Representative Action Bill Initiated Before The D'il

• Jurisdiction: European Union
• Law Firm: William Fry
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Consumer Law, Arbitration & Dispute Resolution, Trials & Appeals & Compensation, Civil Law
• Author: Mr Paul Convery and Adele Hall
• Published date: 23 March 2023

In advance of the imminent application deadline of 25 June 2023, the Irish government has initiated the Representative Actions for the Protection of the Collective Interests of Consumers Bill (Bill) before the D'il. The Bill proposes to transpose the Representative Action Directive (EU 2020/1828) (Directive) into Irish law. The Directive was due to be transposed by 25 December 2022. Ireland failed to meet this deadline, and the European Commission recently announced that it was taking measures against those member states, including Ireland, who failed to notify national measures transposing the Directive. The Directive entered into force in December 2020 and takes effect from 25 June 2023.

The Irish government published the General Scheme of the Bill in March 2022, and pre-legislative scrutiny was completed in December 2022.

An Overview of the Bill

The substance of the Bill does not differ significantly from the General Scheme, detailed in our earlier article here. The Bill is divided into three parts. Part 2 deals with Qualified Entities, and Part 3 with Representative Actions. The Directive aims to protect the collective interests of consumers by providing procedural mechanisms (injunction and redress measures) to consumers in all member states. The High Court (Court) remains the designated court under the Bill for representative actions in Ireland. "Qualified Entities" (QE) will be enabled to bring representative actions before the Court, on behalf of consumers against traders that have infringed certain provisions of EU law. This will introduce a form of collective action or "class action" into Irish law.

Funding of representative actions

The publication of the Bill has been keenly anticipated, partly because of the potential for an introduction into Irish law of third-party litigation funding, which is currently prohibited. The Directive does not oblige member states to introduce third-party litigation funding. The Bill goes no further than the General Scheme in that it replicates the mandatory provisions of the Directive and provides for third-party funding of representative actions "insofar as permitted in accordance with law". Section 27 of the Bill provides for certain disclosures to be made by qualified entities to the Court where the action is financed by third-party funders. Section 27 obliges the Court to ensure that the funding of representative actions, where permitted...