An Agenda for Reform and Modernisation
This year has seen ongoing change across the Irish commercial litigation landscape and during 2024 the impact of that transformation will continue to be felt.
In our thematic discussion below, we highlight the following key areas:
- Civil Justice Reform – this year, the Government has progressed its ambitious reform agenda across many fronts and that is expected to continue through 2024, and likely beyond
- Regulatory Expansion – similarly, regulatory reform across many sectors has gathered momentum during 2023. The expansion of a strong regulatory and enforcement network in Ireland will likely remain a focus for 2024
- Insolvency Evolution – with insolvencies anticipated to increase sharply in 2024, both the courts and the legislative agenda (including at EU level) continue to drive changes to the Irish insolvency landscape
KEY THEMES IN COMMERCIAL LITIGATION AND DISPUTE RESOLUTION
IRISH LEGISLATION PASSED SINCE THE SUMMER HORIZON TRACKER
Courts and Civil Law (Miscellaneous Provisions) Act 2023
Date signed into law: 5 July 2023
The purpose of this act is to enact wide-ranging provisions relating to various matters. These include changes to court administration and other civil law reform measures including licensing, land and conveyancing, international protection, civil legal aid and legal services regulation. The Bill was amended at the Committee Stage in the Dáil to clarify that the prohibition on third party funding does not apply to international arbitration and related proceedings. Amendments were also introduced with the aim of better balancing an occupier's duty of care with the requirement for visitors to take personal responsibility, as well as providing a broader range of circumstances where a visitor can be deemed to have voluntarily assumed a risk.
Part 12 amends the Data Protection Act 2018. Under the 2018 Act, the Circuit Court and the High Court had jurisdiction to adjudicate on a claim for damages for a data protection breach. The jurisdiction has now been extended to the District Court. The monetary jurisdiction in these cases will be the same as the existing monetary jurisdiction of the District Court (€15,000). The extension of the jurisdiction to the District Court is likely to increase the prevalence of damages claims for a breach of data protection, particularly in circumstances where damages can be recovered for non-material loss.
Latest Stage: A number of the provisions have been commenced by SI 389/2023. A number of provisions await commencement, including section 124 relating to third party funding in international arbitration proceedings and section 77 which extends the jurisdiction of the District Court to hear a claim for damages for a data protection claim.
Matheson Insights
Legislation Permitting Third-Party Funding of Arbitration Enacted
Third-party Funding of International Arbitration - Draft Rules Published
Irish Court awards €2,000 for non-material loss under the GDPR
BILLS
Defamation (Amendment) Bill
This bill will update certain aspects of defamation law, based on the Government’s Report of the Review of the Defamation Act 2009, published on 1 March 2022. The report sets out a number of key proposals including:
- Abolishing the use of juries in High Court defamation cases
- Introducing a ‘serious harm’ test in certain circumstances
- Simplifying and clarifying the public interest defence
- Providing the court with an express power to dismiss defamation claims that have not been progressed by the plaintiff within 2 years of issue
- A recommendation to remove the blanket exclusion of defamation claims from eligibility for civil legal aid
- Providing for an ‘anti-SLAAP’ mechanism
- A revision of sections 28, 30, 33, and 34, to clarify the tests for the making of court orders.
Latest stage: Pre-legislative scrutiny was completed on 4 July 2023, with the resulting Joint Committee on Justice Report published on 27 September 2023. Drafting is underway. Listed for priority publication in the Autumn Legislative Programme.
Read more: Defamation Law Reform Takes Major Step Forward
Civil Reform Bill
This proposed bill arose from the Review of the Administration of Civil Justice Report, published in December 2020 by a review group chaired by the then President of the High Court, Mr Justice Peter Kelly (the "Kelly Report"). The Kelly Report made wide ranging recommendations in relation to improving access to civil justice in Ireland. On 27 May 2022 the Department of Justice published a phased implementation plan that envisages the recommendations being given effect by two Civil Reform Acts (the first of which was intended to be passed in H1 2023). The Autumn Legislative Programme does not state what recommendations will be covered by this particular bill.
Latest stage: Work is underway.
