A Timely Reconsideration of Liability For Imprudent Lending: Covering All The Bases and The Profile of the Borrower

Alex Casey is an incoming LLM Student at Harvard Law School and a graduate of LLM International Commercial Law and LLB Law Plus at the School of Law, University of Limerick. He is a part-time teaching panel member of University College Cork. In his second contribution to the Roundtable, Alex discusses liability for imprudent lending through the lenses of contract and tort law. He analyses the various duties between lenders and borrowers in an aim to 'cover all the bases' and gives compelling arguments for why a reconsideration of liability in the sphere of imprudent lending is necessary.

A INTRODUCTION

The great recession of 2007-2009 provided the most severe global economic downturn since World War II.[1] This financial crisis had significant consequences and lasting effects which would be felt for many subsequent years.[2] Yet in the aftermath of the downturn, various inquiries have deemed the crisis to have been ‘avoidable’ and identified the core causes as threefold; excessive borrowing by consumers, excessive lending by financial institutions and insufficient governmental or legislative regulation.[3]

Fifteen years later, various legislative measures have been introduced internationally addressing lessons learned from the recession.[4] However, one lingering question across various jurisdictions is whether lenders should be deemed to owe a duty of care towards borrowers in respect of their decisions to provide credit. [5] This also raises a related inquiry concerning the extent to which the profile of the relevant borrower should influence the lender’s blameworthiness.[6]

This discussion will consider the various bases for such liability from a broad international perspective. Firstly, the existence of such a duty under contractual and tortious principles will be outlined. Subsequently, the alternative bases of fiduciary or consumer protections will be explored. It will be concluded that while lenders typically do not owe such duties as a matter of course, there will be cases where the circumstances of the borrower dictate that they should.

B         DUTY OF CARE IN CONTRACT AND TORT

The relationship between lenders and borrowers has traditionally been confined to a classic debtor-creditor relationship where parties deal with one another at arm’s length.[7] Preliminarily, it should be understood that ‘[a] lender’s duty of care arises from its contractual relationship with the borrower as well as from the application of common law tort principles’.[8]

Traditionally, the liability of lenders was considered ‘almost exclusively under the contractual rubric’. The contractual relationship gives rise to many uncontroversial rights, duties and obligations, such as those regarding repayment. While such contracts may be deemed to contain an implied promise of reasonable care and skill in the performance of the relevant services, a purely contractual basis for a finding of lender’s liability for imprudent lending appears ill-advised.

In addition to the above, a lender may owe a duty of care to the borrower under principles of tort law. Such lenders can be liable not only in negligence, but also for inter alia fraudulent misrepresentation or duress. Regarding negligence specifically, while the lender-borrower relationship may not always provide sufficient proximity, it has nonetheless been established that such circumstances may attract a duty of reasonable care under Lord Atkin’s notorious ‘neighbour principle’.[9] 

Given that lenders may owe a duty of care under contract and tort simultaneously, the relationship between the two sources of obligation warrants consideration.[10] Firstly, in ordinary lending circumstances, the extent of the duties owed is identical under both contract and tort.[11] However, there are notable points of difference between the two bases of liability for litigant borrowers, such as limitation periods and rules governing remoteness of damage.[12] Furthermore, the availability of punitive damages under tort principles but not contract in many jurisdictions is also relevant.[13] Where these differences render one cause of action preferrable for the borrower, they can opt for the more advantageous claim.[14] The idea of concurrent remedies is widely accepted and ‘the common law world would appear to be united in this regard’.[15]

C         DUTY OF CARE AND TORTIOUS LIABILITY

There has generally been strong reluctance towards imposing any special duty of care upon lenders in simple credit transactions.[16] However, one argument repeatedly advanced is that lenders should be liable in situations where their decision to provide credit was reckless or imprudent.[17] The primary rationale tends to be that banks are in a position of superior knowledge and experience whereby they can better assess the credit risks than the average borrower.[18] On the other hand, private liability for improvident lending would increase the cost of providing credit as lenders would bake this into their costs to account for the risk of liability.[19]

