Established in 1825 in Dublin, Ireland and with offices in Cork, London, New York, Palo Alto and San Francisco, more than 700 people work across Matheson’s six offices, including 96 partners and tax principals and over 470 legal and tax professionals. Matheson services the legal needs of internationally focused companies and financial institutions doing business in and from Ireland. Our clients include over half of the world’s 50 largest banks, 6 of the world’s 10 largest asset managers, 7 of the top 10 global technology brands and we have advised the majority of the Fortune 100.Show more
Arbitration & ADR
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).
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.
Company & Commercial
Irish businesses trying to navigate the current Brexit landscape should consider the impact of events on their contractual relationships. As Brexit will directly or indirectly affect most, if not all, transactions between Irish and UK businesses or Irish businesses doing business in the United Kingdom (including Northern Ireland), Irish suppliers must consider not only events which may directly affect them, but also their supply chain.
Competition & Antitrust
Minister for Business, Enterprise and Innovation Heather Humphries recently laid the Competition Act 2002 (Section 27) Order 2018 before the Houses of the Oireachtais. This will have the effect of increasing the financial thresholds for M&A requiring a notification to the Competition and Consumer Protection Commission. This is the first time that a minister has used their powers under Section 27 of the Competition Acts from 2002 to 2017.
The Department of Business, Enterprise and Innovation recently published legislation that substantially increases the financial thresholds at and above which notification of a transaction is required to the Competition and Consumer Protection Commission. From 1 January 2019, only mergers where the acquirer and target each generate €10 million or more and together generate €60 million or more turnover in Ireland will trigger mandatory notification.
The Competition and Consumer Protection Commission's (CCPC's) current scrutiny of the Restaurants Association of Ireland serves as a reminder that trade associations must be careful to stay within the lines and avoid encouraging or inadvertently facilitating anti-competitive agreements between their members. Compliance training is an essential tool to prevent unwanted scrutiny from the CCPC and other authorities.
Non-compete clauses can provide important protection for purchasers who have a legitimate interest in maintaining the value of the business they are acquiring. However, careful consideration must be given to the drafting of non-competes in order to avoid allegations of anti-competitive conduct – which is a criminal offence in Ireland – and scrutiny from competition regulators such as the Competition and Consumer Protection Commission and the European Commission.
A new bill has been proposed in the Oireachtas to grant the Competition and Consumer Protection Commission (CCPC) civil enforcement powers. At present, where the CCPC identifies a suspected breach of competition law, it must petition the court to impose criminal penalties. Under the amendment bill, the CCPC would be empowered to levy administrative fines against firms or individuals for anti-competitive practices. This would bring Ireland into line with most other EU member states.
Ireland has recently shown an increased interest in gun jumping, the prohibited practice of implementing a transaction without having first obtained merger control clearance. In February 2018 the Competition and Consumer Protection Commission confirmed that it had launched an investigation into suspected gun jumping by Armalou Holdings Limited of Lillis O'Donnell Motor Company Limited.
A recently signed ministerial order marks the formal introduction of long-awaited periodic payment orders (PPOs) in Ireland. This should be a welcome development for insurers as it will avoid upfront compensation payments in catastrophic injury cases. It will also align the Irish regime of awards in case of catastrophic injury with the UK system, under which PPOs are already available.
The April 2018 decision of Bin Sun v Jason Price provides a useful summary of the circumstances in which a party can be joined as a co-defendant against the wishes of a plaintiff. It also provides clarity for insurers as to the circumstances in which they can seek to be joined to proceedings at first instance, which could prevent or substantially reduce their exposure in a subsequent application by a claimant to enforce against them.
Large corporates based in Ireland typically have a suite of non-life insurance policies to cover a variety of risks. Given the fact that the UK insurance market is the biggest in the European Union, it is likely that at least some of the policies held by corporates based in Ireland will have been written by UK or Gibraltar-licensed insurers. As such, whatever form Brexit ultimately takes, Irish policyholders with policies written by UK insurers must assess any risk to (among other things) their ability to renew.
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.
The EU Solvency II Directive was transposed into domestic Irish law by the European Union (Insurance and Reinsurance) Regulations. The Solvency II regime provides welcome clarity regarding the functions that an insurer may outsource and the requirements which must be complied with before outsourcing. This is particularly welcome news for captive insurers which tend to rely heavily on outsource service providers.
The High Court recently confirmed that third-party rights against insurers in Ireland are restricted, providing comfort for insurers in the context of solicitors' professional indemnity insurance. The decision is consistent with recent confirmation from the authorities that third parties have no direct right of action against insurers. To the extent that a specific statutory provision permits a restricted right of action, the insured defendant's liability must be established in the first instance.
