Collective Redress & Class Actions 2021

Last Updated November 09, 2021

Ireland

Law and Practice

Authors



Kennedys is a global law firm with particular expertise in litigation and dispute resolution, especially in defending insurance and liability claims. It has 66 offices, associations and co-operations across the UK and Europe, the Americas, Asia Pacific and the Middle East. The firm has a market-leading team handling product safety and regulation, large-scale product liability, recall and "mass tort" litigation and international claims. The core team is comprised of nine partners in London supported by more than 40 associates, as well as many partners and colleagues across Kennedys' international offices. A number of the firm's lawyers have qualified in law following careers in relevant industries (such as engineering, construction and medicine), which deepens the firm's expertise for clients’ benefit. Kennedys acts for parties across various industries and has gained valuable experience in high-profile and complex matters involving a wide range of products, including automotive, chemical and pharmaceutical goods, medical devices, healthcare products and consumer goods.

Ireland does not have any formal compensatory collective redress or class action mechanisms akin to those in other jurisdictions. However, representative action procedures and test cases have been utilised in an ad hoc manner by litigants, and these systems operate as a de facto form of multiparty action. Joinder and consolidation of cases are also an option for litigants which can operate as a loose form of collective redress. However, the remedies under such forms of redress are very limited.

Representative Action

Specifically, the Rules of the Superior Courts facilitate a basic form of class action known as a “representative action”. This mechanism allows large numbers of persons to join a legal action as represented parties. The procedural rule allowing this has its origins in a form of equitable redress in the Court of Chancery in cases where “the parties were so numerous that you could never come to justice at all”.  As such, this court relaxed the requirement that all parties to an action be present by allowing one or more representatives to conduct litigation on behalf of others.

The Test Case

Under current Irish practice, however, the preferred approach to multiparty actions is the “test case”. Where a number of claims arising out of the same circumstances are in being, the first case to be litigated can often become a “test case”, which acts as a precedent by which the remaining cases are resolved.  It is important to emphasise that the "test case" acts as a precedent for other cases but it is not binding on the remainder of cases, which may be dealt with on their own facts.

Notable Multiparty Litigation

In this context, particular notable instances of quasi multiparty litigation have occurred over the last 45 years in Ireland. The most relevant examples are the social welfare equality claims of the 1970s and the army deafness claims of the 1990s which had to be managed without the benefit of a formal structure for multiparty litigation. 

Even without such a formal structure, those involved in these cases recognised the need to apply by analogy some elements which might have been found in a more structured multiparty process. This included a very small number of law firms being involved in managing the litigation on behalf of all individuals affected and the identification of generic issues common to all claims, so that lead or representative cases could be selected to litigate the common issues. 

Other multiparty actions which have taken place in Ireland include cases involving pension entitlements, nursing home health cost cases and pyrite construction claims. The Irish Law Reform Commission (LRC) previously stated in a 2005 report that such ad hoc arrangements, which depend on the consent of the willing parties, are no substitute for a formal structure which would facilitate a transparent procedure for dealing with such collective litigation. As a result, the LRC recommended that a formal structure be introduced into the procedural rules of the courts to deal with such cases. This has not occurred to date.

The mechanisms found in Ireland are somewhat similar to those that were previously found in the courts of England, Canada and Australia.

Similarities and Differences

England, Canada and Australia

Traditionally, English courts and litigants combined several approaches in collective actions, including: the representative procedure, consolidated proceedings, joint proceedings and test cases. However, in England, the Group Litigation Order (GLO) was introduced in 1999 to operate as a form of case management whereby a number of similar claims are formally co-ordinated by the same judge. As a result, the GLO, which falls under Part 19 of the Civil Procedure Rules, triggered a major overhaul of the practice of group litigation in the courts of England. Such a procedure does not exist in Ireland, however.   

Similarly, in Canada and Australia, multiparty litigation was previously confined to common-law representative action but class action regimes have now been introduced in both jurisdictions. 