The traditional view has been that lenders are under no duty to consider the prudence of a loan from the borrower’s perspective.[20] Thus, the ‘ordinary relationship’ between lenders and borrowers does not create ‘any contractual or tortious duty to advise the customer in the wisdom of commercial projects’.[21] It has also been suggested it would be ‘illogical’ that lenders owe a duty to process loan applications with reasonable care because they are simply following the borrower’s request.[22]

As for reckless lending, this would presumably require some lack of prudence which goes beyond the inherent risk-taking involved in credit transactions.[23] The consistent view of the Irish courts has been that there is no tort of reckless lending and, equally, such a tort ‘does not appear in the works…. from any other common law jurisdiction’.[24] Additionally, the possibility of reckless lending constituting a defence (‘a shield if not a sword’) has also been widely rejected.[25] Having said that, the courts have considered the possibility of reckless lending procedures giving rise to contributory negligence, albeit finding little favour thus far.[26]

While the above authorities provide compelling reasons why the lender-borrower relationship should not attract any enhanced duty of care simply due to risky lending practices, there are undeniably circumstances which will create a special obligation on the part of the lender to exercise due care on the borrower’s behalf.[27] Generally, a lender must undertake some additional responsibility in order to elevate the relationship to one which attracts duties above the bare minimum of standard contractual obligations. For instance, in Connor v Great Western Savings, it was held the respondent ‘became much more than a lender’ as they invested alongside the borrower in the business venture. [28] Crucially, as the range of services supplied by lenders increases, so too does their exposure to different forms of liability.[29]

The primary basis on which a substantial duty of care has been deemed to be placed on lenders is where the lender is deemed to have provided advice to the borrower.[30] Where lenders adopt such an advisory role, they will typically owe a duty of care both in contract and tort in respect of advice given.[31] Notably, lenders will not usually assume such a role and cases of liability are uncommon.[32] While there is no obligation on lenders to advise their customers, where they undertake to give advice then this must be done with reasonable care and skill.[33] The Australian courts have articulated the scope of the duty as requiring ‘exercise of skill and diligence which a reasonably competent and careful [credit or investment] adviser would exercise’.[34] A duty of reasonable care regarding information provided to the borrower may also be owed on the basis of negligent misstatement.[35]

However, the judiciary have been careful to avoid such advisory roles being established too easily. The most important judicial limitation has been the clarification that the borrower must make it clear that the lender’s advice is being sought.[36] Similarly, unless advice is specifically requested, lenders owe no duty of care to assess the economic viability of the borrower’s project, even where the relevant information is provided to the lender.[37] Any assessments of the borrower’s project are generally conducted for the lender’s own purposes and the borrower should not draw comfort from the lender’s loan approval.[38] This accords with the general principle that, in the investment context, it is for the customer to allocate risks and make the final decisions.[39] Furthermore, as expressly addressed by the UK’s FCA, there can be significant conflicts between a lender-focused and a borrower-focused approach to assessing creditworthiness, making the imposition of a duty of care in this respect unsound.[40] Ultimately, lenders ‘are not charitable institutions’ and cannot reasonably be expected to prioritise the borrower’s financial interests over its own.

D         CONSIDERING THE PROFILE OF THE BORROWER

The profile of the borrower will also often influence the identification of a duty of care.