The Court of Appeal recently ruled in a case which considered the 'real rate of return' discount which would be applied to an injured plaintiff's future care costs. When quantifying future losses in personal injury actions, future care costs may now be discounted by only 1% and as a result underwriters will be ordered to pay out higher lump-sum damages awards. There is likely to be a knock-on effect which will see underwriters increasing premiums.
The Central Bank of Ireland's Fitness and Probity Regime has been reviewed to determine its compatibility with the EU Solvency II Directive. A number of amendments are set to be made to the regime for all (re)insurance undertakings, including changes to key function holders, outsourcing key functions, the head of the actuarial function and the removal of the chief actuary and signing actuary.
The Law Reform Commission of Ireland recently published its draft Consumer Insurance Contracts Bill 2015. Unlike the UK Insurance Act, the commission's bill applies only to consumer insurance contracts. While the changes proposed in the bill are not generally as wide-reaching as those to be implemented by the UK act, there are some similarities, including changes to the duty of disclosure and proportionate remedies for non-disclosure.
The European Union (Insurance and Reinsurance) Regulations 2015 were recently signed by the minister for finance, transposing the EU Solvency II Directive into Irish law. The regulations establish new capital requirements, valuation techniques and governance and reporting standards. They also provide the Central Bank of Ireland with increased supervisory responsibilities.
The General Scheme of the Civil Liability (Amendment) Bill provides that a court awarding damages for future monetary loss in respect of catastrophic injury may order that all or part of the damages be paid as periodic payments where it is in the best interests of the plaintiff. The use of a periodic payment order is intended to transfer risk from the plaintiff to the insurer. However, the plaintiff will bear the risk that the insurer could become insolvent.
The recent High Court decision in Michael Murphy v Allianz Plc provides further clarification of the scope of Section 62 of the Civil Liability Act 1961 – in particular, the conditions which must be satisfied for its application. The decision will be welcomed by insurers, as it confirms yet again that the Irish courts will require strict compliance where an injured third party seeks to rely on Section 62.
The High Court recently considered whether the Financial Services Ombudsman (FSO) had erred in law in determining that an insurer was entitled to void a home insurance policy for material non-disclosure. The court noted that the case concerned a consumer contract and thus all comments and findings of the court were made exclusively in that context. The court concluded that the deputy FSO had erred in law on at least five grounds.
The Law Reform Commission has published its long-awaited report on consumer insurance contracts. The report makes 105 recommendations for reforms to the rules. According to the commission, the existing rules do not reflect the realities of the bargaining powers of consumers compared to large insurers. If adopted, insurers will have to redraft their consumer insurance policies.
The High Court recently refused an application by an insurer for leave to deliver interrogatories, finding that the alleged material non-disclosure must be proved by oral evidence at trial. The insurer had obtained extensive discovery of the deceased's medical records, enabling it to phrase the interrogatories with precision. However, the court concluded that the plaintiffs should have the opportunity to cross-examine the defendant's witnesses.
In a recent case, a couple's claim for rheumatoid arthritis was refused by the insurer because the policy did not include serious illness cover. The appellant complained to the Financial Services Ombudsman (FSO) on the basis that she and her husband believed that they were covered for all manner of serious illnesses under the policy, rather than only certain specified illnesses. The FSO found that the complaint was unsubstantiated.
The High Court recently confirmed that insurers will not be limited to the initial reasons listed for declinature and may rely on misrepresentations made subsequently by an insured. The court found that a misrepresentation by an insured can be taken into consideration by the court, even if it arises subsequent to the initial claim being made and its initial refusal.
The Court of Appeal recently overturned a High Court ruling that the insolvent plaintiff's after-the-event (ATE) insurance could effectively substitute security for costs. The court accepted that an ATE insurance policy could provide security for costs in principle. However, it did not accept that the policy in question provided sufficient security. The decision was influenced by the existence of a condition precedent.
The latest Financial Services Ombudsman annual review has revealed that insurance complaints represented 44% of all consumer complaints filed in 2014. However, it is significant that 80% of these were not substantiated. Payment protection insurance continued to be a significant source of complaints.
The High Court recently upheld the validity of an after-the-event insurance policy and expressly confirmed that after-the-event insurance does not fall foul of the tort of maintenance or champerty. The court held that the rules against maintenance and champerty remain applicable in an Irish context and after-the-event policies must comply with these rules in order to be valid and enforceable.
In 2012 the Central Bank of Ireland undertook a widespread review of PPI sales, which resulted in refunds of €67.4 million. To date, both the Financial Services Ombudsman and the Irish courts have largely found in favour of credit institutions and ruled that PPI was not mis-sold to policyholders. However, this has not discouraged claimants and challenges to PPI sales persist.
Fifty percent of complaints made to the Financial Services Ombudsman (FSO) in 2013 related to insurance. For the first time since 2007, there has been a significant decrease in the number of complaints made, although complaints requiring formal investigation have increased. The FSO welcomed the reduction in complaints but highlighted that payment protection insurance continues to be a concern.