Charities (Amendment) Bill
The purpose of the bill is to strengthen the charities sector, ensuring greater transparency, clarity and fairness, which will serve to enhance public confidence in the sector.
Latest stage: Heads of bill in preparation. Listed for priority publication in the Autumn Legislative Programme.
Companies (Corporate Governance, Enforcement and Regulatory Provisions) Bill
Please refer to the Corporate section.
Garda Siochána (Powers) Bill
This bill proposes to codify powers of search, arrest, detention, and the procedural rights of suspects, through rationalising and modernising those powers to take into account developments in modern technology to provide clarify and transparency. The bill will also provide for powers under a search warrant for members of An Garda Síochána, the Competition and Consumer Protection Commission, or designated officers of the Office of the Director of Corporate Enforcement (now the Corporate Enforcement Authority).
Latest stage: Drafting is underway. Listed for priority publication in the Autumn Legislative Programme.
Financial Services and Pensions Ombudsman (Amendment) Bill
Please refer to the Financial Services Regulation section.
Finance (Tax Appeals) Bill
Please refer to the Tax section.
Digital Services Bill
Please refer to the Data Protection, Privacy and Technology section.
IRISH PROPOSED LEGISLATION
Planning and Development Bill 2023
Please refer to the Commercial Real Estate section. Note that this bill was previously titled the Planning and Development Bill 2022.
Judicial Appointments Commission Bill 2022
Date published: 8 April 2022
The bill brings about reform to the procedure for appointing judges in the State. While the Constitution of Ireland contains a framework for the appointment of judges, the bill sets out a detailed procedure for filing judicial vacancies that arise. It established a new body called the Judicial Appointments Commission, replacing the previous body responsible for judicial appointments, the Judicial Advisory Appointments Board ('JAAB').
The bill provides that the commission will recommend three people to the Minister for Justice when a judicial vacancy arises, and an additional two names will be recommended for any additional vacancy. The Minister for Justice will then recommend one of those names to the President of Ireland for appointment to the bench. This marks a significant change to the previous system for appointing judges in the state, where the JAAB informed the Minister for Justice of the name of each candidate who expressed an interest in the position, alongside recommending seven candidates to fill the judicial vacancy. The Minister for Justice was entitled to depart from these recommendations.
The constitutionality of this new regime has recently been called into question. In particular, there is a concern that the bill unlawfully fetters cabinet discretion to recommend candidates for appointment to the bench to the President of Ireland, by limiting the number of candidates recommended to the Minister for Justice by the commission and prescribing that the Minister is not to depart from those recommendations. A number of other provisions of the bill have been identified as areas of concern.
On 13 October 2023, the President referred the bill to the Supreme Court to determine its constitutionality pursuant to Article 26 of the Constitution of Ireland. The Supreme Court has 60 days from the date of referral to deliver judgment on the constitutionality of the bill.
Latest stage: On 15th and 16th November 2023, the Supreme Court heard oral arguments on the constitutionality of the bill. Judgment will be delivered before 12th December 2023.
Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022
Date published: 1 November 2022
The bill, if enacted in its current form, will considerably expand the regulation of hate crimes in Ireland by repealing the existing Prohibition of Incitement to Hatred Act 1989 in its entirety and introducing new offences. The changes proposed by the bill will belatedly give effect to Ireland's obligations under the Council Framework Decision 2008/913/JHA on combating forms and expressions of racism and xenophobia through criminal law. Notably the bill makes provision for offence by corporate bodies such that a corporate body will be liable when an offence is committed for its benefit and the commission of the offence was "attributable to the failure, by a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, to exercise… the requisite degree of supervision or control" of the person who committed the offence.
Latest stage: Currently before Seanad Éireann, Third Stage.
Matheson Insight:
Family Courts Bill 2022
Date published: 1 December 2022
This bill will establish a dedicated family court as a separate division within the existing court structures. This will facilitate the simplification of family law proceedings, improved levels of judicial expertise and more focused legal training in family law.
Latest stage: Currently before Seanad Éireann, Second Stage.
Gambling Regulation Bill 2022
Date published: 2 December 2022
This bill will provide for a modern approach to the licencing of gambling activities and will establish a gambling regulator.
Latest stage: Currently before Dáil Éireann, Fourth Stage.
