What the Collective Interests Bill may mean for Irish litigation

This article was originally published in Law360.

On 13 March, the Irish Representative Actions for the Protection of the Collective Interests of Consumers Bill 2023 was published.[1]

The Bill transposes the EU Representative Actions Directive into Irish law.[2]

While the Directive required enactment by 25 June, the Bill has only just received final consideration in the Irish Parliament and is expected to be signed into law imminently.

As there is no existing legislative framework or legal procedure in Ireland that provides for collective redress, or any form of group action mechanism akin to those available in other jurisdictions, the Bill, once enacted in its final form, is expected to significantly alter the litigation landscape in Ireland in the years to come.

The proposed implementation of the Bill in Ireland also comes at a time when third-party litigation funders are increasingly permeating the EU market and the European Parliament is advocating for EU- wide regulation on responsible third-party litigation funding.

Unlike other common law jurisdictions in Europe, third-party litigation funding is prohibited in Ireland. However, proposals to relax the rules for commercial arbitration matters only, by virtue of the introduction of the Courts and Civil Law (Miscellaneous Provisions) Bill 2022, indicate the possibility of wider reform in the future.

In this article, we highlight the key provisions of the Bill and consider the related impact of Ireland's prohibition of third-party litigation funding on its operation, once enacted.[3]

Application of the Bill

Representative actions will only be allowed to be brought in respect of domestic and cross- border infringements by traders that occurred on, or after 25 June that harm, or may harm, the collective interests of consumers.

Qualified entities 

The designation of qualified entities, or QEs, to represent the consumer class requires an application to be made in a prescribed form to the Irish minister for enterprise trade and employment.

QEs must satisfy certain criteria in order to advance domestic or cross-border representative actions.

Although the representative actions directive gives member states flexibility over the criteria to apply to QEs bringing domestic representative actions only, Irish legislators have elected to adopt a uniform approach, with the Bill providing that QEs must satisfy the same criteria, regardless of whether they are advancing a domestic or cross-border action.

The applying QE must:

• Be a legal person that can demonstrate 12 months of actual public activity in the protection of consumer interests.
• Have, as its main purpose, a legitimate interest in protecting consumer interests prior to designation.
• Be non-profit making.
• Be solvent.
• Be independent and not influenced by persons other than consumers, particularly by traders who have an economic interest in the bringing of any representative action, including in the event of third-party funding.
• Have established procedures to prevent such influence and any potential conflicts of interest between itself, its funding providers and the interests of consumers.
• Publish information on its website in plain and intelligible language that it complies with the criteria, and provide information on its source of funding, its organizational, management and membership structure, its statutory purpose and activities.

The minister is empowered to refuse or revoke the designation of a QE, although the applicant or QE will have the right to make representations within 28 days of being notified. Any subsequent review must be carried out by an independent person appointed by the minister.

The designated QE will be subject to a review by the minister at least once every five years to ensure that they continue to satisfy the relevant criteria. The designated QE will also be reviewed if concerns are raised by another member state or the European Commission.

Ireland is one of the smallest EU member states and given the stringent nature of the proposed QE criteria as well as the likely administrative burden, it is possible that established trade associations or consumer agencies could be candidates for the QE role.

An example is the competition and consumer protection commission, the independent statutory body that enforces competition and consumer protection law in Ireland.

The minister will have responsibility for supporting and facilitating cooperation between QEs with regard to the exchange and dissemination of their best practices and experience in relation to dealing with domestic infringements and cross-border infringements.

Admissibility requirements

Only a QE, acting as the representative plaintiff, may bring a representative action before the Irish High Court.

Where an alleged infringement of EU law affects consumers in more than one member state, more than one QE may be appointed. In such circumstances, a lead QE shall be nominated to conduct the representative action, with all participating QEs to be bound by the outcome.

To enable the court to consider the admissibility of a proposed representative action, QEs must provide the court with:

• Sources of funding of the representative action.
• Details of the nature of the claim, including the alleged infringement.
• The class or classes of consumers affected by the alleged infringement.
• Evidence of a QE's inclusion on the EC's list of QEs in cross-border actions.

The court may dismiss a representative action that appears to the court to be manifestly unfounded.

Relief measures

Redress measures available under the Bill are compensation, repair, replacement, price reduction, contract termination and reimbursement. However, the Bill provides the courts with the discretion to order other redress remedies against a trader to facilitate the resolution of a dispute.

The Bill also provides for settlements jointly proposed by the parties to be approved by the court.

Where a consumer seeks redress measures, the Bill requires the consumer to expressly opt in to the representative action by notifying the QE up until the case is accepted as a representative action by the court.

Due to the opt-in nature of redress actions, there are a number of safeguards built into this aspect of the Bill.

