Rachel Kemp Senior Knowledge Lawyer
Robert Nash Associate
AT A GLANCE
- Regulations were published under the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 and the first Qualified Entities were designated.
- The UK signed and ratified the Hague Judgments Convention, but Northern Ireland is not in scope.
- The long-awaited Defamation Bill was published.
- Gambling Reform legislation was signed into law and is awaiting commencement.
- A Long Vacation pilot scheme was trialled in the courts for the first time.
REPRESENTATIVE ACTIONS
The Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (the Act) was commenced on 30 April 2024. The Act transposes the EU Collective Redress Directive (2020/1828/EU). This legislation will allow groups of consumers, who have suffered material loss or adverse consequence due to a breach of certain EU consumer protection laws, to come together in a type of class action (a representative action) to seek redress. The representative actions can be cross-border or domestic in nature and actions will be brought by Qualified Entities (QE). As of the date of writing, two bodies have been designated as QEs in Ireland.
With regards to the scope of the Collective Redress Directive, breaches of the EU’s Green Claims Directive, which is currently going through the EU legislative process, are also intended to be in scope in due course. See more on this highly-anticipated directive in our briefing here.
On 30 April 2024, the Minister for Enterprise, Trade and Employment also announced regulations to accompany the Act. The Prescribed Forms Regulations 2024 provide forms required under the Act, including the application form for designation as a QE. The Section 29 (Maximum Fee) Regulations 2024 prescribe the fees to be charged by a QE to a consumer to take part in a representative action. For more on these regulations, see our briefing here.
The means by which a QE might be funded in a representative action in Ireland remains an outstanding question. It is hoped that the output of the Law Reform Commission’s 2023 consultation on litigation funding may lead, via government policy and ultimately legislation, to some clarity in the litigation funding space.
LEGISLATIVE AND PROCEDURAL DEVELOPMENTS
Court Proceedings (Delays) Act 2024
The Court Proceedings (Delays) Act 2024 (the Delays Act) was signed into law by the President on 1 May 2024 and is still awaiting commencement. It provides for the right of persons who are party to either criminal or civil proceedings, where such proceedings are not concluded within a reasonable time, to seek a declaration of that fact and, in certain cases, compensation. The Delays Act provides for the appointment of a Chief Court Delays Assessor and Court Delays Assessor(s) to assess such applications.
An assessment application may be made only where the relevant proceedings have not been concluded, or within six months of the date of conclusion of proceedings. In determining whether a party’s right to conclusion within a reasonable period has been breached, an assessor must consider the factors set out in section 11(4), which include:
- the complexity of proceedings
- the duration of proceedings
- the issues at stake
- the conduct of the parties
In certain circumstances, an application can also be made to the Circuit Court to obtain a declaration and, where applicable, compensation.
Publication of Defamation Bill
Ireland's defamation laws are edging closer to an overhaul following the long-awaited publication of the Defamation (Amendment) Bill 2024 (the Bill) on 2 August 2024. The Bill follows a lengthy review of the Defamation Act 2009, which commenced back in November 2016. Further detail on the Bill can be found here.
Substantive amendments are expected during the Bill’s passage through the Oireachtas, although there may be further delays as we await the resumption of parliamentary proceedings after the General Election.
Gambling Regulation Act
The enactment of the Gambling Regulation Act 2024 (the Gambling Act) on 23 October 2024, almost two years after the Bill was first published, was a watershed moment. This long-awaited legislation will overhaul the regulation of gambling in Ireland, repealing antiquated statutes dating back to 1931 and 1956, and replacing them with a modern licensing and regulatory regime. At the time of writing, the majority of the Gambling Act is awaiting commencement.
The programme of reform set out in the Gambling Act will be overseen by a newly established Gambling Regulatory Authority of Ireland (GRAI). The GRAI will have comprehensive powers to supervise compliance with Irish gambling regulations and to take appropriate enforcement action where necessary. You can read more about the Gambling Act in this briefing.
Time limits around judicial review
One notable statutory instrument (SI No 163/2024), which came into operation this year, amends Order 84 of the Rules of the Superior Courts to provide that the three-month time limit within which an application for judicial review must be made stops when the notice and affidavit are filed. This amends the prior position, which was that the application for leave had to be ‘moved’, or made, before the High Court prior to the expiry of the three-month time limit. This will be a welcome change for those pursuing judicial review action.
‘Long Vacation’ scheme pilot
At the end of 2023, the President of the High Court announced a ‘High Court Pilot Project for Long Vacation 2024’. In short, this meant that certain judges across certain lists did not sit in July 2024 but resumed sitting again in September 2024. This marked a change in the court calendar, as September is traditionally not a sitting month. This elongation of sitting dates was a key recommendation of the Report of the Judicial Planning Working Group published in 2023. It remains to be seen if this pilot will lead to future changes to how the court calendar is organised.
