is really scared of the courts and will agree a much bigger settlement than the Ombudsman would award.  Unfortunately, as the settlements are all confidential, I have no idea if that is correct or not.


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## newinvest (26 Sep 2020)

I think this approach makes sense Brendan. I have taken the redress to pay some of my mortgage and I'm now in the LTV range for the Avant 1.95% rate, which I'm going after. Additional compensation would be welcome for stress, etc. but it's not something that warrants a trip to the High Court.


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## Nailligo (26 Sep 2020)

@Brendan Burgess  do we still contact the bank first or do we go straight to the Ombudsman with the complaint so? (Lost house cohort)


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## bungaro (26 Sep 2020)

Think it's the correct decision Brendan. We got life changing amounts for nearly 6000 thanks to yourself and Karen getting the case through. It was a pleasure doing business with you!


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## Brendan Burgess (26 Sep 2020)

newinvest said:


> Additional compensation would be welcome for stress, etc. but it's not something that warrants a trip to the High Court.



But you can ask AIB for that compensation anyway, and if they refuse you have a free shot with the Ombudsman.

Brendan


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## Brendan Burgess (26 Sep 2020)

Nailligo said:


> do we still contact the bank first



Yes. Post edited for clarity.

Brendan


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## Megafan (26 Sep 2020)

I think you have made the right decision Brendan, the margins are too tight after the FSPO decision, and you and the others have dedicated a lot of your lives to this, there is only so much anyone can or should do. 

People shouldn't forget this is a win, a huge win for the majority of us, when emotion is stripped out of it. 

You have to know when to walk away, you can do so with your head held high.


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## Nailligo (26 Sep 2020)

Brendan Burgess said:


> Yes. Post edited for clarity.
> 
> Brendan


Thank you


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## LetItBe (28 Sep 2020)

Interesting to see that AIB have announced - received by email this morning - that they are now offering new interest rates to both existing and new mortgage customers. Have to find out what’s on offer, will call them later


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## MarkMul (28 Sep 2020)

So if this is the end its been some journey. 

regular visitors to this site know the work that has gone on and the effort involved by those people, you know who you are as the saying goes.

But 5,900 people with life changing money is some result

Take a bow everyone concerned


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