# The process and costs of taking a tracker case to the High Court



## Jim Stafford (5 Feb 2018)

_Moderator's note- I have moved these two good posts into a new thread to highlight them._

There are a number of aspects to this:


Was there a breach of contract?  In most "civil" cases you would generally need a solicitor to advise if there was a breach of contract. In the tracker cases that we are seeing, the banks are admitting breach of contract, and thus no solicitor is required to advise if there was a breach of contract.
Borrowers need a forensic accountant to assist in advising on certain elements of the Points of Claim e.g. if the borrower used a credit card to pay interest then a calculation needs to be done on that.
If the forensic accountant advises that there is a financial claim, combined with a possible claim for stress & anxiety, greater than the compensation offered, then the borrower needs advice as to whether they should use the appeal route or the legal route.
As many Personal Insolvency Practitioners are encountering tracker interest claims they can be a good person to initially consult. PIP's would have a network of experienced solicitors that they can access.

The bigger claims will, in my view, need a combination of a forensic accountant and a solicitor to advise.

Jim Stafford


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## TomTron (15 Oct 2020)

Hello Folks,

On the question of going to the High Court - the following is what I have discovered:

Legal Costs 
(engaging Senior Counsel, Junior Counsel, Forensic Accountant and Solicitor incl Legal Executive):

Obtaining Legal Opinion from a Barrister - 2K - 4K EUR + VAT
Preparation of case / issuing proceedings 35K - 55K EUR + VAT
Trial (assume 2 - 3 weeks) - 45K - 75K EUR + VAT
Time

Time to bring to Trial- 2 years + including extensive discovery
Trial length - 2- 3 weeks
Basis of Claim
You are seeking to make a claim in Civil or Common Law - the Law does not follow 'natural justice'. For example, if you claim you were stopped from carrying out certain activities or financial transactions (house purchase, car purchase etc), then you will be up against legal definitions of 'remoteness', whether the loss was envisioned when the contract was taken out, how did you mitigate the loss, could the loss have been reasonably foreseen etc.

There is no legal precedent for the *loss of a home *in the Republic of Ireland - and the legal system is 'waiting' for a case to be made. Clearly this will have significant implications for the country as it will set case law. Its not clear how this will impact a judgement or if it will be reserved.

Claim for compensation as a result of stress has no basis in law. There is significant case law limiting awards for stress and hardship. Serious stress / anxiety will likely be based in a claim for personal injury which will need to be based on a 'Medico' report completed by a recognised medical practitioner. Given how much is claimed relative to the overall claim _may _result in the need to progress to the PIAB prior to the High Court - which is another few years to complete.

Central Bank Act  introduced a law to allow citizens to personally sue Banks and other institutions for breach of regulation. This is a further avenue to be explored.

Defamation laws were changed to remove the burden of proof for 'damages' and is based around constitutional right to good name and character. Claim must be based around items published that were defamatory and harmed your good name.  E.g pinning of legal notices to your front door.

Criminal claims for fraud will not be considered by civil law solicitors or barristers - as they concern themselves with civil litigation. You need separate advice from a criminal law specialist. It is worth noting that a BoI customer who reported the Bank to the Irish Police over a payment scam he was a victim of, was refunded in full by the Bank, while other customers were not.

Obtaining Representation
Most legal experts with knowledge or capacity to take on a case against a Bank will likely be engaged in financial services work. You will need to overcome the natural reluctance to upset the applecart - where a firm may blot its copybook and not get banking work into the future.

Settlement
It is very unlikely that a Bank will go to Trial in the High Court.  It is also likely the Bank will 'go the wire' and settle at the last minute. Refusal to compensate is a simple commercial decision - on the basis that the banks will only settle when forced to do so. The claimant is at risk of the Bank lodging money with the Court - where the Trial judge does not award you more. This makes you liable for your costs and those of the Bank, even if you win. Parts of your claim that are not upheld by the Court will likely result in an award against you for the costs the Bank incurred in defending that aspect of the case.


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## Brendan Burgess (16 Oct 2020)

Tom 

That is an excellent post. Very comprehensive. A few general points. 

1) If it goes to a hearing and you lose, you will risk having the costs of the other side awarded against you.

2) 2 to 3 weeks seems way too long for a tracker case in the court.  Do you mean days?  If it's in the court for 3 weeks, the costs would be a lot higher. 

3) People should not forget that the Circuit Court can make awards up to €75,000.

It's quicker and cheaper. 

Brendan


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## Brendan Burgess (16 Oct 2020)

TomTron said:


> Central Bank introduced a law to allow citizens to personally sue Banks and other institutions for breach of regulation. This is a further avenue to be explored.