This recognises that ordinary customers seeking standard loans operate differently to financially sophisticated customers seeking specialised services with the benefit of legal advice.[41] The profile of the borrower has been particularly significant in the advisory context.[42] For example, where borrowers are elderly or inexperienced in business matters, the judiciary has recognised this more likely meant the borrower may have been relying upon the expertise of the lender.[43] This can be contrasted with situations where the borrower in question is well-versed in financial matters and actively engaged in such activities.[44] For instance, a duty assumed by the lender towards the inexperienced borrowers was breached by failing to check their costs assumption, encouraging them to pursue a venture that was fundamentally flawed and failing to advise them regarding how much they could afford to borrow.[45]

Seemingly, the disparity of information and experience is often the crucial element.[46] Thus, where the lender is equally inexperienced and uninformed, then such considerations would be less applicable. Furthermore, factors outside of the borrower’s profile, such as the actual knowledge of the parties or the complexity of the subject matter involved, may prove equally decisive.[47] Ultimately, such cases are heavily influenced by their individual circumstances and so liability often ‘simply a question of meticulous examination of the particular facts’.[48]

E         FIDUCIARY DUTY OF CARE

A duty of care may also be imposed as a matter of fiduciary law.[49] Fiduciary duties may arise wherever individuals entrust and rely upon another to deal with their property for their benefit.[50] Fiduciary duties are not generally attracted by commercial arrangements such as in the borrowing context.[51] However, the range of relationships capable of attracting fiduciary duties is not restrictively prescribed and fiduciary obligations have occasionally been applicable ‘between a credit institution and a borrower’.[52]

It has been opined that the ‘liability of a fiduciary for the negligent transaction of his duties is not a separate head of liability but the paradigm of the general duty to act with care’ and that historical developments have ‘caused different labels to be stuck on different manifestations of the duty’.[53] Lenders typically adopt lesser fiduciary duties such as when entrusted with payment and collection of money.[54] Fiduciary duties also arise when acting as a financial advisor.[55]

The identification of a fiduciary relationship is strongly influenced by the particular circumstances of the parties.[56] Illustratively, the Canadian Supreme Court remarked that fiduciary status should be ‘reserved for situations that are truly in need of the special protection that equity affords’.[57] In this respect, the profile of the borrower has proven relevant to identifying the special relationship required between the parties.[58] For instance, several US authorities involving farmers with limited business experience who relied on the lender’s expertise recognised these arrangements went ‘far beyond that of a mere debtor and creditor’.[59] The key consideration in this respect again is seemingly the disparity between the parties. Additionally, there appears to be a heightened duty where borrowers are deemed vulnerable by reason of potential incapacity, although advanced age alone seemingly does not create a duty.[60] Various authorities have suggested the degree of control by the lender also merits consideration.[61] Furthermore, there have been some suggestions that the profile of the borrower might be more important than the duration of a close commercial relationship in this context.[62]

Crucially, fiduciary relationships typically offer a wider range of remedies than contract or tort[63] and engage a duty of undivided loyalty,[64] two key distinctions in the lender-borrower context.

F         DUTIES OWED TO CONSUMERS

Additionally, certain duties are owed to borrowers who qualify as ‘consumers’. Under the EU-based legislation, ‘consumers’ are defined liberally as ‘a natural person who is acting… for purposes outside his or her trade, business or profession’.[65] The Consumer Credit Directive imposes duties when deciding upon consumer credit applications which the Court of Justice believes ‘avoid loans being granted to consumers who are not creditworthy’.[66] The only resulting duty imposed by EU law is to provide the consumer with ‘adequate explanations’ regarding their unsuitability for credit, however, several Member States have adopted duties to deny credit in such instances.[67]

By contrast, the Mortgage Directive adopts many of the stronger protections which were initially proposed under the 2008 Directive but ultimately abandoned.[68] These include a duty of responsible lending and a duty to refuse credit where consumers fail the creditworthiness assessment.[69] Additionally, the profile of the borrower is extensively considered, such as ‘information on the consumer’s income and expenses and other financial and economic circumstances’.[70] It has been opined the stronger protections under the most recent legislation recognises the desirability of such safeguards.[71]

In the Irish context, the Consumer Protection Code also has ‘considerable practical implications’ for borrowers.[72] For example, it appears a duty of care regarding calling-in loans early arises in the consumer context which, as discussed earlier, generally doesn’t exist in commercial contexts.[73] Crucially, although ‘not absolutely clear’, the Code is seemingly non-justiciable from the perspective of private litigants, with sole enforcement coming from the Central Bank.[74]