In specific terms, the representative actions procedure in Ireland is similar to the procedure of the same name found in Rule 19.6 of the Civil Procedural Rules in England. Test cases in the Irish courts are also similar in substance to test cases found in the UK, albeit in Ireland there are no specific procedural rules or schemes in place in relation to test cases as there are in the UK (the GLO applies to test cases as well). In England, the High Court can utilise its case management powers by selecting one or more claims from a GLO group register of claims as test claims to address specific issues of fact or law. The consolidation procedure in Ireland is likewise similar to that found in Rule 3.1 of the Civil Procedure Rules which permits the courts in England to consolidate multiple proceedings.         

USA

The legal regime in Ireland is distinctly unlike that of the USA. In the USA, federal civil procedure rules were introduced to formally provide for class actions at the federal level in 1938, while class action mechanisms are also widely available at state level. Furthermore, in Ireland, the vast majority of civil actions are heard without a jury whereas in the USA, the right to a jury trial for civil actions is constitutionally protected. As a consequence, plaintiffs in class actions in the USA usually seek to take advantage of the option of a jury trial, which has the possibility of much higher damages. 

In the USA, each side to litigation usually bears its own costs and so the loser is not liable for the costs of the party who succeeds in an action. In Ireland, however, pursuant to Order 99 of the Rules of the Superior Courts and Section 169(1) of the Legal Services Regulation Act 2015, "costs follow the event".  Typically, this means that the loser pays their own legal costs and the costs of the successful party (the "loser pays principle"). 

Directive (EU) 2020/1828 allowing for representative actions for the protection of consumers’ collective interests is scheduled to become effective in Ireland in June 2023. 

As a consequence, Ireland will be required to draft and pass transposing legislation to enable the efficient implementation of the Directive’s provisions.

The Irish Legislature

In Ireland, the power to make new laws is the sole responsibility of the Oireachtas (the Irish legislature), which is made up of two houses, the Dail and the Seanad. The Oireachtas has not yet indicated definitively how it proposes to transpose the Directive into domestic law. Two options are available in this context – transposition via primary legislation or via statutory instrument.

The Legislative Process

Although the government has not announced how the Directive will be introduced in practice, it has commenced the legislative process. As part of this, the Department of Enterprise, Trade and Employment (the government department with responsibility for transposing the Directive) launched a public consultation on transposition on 15 March 2021. While the Directive contains some mandatory provisions for member states, it also provides options to member states in other areas and so the consultation primarily sought views in relation to the latter. However, comments were also invited in relation to the mandatory provisions. 

The public consultation closed on 7 May 2021. It is expected that the formal process of drafting a proposed bill to be submitted to the Oireachtas for debate will commence following consideration of these submissions. 

As a substantial number of the Directive’s provisions apply compulsorily to all member states, any prospective implementing legislation that is introduced will consequently have to mirror the actual provisions of the text of the Directive itself. However, as explained, member states have been left with options for implementation in other areas. Among the primary issues where member states hold discretion in implementation are the criteria to be adopted in designating qualified entities capable of bringing representative actions. It is areas such as these where much of the legislative drafting and debating will likely be applied and so it may take a considerable period of time before a draft bill is published.       

Member states have until 25 December 2022 to transpose the Directive and, as stated, it will apply in Ireland from June 2023.

As outlined, there is currently no legislative framework or legal procedure in Ireland to allow collective redress or class actions akin to those found in other jurisdictions.

Analogous procedures are, however, provided by the rules of court under Irish law and primarily consist of:

  • representative actions (pursuant to Order 15, Rule 9 of the Rules of the Superior Courts (RSC)); and
  • test cases (at the discretion of the court). 

A representative action is brought by a named individual(s) representing a class of persons interested in the same matter. 

There are no formal rules/definition of what constitutes a test case in this jurisdiction, however, the LRC has described a test case as a case which can arise where numerous separate claims have arisen out of the same set of facts or circumstances but where a "lead case" is run, which then sets a precedent by which the remaining cases may be resolved. However, the remaining cases still need to be processed and instituted separately. 