Read more: The Gambling Regulation Authority: Raising the Stakes
Court Proceedings (Delays) Bill 2023
Date published: 27 February 2023
The purpose of this bill is to make provision for persons who are party to delayed proceedings to make an application for a declaration to that effect and, in certain cases, compensation. Under the legislation a Chief Court Delays Assessor and Court Delays Assessors will be appointed to assess applications. Additionally, the bill provides that in certain circumstances applicants may apply to the Circuit Court for a declaration and compensation; in these cases the respondents may only be one of the parties specified under Part 5 of the draft, namely the State, the Minister for Justice, or the Courts Service. Compensation, when awarded, will be calculated with reference to the levels awarded by the European Court of Human Rights in decisions where it was held that a person’s right under Article 6(1) of the European Convention on Human Rights was breached.
Latest stage: Completed Dáil Éireann, Third Stage.
ACTS AWAITING COMMENCEMENT
Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020
Date signed into law: 22 July 2020
This act provides for, among other things, remote hearings and the use of electronic means of communication in civil proceedings and the making of statements of truth; the holding of meetings of unincorporated bodies by remote means; conducting hearings under enactments by remote means; and the execution of certain documents in counterpart.
Commencement: Section 32, on execution of documents by counterpart, is the only section not yet commenced (the rest of the act was commenced on 21 August 2020 and 14 September 2020 by SI 306/2020 and SI 307/2020 respectively). Various amendments have been made to the act including by the Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023 and the Courts and Civil Law (Miscellaneous Provisions) Act 2023.
Counterfeiting Act 2021
Date signed into law: 5 July 2021
This act transposes outstanding elements of Directive 2014/62/EU on the protection of the euro and other currencies against counterfeiting by criminals and replaces Council Framework Decision 2000/383/JHA.
Latest stage: Section 29 is awaiting commencement (the rest of the act was commenced on 3 August 2023 by SI 404/2021).
Personal Injuries Resolution Board Act 2022
Date signed into law: 13 December 2022
The purpose of this act is to enhance and reform the Personal Injuries Assessment Board Act 2003-2019 to increase the number of personal injury claims settled through the Personal Injuries Assessment Board ("PIAB"), which will ultimately be renamed as the Personal Injuries Resolution Board, without recourse to litigation. Key points to note from the legislation include:
- Mediation will be offered by PIAB to resolve claims
- Claims of a wholly psychological nature will remain in PIAB
- Additional time will be allowed to assess claims before proceeding to litigation where the injury is still resolving
- There will be increased transparency and public information
- Additional measures to tackle fraud are included such as seeking proof of identity and disclosure to An Garda Síochana
- The courts will have greater discretion in relation to costs awards
Latest stage: A number of sections were commenced on 13 February 2023 by SI 28/2023. Further sections were commenced on 4 September by SI 354/2023. The rest of the act is still awaiting commencement.
Online Safety and Media Regulation Act 2022
Please refer to the Data Protection, Privacy and Technology section.
Representative Actions for the Protection of the Collective Interests of Consumers Act 2023
Date signed into law: 11 July 2023
The purpose of this act is to implement the Representative Actions Directive (Directive 2020/1828), which was first proposed by the European Commission in 2018, and will have the effect of introducing for the first time in Ireland a style of class action litigation where qualified entities represent consumers in a representative action against traders that have infringed their consumer rights.
A wide range of consumer-facing industries will be affected by the legislation, with sectors such as finance, technology and health at risk of facing increased litigation by consumers acting collectively. The directive entered into force on 24 December 2020 and Member States were given 24 months to transpose it into their national laws and an additional six months to start applying it in practice, meaning that Member States had until 25 June 2023 to apply the changes in this area of law to comply with the Directive.
Latest stage: The act is awaiting commencement.
Read more:
Consumer Representative Actions - Legislation Passed
Consumer Representative Actions Bill – opening the door to mass claims in Ireland?