The Central Bank recently published a revised Corporate Governance Code for Credit Institutions and Insurance Undertakings. The revised code will apply to all credit institutions and insurance undertakings (including reinsurers, but excluding captives) licenced or authorised by the Central Bank. It imposes minimum statutory requirements on how these undertakings should organise the governance of their institutions.
In a recent High Court case a retired insurance broker had invested in a property-based fund which was unsuccessful because another development had attracted tenants away. The appellant argued that had he known all the facts, he would never have invested. The court concluded that the contract was not one of assurance but one of investment, and the principle of utmost good faith did not apply.
The Central Bank published a consultation on the review of the Corporate Governance Code for Credit Institutions and Insurance Undertakings. Proposed amendments include prohibiting the chairman or chief executive officer (CEO) from holding more than one chairman or CEO position in another credit institution or insurance undertaking at any one time.
The High Court recently found that it was unnecessary to provide documents prepared in anticipation of repudiation of a life insurance policy, as the documents were protected by litigation privilege. Litigation privilege protects confidential documents assembled with the purpose of preparing for a litigation. Insurers should keep in mind that they may wish to claim privilege over confidential documentation prepared during an investigation.
Two recent High Court decisions have provided much-needed clarification as to the scope and operation of Section 62 of the Civil Liability Act 1961. The decisions related to applications by insurers to strike out the claim against them on the basis that no reasonable cause of action was disclosed. Both insurers were successful.
The High Court recently had its first opportunity to consider whether after-the-event insurance policies could effectively substitute security for costs. The ruling demonstrates that the courts will accept after-the-event insurance and will not award security for costs against a plaintiff that has taken out after-the-event cover, provided that policies do not contain terms by which the insurer can avoid liability to pay the defendant's costs.
Defender v HSBC highlights the need for plaintiffs to understand the blameworthiness of all wrongdoers before settling a claim against any of them. This case concerned Defender, a fund which invested with Bernard Madoff and subsequently suffered a loss when Madoff was revealed to be operating the world's largest Ponzi scheme.
The High Court recently dealt with a professional negligence claim following a retainer by a couple of a chartered engineering firm regarding the construction of their home in 2005. The defendants had brought a strike-out claim for a significant delay in the construction proceedings. On the facts of the case and owing to the fact that the defendant had been a professional person, the case was allowed to proceed on a limited basis.
Businesses with experience litigating in Ireland will be familiar with the discovery process and the onerous obligation to disclose all relevant documents which are in their power, possession or procurement. In an age when the volume of electronically stored information continues to increase exponentially, the costs and time involved in complying with discovery orders can often be disproportionate; however, change may be on the horizon.
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.
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.
A recent High Court decision reaffirms that not all cases are appropriate for mediation. Although the Irish courts are supportive of mediation and recognise the benefits that it may bring in the context of a commercial dispute, the court rules pursuant to which proceedings might be adjourned to facilitate mediation will not always be invoked. In considering whether to make an order pursuant to the relevant rule, various factors are relevant to the exercise of the courts' discretion.
A recent High Court decision confirms that cross-examination of deponents of affidavits will not generally be permitted on an interlocutory application. This decision serves as a useful reminder that interlocutory applications typically proceed by way of affidavit evidence only. Accordingly, a party involved in an interlocutory application should think twice before seeking to cross-examine a deponent.
The Irish judiciary has long been cognisant of the rights of all parties to access the courts and have a right to a fair hearing. However, due to straitened economic circumstances, litigation is increasingly conducted by litigants in person, meaning that strict compliance with court procedures is not always possible. The Supreme Court recently offered some guidance with regard to the allocation of court resources and the extent to which litigants might be indulged by the court.
The Irish courts have recognised the possibility of modular trials, where a specific or discrete module of the proceedings might be tried in and of itself, independently of any other aspects of the proceedings, as being appropriate in certain circumstances. It is apparent from existing case law that modular trials constitute an exception to the usual unitary approach to hearings in Ireland. Accordingly, it is only in exceptional cases that a modular trial may be ordered.
The High Court recently confirmed that maintenance and champerty remain part of Irish law. The decision is significant to third-party funders, which face a challenging legal landscape in Ireland. Ultimately, the court concluded that maintenance and champerty continue to be torts and offences in Ireland and, as such, it is prohibited for an entity to fund litigation in which it has no independent or good-faith interest for a share of the profits.
The Court of Appeal has confirmed that although alternative dispute resolution is worthwhile in many cases, it is inappropriate to invite parties to mediate in all cases. The decision identifies the circumstances that a court may consider when faced with an application to issue an invitation to mediate. It is one example of a case in which the novelty of the legal issues involved mean that making the order sought is inappropriate.