Not sure about this.  The Central Bank does not introduce laws.  

If you have lost out due to a breach of regulation by a bank, you could always sue or complain to the Ombudsman.

Brendan


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## TomTron (16 Oct 2020)

True, I edited my post to say Central Bank Act, not Central Bank. Here is the Act for people:

Section 44 of the Central Bank (Supervision and Enforcement) Act 2013 - sets out that any failure of a regulated entity to comply with any obligation under financial services legislation is actionable by the customer who suffers loss or damages as a result of such failure.

2-3 weeks seemed long to me too, but appeared to be consensus of legal specialists where loss of home was primary issue, as was the costs, which to me seemed low, I anticipated 100K - 200K EUR.


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## Brendan Burgess (16 Oct 2020)

Hi Tom

I hadn't twigged that the post was about the loss of the family home. 

Even still, I doubt a case would take that long.

Brendan


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## TomTron (3 Jan 2021)

Hello Folks,

In my post I said that civil lawyers wont consider claims for fraud. I've since discovered this is not the case, however there is great weight given to any claim for fraud (as against negligence). Lawyers will not / can not suggest this course of action. It must be instructed by the client (the Court requires this).

More details can be found in this briefing note from Mason Curran Hayes

Fraud claim (if proven) greatly reduces the burden on the claimant to prove damages, and significantly, the concept of 'remoteness' appears to be removed - you only need to prove damages were a result of the fraud and the Bank cannot easily claim the damages are too remote to be paid out. Proofs required are no higher than any other civil case - on balance of probabilities.

Misrepresentation is considered fraud, and statement of inflated mortgage charges that caused you to take action you otherwise would not have made, is considered misrepresentation.

*Edit - I cant post link to MCH website, the online forum says I'm posting spam content*


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## SGWidow (3 Jan 2021)

Interesting thread

How much would it cost to be a case to the Circuit Court (if you win and particularly if you lost). What timescales are involved?


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## TomTron (18 Jan 2021)

Additional update for those reading this.

I've had further Opinion from 'high profile SC' and Solicitors I've engaged on recovering losses and damages from the loss of family home and associated losses. You are effectively barred from the recovery of the vast majority of your losses and damages under Irish Law, the case will largely refer to Contract Law remedies, which are  restricted by 'remoteness' and 'reasonably foreseeable' losses. 

I have requested Opinion on pursuing case under Civil Fraud / Misrepresentation and will post update once I have it for informtaion, clearly your own circumstances will impact how relevant this will be for you.

It does appear that for loss of a family home there is no law to recover your losses in Ireland, perhaps why so many customers have referred their issue to the Financial Ombudsman?


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## Jim Stafford (19 Jan 2021)

I set out below a link to a blog that we posted some time ago. The blog contains guidance on the various issues arising.

Compensation for tracker interest claims - Friel Stafford 

I would suggest that the best, low cost approach, is to firstly exhaust the banks' appeal procedures. As the blog states, banks were under pressure to issue settlement cheques as quickly as possible  by the Central Bank. Accordingly, virtually no consultation was done with customers as to what impact the overcharging  had.  We have found that if there are genuine losses that were not compensated by the original cheque that the banks will compensate for them.

The standard of proof for proving a claim is the Civil Standard i..e you have to prove the claim. Any claim made will be forensically examined by the bank.

At this stage the vast majority of claims have now been settled.

Jim Stafford


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## Johnno75 (19 Jan 2021)

If I might just add a point on the fraud piece. If you are alleging fraud in court, you really have to be sure that you are in a position to prove it. The burden of proof for fraud appears to be somewhat higher than "on the balance of probabilities", which is the usual standard in civil cases, but not as high as the criminal standard which is "beyond a reasonable doubt". (See: https://www.dacbeachcroft.com/en/gb...s-recent-interpretation-by-the-circuit-court/  )

Fraud is not an allegation that should be made lightly. If you allege fraud loosely and it ultimately bears no relation to the facts, there is a strong chance you will be heavily penalised by the judge if you can’t prove it in terms of a costs award against you (even if you manage to succeed in the breach of contract aspect of your case).


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## Jim Stafford (19 Jan 2021)

TomTron said:


> It is very unlikely that a Bank will go to Trial in the High Court. It is also likely the Bank will 'go the wire' and settle at the last minute


I agree with the above.  There is a positive Collegiate atmosphere between lawyers which results in over 90% of cases being settled. It is important to remember that lawyers are business people with overheads etc to pay, and thus they do not enjoy taking on "no foal no fee" type cases.