The joinder and consolidation of proceedings are also possible in Ireland.   

Order 15, Rule 1 of the RSC enables the court to join additional parties to proceedings where this is a necessary or desirable means of resolving matters in dispute. Order 15, Rule 4 makes similar provision for the joinder of defendants, whether jointly, severally or, alternatively, of all persons "against whom the right to any relief is alleged to exist". 

In relation to consolidation, Order 49, Rule 6 of the RSC states that proceedings pending before the Irish High Court may be consolidated by order of the court on the application of any party to the proceedings. 

Lastly, the Irish courts hold an inherent jurisdiction to direct that cases be heard simultaneously (O’Neill v Ryanair Ltd (No 2), (1992) 1 IR 160). 

Test cases, joinder and consolidation of proceedings apply to most types of disputes and areas of law. However, the use of representative actions is more restricted and the law prescribes certain situations where representative actions can be specifically pursued. 

Representative actions, traditionally, cannot be used in actions founded on tort. For representative actions, the remedies available are limited to injunctive and declaratory relief; damages are not available. 

In addition to the general procedure of representative actions, there are specific instances where Irish law permits a person(s) to sue in a representative capacity, including the following.

  • Trusts and estates: Order 15, Rules 8 and 10 of the RSC deal with litigation in relation to the beneficial interest in a trust or estate whereby a trustee, executor or administrator can sue (or be sued) in relation to the trust property and will be considered to represent the beneficial owner(s) without having to join any of these individual/s. 
  • Fatal injuries actions: Section 48 of the Civil Liability Act 1961 allows an action to be brought by the personal representative or dependant of a deceased for damages for the benefit of all the dependants of the deceased where the death was caused by the wrongful act of another. In contrast to representative actions generally, this is a specific instance where damages can be awarded for representative litigation. 
  • Action for oppression under the Companies Act 2014: An application may be made by a member of a company alleging that the company’s affairs are being conducted or that the powers of the directors of the company are being exercised in a manner oppressive to them or any of the company’s members or in disregard of their interests as members.
  • Derivative actions: Order 15 of the RSC now incorporates a procedure for bringing or defending proceedings for the benefit of a company (a “derivative action”).

While not specifically applicable to representative actions, under Section 120 of the Data Protection Act 2018 (the domestic implementing legislation for the General Data Protection Regulation in Ireland), a data subject may mandate a body, organisation or association to bring a legal action against a data controller or processor on their behalf. Section 120(2) defines a body, organisation or association as one that:

  • provides its services on a non-profit basis; 
  • has been properly constituted in accordance with the law; 
  • whose objectives are in the public interest; and 
  • is active with regard to the protection of data subject rights and freedoms.

Where a court has doubts as to whether an entity meets the above criteria, the court may request information to confirm this (Section 120(3)).

As outlined, the legal framework in Ireland does not provide for formal collective redress/class action mechanisms. 

Representative Actions

Order 15, Rule 9 of the RSC specifically states: "Where there are numerous persons having the same interest in one cause of action or matter, one or more of such persons may sue or be sued, or may be authorised by the court to defend, in such cause or matter, on behalf, or for the benefit, of all persons so interested."

Where a representative action is properly taken, the decision of the court will bind any interested party who cannot make a special case for exempting themselves from the decision, as long as there is no fraud or collusion in the conduct of the proceedings.

Test Cases

Under Irish law, the preferred approach to multiparty litigation is to utilise a test case given the absence of a class action procedure. 

The test case is, effectively, the application by analogy of the findings in one case to the facts of others and so the impact of the test case approach rests upon the common law doctrine of precedent.  Technically, all other parties (ie, those individuals or entities not party to the original litigation) are not bound by the result of a test case. The plaintiff(s) in a test case act exclusively in their own interest and without regard to the interests of plaintiffs in pending or future cases. Plaintiffs are not notified of the test case itself and may only learn of its existence, if at all, through media reports or a court judgment. While a test case can reduce the length and cost of subsequent proceedings principally by narrowing the range of disputed issues and promoting settlement, the test case does not extinguish the necessity for each subsequent plaintiff to issue their own proceedings. 

