Up until recently, Ireland did not have any formal compensatory collective redress or class action mechanisms akin to those in other jurisdictions. Representative action procedures under the rules of the courts and test cases have been utilised in an ad hoc manner by litigants, and these systems have operated as a de facto form of multiparty action. Joinder and consolidation of cases are also an option for litigants and can operate as a loose form of collective redress. The remedies under such forms of redress are, however, very limited.
Representative Action Under Court Rules
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. Representative actions do not, however, apply to tort claims, and damages cannot be awarded in a representative action.
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 exist, the first case to be litigated can often become a “test case”, which can act as a precedent by which the remaining cases are resolved. It is important to emphasise that though the “test case” can act as a precedent for other cases, it is not necessarily 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, in order 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.
In 2023, a formal structure for collective litigation was introduced into Ireland, not through the procedural rules of the courts as recommended by the LRC but through primary legislation, namely The Representative Actions for the Protection of Collective Interests of Consumers Act 2023 (Act 22 of 2023) (the “2023 Act”).
The mechanisms found in Ireland, prior to the recent enactment of formal legislation, are somewhat similar to those that were previously found in the courts of England, Canada and Australia.
Similarities and Differences
England, Canada, Australia and USA
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.
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 England and Wales, 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.
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 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.
A formal class action system is now also in place in Ireland since July of 2023 with the enactment of the 2023 Act, however, the 2023 Act has not yet been commenced by order of the Minster. The 2023 Act transposes the European Directive (EU) 2020/1828 allowing for representative actions for the protection of consumers’ collective interests into Irish law and aligns Ireland’s approach to representative actions with that of the EU and other member states.
Directive (EU) 2020/1828 allowing for representative actions for the protection of consumers’ collective interests came into effect on 24 December 2020, and required transposition by member states, including Ireland, by June 2023.
As a consequence, Ireland enacted the 2023 Act on 11 July 2023, to enable the efficient implementation of the Directive’s provisions. The 2023 Act will become operational once commenced by order of the Minister for Enterprise, Trade and Employment (the Minister with responsibility for transposing the Directive).
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 Dáil and the Seanad. The Oireachtas may transpose Directives into domestic law in two ways – transposition via primary legislation or via statutory instrument. In this instance, the Oireachtas has opted to transpose the Directive via legislation with the Representative Actions for the Protection of Collective Interests of Consumers Act 2023.
The Legislative Process
The Department of Enterprise, Trade and Employment 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. The public consultation closed on 7 May 2021. Following this, the Irish government published its draft General Scheme of the Representative Actions for the Protection of Collective Interests of Consumers Bill 2022 (the “Draft Bill” and the “Scheme”). On 11 July 2023 the Bill was signed into law by the President of Ireland.
The 2023 Act recently introduced a legislative framework in Ireland to allow collective redress or class actions, akin to those found in other jurisdictions. This Act transposed Directive (EU) 2020/1828 on representative actions for the protection of collective interests of consumers into Irish law on 11 July 2023 and provides for a new civil litigation mechanism for representative actions brought on or after 25 June 2023.
Under the 2023 Act, a representative action is defined as an action for the protection of the collective interests of consumers that is brought by a qualified entity acting as the plaintiff against a trader on behalf of consumers to seek an injunction or redress or both in respect of an infringement by a trader under the relevant enactments set out in the Schedule to the 2023 Act. A trader is defined as “any natural person, or any legal person irrespective of whether privately or publicly owned, that acts, including through another person acting in that person’s name or on that person’s behalf, for purposes relating to that person’s trade, business, craft or profession”.
As noted previously, analogous procedures predating the primary legislation are also provided by the rules of court under Irish law and primarily consist of:
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. 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).
A representative action against a trader may be taken under the 2023 Act if an infringement of a relevant enactment has taken place. A relevant enactment is defined in Section 2 as:
The relevant enactments are wide ranging and span across numerous sectors from telecommunications, environment, life sciences, healthcare, travel, data protection, energy, aviation and financial services to tourism.
Similarly, test cases, joinder and consolidation of proceedings apply to most types of disputes and areas of law. The use of representative actions under court rules is, however, more restricted and the law prescribes certain situations where representative actions can be specifically pursued.
Such representative actions, traditionally, cannot be used in actions founded in 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.
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:
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)).
The 2023 Act sets out the following definitions of types of representative actions under Section 2:
The Representative Actions for the Protection of Collective Interests of Consumers Act 2023
As this is a new mechanism of litigation in Ireland, it will be necessary to amend the Rules of the Superior Courts in order to implement the 2023 Act and to allow for such litigation. Section 19 of Part 3 lays down that a representative action may be brought before the Court by a qualified entity (QE). Section 2 of the 2023 Act defines “Court” as the High Court. In the circumstances, the High Court will have jurisdiction in Ireland to hear these representative actions.
Representative Actions Under Court Rules
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.
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.
As stated, it will be necessary to amend the Rules of the Superior Courts in order to accommodate the recently enacted legislation on representative actions to allow for this new mechanism of civil litigation.
The Act confirms that the High Court has jurisdiction in Ireland to hear representative actions. It stipulates that a representative action may only be brought before the court by a QE. The court may, on its own motion or on the application of a party to the representative action, dismiss the representative action where it appears to the court to be “manifestly unfounded”. Where the relief being sought is injunctive relief, the representative action will be brought by way of a motion.
With regard to representative actions under court rules, 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) is 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. It is required that the case is litigated in the normal way through the issuance of the applicable initiating documentation.
Under the recently enacted 2023 Act, only QEs are permitted to bring a representative action. It provides that domestic and cross-border representative actions may only be brought by QEs designated by the Minister for Enterprise Trade and Employment (the “Minister”). Additionally, under Part 2, Section 8 provides that the QE is:
Representative Actions Under Court Rules
With regard to representative actions under court rules, 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.