A recent High Court decision has confirmed that when faced with an injunction application, the court will examine the precise nature of the order sought in considering whether to grant an injunction, rather than simply relying on how the applicant might characterise it. This arises from the fact that different standards apply, depending on whether the order sought is prohibitory or mandatory in nature.
The Court of Appeal recently considered the extent to which findings of fact made by a trial court can be revisited on appeal. Although the decision is very much confined to its facts, it is important because it recites and applies the relevant case law regarding the extent to which an appellate court may revisit findings of fact and inferences by a trial court.
The High Court has deemed that the question of determining which governing law applies to a dispute should not be dealt with as a separate and distinct matter in isolation from a ruling on the relevant facts. Parties should be mindful that where a dispute arises and there is a question over the applicable law, the Irish courts may require all aspects of the dispute to be determined at the same time.
The Court of Appeal has reminded practitioners that interrogatories – essentially a series of questions involving yes or no answers – should not be disregarded as a litigation tool. Although leave of the court is required in most High Court litigation before interrogatories can be deployed, the decision is a reminder that the test for obtaining such permission is not as difficult to meet as is often perceived.
A recent decision has reaffirmed that a strict test will be applied where a defendant seeks to strike out a claim against it on the basis that no case against the defendant can be demonstrated. The Irish courts have been slow to strike out a plaintiff's case based on the pleadings and this decision shows that it is only in exceptional cases that such an application will prevail.
A recent Court of Appeal decision further qualifies the wording used in Section 15 of the Civil Liability and Courts Act 2004, where the court considers whether to direct parties to mediate personal injury disputes. Relevant additional factors include the extent of prior attempts at settlement and the status of the case as a whole, as well as a final additional factor regarding the prospects of a resolution.
A recent decision has usefully synthesised the principles applicable to dismissing claims for delay. The decision clarified that the courts will engage in a case-by-case analysis of where the balance of justice lies, in terms of whether to allow a plaintiff to continue its claim or whether a defendant should not be obliged to defend proceedings which are not progressed with sufficient expedition.
The High Court recently considered the principles applicable to making an award for the costs of an interlocutory injunction application. The decision confirms that although the applicable rules provide that the court should make a determination as to costs in such cases, it may not always be appropriate to do so. The decision also confirms that it may not always follow that a successful party in an interlocutory injunction hearing is awarded their costs.
A recent High Court decision has confirmed the purpose and rationale behind seeking particulars of an opposing party's pleaded case and has highlighted that they are not appropriate for eliciting evidence which would otherwise be brought out at trial. The decision confirms that seeking particulars of a pleaded case is limited to understanding the broad outline of the case, and that it is inappropriate to seek to broaden it beyond that.
In a recent ruling, it was accepted that an after-the-event (ATE) insurance policy could provide security for costs. The High Court upheld the ATE policy, stating that it was not contrary to the torts of maintenance and champerty. For such a policy to be relied on for security for costs, it must provide some security and not contain terms which entitle the insurer to avoid liability in the future.
A recent High Court decision reconsidered the circumstances in which a shareholder or director may represent a company in legal proceedings. The court confirmed that it will exercise discretion to permit such representation only in exceptional circumstances, and in exercising such discretion it will look to establish whether the company has a real or bona fide case.
A recent decision offers a useful reminder of the obligation on a party seeking an ex parte order to ensure that it fully and frankly puts all material facts before the court. Failure to do so can not only result in the interim order being set aside, but may preclude that party from obtaining the relief sought on an interlocutory basis pending the ultimate trial.
In a recent High Court case the plaintiff applied for permission for Mr O'Donoghue (a former solicitor) to represent him. The court noted that there was no reason to doubt O'Donoghue's integrity, but as he was not a solicitor currently in practice he was therefore not subject to codes of professional conduct. If an individual does not wish formally to instruct legal representation, he or she is obliged to represent himself or herself.
Following newspaper allegations about the plaintiff, proceedings commenced. By late 2002 trial seemed imminent, but then everything stopped until April 2010, and in 2013 the defendant requested that the proceedings be discontinued. When this was not done, the defendant issued a motion seeking to strike out the proceedings. The court had to consider whether the defendant had sufficient basis to resist the application before it.
A recent decision has reaffirmed that, depending on the facts, terms and conditions of lending can be incorporated and apply to a bank/client relationship in circumstances where it is contended that those terms and conditions were never furnished to the borrower as part of a summary judgment application.
Once a statement of claim has been formally delivered, a party can amend it only by obtaining leave of the court. A recent decision provides a useful summary of the principles applicable to the amendment of a statement of claim and confirms that the question of prejudice to the defendant is a major factor to be considered in deciding whether to permit the amendment.
A recent High Court decision has confirmed that a regular judgment obtained in default of defence should not be set aside in circumstances where the party which obtained that judgment has complied with every procedural rule and extended every professional courtesy to its opponent. It confirms that there is a limited basis for the setting aside of judgments obtained in default of defence.