Representative actions and test cases can each be initiated in the lower courts, however, these types of actions are usually taken in the High Court of Ireland, being the court with original and unlimited jurisdiction in all matters. 

There is currently no formal collective redress/class action procedure in Ireland. 

With regard to representative actions, where a person(s) seeks to litigate in this manner, an application needs to be issued to the High Court seeking a representative order authorising the person(s) to sue on behalf of persons whose names and addresses are exhibited in an affidavit grounding the application.  The court will not make a representative order where there is no evidence to suggest that a plaintiff(s) has been authorised to sue on behalf of other persons.  Order 15, Rule 9 of the RSC also requires that the proposed parties have the same interest in a cause of action or matter (rather than merely a common or similar interest). This latter requirement is interpreted very strictly.

A court can also refuse to sanction a representative action if there is no evidence to show that the required authorisation has been given. 

No specific procedure exists for bringing a test case. The case will be required to be litigated in the normal way through the issuance of the applicable initiating documentation. 

As noted, rules in relation to collective redress/class actions do not exist in Ireland.

Representative Actions

With regard to representative actions generally, however, the court will not make a representative order where there is no evidence to suggest that a plaintiff has been authorised to sue on behalf of other persons. In this context, the person purporting to represent all plaintiffs must provide evidence that each plaintiff has authorised that person to act on their behalf (Madigan v Attorney General, (1986) ILRM 136). In addition, the court will not make such an order where the proposed representative is unwilling to act. 

Equally, all members of the proposed represented class must have the same interest in one cause of action or matter. The Irish courts interpret this requirement very strictly and will be guided in assessing the “same interest” requirement by considering whether there is a common interest, a common grievance and relief beneficial to all in the class. The requirement will not be met where separate defences might be open to the various classes of members, where each plaintiff is relying on a separate contract or where the claim of each depends on its own merits.

For representative actions, plaintiffs must have suffered damage by reason of the defendant’s actions in order to pursue a claim.

Test Cases

Specific rules of standing are not applicable in relation to test cases. In theory, the test case is conducted and adjudicated exclusively on its own merits and without regard to the broader class perspective. The effectiveness of the test case approach rests upon the common law doctrine of precedent, however, and so multiple plaintiffs have from time to time co-ordinated on the test case to be chosen to best represent the overall class. This approach was pursued in the social welfare equality claims of the 1970s referred to above. Cotter and McDermott v Minister for Social Welfare (No 1), (1987) ECR 1453, and Cotter and McDermott v Minister for Social Welfare (No 2), (1991) 1 ECR 1155, were, in effect, test cases for many of the “class” of 11,200 married women who had taken cases to require the State to ensure that social welfare payments contained no discrimination on grounds of gender or marital status pursuant to the Directive on Equal Treatment in Social Welfare (Directive 79/7/EEC).   

In test cases, as with representative actions, plaintiffs must have suffered damage by reason of the defendant’s actions in order to pursue a claim. 

See 4.3 Standing

No specific rules exist in relation to collective redress/class actions and so the joinder of parties to representative actions or test cases would operate pursuant to the normal rules of joinder provided for under the Rules of the Superior Courts. These rules permit the courts to hear two or more related actions together. 

A regular approach of the courts is to allow a plaintiff class to progress by way of a single suit with each individual being a member of action in their own right.  The court can then join additional parties to proceedings where this is a necessary or desirable means of resolving the matters in dispute. 

Order 15, Rule 1 provides:

  • "all persons may be joined in one action as plaintiffs in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where, if such persons brought separate actions, any common question of law or fact would arise"; and
  • "in a case under this rule judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment, but the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the court shall otherwise direct". 

Order 15 Rule 4 makes similar provision for the joinder as defendants, whether jointly, severally or in the alternative, of all persons “against whom the right to any relief is alleged to exist”.