Regarding the borrower’s profile, the Code obliges lenders to assess whether loans suit the best needs of the consumer.[75] The Code expressly requires regulated entities to consider the personal circumstances of the consumer (including age, health, experience of financial products, employment) and their financial situation (inter alia income, savings, debts) when assessing affordability and suitability.[76] Furthermore, the Code provides particular requirements for ‘vulnerable consumers’, including individuals with limited decision-making capacity or require assistance in doing so.[77]

G         CONCLUSION

In summation, there are undoubtedly many bases upon which a duty of care could be owed by lenders towards borrowers. However, despite the lender often arguably bearing the primary responsibility for a debtor’s financial default, typically liability will not arise.[78] This is exacerbated by the fact that lenders may even stand to gain from defaulting parties.[79] The general rule is that such duties will only be imposed in special circumstances, often influenced by the borrower’s particular circumstances. As outlined above, there appears to be a blatant connection between the profile of the borrower and judicial willingness to recognise the existence of such duties. It is submitted this provides a measured approach whereby deserving parties can expect reasonable care without an overly paternalistic system for simple credit transactions generally.

The timeliness of this review should not be overlooked. The International Monetary Fund have recently raised concerns with excessive lending in the US banking sector.[80] Measures to ensure affordability of mortgage repayments remain a live issue across various jurisdictions.[81] One does not require a sophisticated understanding of economics to appreciate that the threat of a financial crisis is far from behind us.[82] This is particularly so when the core factors leading to the 2007-2009 market crash remain unaddressed fifteen years later.[83]

While reflecting on the past with the benefit of hindsight is sometimes an unwise exercise, learning from the past is far from futile. With looming signs of history repeating itself, one cannot help but wonder if global standards towards imprudent lending are fit for purpose.

* Alex Casey, Incoming LLM Student at Harvard Law School. Graduate of LLM International Commercial Law, University of Limerick and LLB Law Plus, University of Limerick. Part-Time Teaching Panel Member, University College Cork.

[1] Brian Keeley and Patrick Love, ‘From Crisis to Recovery: The Causes, Course and Consequences of the Great Recession’ (Paris: OECD Insights, OECD Publishing 2010).

[2] Wenjie Chen, Mico Mrkaic and Malhar Nabar, ‘The Global Economic Recovery 10 Years After the 2008 Financial Crisis’ (WP/19/83, March 2019).

[3] Financial Crisis Inquiry Commission, ‘The Financial Crisis Inquiry Report: Final Report of the National Commission on the Causes of the Financial and Economic Crisis in the United States’ (US Government Printing Office, January 2011). Note the almost identical criticisms raised by the Irish Property Council. See Fiachra Ó Cionnaith, ‘Call For Test Cases to Claim “Reckless Lending” compo’ (Irish Examiner, 23 March 2011).

[4] See generally Peter Conti-Brown and Michael Ohlrogge, ‘Financial Crises and Legislation’ (2022) 4(3) Journal of Financial Crises 1; M Ayhan Kose and Franziska Ohnsorge, A Decade after the Global Recession: Lessons and Challenges for Emerging and Developing Economies (Washington DC, World Bank Group 2020).

[5] Danny Busch and Cees van Dam, ‘A Bank’s Duty of Care’ (Oxford: Hart Publishing 2017) 4.

[6] See Paul Omar and Jennifer Gant, ‘Lender Liability and Fault for Deepening Insolvency: A Comparative Analysis’ (2015) 132(1) South African Law Journal 39.

[7] Robert Rowe, ‘Written Agreements in the Lender-Borrower Context: The Illusion of Certainty’ (1989) 42(3) Vanderbilt Law Review 917, 917-918; Sreedhar Bharath, Sandeep Dahiya, Anthony Saunders and Anand Srinivasan, ‘Lending Relationships and Loan Contract Terms’ (2011) 24(4) The Review of Financial Studies 1141.