Irish procedure has a specific summary procedure for cases suitable for summary disposition without pleadings and on affidavit. A recent High Court decision confirms that for summary proceedings, the master of the High Court's jurisdiction is limited to the specific empowerments provided for therein.
A recent case addressed whether Irish courts have jurisdiction to deal with defamation proceedings if the alleged online defamation was published by a party not domiciled in Ireland and if the publication was accessed by parties outside of Ireland only. The case clarifies that evidence of online publication is insufficient; there must be proof of access of the relevant material from Ireland.
A recent case considered the test applicable to the ordering of security for costs. The court noted that the central elements in such an application are for the applicant to show that it has a prima facie defence and to satisfy the court that the plaintiff would be unable to pay the defendant's costs. If the defendant can meet these requirements, security for costs will usually be granted.
A recent case considered an alternative means of serving proceedings and offers guidance where the defendant seeks to have the substituted service and any default judgment obtained on foot of it set aside. The court accepted that there may be exceptional circumstances where the otherwise inflexible rule would be an obstacle to a defendant, but found that there were no such circumstances in this case.
In a recent case the Supreme Court considered three separate, but closely connected, applications seeking a time extension in which to appeal three separate orders. The case represents a restatement of the test applicable to the extension of time in which to bring an appeal, but it requires additional considerations to be addressed where the bases of an appeal stem from factual circumstances outside of materials considered in the High Court.
A recent case on injunctive relief usefully restated the principles applicable to the grant of such relief as a matter of Irish law and reflected how practical considerations can impact on the court's determination. A party should think carefully about whether the steps that it has taken are consistent with arguments that it wishes to advance and, if necessary and possible, take steps to correct the position.
The High Court recently set out when it would allow a non-party to proceedings to be joined as a plaintiff on the foot of an assignment agreement. It is apparent from the court rules that the circumstances where the court may direct such substitution are limited, but it is also clear that, in appropriate cases, it will not hesitate to do so.
A recent High Court decision is a useful recitation of the criteria that apply when considering whether an individual can claim to be a consumer for the purposes of the Brussels I Regulation in seeking to bring proceedings in a particular jurisdiction. Because an individual may act outside of his or her trade or profession in engaging a service, it does not necessarily mean that he or she is a consumer for these purposes.
In a recent case the High Court considered the common practice of seeking broad-ranging and extensive particulars of pleadings and concluded that the strict legal requirements are somewhat narrower. A party looking to seek particulars should appreciate that particulars to be sought are appropriately tailored to obtaining an understanding, in broad outline, of the case it will have to meet.
The High Court recently ruled on whether the relationship between a lender and a borrower was, in the circumstances, a fiduciary relationship. Based on the facts, the court concluded that the relationship did not go beyond that of a contractual relationship. The decision clarifies that as a general principle, the relationship between a lender and a borrower does not involve a fiduciary relationship under Irish law.
A recent case confirmed that an application to dismiss a claim for failure to make discovery will not succeed where the discovery obligation is complied with. The case is a reminder that in making applications to strike out proceedings, the courts are slow to deprive litigants of a trial. The decision confirms that it is only in extreme cases that pleadings will be struck out arising from delayed or sequential making of discovery.
A number of recent High Court decisions considered the concept of 'no transaction' damages in cases involving professional negligence. The courts have confirmed that the correct approach in no transaction cases is to determine whether the negligent act resulted in the occurence of the transaction.
A recent High Court decision confirmed that where a party seeks to bring an application, it should deal with any related aspects in that application the first time round, rather than holding it over for another application. A party to litigation should ensure not only that matters which have been litigated are not re-litigated, but also that matters which ought properly to be brought before the court at a particular hearing are actually brought before it.
The Irish courts have 'inherent jurisdiction' at their disposal, which allows them to take certain steps with regard to the conduct of proceedings. Where procedural or substantive law has a gap in terms of giving the courts a clear power to do something, there may be a basis on which to invoke inherent jurisdiction. A recent High Court case demonstrates how it can operate effectively.
Under Irish procedure, the general rule is that costs 'follow the event' or, more simply, the winning party is generally entitled to its costs from the losing party. The High Court recently reconsidered the case law on security for costs. Although its decision sets out no new principles, it does set out a useful summary of the basic test applicable to the award of security for costs, as well as the numerous exceptions.
The Supreme Court recently issued its views on the holding of modular trials in the context of an appeal from a Commercial Court decision. This decision is important because it represents a clear statement from the Supreme Court with regard to the circumstances in which it will interfere in a case management decision.
Various types of injunction can be obtained under Irish law, depending on the relevant circumstances. A recent case involving an interlocutory application for three particular orders, two reflecting injunctions of a mandatory nature, has confirmed the general approach of the courts to the granting of mandatory injunctions on an interlocutory basis.