Where a number of parties have been joined in the same action, any judgment is binding on all the joined parties.

The drawbacks of the joinder procedure in multiparty actions is that the right of action must derive from the same transaction or series of transactions. Joinder is not available when the relief claimed derives from a transaction or series of transactions which are not common to each individual plaintiff.

Civil business in the High Court is allocated to different court lists depending on the type of case and the cause of action. 

Case management rules, inserted into the Rules of the Superior Courts by way of Order 63C, providing for a comprehensive regime for case management in chancery and non-jury cases, were introduced in 2016. Currently, by court direction, the rules have no practical effect pending the provision of the appropriate and necessary resources.

The case management rules apply to proceedings which would be listed for trial in the Chancery List or the Non-Jury List of the Court and any category of proceedings designated by the president of the High Court, or any proceedings having or involving any characteristics identified in such a designation. The rules do not apply to proceedings admitted to the Commercial List or required to be heard in the Competition List, personal injuries actions and jury actions. The Commercial List has its own distinct rules of case management under Order 63A of the RSC.

Parties are not precluded, however, from inviting the court to issue case management directions in a given case but the court retains ultimate discretion in such circumstances as to whether to agree to such a request.     

The case management rules provide for:

  • pre-trial preparation – the judge may give such directions and orders for the conduct of proceedings as appear convenient; case management conferences and pre-trial conferences can also be mandated by the judge; 
  • certificate of readiness – the judge will issue a certificate of readiness for trial if satisfied that the proceedings are ready to proceed to trial;
  • evidence – the parties are required to deliver a summary of the evidence to be given by witnesses at the trial, not later than 30 days prior to the date of trial, unless the court orders otherwise; and
  • costs – the judge may prescribe requirements as to the form and contents of bills of costs to be prepared in respect of relevant proceedings which have been made the subject of a case management order.     

Most cases in Ireland are not case-managed due to the lack of court resources. 

Actual timelines for the resolution of cases before the Superior Courts can vary depending on the type of case and the list the case is assigned to. The “average” length of proceedings before the High Court generally can be estimated to be two to three years from the issuance of proceedings, but cases can and often do last substantially longer. 

Commercial Court cases (cases which have a monetary value in excess of EUR1 million and must be accepted by application to the Commercial Court list), on the other hand, adhere to very strict deadlines throughout the progression of the case and can sometimes be resolved within one year of issuing proceedings. 

The conduct of cases can be expedited where urgency can be exhibited and an application can be made to a judge to bring forward the hearing of a trial. 

Equally, Order 25 of the RSC also allows the trial of preliminary issues prior to the substantive hearing, which can often have important implications for the conduct of the proceedings as a whole. The use of modular trials is also possible. 

The normal rules on costs and third-party funding apply to representative actions and test cases given the absence of specific procedural rules with regard to collective redress/class actions.

Third-Party Funding

Third-party funding of claims remains prohibited in Ireland, pursuant to the common-law doctrines of maintenance (the giving of assistance or encouragement to one of the parties to litigation by a person who has neither an interest in the litigation nor any other motive recognised by law that justifies interference) and champerty (a type of maintenance which involves an agreement between the plaintiff and a third party to divide the compensation between them in return for the third party’s support of the litigation). 

Civil legal aid is not available for representative actions, as funding for such actions is expressly precluded by legislation (Section 28(9)(a)(ix), Civil Legal Aid Act 1995). 

Claims in Ireland are currently self-funded by plaintiffs, often on a "no win, no fee basis". 

Claims are, therefore, commonly bankrolled by larger plaintiff litigation firms who take on considerable cost risks in running the litigation, with the hope of recovering their costs from the defendant, if they are successful in pursuing the claim.

Costs

In Ireland, pursuant to Order 99 of the Rules of the Superior Courts and Section 169(1) of the Legal Services Regulation Act 2015, "costs follow the event". Typically, this means that the loser pays their own legal costs and the costs of the successful party (the "loser pays principle"). This is typical across a number of member states.