[8] Mary Donnelly, The Law of Credit and Security (2nd edn, Dublin: Round Hall 2015) [9-31].

[9] Donoghue v Stevenson [1932] AC 562

[10] AG Guest, ‘Tort or Contract?’ (1961) 3(2) University of Malaya Law Review 3(2) 191; JA Jolowicz, ‘Duty. Contract or Tort. Content or Source’ (1973) 32(2) Cambridge Law Journal 209.

[11] Kennedy v Allied Irish Banks plc [1996] IESC 9; Clark Boyce v Mouat [1994] AC 428.

[12] Donnelly (n 8) [9-31].

[13] Eugene Kim and Gina Giang, ‘Lender Liability: Taking Stock in An Uncertain Time’ (sheppardmullin.com, Spring 2009) <https://www.sheppardmullin.com/media/publication/713_Lender%20Liability%20Article%20-%20Eugene%20Kim.pdf> accessed 23 March 2024.

[14] Kennedy (n 11). Henderson v Merrett Syndicates Ltd [1995] 2 AC 145.

[15] O’Donnell & Co Ltd v Truck and Machinery Sales Ltd [1998 4 IR 191, 198-199.

[16] Schioler v Westminster Bank [1970] 2 Lloyd’s Rep 195; Plata v Long Beach Mortgage Co Case No C 05-02746 JF, Docket No 27, 28 (ND Cal Dec 13, 2005).

[17] Ober Kaler, ‘Negligent Lending – Is the Pendulum Swinging Back?’ (lexology.com, 11 September 2014)

<https://www.lexology.com/library/detail.aspx?g=657b758f-fa4d-40cf-b1d8-b4d4a3c4672e> accessed 23 March 2024.

[18] John Pottow, ‘Private Liability for Reckless Consumer Lending’ (2007) 1 University of Illinois Law Review 405, 421-428; Brealey Richard, Stewart Myers and Franklin Allen, ISE Principles of Corporate Finance (New York: McGraw Hill 2019).

[19] ibid.

[20] AIB Mortgage Bank v Blanc [2019] IEHC 321; Frost v James Finlay Bank Ltd [2002] EWCA Civ 667.

[21] Lloyds Bank plc v Cobb [1991] 12 WLUK 199 (Scott LJ).

[22] Brake v Wells Fargo Fin Sys Florida Inc. CASE NO: 8:10-cv-338-T-33TGW (M.D. Fla. Dec. 21, 2011).

[23] John Pottow, ‘Private Liability for Reckless Consumer Lending’ (2007) 1 University of Illinois Law Review 405; ICS Building Society v Grant [2010] IEHC 17 (Charleton J).

[24] ibid; Mark Heslin, ‘A Tort of Reckless Lending?’ (2014) 21(7) Commercial Law Practitioner 164; McConnon v President of Ireland [2012] IEHC 184.

[25] National Asset Loan Management v McNulty [2013] IEHC 369.

[26] Harrold v Nua Mortgages [2015] IEHC 15.

[27] Kennedy (n 11). Donal Nolan, ‘Assumption of Responsibility: Four Questions’ (2019) 72(1) Current Legal Problems 123.

[28] Connor v Great Western Savings & Loan Association 69 Cal.2d 850 (Cal. 1968).

[29] John Breslin and Elizabeth Corcoran, Banking Law (4th edn, Dublin: Thomson Reuters Round Hall 2019) [6-107].

[30] Melissa Cassedy, ‘The Doctrine of Lender Liability’ (1988) 40(1) Florida Law Review 165, 183.

[31] Redmond v Allied Irish Banks plc [1987] FLR 307.

[32] Encyclopaedia of Banking Law (Issue 123, April 2013) [69]. Goldsworthy v Brickell [1987] CH 378. Kennedy (n 11).

