The High Court has refused Elaine and Stephen Bergin’s application for discovery of documents from Permanent TSB in their claim arising from a mortgage interest-rate change.
Mr Justice Allen ruled on 20 December 2018 that the Bergins had not established the relevance of the documents they sought. He said the court therefore did not need to decide the separate questions of whether discovery was necessary or proportionate. The application was refused; the judgment did not determine the underlying claim.
The couple’s 2007 loan was for €250,000 over 35 years, secured on their house in Lucan. Its interest rate was fixed at 4.99% for the first three years. The loan terms provided for a tracker rate after the fixed period in specified circumstances. In January 2009, the Bergins asked to move from the fixed rate to a variable rate, and the bank confirmed the change the following month. The judge said the pleadings were not entirely clear but he understood the rate became the bank’s standard variable rate.
The claim, as described in the judgment, was that the bank should have advised the couple that ending the fixed-rate period early would prevent them from qualifying for a tracker rate later. They said they would have stayed on the fixed rate if properly advised and would then have been able to take a tracker rate in about October 2010. The judge said it appeared to be common ground that, prima facie, they were not entitled to a tracker rate unless they paid the fixed rate for the full three years.
The Bergins sought six categories of documents, including material about the bank’s analysis of tracker products, its decision to stop offering them to new customers, and how a tracker margin offered to the couple in 2015 was calculated. The judge found that the requests were not sufficiently connected to the pleaded case. Among other points, he said the claim was that the couple had approached the bank about lowering repayments, not that the bank had encouraged them to leave a tracker product. The pleadings also did not raise an issue about the 2015 tracker rate or its margin.
The judgment arose from a discovery motion in one of a small number of cases identified by the parties as lead cases in wider litigation following a Central Bank investigation into tracker mortgage account management. The ruling addressed the discovery application in this case only.