This rule, and its applicability, is ultimately at the discretion of the court and the courts are not consistent in their decisions on costs. This can mean that defendants who successfully defend their claim at trial can sometimes still end up bearing their own costs, or even those of the losing plaintiff. This anomaly has led commentators to query what, if any, deterrent there is to plaintiffs making frivolous claims in this jurisdiction. 

As specific rules in relation to collective redress/class actions do not exist, the normal rules of discovery apply in multiparty actions. 

Ireland has extensive discovery rules, governed by Order 31 of the Rules of the Superior Courts. Discovery in Ireland extends to all documents within the power, possession or procurement of a party. 

The basic rationale for discovery is to enable the parties and the court to debate and adjudicate on matters on full information rather than on limited or partial revelation of the facts arising in a particular action. 

The criteria for ordering discovery of documents in Ireland are that the documents requested must be relevant, necessary and proportionate to the litigation.

Order 31, Rule 12 provides for a procedure for voluntary discovery between parties having essentially the same effect as court-ordered discovery and requires, as a condition precedent generally to any application for court-ordered discovery, that the applicant shall have previously applied by letter in writing requesting that discovery be made voluntarily, that a reasonable time for discovery has been allowed, and that the party or person requested has refused or neglected to make the discovery requested or has ignored the request. The letter issued by the requesting party must set out the precise categories of documents in respect of which discovery is sought and why each category of documents is required to be discovered.   

When making an application for discovery to the court, the requesting party is obliged to set out in an affidavit the reasons why each category of documents is sought and verify the necessity for the discovery sought. 

Equally, if documents that have been voluntarily disclosed are not in accordance with the request from the opposing side, the party seeking the outstanding documents can apply for a judicial order to direct such disclosure. 

Discovery itself is made by way of affidavit and must contain two schedules. The first schedule must list all the documents that fall within the relevant categories of discovery and is split into two parts. The discovering party must list all the documents that are within their power, possession or procurement in the first part. In the second part the discovering party must list all the documents in respect of which they are claiming privilege.   

Under Order 31, Rule 29 of the RSC, an Irish court can also order discovery from non-parties where it is satisfied that the non-party is in control of or has had documents that are relevant to the categories of documents discoverable in the case.

For representative actions, the remedies available are limited to injunctive and declaratory relief; damages are not available, and civil legal aid is not available where the application for legal aid is made by or on behalf of a person who is a member, and acting on behalf, of a group of persons having the same interest in the proceedings concerned (Section 28(9)(a)(ix), Civil Legal Aid Act 1995). 

The remedies available in test cases are not constrained to the same degree. The entity or individual who litigates a test case successfully can obtain the full suite of remedies available. The outcome of a test case can have a decisive bearing on the results of a range of cases involving other plaintiffs in the “class” and will often trigger offers of settlement in the appropriate factual scenario. However, it should again be noted that the test case is conducted and adjudicated exclusively on its own merits and without regard to the broader class perspective by the court and so, if a test case is not typical of the class, it may not be a suitable test of common issues. 

There are no specific mechanisms for resolutions for collective redress/class actions.

Representative Actions

The represented parties to a representative action are bound by any judgment or court-approved settlement by virtue of the fact that they were present by representation. However, a judgment or settlement does not extend to any members of the class who were not so joined to the proceedings. From a defendant’s standpoint, a judgment or settlement in a representative action does not rule out the need to defend similar claims in the future. Even within the represented class, a member may apply to the court for leave to be exempted from the judgment. Equally, as a matter of law, any represented party will not be bound if there is evidence of fraud or collusion in the conduct of the proceedings.

Test Cases

The LRC has highlighted a number of issues in regard to settlement in test cases. They have indicated that when a court adjudicates a test case or the parties negotiate a settlement, they do so without knowing the global extent of the defendant’s liability. Furthermore, resolution of multiple claims by means of a test case can lack transparency and may necessarily understate the extent of multiple wrongdoing on the part of a defendant. In this context, in practical terms, the test case can act as a strategic tool, as it may simply allow the defendant to present subsequent plaintiffs with a settlement offer as a virtual fait accompli.  Furthermore, the cost risk of the initial test case is not distributable, in a formal sense, among all the plaintiffs who are potentially benefiting.