If anyone is instructing a legal team to pursue any type of case, be ready for the following scenario:
*Solicitor*: "Just spoken with Counsel about the trial which is set down for next month. As you know, the other side has offered €20,000 on your claim of €100,000. Counsel's advice is that you should accept it. If you do not accept it Counsel wants a brief fee of €12,000 + VAT to proceed with the trial, payable now. We will need €8,000 + VAT ourselves"
*Client: "*But Counsel said I had a good case?
*Solicitor: "*You have a strong case, but there are no guarantees. If you lose the case you will be responsible for their costs. You need to listen to Counsel's advice. All High Court litigation is fraught with uncertainty".

Jim Stafford


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## Brendan Burgess (19 Jan 2021)

Hi Jim

And the variation for the no foal, no fee case

*Solicitor*: "Just spoken with Counsel about the trial which is set down for next month. As you know, the other side has offered to settle the case for nothing but will not pursue you for their costs. Fortunately, they will pay our costs in full.
*Client: "*But Counsel said I had a good case?
*Solicitor: "*Well, the judge looks a bit dicey, and their defence is good, so we are a lot less confident now.  If you lose the case you will be responsible for their costs. You need to listen to Counsel's advice. All High Court litigation is fraught with uncertainty". 

So the guys who offered their services on a "no foal, no fee" basis get their fees despite there being no foal.


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## Johnno75 (19 Jan 2021)

TomTron said:


> There is no legal precedent for the *loss of a home *in the Republic of Ireland - and the legal system is 'waiting' for a case to be made. Clearly this will have significant implications for the country as it will set case law. Its not clear how this will impact a judgement or if it will be reserved.


This, in my view is what would likely force a bank to settle (at the last minute, having gone to the wire) any case involving the loss of a home.

If a bank were to fight such a case in court, and lose, this would set a very unwelcome and costly precedent for the banks.


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## Banquo (1 Feb 2021)

Is the circuit court a better option for people to pursue rather than the High Court. I know the payouts are limited but they are insubstantial and I assume the costs are significantly lower ?


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## Brendan Burgess (1 Feb 2021)

The beauty of the High Court is that it would set a precedent for other cases. 

I see no advantage in going to the Circuit Court over going to the Ombudsman. Unless the Ombudsman had rejected a similar case. 

Brendan


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## Banquo (20 Feb 2021)

Brendan Burgess said:


> The beauty of the High Court is that it would set a precedent for other cases.
> 
> I see no advantage in going to the Circuit Court over going to the Ombudsman. Unless the Ombudsman had rejected a similar case.
> 
> Brendan


Sorry for not responding. I suppose one of the perceived advantages of using the Ombudsman is it  should be quicker but from reading posts on these forums it's anything but. Hence one might  be willing to spend X thousand euro on bringing a case in the circuit court (CC). The HC I have been told is 10s of thousands which is beyond the reach of most but maybe if a CC case could be taken it might be 5k and doable?? I don't know hence the question.

Separately why doesn't a CC case not set a precedent?


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## Brendan Burgess (20 Feb 2021)

The Ombudsman has many advantages.  
They try to resolve it by dispute resolution.  
You make your point directly - it's not diluted by solicitors and barristers who tend to know little about these issues and who might be distracted by other cases. 
It's quicker. 

I don't know how long the CC is taking at the moment. But the Ombudsman is grinding through cases at a fair pace.

Brendan


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## Johnno75 (20 Feb 2021)

Banquo said:


> Separately why doesn't a CC case not set a precedent?


Circuit Court judgements tend to be “ex-tempore” ie unwritten, and therefore not reported. High Court Judgements are written and usually reported, so lawyers and judges have a precedent bank to work off when arguing/deciding cases.

That’s not to say Circuit Court cases don’t have some precedent value - they sometimes do, if judges and lawyers know about them. 

Also, because the High Court is a superior court, it binds judges in subsequent similar cases in that court and the lower (Circuit and District) courts.


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## Brendan Burgess (20 Feb 2021)

Hi Jay

So if I won a case against Ulster Bank in the Circuit Court, could I ask the judge to give a written judgment? 

Or would I have to employ my own stenographer? 

If you took a case on a similar issue to the High Court, could you quote the CC judgement?  

Brendan


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## Johnno75 (20 Feb 2021)

Brendan Burgess said:


> Hi Jay
> 
> So if I won a case against Ulster Bank in the Circuit Court, could I ask the judge to give a written judgment?
> 
> ...


You could always request a written judgement from the judge. A stenographer is better again.

You could quote the Circuit Court judgement in the High Court but the Circuit Court judgement has no precedent value in the High Court and the High Court judge would not be bound by it.


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