Case law

  • Case Details
    • National ID: High Court, Judgment 803
    • Member State: Ireland
    • Common Name:AIB Mortgage Bank & Anor -v- Cosgrove
    • Decision type: Court decision in appeal
    • Decision date: 31/10/2017
    • Court: High Court
    • Subject:
    • Plaintiff: AIB Mortgage Bank and Allied Irish Banks plc
    • Defendant: Gerard Cosgrove
    • Keywords: loan and mortgage contract; re-possession order granted; unfair terms;
  • Directive Articles
    Unfair Contract Terms Directive, link
  • Headnote

    The core terms of the contract do not fall within the scope of Directive 93/13.

  • Facts

    The plaintiff bank provided loan facilities; security by a mortgage over the defendant’s premises. This is an appeal by the defendant from a Circuit Court order for possession in favour of the plaintiff bank following the defendant’s default in monthly repayments. The defendant argued, inter alia, that the mortgage contract comes within the scope of Directive 93/13 and should have been adjudicated upon accordingly, and that in failing to do so, the Circuit Court made a mistakein failing to apply the law. The defendant asserted that there was a clear and unambiguous list of terms within the mortgage contract which demonstrated that the mortgage contract, in its composition, was unfair to him and thus is null and void.

    It was argued by the plaintiff that the defendants were not entitled to rely upon Directive 93/13 because when the defendant borrowed money to purchase a premises, they knew that the sum borrowed had to be repaid with interest and that the sum borrowed would be secured by way of a charge on the property. Such terms were to be considered “core terms”, and not subject to the fairness test under Directive 93/13.

  • Legal issue

    Whether various terms of the mortgage contract are unfair pursuant to Directive 93/13 and hence, null and void.

  • Decision

    Referring to Aziz, the judge held that the terms of the contract, upon which the plaintiffs sought to rely on in proceedings, could not be said to come within the ambit of the Unfair Terms Regulations, because they were ‘core terms’, and therefore the provisions of the mortgage contract could not be deemed unenforceable against the defendant.


    Full text: Full text

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  • Result

    The High Court dismissed the appeal.