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knowledge 14 October 2022 |

Central Bank’s Tracker Mortgage Examination and Investigation – Firm level investigations draw to a close

On 27 September 2022, the Central Bank of Ireland (the “Central Bank”) reprimanded and fined Bank of Ireland €100.5 million pursuant to its Administrative Sanctions Procedure, for a series of failings in respect of 15,910 tracker mortgage customer accounts which were impacted between August 2004 and June 2022.

The fine, reduced from €143.6 million in accordance with the Central Bank’s settlement discount scheme, represents the largest fine ever imposed by Central Bank. This concludes the enforcement action against Bank of Ireland, the last of the investigations carried out in respect of lenders arising from the Central Bank’s Tracker Mortgage Examination (“TME”).

Tracker Mortgage Examination

In December 2015, the Central Bank commenced the TME, publishing its Principles for Redress and Compensation. The TME required all lenders to review their loan book to ensure compliance with both regulatory and contractual requirements in relation to tracker mortgages. While the Central Bank did not at that time have statutory powers to compel lenders to implement redress and compensation in respect of failures that took place prior to the Central Bank (Supervision and Enforcement) Act 20131, the Central Bank clearly and effectively set out its expectations of lenders. Through the TME, which was the largest consumer protection review ever undertaken by the Central Bank, 40,000 affected customers were identified and €683 million in compensation was paid by lenders to their customers2.  

Tracker Mortgage Investigations

Alongside the TME, the Central Bank commenced formal statutory investigations into a number of lenders using the administrative sanctions procedure as prescribed by Part IIIC of the Central Bank Act 1942 (the “1942 Act”). These investigations considered, inter alia, suspected breaches by lenders of the Consumer Protection Codes 2006 and 2012, the European Communities (Unfair Terms in Consumer Contracts) Regulations 1995 and the Code of Practice for Credit Institutions 2001.

Each investigation was concluded by way of settlement, with historic levels of fines imposed on lenders on foot of the Central Bank’s findings, as follows:

 

 

 Lender

 

Amount

 

Date

 Springboard Mortgages

€4.5m

November 20163

 PTSB

€21m

May 2019

 KBC

€18.3m

September 2020

 Ulster Bank

€37.7m

March 2021

 AIB

€83.3m

June 2022

 Bank of Ireland

€100.5m

September 2022

 

The Central Bank has confirmed that the conclusion of the Bank of Ireland investigation brings to an end the firm-level investigations into tracker mortgage related issues.

Individual Accountability    

The Central Bank has stated publically that it is considering individual accountability in the context of its tracker mortgage work but, to date, the Central Bank has not made any public statements confirming specific steps that have been or will be taken in relation to any individuals within lenders for their involvement in tracker mortgage related issues.

Section 33AO (2) of the 1942 Act provides that where the Central Bank suspects on reasonable grounds that a person concerned in the management of a regulated financial service provider is participating or has participated in the commission of a prescribed contravention by the financial service provider, it may hold an inquiry to determine whether or not the person is participating or has participated in the contravention. This provision requires a finding in the first instance that there has been a prescribed contravention by a firm, in order to then consider whether a person concerned in the management of the firm participated in the commission of the contravention. This is described as the “participation link” and was identified by the Central Bank as a “hurdle” in the way of individual accountability which “should be removed from the enforcement process to ensure that the Central Bank can pursue individuals directly for their misconduct rather than only where they have participated in a firm’s wrongdoing”4. The removal of the participation link is now provided for in the Central Bank (Individual Accountability Framework) Bill, expected to be enacted later this year and which, amongst other things, introduces changes to the administrative sanctions regime.

Conclusion

The announcement of the conclusion of the Bank of Ireland investigation marks the end, at the firm level at least, of an unprecedented industry wide consumer protection and enforcement project by the Central Bank. 

With the increasing prevalence of administrative fining regimes in the Irish regulatory landscape,  fines of this nature, and possibly higher, are likely to become more commonplace across all sectors. 

A notable feature of the Central Bank’s tracker mortgage project was the combined approach of customer redress and administrative fines. In other regulatory regimes it may be harder to insist upon and implement a redress and compensation scheme, potentially leaving it up to affected parties to pursue claims for loss, with consequent additional costs and inefficiencies for all parties involved.

Also contributed by William Shanahan.
  1. Section 43 of the Central Bank (Supervision and Enforcement) Act now provides that, where there have been widespread or regular “relevant defaults” (as defined) by a regulated financial service provider in consequence of which customers have suffered, are suffering or will suffer loss or damage, the Central Bank may give a direction requiring the making of appropriate redress to the customers.
  2. Figures published by the Central Bank as at May 2019
  3. Note this investigation pre-dated the Tracker Mortgage Examination
  4. Central Bank of Ireland Report on the Behaviour and Culture of the Irish Retail Banks dated July 2018

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.