Case law

  • Case Details
    • National ID: High Court, Judgment 604
    • Member State: Ireland
    • Common Name:EBS Limited -v- Kenehan & Anor
    • Decision type: Court decision in appeal
    • Decision date: 24/10/2017
    • Court: High Court
    • Subject:
    • Plaintiff: EBS Limited
    • Defendant: Trevor Henehan and Bernadette Ryan
    • Keywords: loan and mortgage contract; possession order granted; appeal; unfair terms; contract documentation;
  • Directive Articles
    Unfair Contract Terms Directive, link
  • Headnote

    Key contractual documentation evidencing the terms of the contract must be put before the Court by those seeking to rely on the terms of the contract so as to allow the Court to perform an own motion assessment of fairness in light of the Aziz/Counihan authorities.

  • Facts

    On 3rd November 2015, the Circuit Court issued an order for possession against the defendants in respect of certain premises in County Tipperary. On 12th November 2015, defendants brought an appeal against that judgment. The grounds of the appeal raised by the defendants included a claim that they were consumer borrowers (this was not in dispute) and an own motion assessment of the fairness of the type identified by the High Court in AIB plc v. Counihan [2016] IEHC 752 had not been performed and was required.

  • Legal issue

    Whether the Court was in a position to perform an own motion assessment of the fairness of the terms of a contract, without key contractual documents being laid before it.

  • Decision

    The judge held that because the plaintiff did not put in evidence key contractual documents expressly incorporated by the mortgage, notwithstanding that the defendants had indicated in their court papers that they were going to rely on Directive 93/13, he could not, therefore, address the issue of fairness of the contract terms and he accordingly refused to confirm the Circuit Court's order for possession.


    Full text: Full text

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  • Result

    Appeal was upheld on the basis of Directive 93/13 alone.