[33] Ulster Bank Ireland Ltd v Roche [2012] 1 IR 765.

[34] Lloyds v Citicorp Australia Ltd (1986) 11 NSWLR 286; O’Hare v Coutts & Co [2016] EWHC 224.

[35] Macken v Munster & Leinster Bank Ltd (1961) 95 ILTR 17; Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.

[36] Williams & Glyn’s Bank Lyd v Barnes [1981] CLR 205; AIB plc v Patrick Pierse [2015] IEHC 136.

[37] ibid,  Lipkin Gorman v Karpnale & Co. [1989] 1 WLR 1340.

[38] Lloyds Bank plc v. Cobb [1991] 12 WLUK 199 (Scott LJ). Parker Hood, Principles of Lender Liability (Oxford: Oxford University Press, 2012) 195.

[39] Stafford v Conti Commodity Services Ltd [1981] 1 Lloyd’s Rep 466.

[40] Financial Conduct Authority (UK), ‘Assessing Creditworthiness in Consumer Credit: Proposed Changes to Our Rules and Guidance’ CP17/27 (fca.org, July 2017) <https://www.fca.org.uk/publication/consultation/cp17-27.pdf> accessed 23 March 2024.

[41] ACC Bank plc v Deacon [2013] IEHC 427.

[42] Jeffrey Willis, ‘The Substantive Law of Lender Liability’ 26(4) Tort & Insurance Law Journal 742, 746-751.

[43] Kim and Giang (n 13).

[44] Irish Bank Resolution Corp v Morrissey [2013] IEHC 208; Lloyds v Citicorp Australia Ltd (1986) 11 NSWLR 286.

[45] Verity and Spindler v Lloyds Bank plc (Unrep, Queen’s Bench 4 September 1995) (Taylor J); Irish Permanent Building Society v O’Sullivan & Collins [1990] ILRM 598.

[46] Foti v Banque Nationale de Paris (No 2) (1989) 54 SASR 354.

[47] McEvoy v ANZ Banking Group Ltd (1988) Aust Torts Reports 67,351 (NSW SC).

[48] National Westminster Bank plc v Morgan [1985] AC 686, 709 (Lord Scarman).

[49] Warren Dennis and Mark Masling, ‘Death Knell for Fiduciary Duties of Lenders to Consumer Borrowers’ (1991) 46(3) The Business Lawyer 1323.

[50] John Breslin and Elizabeth Corcoran, Banking Law (4th edn, Dublin: Thomson Reuters Round Hall 2019) [6-108].

[51] Bank of Nova Scotia v Hogan [1996] 3 IR 239, 249.

[52] Friends First Finance v Cronin [2013] IEHC 59; Tufton v Sperni [1952] 2 TLR 516.

[53] Henderson v Merrett Syndicates Ltd [1994] WLR 761, 799 (Lord Brown-Wilkinson).

[54] UBAF Ltd v European American Banking Corp [1984] 2 All ER 226.

[55] Woods v Martins Bank [1959] 1 QB 55; Dassen Gold Resources v Royal Bank [1995] 1 WWR 171.

[56] Coomber v Coomber [1911] 1 Ch 723; Lloyds Bank v Bundy [1975[ QB 326.

[57] LAC Minerals Ltd v International Corona Resources Ltd [1989] 2 SCR 574 (Sopinka J).

[58] Irish Life & Permanent plc v Financial Services Ombudsman [2012] IEHC 367.

[59] Stewart v Phoenix Nat'l Bank 49 Ariz. 34, 64 P.2d 101, 106 (1937); Earl Park State Bank v Lowman 92 Ind. App 25, 161 NE 675 (1928).

[60] Bourke O’Donnell, O’Donnell and the Governor and Company of the Bank of Ireland [2010] IEHC 348; Law v Financial Services Ombudsman [2015] IEHC 29.

