This year continues to see change across the commercial litigation landscape, although in many of the areas currently undergoing transformation it is likely to take time for the impact to be fully realised.
Legislative change is imminent from a consumer redress perspective with the publication and progression of the Representative Actions for the Protection of the Collective Interests of Consumers Bill 2022. Whether its enactment in turn marks a new era in practice remains to be seen as other factors, including the current lack of third party litigation funding, may mean utilisation of the new regime has a slow start. Significant change will also be felt in the financial services sector before the end of the year with the landmark Central Bank (Individual Accountability Framework) Act 2023 expected to be fully commenced by then.
Separately, the Department of Justice continues to push forward its ambitious agenda for civil justice reform more broadly and this will remain a theme for the rest of 2023 and beyond. The scope of the reform is broad, encompassing not just a scheme of modernisation of the courts and its systems, but also tackling access to justice issues head on.
The Irish insolvency landscape will continue to evolve and the level of insolvencies is expected to continue rising over the course of 2023. Change to domestic company law is likely given the Department of Enterprise, Trade and Employment consultation on proposals to enhance the Companies Act 2014, although the introduction of any amending legislation is some way off. At an EU level, change is also expected given the European Commission's intentions to harmonise certain aspects of insolvency law across Member States. Again though, those proposals will take some time to be implemented.
KEY THEMES IN COMMERCIAL LITIGATION AND DISPUTE RESOLUTION
IRISH LEGISLATION PASSED SINCE SPRING HORIZON TRACKER
Courts Act 2023
Date signed into law: 19 May 2023
This act provides for an increase in the maximum number of judges in the District Court, the Circuit Court, the High Court and the Court of Appeal. These changes will implement recommendations of the Report of the Judicial Planning Working Group calling for additional judges in the State.
Latest stage: Commenced on enactment
BILLS
Representative Actions for the Protection of the Collective Interests of Consumers Bill 2022
Date published: 13 March 2023
The purpose of this bill 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 have 24 months to transpose it into their national laws and an additional six months to start applying it in practice, meaning that Member States have until 25 June 2023 to apply the changes in this area of law to comply with the Directive.
Latest stage: Completed Dáil Éireann, Second Stage.
Read more: Matheson Insight: Consumer Representative Actions Bill – opening the door to mass claims in Ireland?
Regulation of Lobbying and Oireachtas (Allowances to Members) (Amendment) Bill 2022
Date published: 22 September 2022
The purpose of this bill is primarily to amend the Regulation of Lobbying Act 2015 by proposing to:
- Extend the definition of lobbying to bring business representative bodies, defined in the scheme as a body which exists primarily to advocate on behalf of its members, and coalitions of business interests formed to advocate as a group on an issue of mutual interest, within the scope of the act regardless of the number of employees
- Provide for an additional excepted communication under s. 5(5), in relation to communications made by a political party to its members who are designated public officials which are made in their capacity as members of the party
- Provide for civil administrative sanctions for s. 22 breaches, including fines of up to €25,000 and/or a prohibition from lobbying for up to 2 years. The sanctions procedure also introduces a novel distinction between 'minor' and 'major' sanctions
Latest stage: The bill was passed by the Seanad Éireann on 17 May 2023 but some amendments made have been referred back to the Dáil Éireann where the bill will go through some of the stages of debate again.
Read more: Matheson Insight: Regulation of Lobbying (Amendment) Bill Moves Through the Oireachtas
Judicial Appointments Commission Bill 2022
Date published: 8 April 2022
This bill will provide for the establishment of the Judicial Appointments Commission, chaired by the Chief Justice, to replace the Judicial Appointments Advisory Board and to reform the procedures and requirements for the appointment of Judges.
Latest stage: Completed Seanad Éireann, Third Stage.
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.
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: Currently before Seanad Éireann, Third Stage.
Courts and Civil Law (Miscellaneous Provisions) Bill 2022
Date published: 13 September 2022
The purpose of this bill 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 occupiers' 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.
Latest stage: Currently before Seanad Éireann, Third Stage.
Read more: Matheson Insight Article: Third-party Funding of International Arbitration – Draft Rules Published
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: Dáil Éireann, Third Stage.
Read more: Matheson Insight Article The Gambling Regulatory Authority: Raising the Stakes
IRISH PROPOSED LEGISLATION
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: The General Scheme of the bill was published on 28 March 2023. This bill is listed as priority legislation in the Summer Legislative Programme.
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: Heads of Bill approved on 14 June 2021 and pre-legislative scrutiny has taken place.
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 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 to be passed in H1 2023. The Summer Legislative Programme does not state what recommendations will be covered by this particular bill.
Latest stage: Heads of Bill in preparation.
Financial Services and Pensions Ombudsman (Amendment) Bill
Please refer to the Financial Services Regulation section.
Finance (Tax Appeals) Bill 2022
Please refer to the Tax section.
Digital Services Bill
Please refer to the Data Protection, Privacy and Technology section
Planning and Development Bill 2022
Please refer to the Commercial Real Estate section.
ACTS AWAITING COMMENCEMENT
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. The rest of the act is still awaiting commencement.
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: S. 29 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: S. 32, on execution of documents by counterpart is the only section not yet commenced. The Criminal Justice (Mutual Recognition of Custodial Sentences) Act 2023 has made some amendments to the act.
Online Safety and Media Regulation Act 2022
Please refer to the Data Protection, Privacy and Technology section.
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, after 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.
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.
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: Heads of bill in preparation.
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.
Plan of Action on Collective Redundancies following Insolvency Bill 2023
See Employment section.
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
Proposal for a Directive of the European Parliament and of the Council on harmonising certain aspects of insolvency law
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, awaiting committee decision.