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 from time to time, multiple plaintiffs have 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.
The mechanism in place for consumers seeking redress in Ireland is an opt-in system, requiring consumers to expressly communicate their intention to be represented by the QE. Part 3, Section 24 of the 2023 Act provides that if a consumer wishes to be represented by a QE for redress measures they must notify the QE. They may do so at any time up until the case has been deemed admissible by the court. If a consumer does not notify the QE they shall not be represented by the QE and shall not be entitled to benefit from any redress granted by the court.
In contrast, where injunctive relief is being sought, there is no requirement to opt in.
A QE shall gather, and provide the court with, information concerning the class or classes of consumers entitled to benefit from redress measures ordered in the representative action concerned.
The 2023 Act does not address class size or members.
The procedures to join further parties to representative actions will be determined by the Rules of the Superior Courts, however, it will be necessary to amend these rules to implement the 2023 Act to allow for/provide procedural rules regarding group litigation actions.
Currently, the joinder of parties to representative actions under court rules or test cases 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 the 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:
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.
The 2023 Act does not contain any provisions about the powers of the courts in respect of case management. It remains to be seen how this will be approached in practice.
Currently, 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:
Most cases in Ireland are not case-managed due, for the most part, 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.
On the other hand, commercial court cases (which have a monetary value in excess of EUR1 million and must be accepted by application to the commercial court list) adhere to very strict deadlines throughout the progression of the case and can sometimes be resolved within one year of issuing proceedings.
It is worth noting that the EU Representative Actions Directive provides that “Member states shall ensure that representative actions for injunctive measures referred to in Article 8 are dealt with due expediency”.
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.
Third-party funding of claims is 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.
The recently enacted 2023 Act anticipates that a representative action for redress measures may be funded by a third party “insofar as permitted in accordance with the law”. It therefore can be inferred from the 2023 Act that the long-standing torts of maintenance and champerty need to be restricted to exclusively allow for funding of representative actions under the 2023 Act. The Irish courts have made it clear that the abolition of these torts is a matter for the Irish parliament. A review of the situation with regard to third-party litigation funding is ongoing in Ireland. A Consultation paper on the matter was published by the Law Reform Commission in July with a deadline for 3 November 2023.
Against the backdrop of envisaging third-party funded representative actions, the 2023 Act puts in place funding safeguards, such as requiring the High Court to ensure that there are no conflicts of interest and that the economic interests of third-party funders do not adversely impact the protection of the consumers’ interest. Further, the High Court must be satisfied that decisions of the QE, including those on settlements, are not influenced by any third party and that the QE discloses the source of the funds used by it to support the representative action.
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.
The 2023 Act follows this general rule that costs follow the event. The default position is that, in the event that the representative action is unsuccessful, any award of costs made will be against the QE only while individual consumers, save for exceptional circumstances, will not be liable to pay the costs of the proceedings. A successful party will be able to recover the costs relating to the provision of information to consumers for the purposes of the representative action.
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 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.
The 2023 Act provides that QEs may apply to the High Court for injunctive relief or redress measures or both.
Before an application for injunctive relief can be brought the QE must satisfy the court that efforts were made to engage with the trader to resolve the alleged infringement. Specifically, the QE shall:
If these efforts fail and a period of two weeks has elapsed since the request to enter consultations has passed the QE can bring an action for injunctive relief.
An application for injunctive relief will be brought by way of a motion and the court may grant an interim injunction or an injunction to cease a practice or, where appropriate, to prohibit a practice where the practice has been found to be an infringement.
For this type of relief the QE does not have to prove actual loss or damage on the part of the consumer. Nor does negligence or intent on the part of the trader need to be shown.
A QE bringing a representative action may also seek redress and the High Court at its discretion may require a trader to provide a consumer with one or more of the following redress measures:
Consumers must expressly opt in for redress measures but not for representative actions seeking injunctive relief.
For representative actions under court rules, 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. It should again be noted, however, 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.
Settlements under redress measures are expressly provided for under Section 30 of the 2023 Act. It permits a QE and a trader to jointly propose a settlement for the consumers to the court which must be then approved by the court and will be binding on the QE, trader and the individual consumers. The court may decline to approve a settlement that it regards as unfair.
Recourse may also be had to alternative dispute resolution by the QE and they may engage an ADR entity within the meaning of the European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015 (S.I. No 343 of 2015) to resolve the alleged infringement.
Representative Actions Under Court Rules
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. A judgment or settlement does not, however, 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. 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.
The Law Reform Commission 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.
With regard to test cases specifically, these are essentially an individualised means of resolving collective grievances. If a settlement is not forthcoming based, for example, 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 plaintiffs in other related claims.
See 5.2 Legislative Reform.
As noted, this area of law has recently been reformed in Ireland with the enactment of the 2023 Act which implements the new consumer collective redress Directive (EU) 2020/1828, allowing for representative actions for the protection of consumers’ collective interests, published in the Official Journal of the EU on 4 December 2020. 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 mandates 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.
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 QEs 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. Brexit, therefore, has the potential to increase the volume of cross-border collective litigation being pursued in Ireland.
Furthermore, the level of damages awarded in Ireland is often comparatively viewed as being significantly higher than in other EU countries and, therefore, Ireland may present as an attractive jurisdiction for plaintiffs/QEs seeking to bring claims on behalf of consumers.
COVID-19 has put further pressure on court resources due to the huge backlog of cases. This will, certainly in the short-term, impact the effective implementation and use of representative actions in Ireland.
Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020
Remote hearings are now relatively commonplace across the Superior Courts in Ireland with a large number of case-management lists, motion hearings and trials 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.