Reform of EU court procedure
On 12 August 2024, an EU Regulation amending the Statute of the Court of Justice of the EU (the CJEU) was published in the Official Journal of the EU. It entered into force on 1 September 2024.
Among the reforms, the Statute now confers jurisdiction, for the first time, on the General Court to hear certain preliminary ruling cases under article 267 of the Treaty on the Functioning of the European Union (the TFEU). Jurisdiction to hear preliminary references may be transferred to the General Court from 1 October 2024. The number of EU agencies and bodies for which there is no automatic right of appeal of a decision of the General Court to the CJEU has also been increased.
These reforms come against the backdrop of a steady increase in the number of cases appearing before the CJEU and seek to take advantage of the capacities of the General Court to deal with additional workload as a result of previous reforms, which included an increase in the number of judges of that court.
To ensure the amendment to the Statute is usable in practice, the rules of procedure of both courts have also been updated. The CJEU will now notify the European Parliament, the Council of the EU, and the European Central Bank, as well as the European Commission and Member States, of new preliminary references. In addition, statements of case or written observations submitted in preliminary references will be published on the CJEU website after the case ends, unless the author objects. Arrangements will also be made to stream hearings online.
CASE LAW DEVELOPMENTS
A large volume of cases continues to pass through the Irish courts. Some selected highlights from the past year are considered in this section.
Challenge to the personal injury guidelines
In Delaney v The Personal Injuries Board & Ors [2024] IESC 10, the Supreme Court delivered judgment regarding a constitutional challenge to the validity of the personal injury guidelines passed by the Judicial Council on 6 March 2021. The majority of the Court concluded that the power given to the Judicial Council to make guidelines, contained in section 7(2)(g) of the Judicial Council Act 2019, was unconstitutional in its present form.
However, a majority also concluded that the validity of the guidelines was confirmed by virtue of the Family Leave and Miscellaneous Provisions Act 2021, whereby the Oireachtas had affirmed the Judicial Council’s personal injury guidelines. While the guidelines continue to have effect following their legislative affirmation, the decision clarifies that any further changes to the guidelines will require legislative intervention by the Oireachtas.
First case concerning the Consumer Rights Act
The first decision involving the Consumer Rights Act 2022 was made this year. In Flatley v Austin Newport Group Limited and others [2024] IEHC 359, the High Court allowed an application by an insurer to have proceedings in relation to an insurance claim stayed and the dispute referred to arbitration in light of an arbitration clause in the insurance policy. In doing so, the Court rejected an argument that the arbitration clause was an unfair term in a consumer contract.
Undertaking on damages in an injunction
In a first of its kind decision, the Court of Appeal ruled to extend the undertaking on damages in an injunction. In Bristol Myers Squibb Holdings Ireland Unlimited Company v Norton (Waterford) Limited [2024] IECA 49, the Court allowed an appeal by Bristol Myers Squibb (BMS) concerning the scope of an undertaking as to damages offered in the context of an application for an interlocutory injunction pending the trial of an action.
The novel issue at the heart of this appeal was whether the High Court should have required BMS to extend the undertaking as to damages, to compensate entities who were not parties to the proceedings, but who may have suffered losses as a result of the injunction.
The Court ruled that the High Court erred in permitting the respondent to apply for an extended undertaking after the court had delivered its judgment and granted the injunctive relief sought by BMS. The Court ruled that the adequacy and scope of the undertaking as to damages falls to be assessed and decided when the issue whether or not to grant an injunction is still live.
The Court also acknowledged that this was the first time that an Irish court has considered a case where an injunction was granted and the undertaking as to damages offered by the plaintiff to the Court extended to the losses strangers to the litigation might sustain.
Pensions decisions
The area of pensions law saw two important decisions handed down by the High Court. In Vodafone Ireland Limited v Farrell & Ors [2024] IEHC 280, the High Court ruled on the interpretation of certain provisions of a pension scheme deed regarding the entitlement of certain members to post-retirement increases in their pensions.
The Court rejected the employer’s argument for discretion in pension increases, noting that the language of the rule mandates increases which are in line with the relevant grade’s percentage increases. The Court was also asked to determine the appropriate comparator for calculating pension increases and held that it was the average percentage salary increase across the general staff of the employer.
In Masterson & Ors v Córas Iompair Éireann [2024] IEHC 222 the Court clarified the interpretation of a pension scheme’s rules, with a particular focus on the employer’s contribution obligations and the scheme’s compliance with the statutory funding standard. The decision highlights the importance of the maintenance of solvency in pension schemes generally and the need for cooperation between the employer and members in negotiating a funding proposal for the scheme.