Mediation and other forms of ADR may be utilised in the usual manner. 

See 4.12 Settlement and ADR Mechanisms

As explained, with regard to test cases specifically, these are essentially an individualised means of resolving collective grievances. Were a settlement not forthcoming based, perhaps, on a prior judicial ruling on a case with a similar fact scenario, the plaintiff would then proceed to trial in the normal way. A decision or settlement in a test case does not bind or oblige a defendant to act in a certain manner with regard to “other members of the class of plaintiffs”. 

See 5.2 Legislative Reform.

A major development on the horizon will be the implementation across the EU of a new consumer collective redress directive.  Directive (EU) 2020/1828, allowing for representative actions for the protection of consumers’ collective interests, was published in the Official Journal of the EU on 4 December 2020 and is scheduled to be transposed into Irish law by 25 December 2022, becoming effective in June 2023. The Directive is intended to improve consumers’ access to justice and to facilitate redress where a number of consumers are victims of the same infringement of their rights. The Directive will mandate that a procedure for representative actions is available across the entirety of the EU and will introduce safeguards for the avoidance of abusive litigation and illegal practices. 

The Directive aims to respond to several “scandals” involving breaches of consumers’ rights by large entities – examples in Ireland include the mis-selling of credit card protection policies to 160,000 domestic consumers. EU countries must now establish a minimum of one effective procedural mechanism to permit “qualified entities” to initiate representative actions to secure redress on behalf of consumers harmed by an infringement of applicable EU law. 

The Directive will enable “qualified entities” to litigate representative actions aimed at the protection of the collective interests of consumers in situations of collective/mass harm. 

For cross-border representative actions, a qualified entity must meet certain criteria to be designated as such. These include being a non-profit organisation in the area of consumer protection, being independent, having a legitimate interest in ensuring compliance with the provisions of the Directive and having a certain degree of permanence and level of public activity. 

Qualified entities who seek national redress only are to be regulated by domestic law however.In this regard, the Directive appears to leave it up to member states to determine the criteria for qualified entities capable of bringing representative actions in their country. As Ireland does not have an existing regime for representative actions, it could take a considerable period of time to agree upon, and draft, such rules.       

Once the Directive is implemented, Ireland will for the first time have in place a structured, legislatively based procedure for collective action in consumer litigation. The Directive will also create a number of substantial changes to some of the areas discussed above, including the following.

Third-Party Funding

The Directive will not prohibit third-party funding of qualified entities and collective redress actions. However, notwithstanding that third-party funding will be permitted in principle, the Directive requires qualified entities to be fully transparent about the source of funding in order to enable member states to prevent conflicts of interest between third-party funders and qualified entities. Member states must also protect consumers’ interests by ensuring that a third-party funder does not unduly influence the decisions of the qualified entity in the context/conduct of a representative action, including in relation to settlements. The courts will be capable of enquiring into the source of funds and can require the qualified entity to refuse the funding provided or reject the standing of the qualified entity to bring an action in specific cases.

Broadened Types of Redress

Qualified entities will be permitted to pursue injunctive and redress measures including redress orders, declaratory orders, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate, under the Directive.

Opt In/Opt Out

Member states will be able to choose between an opt-in system or an opt-out system or a combination of both. Where an opt-in system is used, consumers would be required to express their wish to be represented by the qualified entity, while consumers in an opt-out system would be automatically represented by the qualified entity unless they expressly state that they do not wish to be. Commentators have noted that Ireland is likely to choose an “opt-in” system in order to fully protect consumers’ legal rights. An “opt-out” system would likely infringe Irish constitutional principles on the basis that while individuals have a right of access to the courts, they cannot be compelled to pursue an action.