[61] Bailey Tool & Manufacturing Co v Republic Business Credit [2021] WL 6101847 (Bankr. ND Tex, 23 December 2021); Gay Jenson Farms Co v Cargill 309 NW2d 285 (Minn 1981).

[62] Frances Freund, ‘Lender Liability: A Survey of Common-Law Theories’ (1989) 42(3) Vanderbilt Law Review 855, 857.

[63] Paul Miller, ‘Justifying Fiduciary Remedies’ (2013) 63(4) The University of Toronto Law Journal 570, 573-577.

[64] Kelly v Cooper [1993] AC 205; Bristol & West Building Society v Matthew [1998] Ch 1.

[65] Donnelly (n 8) [4-15].

[66] Case C-449/13 CA Consumer Finance SA v Ingrid Bakkaus and Others, EU:C:2014:2464 [35]; Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (2008) OJEU L 133/66 (‘Consumer Credit Directive’).

[67] Olha Cherednychenko and Jesse Meindertsma, ‘Irresponsible Lending in the Post-Crisis Era: Is the EU Consumer Credit Directive Fit For Its Purpose?’ (2019) 42 Journal of Consumer Policy 483.

[68] ibid. Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (2014) OJEU L 60/34 (‘Mortgage Credit Directive’).

[69] Vanessa Mak, ‘What is Responsible Lending? The EU Consumer Mortgage Credit Directive in the UK and the Netherlands’ (2015) 38 Journal of Consumer Policy 411.

[70] Mortgage Credit Directive (n 68), Article 20(1).

[71] European Commission, Directorate-General for Financial Stability and Financial Services and Capital Markets Union, ‘Evaluation of the Mortgage Credit Directive (Directive 2014/17/EU) : Final Report’  (Publications Office, November 2020) <https://data.europa.eu/doi/10.2874/41965> accessed 23 March 2024.

[72] Mary Donnelly, ‘The Consumer Protection Code: A New Departure in the Regulation of Irish Financial Services Providers’ (2006) 13(11) Commercial Law Practitioner 271.

[73] Breslin and Corcoran (n 29) [4-213].

[74] Freeman v Bank of Scotland [2013] IEHC 371.

[75] Iain Ramsay, ‘Changing Policy Paradigms of EU Consumer Credit and Debt Regulation’ in Dorota Leczykiewicz and Stephen Weatherill (Eds., The Images of the Consumer in EU Law: Legislation, Free Movement and Competition law  (Oxford: Hart Publishing 2016) 159-182.

[76] Consumer Protection Code (‘CPC’) 2012 (Ireland), Clause 5.1, 35.

[77] ibid, Clause 3.1, 9.

[78] John Pottow, ‘Private Liability for Reckless Consumer Lending’ (2007) 1 University of Illinois Law Review 405, 407.

[79] Kennedy (n 11).

[80] See Tobias Adrian, Nassira Abbas, Silvia Ramirez and Gonzalo Fernandez Dionis, ‘The US Banking Sector since the March 2023 Turmoil: Navigating the Aftermath’ (2024) 24(1) IMF Global Financial Stability Notes.

[81] Example in Ireland; this continues to arise during parliamentary debate. Houses of the Oireachtas, ‘Mortgage Resultion Processes’ (Dail Eireann Debate, 20 March 2024; 17 January 2024). Example in South Africa; Chaity Investments CC v Schoombie (case number 26100/2017, Johannesburg HC, 7 September 2023).

[82] Desmond Lachman, ‘2024: The Year America has a Full-Blown Financial Crisis’ (American Enterprise Institute, 26 October 2023).

[83] Tolek Petch, ‘Why Are Banks Subject to Prudential Regulation?’ (2022) 37(12) Journal of International Banking Law and Regulation 445. See also Sinclair Davidson, ‘Imprudent Lending and the Sub-Prime Crisis: An Austrian School Perspective’ (2010) 19(1) Griffith Law Review 105.