Contra proferens is a legal doctrine (convention) which results in courts interpreting ambiguous clauses in contracts against those who drafted them. In other words, the courts will interpret ambiguous clauses in favour of the weaker party to the contract - in this instance, the lowly bank customer. That’s how it’s supposed to work anyways!
AIB AIB has accepted the Ombudsman's decision and will be rolling it out to 5,900 impacted customers
- Thread starter Brendan Burgess
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Good work and patience to all involved.
Query:
So if one felt their case merited more compensation, for such things as , opportunities lost, or compensation for paying a substantial breakage cost, and not being offered tracker, such things
which arent referenced in this particular case, by potentially refusing to accept t& cs offered in JULy/August, and proceeding to FSPO , does this mean one would leave themselves open to potentially not being awarded anything at all, despite being in the 1615 cohort ? Or how would an individual appeal to FSPO work?
Query:
So if one felt their case merited more compensation, for such things as , opportunities lost, or compensation for paying a substantial breakage cost, and not being offered tracker, such things
which arent referenced in this particular case, by potentially refusing to accept t& cs offered in JULy/August, and proceeding to FSPO , does this mean one would leave themselves open to potentially not being awarded anything at all, despite being in the 1615 cohort ? Or how would an individual appeal to FSPO work?
Brendan Burgess
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Hi Green
We just don't know the answer to that until AIB announces their redress scheme.
Brendan
We just don't know the answer to that until AIB announces their redress scheme.
Brendan
Brendan Burgess
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I would guess that they will apply Karen's formula to everyone but make a provision for those who feel that they deserve more compensation to apply for it.
But, again, until AIB, announces their scheme, we won't know.
And nothing that AIB announces will affect anyone's right to go to the Ombudsman or to the High Court
Brendan
What a difference a year makes, the arrogance of AIBs Managing Director of Homes Tom Kinsella and Group General Council Helen Dooley https://vimeo.com/330133278
You are able to take what is initially offered and then appeal further without any risk of initial offer being withdrawn (if that’s what your question is?). It even says so on AIBs website in the FAQ where they announced this decision. (But this is well known fir those involved in the previous rounds)
This is not a finding on the prevailing rate that should of been applied issue at all really but more a breach of contract payment! How can the FSPO find that a person overpaid on the last 10 years of their mortgage and now go ahead and overpay in the remainder of their term! Doesn't make sense.
I agree. Based on the information we have available to us it is v difficult to understand this decision. I guess we have to wait for the statement from the ombudsman. We simply do not have enough information to go on right now.
But as of now it is an odd one. Some questions definitely still outstanding.
Brendan Burgess
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Hi z
That is certainly the way that previous redress programmes work and I assume that this one will be the same.
I thought that FAQ referred to previous ones, but it's not clear to me.
I think you are right, but let's wait until we see the redress programme.
Brendan
From what Brendan said "As a fair balance, he ordered AIB to write down the balance of Karen's mortgage by 12% of the balance on the day she rolled off the fixed rate and should have been offered a tracker in 2010." I'm reading this to mean that on the issue of Prevailing Rate the FSPO supported both arguments equally and split the finding 50/50 so half the term at the equlivent of a tracker at 1.5% the remainder at variable or whatever you choose to do with it.
AIB STAFF 2010
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Hiya Brendan,
Have you heard of contra proferentem? Was it something Karen could have used?
When the finding are published will you be doing some interviews or a podcast,?
Would you do a Q&A on hear, I'd like to hear more on how AIB treated Karen & yourself via the process.
This might help others out., or maybe that is not allowed.
blue_steel
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Absolutely. Anyway take the 12% and appeal the decision. Nothing to lose.
Not sure I’d agree with that.
You are correct in that it appears the ombudsman didn’t entirely side with the customers, but if the ombudsman wanted to split the rate then why not just do that?
At least then people would know exactly how much they were overcharged and could claim
accordingly .
This has particular relevance for those whose property was taken from them due to different rate. Very difficult for it to be determined now whether the whole issue was causal to forced sale / repossession of property or not.
I must confess, earlier today I assumed there was probably some methodology to cater for such customers. But the more I think about it, I really don’t see how there can be, other than some new drawn out saga with the ombudsman. I (hopefully) may be proved wrong. But let’s see.
Brendan Burgess
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No, it's a completely new concept to me.
I have been engaged in consumer advocacy for 30 years, and I have never heard of the contra proferentem rule.
We just assumed that the contract meant what AIB meant it to mean and didn't challenge their interpretation at all.
I exercised no energy, determination, strategy, skill or knowledge at all in this campaign. We just cobbled together a complaint and fired it in on the off chance that we might fool the Ombudsman and we got lucky.
It's a terrible pity that some of the posters on here didn't compile a complaint themselves and submit it to the Ombudsman, as obviously, they would have got twice the redress the Ombudsman awarded our slap dash complaint and they would have got the tracker back at 0.5% for the remaining life of the mortgage.
Come to think of it, it probably would not have been necessary to go to the Ombudsman if they had replaced me in my meetings with AIB trying to convince them to do the right thing, as I failed to do it. They could have gone with Karen, Alan and me to the AIB AGMs for the last three years and put their arguments out in public and lobbied the directors on the fringes of those meetings and convinced them to change their mind. They could have done the briefings for the Oireachtas Finance Committee much better than I did. They could have drafted much better model appeals for the Independent Appeals Panel.
Could someone please tell me how I insert a smiley which says "my patience is wearing thin which is driving me to sarcasm" ?
Thanks
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True. Although an appeal would presumably have to go to straight high court would it not? (Assuming no unique circumstances of course) That could cost a lot of money.
The cost of a legal challenge was a huge concern for our group. When we got the 1615 we thought that if the High Court was our last resort but was a good chance of getting a result then it was something we could look into. But getting someone to take the risk of possibly getting costs awarded against them was a big issue.
I just look forward to seeing what AIB come back to us with and taking it from there
I just look forward to seeing what AIB come back to us with and taking it from there
blue_steel
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Yeah possibly. I was thinking because AIB was making a new redress offer rather than the FSPO finding in an individuals favour (apart from the test case) then it would be possible to go through the process again i.e. appeal to the bank and then FSPO.
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