Regulation of Lobbying and Oireachtas (Allowances to Members) (Amendment) Act 2023
Date signed into law: 23 June 2023
The purpose of this legislation is to amend the Regulation of Lobbying Act 2015 to build and further strengthen Ireland's lobbying laws to ensure that framework is up to date and fit for purpose. The legislation includes provision for the following:
- An extension of the definition of lobbying to ensure that certain informal business groups, regardless of the number of employees, are brought within the scope of the act
- The improvement of the functionality of the Lobbying Register by providing flexibility for new registrants to use the address of where their main activities are conducted, and
- The strengthening of the existing legislation and its enforcement, including an anti-avoidance clause and the introduction of a fine of up to €25,000 and/or a prohibition from lobbying for up to 2 years for those found to be non-compliant with the Section 22 12-month post-employment cooling off period.
Latest stage: Section 24 commenced on enactment. Further sections of the act will come into operation on 1 January 2024, with the remainder of the act to follow on 1 June 2024.
Read more: Lobbying Reform Comes into Effect
Central Bank (Individual Accountability Framework) Act 2023
Please refer to the Financial Services Regulation section.
EU REGULATIONS
Regulation on Co-operation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters
Date published: 2 December 2020
The purpose of this regulation (Regulation 2020/1783) is to amend Council Regulation (EC) No 1206/2001 on cooperation between courts of Member States in the taking of evidence in civil or commercial matters. It introduces mandatory electronic transmission of requests and communications pursuant to the regulation. It also seeks to ensure more frequent, faster use of direct taking of evidence by way of video conference.
Applies from: 1 July 2022 with the exception of Article 31(3), which applied from 23 March 2022, and Article 7, which shall apply from the first day of the month following the period of 3 years after the date of entry into force of the implementing acts referred to in Article 25 (ie, 4 April 2025).
Commission Implementing Regulation (EU) 2022/422, which sets out the requirements for implementation of the decentralised (e-Codex) IT system as envisaged by Article 25, came into force on 4 April 2022.
The European Union (Evidence in Civil or Commercial Matters) Regulations 2023 have designated the Circuit Court as the competent authority to take evidence under Regulation 2020/1783 and the Courts Service as the central body in Ireland for the purposes of Articles 4 and 19.
Regulation on the Service of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service of Documents)
Date published: 2 December 2020
Regulation (EU) 2020/1784 provides for the electronic communication and exchange between sending and receiving authorities through a decentralised IT system made up of national IT systems.
Applies from: 1 July 2022 with the exception of Articles 5, 8 and 10 (dealing with the establishment of the new IT system and transmission and receipt of documents within it), which shall apply from the first day of the month following the period of three years after the date of entry into force of the implementing acts referred to in Article 25 (ie, 4 April 2025).
Commission Implementing Regulation (EU) 2022/423, which sets out the requirements for implementation of the decentralised IT system as envisaged by Article 25, came into force on 4 April 2022.
EU PROPOSED LEGISLATION
European Parliament Resolution on the Responsible Private Funding of Litigation
The European Parliament has recommended to the European Commission that, following the expiry of the deadline for the application of the Representative Actions Directive (Directive 2020/1828) on 25 June 2023 and taking into account it effects, a directive be proposed to establish common minimum standards at EU level on commercial third party litigation funding.
Latest stage: Resolution of the European Parliament passed on 13 September 2022. Awaiting a proposal to be initiated by the Commission.
European Commission Proposal for a Directive on Liability for Defective Products
Procedure Reference: 2022/0302/COD
Date published: 29 September 2022
This proposed directive would repeal Directive 85/374/EC (the "Product Liability Directive") with the objective of ensuring better protection for consumers including by providing legal clarity as to which products and businesses are covered by no-fault liability and encouraging all businesses (including non-EU manufacturers) to place only safe products on the EU market.
Latest stage: The European Commission published its proposal on 28 September 2022. The Department of Enterprise, Trade and Employment commenced a public consultation process seeking views on the proposal on 29 March 2023.
European Commission Proposal for a Consumer 'Right to Repair' Directive
Procedure Reference: 2023/0083/COD
Date published: 22 March 2023
The proposal, which forms part of the European Commission's Green Deal, is intended to strengthen consumers' right to request repairs of products in order to reduce unnecessary waste. Under the proposals, sellers of goods will be required to prioritise repair during the legal guarantee period where repair is cheaper or equal to the cost of replacement. After the guarantee period, consumers will still have a right to request the repair of certain products, including washing machines, vacuum cleaners, smartphones and bicycles.