This includes the consumer signing a declaration that he or she will be bound by the outcome of the action and preclude any other action against the trader in respect of the same cause of action.

In contrast, consumers who seek injunctive relief measures are not required to opt in to the representative action.

Costs

As a general principle, the consumer is not liable to pay the costs of the proceedings where redress measures are sought. However, the court will have discretion to depart from that rule where costs were incurred by a party as a result of that individual consumer's intentional or negligent conduct.

There is also scope for a successful party to recoup the costs of providing information to consumers for the purposes of the representative action.

Third-party litigation funding

The Bill anticipates the costs of a representative action are to be provided by a third party "insofar as permitted in accordance with law," subject to oversight by the court, including:

• Ensuring that the decisions of QEs, including in relation to settlement, are not unduly influenced by a third party in a manner that would be detrimental to collective interests of the represented consumers; and
• The representative action is not brought against a defendant who is a competitor of the funding provider or a defendant on whom the funding provider is dependent.

The purpose of such scrutiny is to ensure the protection of the collective interests of the consumers and to prevent any conflicts of interest.

As Ireland currently prohibits third-party litigation funding, it is unclear how this aspect of the Bill will progress. It also raises questions as to whether it will ultimately impede access to justice.

At the Dáil Éireann debate on 19 April, the minister of state at the Department of Enterprise, Trade and Employment voiced concern that the limitation on access to funding for civil litigation in Ireland is likely to discourage some not-for-profit organizations from applying to become designated QEs.[4]

Recently, however, considerations around reform in this area have come to the fore, albeit the Irish Parliament remains cautious.

The minister for justice acknowledged on 20 September 2022, that aspects of litigation funding are considered to be contrary to public policy, and may drive a market in legal claims. It may also promote litigation for the benefit of the promoter rather than the litigant, and this may create a substantial injustice to a defendant in an action.

Nonetheless, the following developments indicate that reform is on the horizon:

• The Law Reform Commission is currently conducting a review of the law governing third-party litigation funding and is expected to report in 2024. The minister for justice will then evaluate the issue fully in the context of reform of parts of the civil law system.
• In November 2022, a select committee on justice proposed amendments to the Courts and Civil Law Bill, removing the current restriction on third-party litigation funding in proceedings involving international arbitration. The Bill is currently making its way through the Irish Parliament. If the proposed amendments are accepted, it is expected to be enacted in the coming weeks and months.

These developments in Ireland run in tandem with the European Parliament voting in favour of a resolution on third-party litigation funding, calling on the European Commission to introduce EU-wide regulation in the area.

While third-party litigation funding is a growing practice in many countries, it is almost entirely unregulated in the EU.

With the potential for abusive practices, the European Parliament's resolution recommends the introduction of an EU-wide directive on third-party litigation funding to bring about much-needed transparency and safeguarding where third-party litigation funding is utilized, as well as encouraging it to be used as a tool to support access to justice.

In addition, the resolution also recommends:

• The introduction of supervisory authorities to grant authorizations to conduct third- party litigation funding activities and ensure that funders are bound by a duty to act fairly, transparently, efficiently and in the best interests of the claimant.
• Funders demonstrate that they have sufficient capital to satisfy their financial obligations.
• That there is no undue influence or control by the funder over the litigation that would be detrimental to the interests of the claimant concerned in the action.
• The introduction of safeguards to prevent any conflicts of interest.

Conclusion

While the final text of the legislation may look different to the text of the Bill, the foundations are now well and truly in place.

As multinational corporations continue to have an increasing presence in Ireland, and with Ireland being the only native English-speaking jurisdiction in Europe, the Bill, once enacted, will provide fertile ground for consumer-led group actions being brought in Ireland with the potential to affect a wide range of industries.

While the current prohibition on third-party litigation funding is likely to temper that risk, it is only likely to offer short-term relief in light of the gradual edging toward wider third-party litigation funding reform.[5]

References

[1] Representative Actions for the Protection of the Collective Interests of Consumers Act 2023.

[2] EU Representative Actions Directive (EU) 2020/1828.

[3] The Representative Actions for the Protection of the Collective Interests of Consumers Bill 2022: the introduction of class actions to Ireland.

[4] Lower house of the Irish Parliament.

[5] A recording of the firm's webinar on the EU's Directive on Representative Actions for the Protection of the Collective Interests of Consumers on 25 May can be requested here.

 

Related items:

• The Representative Actions for the Protection of the Collective Interests of Consumers Bill 2022: the introduction of class actions to Ireland
• Collective redress in Europe: lessons to be learned
• In Practice Series – How to mitigate the growing risk from consumer class actions and Collective Redress in Europe