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.
The Department of Employment Affairs and Social Protection recently launched an ad campaign on what they term 'false self-employment'. If an individual is deemed to be an employee instead of self-employed following assessment, it could have serious employment law, tax or social welfare implications for the employers concerned. Businesses that engage individuals on a self-employed basis should take steps to ensure that their work practices are appropriate.
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.
Employers that provide references for former employees may be sued for negligent misstatement if the reference is found to be inaccurate. Employers should therefore take reasonable care to ensure that references are not misleading due to omitted information or the inclusion of facts which, although accurate when viewed discretely, either through nuance or innuendo generate a misleading picture when considered overall.
A recent case regarding a claim of unfair dismissal was appealed on a point of law from the Labour Court to the High Court. The Labour Court decided that an employee should have been advised by her employer in advance of signing a fixed-term contract of the effect that the contract would have on her contractual status as an employee. It held that it was insufficient for the employer to simply rely on the fact that the contract had complied with the Unfair Dismissals Acts.
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.
The Supreme Court recently found the well-established regime of registered employment agreements to be unconstitutional. Uncertainty regarding the level of protection for wages and benefits of workers in the construction sector followed this decision, but has now been addressed by the Sectoral Employment Order (Construction Sector) 2017 and the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018.
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).
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 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.
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.
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.
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.
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.
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.
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.