Litigation 

The Justice Plan identifies a number of areas in which the Government intends to improve access to justice in Ireland, many of which are based on the recommendations made in the Kelly Report, which was published in December 2020.

An action plan to implement the recommendations in the Kelly Report was published at the end of May 2022 (the "Kelly Implementation Plan") and a Review of the Administration of Civil Justice Bill is listed for drafting. Some key procedural recommendations to note in the Kelly Report are for the development of:

• A new streamlined discovery regime;
• A new multi-party litigation procedure;
• Simplified court documents and legal terminology;
• Limitations on adjournments
• Provisions for automatic discontinuance of cases that are not being progressed; and
• A potential future e-litigation model including digital access to court records.

Separately, the Judicial Appointments Commission Bill, which will modernise the way in which judges are appointed and the manner in which they operate, has already been drafted and identified as priority legislation. A Judicial Planning Working Group is also reviewing the number and types of judges required to increase court efficiency over the next five years.

A significant change is on the way for consumer-facing businesses following the publication of the General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill 2022, which will allow for a form of consumer class action for breaches of a wide-range of consumer protection legislation by June 2023.

Increased efficiencies are imminent for cross-border litigation with secondary legislation being developed to implement new EU Directives that provide for the electronic transmission of legal documents and the taking of evidence between EU Member States.

"The implementation of the recommendations of [the Kelly Report] when coupled with the roll-out of the Courts Service modernisation plan should make a very significant contribution towards allowing all court users to access our Courts system in more effective, user-friendly and ultimately significantly cheaper ways"

Former Chief Justice, Frank Clarke

Read More Links:

• Justice Plan 2022
• Review of the Administration of Civil Justice Report 2020
• Implementation Plan on Civil Justice Efficiencies and Reform Measures
• Judicial Appointments Commission Bill 2022
• General Scheme of the Representative Actions for the Protection of the Collective Interests of Consumers Bill 2022
• Regulation on Co-operation between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters
• Regulation on the Service of Judicial and Extrajudicial Documents in Civil or Commercial Matters

The Justice Plan also seeks to continue the Government's drive to reform the insurance industry in Ireland. The most recent implementation report on the Government's Action Plan for Insurance Reform (the Action Plan) indicates that approximately 80% of the actions have now been delivered and the following principal actions have been scheduled for completion this year:

1. The General Scheme of the Personal Injuries Resolution Board Bill 2022 has been published and identified as priority legislation, with the stated aim of increasing the number of cases settled by the Personal Injuries Assessment Board (PIAB) without recourse to litigation. [Notably, PIAB will be empowered to deal with a wider range of claims under the new legislation, including those related to psychological injury alone.]
2. Provisions will be added to the Courts and Civil Law (Miscellaneous Provisions) Bill 2022 to amend the Occupiers Liability Act 1995 in order to better balance an occupiers' duty of care with the requirement for visitors to take personal responsibility and providing a broader range of circumstances where a visitor can be deemed to have voluntarily assumed a risk resulting in harm.
3. The Competition Amendment Bill 2022, which is currently working its way through the legislative process, is intended to further protect consumers (including insurance consumers) by preventing anti-competitive practices in the industry.

Some additional objectives of note in the Justice Plan are:

• Moves toward publication of insurance fraud data;
• Reform of the personal injuries discount rate; and
• Development of a new index for periodic payment orders.

The intention is to build upon what has been deemed by the Minister for Justice as the success of the Personal Injury Guidelines, which came into force last year, in continuing to reduce the cost of insurance in Ireland.

In addition, the Insurance (Miscellaneous Provisions) Bill will be progressed, which will address various matters that have arisen since the publication of the Action Plan, including requiring the Central Bank of Ireland to report to the Government on the efficacy of the proposal to ban "price walking", the practice whereby insurance premiums increase year-on-year at renewal, from July 2022.

"There is a shared determination across Government to remove the impediment that high insurance costs have on our economy and communities – on our community groups, organisers of community events and small businesses."

Minister for Justice, Helen McEntee

Read More Links:

• Action Plan for Insurance Reform – Implementation Report March 2022
• Tánaiste and Minster McEntee announce amendments to Duty of Care Legislation
• General Scheme of the Personal Injuries Resolution Board Bill 2022
• Competition (Amendment) Bill 2022
• Courts and Civil Law (Miscellaneous Provisions) Bill 2022
• Insurance (Miscellaneous Provisions) Bill 2022

The Government provided a range of supports to businesses during the Covid-19 pandemic, which are being gradually phased out. It is anticipated that the end of those initiatives, together with the continuing global supply chain disruptions and increasing interest rates, will result in an increase in corporate insolvencies and restructurings.

The Kelly Report has paved the way for the introduction of a limited form of third party litigation funding in Ireland (which is currently prohibited) for liquidators, receivers, administrators and trustees in bankruptcy to take proceedings to increase the pool of funds available for creditors. A target has been set in the Kelly Implementation Plan for Heads of Bill to be prepared in early 2023 with a view to legislation being enacted by early 2024.

Ireland continues to be a key restructuring venue for cross-border insolvencies and there is imminent legislative change in this area by way of the Preventative Restructuring Directive (2019/1023) (the PRD), which sets down minimum standards for EU Member State restructuring and insolvency laws. Certain mandatory articles of the PRD are required to be transposed into Irish law by 17 July 2022 and will necessitate changes to the examinership provisions of the Companies Act 2014 - to be implemented by way of regulations under the European Communities Act 1972. Other optional articles of the PRD are under review by the Department of Justice as part of a wider review of the Irish examinership regime.

Ireland has also recently opted in to certain technical amendments to the Annexes of the European Insolvency Regulation 2015/848 ("EIR Recast") on the recognition and enforcement of cross-border insolvency proceedings between EU Member States. The amendments accommodate changes to restructuring procedures in certain Member States since EIR Recast was implemented.

“One of the biggest challenges facing these, and other businesses, over the coming months will be discharging their current Revenue debts as they fall due together with the payment of the warehoused liabilities."

Declan Taite, Kroll

Read More Links

• Companies (Rescue Process for Small and Micro Companies) Act 2021
• Directive 2019/1023 on Restructuring and Insolvency
• Public Consultation Report on the Transposition of Directive 2019/1023 on Restructuring and Insolvency
• Company Law Review Group Report on Insolvency Matters, December 2021
• Regulation (EU) 2021/2260 amending Regulation (EU) 2015/848 on insolvency proceedings to replace its Annexes A and B