The Mediation Act 2017 recently entered into force. The act's objective is to promote mediation as an attractive alternative to court proceedings, in terms of time, cost, resources and the avoidance of acrimony. Although mediation may not be suitable for all disputes, the act provides a platform for parties to resolve their difficulties without commencing litigation where appropriate (albeit certain classes of case are excluded from its scope).
The minister for justice and equality recently published the long-awaited Mediation Bill 2017. The bill's underlying objective is to promote mediation as a viable, effective and efficient alternative to court proceedings. Doing so should result in reduced legal costs, faster resolution of disputes and a reduction in the stress and acrimony that can sometimes accompany court proceedings.
Two separate bills making their way through the legislative process propose to extend the limitation period for complaints to the Financial Services Ombudsman (FSO). The first bill proposes to strengthen the functions of and amend the limitation period for bringing complaints to the FSO, while the second and more comprehensive bill proposes to amend the limitation period for bringing complaints to the office in certain circumstances.
Construction contracting has seen significant change in both the private and public sectors, including the introduction of the long-awaited reform of the Public Works Contracts and a definitive date for the operation of the Construction Contracts Act 2013. The act applies to a wide range of construction contracts, including main contracts, subcontracts and professional team appointments entered into after July 25 2016.
Limitation of liability is a hotly negotiated issue in most commercial construction contracts. Parties often rely on the standard form clauses as being tried and tested and drafted with the benefit of industry knowledge. Such reliance can prove hazardous, as it may not adequately deal with the commercial risks of a particular project. Exclusion clauses that significantly limit parties' liability by way of financial caps are generally useful.
Support for building information modelling (BIM) is gathering pace. BIM is regarded as a powerful risk and cost management tool, encouraging better collaboration and improved project delivery. Contractors are already utilising BIM to help them to gain competitive advantage in the marketplace. Critics believe that specific BIM clauses and terms should be incorporated into the contract to help avoid potential disputes.
It has been a busy time for the construction industry as the economy picks up and growth in activity levels across a range of sectors brings new opportunities. This new wave of development is taking place alongside regulations and changes to industry practice. New regulation in the sector is welcome, but the breadth of the changes means that all players must keep up to speed with them.
The Office of Government Procurement has published its Report on the Review of the Performance of the Public Works Contract, setting out its conclusions following the long-awaited review. While the report acknowledges what does not work and what must be addressed in the contracts, it will be the action taken to implement the identified measures that will reveal whether it can change the landscape of public sector contracting.
A recent Supreme Court decision confirming that third-party litigation funding in return for a share of the proceeds is unlawful in Ireland has put after-the-event (ATE) insurance back in the spotlight as the only legitimate alternative method of funding litigation. Although a relatively new insurance product, a number of insurers are now providing ATE insurance in Ireland.
The Minimum Competency Code 2017 has been introduced to incorporate the implementation of the EU Insurance Distribution Directive, the EU Markets in Financial Instruments Directive II and associated European Securities and Markets Authority guidelines and the European Regulations 2016. The main changes under the code relate to the qualification and experience requirements of the staff of financial services providers.
The existing legislative and regulatory framework for motor insurance in Ireland is driver-centric and needs to adapt for the era of autonomous vehicles. At present, driving is defined as 'managing and controlling' a vehicle. This is not appropriate for autonomous vehicles, where the technology and not the driver controls the vehicle. The legal landscape must keep pace with this cutting-edge technology and efforts must be made now to consider how best to address the various issues which will arise.
The Consumer Insurance Contracts Bill 2017 recently passed the second stage in the Dáil (the lower house of Parliament) and will now proceed to the committee stage. The bill will apply to consumer insurance contracts only. It will replace the existing duty of disclosure with a statutory duty to answer specific questions carefully and honestly and will allow the insured to claim damages for late payment of claims by insurers. At present, there is no timeline for implementation.
The High Court recently upheld a finding of the Financial Services Ombudsman that an insurer was entitled to avoid a life assurance policy on the grounds of non-disclosure. Significantly, the decision turned on the strength of the proposal form and serves as a useful reminder to insurers of the importance of a well-drafted proposal form.
Straitened times have led to an increase in litigation before the courts involving lay litigants or litigants in person acting without formal legal representation. Notwithstanding that such litigants may not have instructed a solicitor or barrister, they sometimes appear with assistance from a non-legally qualified third party. Recent practice directions across the various levels of the court provide important guidance on the scope of such assistance.
A recent Court of Appeal decision has restored certainty that under Irish law there is no general duty of good faith in the context of commercial contracts. The decision has a wide application and is of interest to all parties across the entire spectrum of commercial contractual arrangements. It clarifies important questions in relation to the proper approach to the interpretation and implication of terms in a commercial contract.
Two new statutory instruments (SI 254/2016 and SI 255/2016), which make wide-ranging reforms to the procedural rules applicable to civil litigation, recently entered into force. However, a number of the rules contained in SI 255 are dependent on the assignment of list judges and registrars to the chancery and non-jury lists. The High Court has stated that it does not intend to assign either list judges or registrars until the necessary resources have been put in place.
In a recent case, the High Court upheld a centuries-old prohibition on litigation funding by a third party in return for a share of the proceeds with the party that has a genuine interest in the case. Both parties sought leave for a leapfrog appeal of the High Court's decision to the Supreme Court. The Supreme Court determined that this case did in fact meet the 'exceptional circumstances' requirement to justify a leapfrog appeal.
The Central Bank's inquiry process received resounding endorsement by the High Court in decisions against two former directors of the Irish Nationwide Building Society, Michael Fingleton and John Stanley Purcell. In July 2015 the Central Bank published a notice of inquiry confirming that it was to investigate alleged regulatory breaches. Fingleton and Purcell brought separate challenges aimed at overturning the decision, but the claims were recently dismissed.