Settlements

The Directive promotes collective settlements within a representative action. However, these settlements will require court or administrative approval and will be binding once approved. As such, the possibility for individual consumers to accept or refuse the terms of settlement entered into by a qualified entity will be removed. This will likely act as a major benefit for businesses who wish to secure a quick and cost-effective resolution. 

Given that the Representative Actions Directive will not come into force until June 2023, any impacts in this area as a result of Brexit are not likely to be seen until after that point. However, it remains difficult to state in concrete terms what changes are likely to take hold as a result of Brexit.     

Academic commentary in Ireland states that the impact of the implementation of the Directive in this jurisdiction will depend on which bodies and consumer organisations apply for standing under its provisions, and their ability and interest in bringing representative actions. 

As explained, EU member states will retain discretion in how they implement aspects of the Directive. This may prompt a trend of forum shopping, whereby the domestic legislative regimes adopted by certain member states become more favourable to litigants to pursue cross-border claims. There is a considerable possibility that Ireland will be viewed as a very conducive jurisdiction for collective actions arising from the fact that the UK has left the EU. 

In this regard, Ireland is now the only remaining native English-speaking country in the EU. Ireland is also the last common-law system in Europe with extremely advantageous and wide-reaching disclosure obligations, as noted above, as compared to other European countries. This will, undoubtedly, be very attractive to qualified entities that are considering which forum is going to be the most helpful to the success of their litigation and to the success of obtaining wide-reaching disclosure of relevant documentation in support of its claims. Therefore, Brexit has the potential to increase the volume of cross-border collective litigation being pursued in Ireland.   

Furthermore, the level of damages awarded in Ireland has been significantly higher than other EU countries and therefore Ireland would normally have been a very attractive jurisdiction for plaintiff/qualified entities seeking to bring claims on behalf of consumers. However, this position may now have changed in light of the advent of the Judicial Council Personal Injury Guidelines, which herald a shift in damages awards in personal injury actions more in line with those in England and Wales, for instance. 

Equally, it should be noted that by the time the Directive has fully entered into force in the EU, three-and-a-half years will have passed since the UK left the bloc. Therefore, any changes in litigation practices as well as changes triggered by forum shopping may have already crystallised by that point, making the definitive impacts of Brexit in this area difficult to anticipate. 

COVID-19 has put further pressure on court resources due to the huge backlog of cases. This will impact the effective implementation and use of representative actions in Ireland.

Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020

Remote hearings are now commonplace across the Superior Courts in Ireland with a large number of case-management lists, motion hearings and trials all being conducted online since the beginning of the pandemic. The statutory basis for the courts in Ireland to conduct remote hearings in civil proceedings is now contained in Part 3 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020. 

Section 11(2) empowers the court to direct that any specific set of proceedings before it should proceed remotely, whether on the application of any party or of the court’s own motion. Individuals from any location worldwide can participate in such hearings. 

The 2020 Act confirms that remote hearings have the same status as proceedings in a physical courtroom: the court’s powers are the same (including as regards compelling testimony or document production), and parties and witnesses have the same rights and obligations. Electronic filings, including electronic filing of claims, and the provision of evidence by way of statements of truth, as an alternative to affidavits, are now also a possibility in light of the 2020 Act’s provisions.

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Kennedys is a global law firm with particular expertise in litigation and dispute resolution, especially in defending insurance and liability claims. It has 66 offices, associations and co-operations across the UK and Europe, the Americas, Asia Pacific and the Middle East. The firm has a market-leading team handling product safety and regulation, large-scale product liability, recall and "mass tort" litigation and international claims. The core team is comprised of nine partners in London supported by more than 40 associates, as well as many partners and colleagues across Kennedys' international offices. A number of the firm's lawyers have qualified in law following careers in relevant industries (such as engineering, construction and medicine), which deepens the firm's expertise for clients’ benefit. Kennedys acts for parties across various industries and has gained valuable experience in high-profile and complex matters involving a wide range of products, including automotive, chemical and pharmaceutical goods, medical devices, healthcare products and consumer goods.

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