Latest stage: The proposal was adopted by the European Parliament on 21 November 2023 and will now move forward for trilogue negotiations, commencing on 7 December 2023.
Proposal for a Green Claims Directive
Procedure reference: 2023/0085/COD
Date published: 22 March 2023
As part of the European Green Deal the Commission committed to tackle false environmental claims, ensuring that consumers receive reliable and verifiable information to reduce the risk of "greenwashing". The issue of greenwashing was highlighted in the New Consumer Agenda with the Commission noting that consumers need to be protected against misleading information which presents products or enterprises as environmentally friendly. This proposed directive targets "green claims" made by businesses and will require all claims that state or imply a positive, lesser, or improving environmental impact to be substantiated. The proposal will cover explicit claims made voluntarily by businesses for consumers, which relate to the environmental impact, aspect, or performance of a product or the business; environmental labelling schemes; and climate-related claims that are based on carbon offsetting. It is anticipated that this directive will complement the Representative Actions Directive (EU) 2020/1828 allowing “qualified entities” to bring legal actions to protect the collective interests of consumers where, for example, it is suspected that a trader making green claims has not complied with the minimum requirements for substantiation.
Latest stage: First reading in the Council.
European Commission Proposal for a Regulation Repealing Regulation (EU) 524/2013 and amending Regulations (EU) 2017/2394 and (EU) 2018/1724 with regards to the discontinuation of the European ODR Platform
Procedure Reference: 2023/0375/COD
Date published: 17 October 2023
In 2013 the European Union adopted the Alternative Disputes Resolution Directive (Directive 2013/11/EU) and the Online Disputes Resolution Regulation (Regulation (EU) No 524/2013) ("ODR Regulation") with a view to promoting consumers' access to dispute resolution mechanisms for online purchases. In 2016, the ODR platform has been operating as a fully multilingual digital infrastructure where consumers can request online traders to solve a dispute using an ADR entity. Despite a high number of visits, the ODR platform is only enabling on average 200 cases EU wide to be treated by an ADR entity per year. With this in mind, the Commission has proposed to discontinue the ODR platform.
Latest stage: First reading in the Council of the European Union, awaiting committee decision.
INSOLVENCY| IRISH PROPOSED LEGISLATION
Personal Insolvency (Amendment) (No. 2) Bill
The bill has not been published but is intended to update aspects of personal insolvency legislation, following a statutory review of the Personal Insolvency Acts.
Latest stage: Work is underway.
Protection of Employees (Employers' Insolvency) (Amendment) Bill
This bill will comprehensively review and update the legislation governing the protection of employees during their employer's insolvency.
Latest stage: Heads of bill in preparation.
Companies (Administrative, Governance & Insolvency Amendment) Bill 2023
See Corporate section.
PRIVATE MEMBERS' BILLS
Companies (Protection of Employees’ Rights in Liquidations) Bill 2021
Date published: 21 April 2021
The bill seeks to amend the Companies Act 2014 to provide for:
- preferential creditor status to employees in collective redundancy situations;
- recognition of redundancy payments in a winding up; and
- related matters.
Latest stage: This bill has completed Dáil Éireann, Second Stage. It was considered by the Oireachtas Joint Committee on Enterprise, Trade and Employment on 1 February 2023.
EU DRAFT LEGISLATION
Procedure reference: 2022/0408 (COD)
Date published: 7 December 2022
This proposal, which forms part of the EU Capital Markets Union initiative seeks to harmonise certain corporate (non-bank) insolvency rules across the EU, with the primary objective of making them more efficient and effective with a view to promoting cross border investment. The proposal will consider the legitimate interests of all creditor groups and will affect Irish company insolvency law, personal insolvency law and bankruptcy law. The proposal, which will apply to insolvency legal entities, as well as to a widely defined insolvent "entrepreneur", covers various aspects of insolvency law, including:
- The recovery of assets from the liquidated insolvency estate.
- The efficiency of procedures.
- Transactional avoidance measures.
- The predictable and fair distribution of recovered value among creditors.
Latest stage: First reading in the Council of the European Union, awaiting committee decision.