Summary judgment in Irish procedure is available only for claims involving liquidated sums, where there is no dispute regarding liability. In a recent High Court decision in a matter proceeding in the Commercial List, Judge Kelly outlined that the jurisdiction of the Irish courts to award summary judgment against a defendant is broader than expressly provided for in the Court Rules.
A recent High Court decision dealing with third-party proceedings has addressed the extent to which prejudice is a relevant factor to be taken into account in dealing with applications to set aside third-party notices. The court recited the twin rationales of not duplicating court time and avoiding inconsistent judgments as part of the rationale as to why a court might not set aside a third-party notice.
The High Court has recently considered again the question of costs orders to be made in complex litigation. It identified that the overriding principle is that costs follow the event, but that difficulties can arise in determining what the 'event' is for the purpose of an award of costs. The decision represents a useful restatement of the principles applicable to costs in complex litigation.
As a general rule, Irish law does not permit a shareholder to bring an action on behalf of the company in which it holds shares and treats the company itself as the proper plaintiff. However, through four recognised exceptions to that rule, a shareholder can bring proceedings on behalf of the company in a derivative action. The High Court recently examined this rule and whether a fifth exception existed – and, if so, on what terms.
The High Court recently considered the question of timing in bringing third-party proceedings. In related proceedings, a third party to both proceedings sought to challenge the third-party notices by which it was joined to the proceedings. The court refused to set the notices aside given the facts of the case and the objective of the third-party procedure to have all matters dealt with in one set of proceedings.
A recent High Court decision involved consideration of whether the court properly had jurisdiction to hear a case based on the principles of the EU Brussels I Regulation. While the decision does not establish any novel principle, it does give parties certainty that Irish courts will determine jurisdiction in accordance with the relatively clear provisions of the Brussels I Regulation.
The Commercial Court recently considered the applicable test in relation to discovery in related cases which were proceeding before it. The court, in considering the applications before it, addressed the relevant test for determining whether particular categories of discovery should be ordered by the court. In doing so, it also had to consider whether to order discovery of confidential and commercially sensitive documents.
In a recent decision the High Court has confirmed the basis on which jurisdiction will be determined for disputes between parties where the relevant agreement specifies the courts of a particular jurisdiction for hearing disputes. Where a jurisdiction clause is contained within a single contract, even in a party's second tongue, it will be difficult for a party to deny jurisdiction.
Under Order 19, Rule 28 of the Rules of the Superior Courts, the courts have jurisdiction to strike out proceedings where the plaintiff has no reasonable cause of action. They also have an inherent jurisdiction to dismiss proceedings where they constitute an abuse of process. Both jurisdictions were recently addressed by the court in Coleman v O'Neill, although the focus was on the former.
Under Irish law, as a general rule, costs typically follow the event such that the winning party recovers its party and party costs from the unsuccessful party. The recent High Court decision in Country Monaghan Anti-Pylon Ltd v Eirgrid plc represents a restatement of the test for granting security for costs under Section 390 of the Companies Act.
The modular trial is becoming a more recognisable feature of complex litigation in Ireland, particularly before the Commercial Court. Although the default position of a full trial on all issues cannot be the best and most efficient way to proceed in all cases, it remains to be seen whether the conception of the 'modular trial', and the test applicable to the ordering of same, will be varied by the Supreme Court in due course.
A recent High Court decision has reiterated the principles underpinning discovery in Irish plenary actions in the context of a trademark dispute. Where disagreement arose over discovery categories, the court was faced with deciding whether certain documentation should properly be discovered.
A party that believes that it may have liability in respect of proceedings can take steps to protect itself against a costs award that might be made against it. One option is to make a Calderbank offer to settle, which the court can take into account when considering costs. A recent case has demonstrated how offers to settle – or Calderbank letters – can have cost implications where they are unreasonably refused.
In Anglo Irish Bank Corporation Limited v Quinn Investments Sweden AB the High Court had to consider applications under Articles 23 and 28 of the EU Brussels I Regulation. Ultimately, while the High Court dealt with the application under Article 23, it found that further clarification was required on the Article 28 application and referred the matter to the European Court of Justice, adjourning the proceedings pending that determination.
A recent case raised the question of whether a solicitor's undertaking in respect of future payments to be made to a client company constituted a charge over the book debts of that company within the meaning of the Companies Act 1963. The judge identified that the case raised a difficult question of company law and the interpretation of the relevant provisions of the act.
A recent High Court decision has confirmed that, under Irish law, for claims against a carrier in respect of international carriage, the Montreal Convention represents the exclusive basis on which any action lies. Moreover, any actions thereunder must relate to personal injury. However, the broad scope applied to the term 'carriage' has potentially serious implications for other types of non-personal injury claim against carriers.