Compliance with the Mediation Act
In Byrne v Arnold [2024] IEHC 308, the High Court’s decision signals that non-compliance with the Mediation Act 2017 has consequences. The Court held that a solicitor’s failure to comply with the requirement to advise a plaintiff about mediation before commencing proceedings justified a 5% reduction in their client’s costs award. In doing so, the Court commented that this was a “relatively modest reduction” and sounded a warning that “Courts may be less lenient in future.”
HAGUE JUDGMENTS CONVENTION - UK SIGNS AND RATIFIES
The Hague Judgments Convention (HJC) entered into force on 1 September 2023. It is an international treaty which establishes a uniform set of rules for all contracting states on the recognition and enforcement of foreign judgments, without requiring a merits review of the judgment. The HJC expands upon the 2005 Hague Convention – whereas the latter deals with choice of court agreements, the HJC provides a much more predictable set of rules for the enforcement of foreign judgments in the absence of exclusive jurisdiction clauses.
The UK decided to join the HJC in November 2023, with signing taking place in January 2024 and formal ratification occurring on 27 June 2024. The HJC will enter into force in the UK on 1 July 2025, following the mandatory 12-month buy-in period for new parties. It will apply to judgments obtained in England and Wales only for proceedings issued after 1 July 2025. The UK’s ratification was accompanied by a declaration exempting Northern Ireland and Scotland from scope until such time as the UK decides to modify this.
The HJC has been signed, but not ratified, by six other states, namely, Costa Rica, Israel, Russia, Montenegro, North Macedonia and the United States.
RESTRUCTURING & INSOLVENCY
Case law round-up
It has been another busy year for restructuring and insolvency before the Irish courts.
- Earlier in the year, the High Court approved a scheme of arrangement (the Scheme) of Endo International plc, the parent of the Endo pharmaceutical group. Approval of the Scheme gave effect, as a matter of Irish law, to a wider restructuring commenced by way of a US Chapter 11 Plan of reorganisation of Endo International plc and its subsidiaries. The Scheme had a number of innovative features, contributing to the evolving dynamic line of Irish scheme jurisprudence.
- In the matter of RVL Pharmaceuticals Public Limited Company v Companies Act 2014 (unreported, High Court, 12 February 2024), RVL presented a petition seeking the appointment of a liquidator on a solvent basis without a special resolution of the shareholders authorising the directors to present the petition. In granting the petition, the Court departed from the existing law, which stated that directors of a company do not have standing to present a winding-up petition without prior shareholder approval.
- In CBL Insurance Europe Designated Activity Company v Insurance Act 1936 [2024] IEHC 484, the High Court delivered a judgment which dealt with a number of complex issues relating to the treatment of insurance contracts in a winding-up, which can be read in our special briefing here.
- In Green D Projects Ireland Limited v Companies Act 2014 [2023] IEHC 773, the High Court rejected the petition to wind up the company, emphasising the requirement for credible and reliable evidence to establish insolvency.
- In the matter of Redefine Australian Investments Limited (in Voluntary Liquidation) [2024] IEHC 306, the High Court refused a liquidator's application to set aside a shareholder payment to satisfy foreign tax liability and upheld the 'Revenue Rule' against the enforcement of foreign tax debts.
- In Farrell v Everyday Finance DAC [2024] IECA 16, the Court of Appeal held that document redactions must be supervised by a solicitor and there is no requirement to request specific documents in ‘self-contained’ court cases.
- In City Quarter Capital II PLC v Companies Act 2014 [2024] IEHC 530, the High Court exercised its discretionary power pursuant to section 572(5) of the Companies Act 2014 (the 2014 Act) to substitute the original petitioner in the winding-up proceedings, where their status as a creditor was disputed.
Legislation
The Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 commenced on 1 July 2024 and introduced insolvency related amendments to the 2014 Act, including the provisions relating to reckless trading, improper transfer, and unfair preference. These are covered in more detail in the Corporate chapter.
LOOKING AHEAD
- We await with interest the report of the Law Reform Commission on third party litigation funding (expected in the coming months).
- Commencement of the new statutory mechanism permitting funding for international commercial arbitration is also awaited.
- More Irish Qualified Entities are likely to be designated in 2025 under the Representative Actions regime.
- Progress on the Defamation (Amendment) Bill 2024 will be keenly watched in 2025.
- Unified Patent Court – the Government deferred the referendum on Ireland’s participation, so a referendum may be held in 2025.
- It will be interesting to see the shape and form of any further expansion of the Long Vacation Pilot Project trialled in 2024.