On 25 July 2016, Insurance Ireland published a statement opposing the Department of Finance's recent recommendation that liabilities of any insolvent motor insurer should be assumed by the Insurance Compensation Fund. Insurance Ireland states this would and pose a systemic risk to the Irish motor insurance market.
We recently published an article entitled“Good news for financial institutions seeking to challenge Protective Certificates” which outlined the positive steps taken the High Court to prevent a Debtor from receiving the full benefit of a protective certificate (“PC”) where it would cause irreparable loss to a lending institution.
A declaration sought by the Liquidator of an insolvent company that certain payments made to a director constituted fraudulent preference has been refused by the High Court in FF Couriers Limited & Companies Acts: Keane -v- Day & ors [2016] IEHC
As we head into a new Legal Year, we examine recent trends in debt recovery litigation. The Courts Service 2015 Annual Report noted, in the words of Chief Justice Ms. Susan Denham, “another busy year for the courts”. Indeed, the courts received 248,254 new civil cases in 2015, a very marginal decrease from the corresponding 2014 figure.
Default judgments
The Residential Tenancies (Amendment) Act 2015 has undoubtedly strengthened the position of tenants and increased the responsibilities and challenges facing receivers appointed by secured lenders over residential investment properties. While the added protections for tenants are to be welcomed, certain provisions of the Act result in relatively onerous obligations on receivers who are already faced with practical difficulties when seeking to deal with and realise the secured asset in accordance with their duties.
The perils of making a declaration of solvency by company directors, without reasonable grounds.
Summary
This briefing summarises recent legislation, cases and trends relevant to ongoing efforts to resolve the mortgage arrears crisis.
Recent Legislation
Recent legal and regulatory developments relevant to the mortgage arrears crisis have included:
Freeman V Bank of Scotland plc, Simon Davidson and Lloyd Daly & Associates Ltd [2016] IESC 14
This Supreme Court decision is as a result of an appeal from a judgment of McGovern J in the High Court which was delivered on 29th May 2014.
Background
In Delaney v AIB [2016] IECA 5, Court of Appeal, Peart J, 28 January 2016 the Court of Appeal held that a bank had no duty of care to advise customers on the wisdom of a commercial transaction.
Facts
In a significant recent judgment, the High Court has set aside an extension of a protective certificate issued to a debtor under the Personal Insolvency Act 2012 on the grounds of material and culpable non-disclosure by a personal insolvency practitioner.