The 2010 Planning Act states that for legal proceedings relating to decisions that give effect to the Environmental Impact Assessment Directive, the Strategic Environmental Assessment Directive and the Integrated Pollution Prevention and Control Directive, each party must bear its own costs, subject to certain limited exceptions.
The High Court recently heard a constitutional challenge initiated by members of the Quick Service Food Alliance against the rights of the Catering Joint Labour Committee (JLC) and the Labour Court to set minimum rates of pay and employment conditions for workers in the catering industry. In this landmark decision the High Court ruled that the JLC system is unconstitutional.
A recent case has highlighted the proper test applicable where it is alleged that a judge hearing a case cannot objectively be considered to be impartial. In Ryanair Limited v Terravision London Finance Limited the court had to consider an application in a Commercial Court case that he should discharge or recuse himself from the matter because of an "apprehension of bias" against one of the parties, Ryanair.
The High Court recently provided guidance in relation to the determination of costs and how they might be apportioned in circumstances where there was argumentation on various issues that were in dispute, not all of which were resolved in favour of the party which succeeded overall or which did not require a decision. Such guidance is essential in a jurisdiction that operates on the general principle that the loser pays.
The Law Reform Commission has issued its Report on the Consolidation and Reform of the Courts Acts. The proposed consolidated act should help modernise and improve the efficiency of the administration of justice in Ireland. It should also help to eliminate unnecessary provisions and set out in a single legislative instrument all of the statutory provisions previously maintained across the 240 courts acts.
In a recent High Court decision, a dairy farmer was awarded €304,320 in damages arising from the failure of the defendants to return his livestock pursuant to an agreement. In his decision, the judge identified the basic principles applicable to contractual damages under Irish law. Only net losses are recoverable and there is a duty to mitigate loss, although reasonable costs incurred in doing so are also recoverable.
In a recent decision of the Competition List of the High Court, Justice Cooke considered whether to grant a series of interlocutory injunctions, the essential purpose of which was to prevent the defendants, pending trial of the action, from selling or offering to sell certain products in the concrete and cement sector at allegedly below-cost prices in breach of the Competition Act and the Treaty on the Functioning of the European Union.
In a recent case the High Court (Commercial) considered the test applicable to staying court proceedings in favour of arbitration and addressed the question of how the court should determine whether the test has been satisfied. Although the court's comments in the latter regard were made in passing, they represent an interesting development in relation to the relevant test under the Arbitration Act.
The Arbitration Act 2010, which came into force earlier this year, sets out new arbitration procedures and repeals all prior legislation on the subject. The first judgment under the new act, which was recently issued, reflects the courts' obligation to stay proceedings in favour of arbitration, so long as the application is brought in time.
After a long gestation period, the general scheme of the Judicial Council Bill 2010 has finally been published. Among other things, the proposed bill envisages the establishment of a Judicial Conduct Committee, which will be responsible for investigating complaints relating to judicial misconduct.
In a recent decision the High Court confirmed that the courts will seek to uphold jurisdiction clauses in commercial agreements, and that where Article 23 of the EU Brussels I Regulation does not apply, grave reasons will be required to persuade a court not to uphold an express jurisdictional choice.
The rules applicable to the High Court Commercial List permit the court to make such order as appears convenient for the determination of the proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings. A recent High Court decision has clarified the basis upon which modular trials may be ordered in cases proceeding in the Commercial List.
The Arbitration Act 2010 is now in force. A bifurcated arbitration regime no longer exists and an international uniform set of rules applies instead to all arbitrations irrespective of whether they are domestic or international in nature. However, through the uniform application of the United Nations Commission on International Trade Law Model Law under the 2010 act, the scope for court intervention is reduced.
Two recent High Court cases addressed two procedural issues related to the defence of personal injuries actions: formal offers and verifying affidavits. The obligations on parties (ie, both plaintiff and defendant) to personal injury litigation in respect of formal offers and verifying affidavits are set out in the Civil Liability and Courts Act 2004.
The High Court has clarified that Irish law applies no distinction between a bank's right of set-off or security in place prior to being notified of a Mareva injunction. In such circumstances, provided that the bank acts in good faith in seeking to exercise its rights, the injunction has no effect on the right to set-off or on the security concerned.
The Supreme Court recently considered the basis upon which, depending on the circumstances, the name of a party to proceedings might be changed. This arose in the context of an appeal in Sandy Lane Hotel Limited v Times Newspapers Limited against a High Court order granting the application of the plaintiff to substitute "Sandy Lane Hotel Co Limited" for "Sandy Lane Hotel Limited" in the proceedings.
The Supreme Court has found in favour of The Irish Times in a case in which the newspaper had destroyed documents in order to conceal the identity of a source. According to the Supreme Court, the High Court had failed to strike a balance between the competing interests of the tribunal and the newspaper. However, the court ordered the newspaper to pay the costs of the case.
The High Court recently considered the question of whether, in the context of an application to add another party to a dispute, another court was already seized with jurisdiction. In doing so, the court had to consider whether the same cause of action was involved and, if so, what impact the dates of the respective proceedings and the application before it had on the question.
A recent Supreme Court decision has highlighted the importance of the EU Brussels I Regulation in the context of commercial transactions. The case also demonstrates that parties must ensure that they understand the nature of the individual contractual relationships into which they enter, notwithstanding the fact that there may be other related agreements between some or all of the parties.
The long-awaited Defamation Bill (introduced in 2006) has been signed into law by the president of Ireland. The Defamation Act 2009 will replace the existing Defamation Act 1961 and will allow a judge sitting with a jury in a libel action to give directions to that jury in relation to "the matter of damages". It is hoped that this legislation will finally provide guidance to Irish juries on the issue of awards for damages.
Most of the provisions of the Civil Law (Miscellaneous Provisions) Act 2008 took effect on July 20 2008. However, Minister for Justice, Equality and Law Reform Dermot Ahern has now published a commencement order stipulating various dates on which additional provisions will take effect.
A High Court decision affirming a rule of practice which required a return of no goods to have been made before the court would issue a bankruptcy summons to a creditor has been successfully appealed to the Supreme Court, which also held that the High Court should retain the discretion to refuse to issue a bankruptcy summons even in cases where the provisions of statute and the Rules of Court had been complied with.
In the first case on examinership to come before it in over 10 years, the Supreme Court has allowed an appeal against a High Court order refusing the petition of Gallium Limited (trading as the First Equity Group) for the appointment of an examiner, and appointed Kieran Wallace of KPMG as examiner of the company.
A recent High Court decision highlights the risk that the courts may restrain the sale of a lookalike product even where the lookalike features a highly distinctive trademark element or brand name of its own, where the product's appearance is similar and the method of consumer choice could lead to confusion. The decision may in future make it easier to obtain temporary injunctions against lookalike products.
The Commercial Division of the High Court was set up in January 2004 to facilitate more expedient and efficient trials of commercial disputes. Statistics published by the Commercial Court in November 2008 demonstrate how effective it has been in resolving business disputes, with 50% of cases being concluded within 16 weeks and 90% of cases within 47 weeks.
The High Court recently held that where proceedings are commenced in a state party to the EU Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, and the defendant is domiciled in that member state, the court cannot decline jurisdiction despite similar proceedings in a non-member state.
Walsh v National Irish Bank was an important High Court case concerning the extent of the Revenue's powers to obtain information about bank accounts held outside Ireland. The background to the case lay in a Revenue investigation into tax evasion by Irish-resident taxpayers who hold offshore bank accounts.
In a significant recent decision the Supreme Court lifted an order made by the High Court against a non-executive director of an Irish company restricting him from acting as a director of any company for a period of five years. The court described the statutory regime in this area as “draconian”.
The Supreme Court has overturned the High Court's not-guilty verdict in Ireland's most significant insider-dealing case of recent years. Although the 'reasonable investor' test was considered in some detail by the High Court and rejected by the Supreme Court, it is unclear whether the High Court's elucidation of the test (which was imported from US case law) will be applied in future cases.
A mother who gave birth to two children after undergoing a failed sterilization operation has failed in her High Court claim to be compensated for the cost of bringing them up. Although similar claims have been unsuccessful in Canadian, US and European courts, this was the first case in Ireland in which a court addressed a claim for damages for the costs of rearing a child on foot of a wrongful birth.
A recent High Court decision held that where a solicitor's attendance docket is inadvertently disclosed to another party during the conduct of litigation, in circumstances where the other party would have realized that the attendance docket had come to it in error and that the information contained therein was privileged, then privilege is not waived.
In a significant victory for tobacco companies, a case brought by an individual for personal injuries caused by the effects of smoking was recently struck out by the High Court on the grounds of inordinate and inexcusable delay on the part of the plaintiff for prosecuting his claim 13 years after the date of accrual of the action and by reason of lapse of time.
In a recent decision the Irish High Court has reiterated the common law rule that legal proceedings for defamation cannot be taken on behalf of the deceased. However, this is in the context of proposals that the law be changed. The judgment raises a number of interesting issues.
A recent Irish High Court decision includes a rigorous underlining of the importance of the right to freedom of expression in Irish society. The case involved the leaking of documents over which a judicial tribunal had asserted confidentiality. Newspaper articles had subsequently appeared in the defendant newspaper that were clearly rooted in the documents.
Tech, Data, Telecoms & Media
The Irish media merger regime has a long history and remains a complex part of Irish regulatory law and politics. Given the recent sharp increase in mergers of Irish and global media businesses – reflecting dramatic levels of decline in 'traditional' media consumption and 'e-substitution' leading to pressure to consolidate – the Irish media merger regime is affecting all corners of the global industry.