Redress

Consumer Redress

EU and domestic consumer law has promoted, enhanced and simplified consumer redress.  It is recognised that it may not be economically viable for smaller value consumer disputes to be taken to court.  An EU Directive and an EU Regulation made in 2013 provide respectively for the alternative dispute resolution of consumer disputes and for the online resolution of consumer disputes.

Alternative dispute resolution describes a range of mechanisms for resolution of disputes, without recourse to the courts.  They tend to be more flexible, efficient and informal than judicial proceedings.


Collective Trials

There are a number of mechanisms for collective legal action. The court rules provide, that where numerous persons have the same interest in one cause or matter, one or more of such persons may sue or be sued or may be authorised by the court to sue or defend in such cause or matter, on behalf or for the benefit of all persons so interested.

Proceedings may be instituted by claimants collectively where the claim arises out of the same transaction or series of transactions.  The defendants may apply for an order for separate trials where joining the proceedings may embarrass or delay the trial of the matters.

Claimants may unite several claims in a single action. The court has inherent power to order that cases be heard simultaneously. The court has the discretion to have the matters determined separately.

The courts may allow a test case to be brought.  There are no rules of court to regulate test cases or class actions.  A test case may act as an informal sounding of the court’s attitude to a particular matter and its outcome may lead to the settlement of other cases.


Small Claims Procedure

The small claims procedures may be suitable for consumer redress.  Legal representation is not encouraged.  The judge plays a more interventionist role. The procedure may be used both by businesses and consumers in disputes concerning sums and values below the prescribed amount, which is currently €2,000.

The procedure is provided through the District Court office. It is available in respect of

  • goods and services purchased by a consumer from a vendor in the course of a business other than claims subject to the Consumer Credit legislation or leasing agreements;
  • claims relating to goods and services made by a purchaser or vendor, each acting in the course of business, other than claims subject to the Consumer Credit legislation, leasing agreements or claims for a debt;
  • claims for minor damage to property brought by a personal claimant; it does not apply to personal injuries;
  • claims brought by individual tenants for the return of rental deposit or other key money unless the claim may be referred to the Residential Tenancies Board.

The District Court Clerk acting as the Small Claims Registrar determines matters within the jurisdiction.  There is provision for filing a claim and notice of the dispute.  The Registrar may assist in settling the claim in an informal manner and may propose a solution.  If no settlement is reached, the matter is set for a hearing in the District Court and is dealt with in the usual way.


European Small Claims Regulation

The European Small Claims Procedure was established in 2007.  It applies to small claims with a cross-border element.  The procedure is implemented in Ireland, by the European Communities (Small Claims Procedure) Regulations. The District Court Clerk has jurisdiction in accordance with rules of court.  There is no provision for online submission of claims as of yet.

Certain types of claims are wholly excluded, including revenue and customs matters, the liability of a state, matters relating to the status or legal capacity of natural persons, property rights arising from a matrimonial relationship, maintenance, wills or succession, bankruptcy and similar proceedings, arbitration, employment law, tenancies except for monetary claims, defamation and breach of privacy.

The procedure may be used by a consumer or a business to bring proceedings in its home State against a trader in another EU State.  The value of the claim/dispute must not exceed €2,000 at commencement.


European Small Claims Procedure

The procedure is primarily or exclusively written.  The claimant completes the standard claims form provided for in the regulation and lodges it with the court offices in its home State.  This may be undertaken by such means as are prescribed, such as by post or otherwise.  States may provide for the online submission of complaints

The tribunal or court must serve the claim form and supporting documents on the defendant within 14 days of receipt of the claim. The defendant has 30 days in which to respond.  A short form of answer in the prescribed form must be furnished.  The court may hold an oral hearing if it considers appropriate.


European Small Claims Decision

The court or tribunal must give its decision within 30 days, or seek further details which are themselves to be provided within 30 days. Alternatively, it may take evidence or summons the parties for an oral hearing within 30 days.

The losing party must bear the costs.  It is not mandatory to be represented by a lawyer.  Parties must receive practical assistance in completing the forms.  The court must assist them and inform them in relation to the requisite procedures.

The judgment of the court or tribunal is to be enforceable in accordance with the law of the relevant state, in the same way as a domestic judgment.  A judgment is to be immediately enforceable, even if the decision is appealed.  A person seeking enforcement must furnish an authentic copy of the decision and a copy of the notification provided for in the legislation.


Directive on Mediation

The EU Directive on mediation in civil and commercial matters seeks to facilitate access to alternative dispute resolution mechanisms and to promote the settlement of disputes out of court by encouraging the use of mediation. It applies both to consumer and non-consumers disputes.  The Directive applies to commercial disputes with a cross-border element. This is a dispute between persons domiciled or habitually resident in two EU states.

The Regulations which implement the Directive provide that the court which is hearing a dispute, may on the application of the parties or on its own motion, order that the proceedings be adjourned and invite the parties to use mediation, in order to attempt to settle the dispute.

An adjournment may be granted with the parties’ consent for the purpose of reference to mediation. The court may make orders and directions in support of mediation.  Time limits are disregarded for the purpose of the Statute of Limitation.

The mediation is confidential. The parties may not be required to give evidence in relation to matters arising out of the mediation in the proceedings.  Where an agreement is entered following mediation, an application may be made to embody it in a court order which may be enforceable as such.

Where parties enter mediation other than under the auspices of the court, they may apply to the Master of the High Court to have it ruled enforceable.  The agreement will be given the status of a court order unless it is contrary to public policy or the laws of the State.


ADR Directives

The ADR Directives and Regulations require that consumers must be able to submit complaints against traders to entities offering independent, impartial, transparent, fast and fairer alternative dispute resolution.  States must ensure the availability of ADR.  The Directive required that the procedural requirements in respect of ADR be made law by mid-2015.

The ADR Directive applies to disputes between consumers and traders in relation to contractual obligations arising from sale and services contracts.  It applies to domestic and cross-border disputes.  There must be an ADR entity which proposes a solution or brings the parties together with the aim of facilitating an amicable solution.

The consumer and trader must be resident in the EU. A consumer is a natural person acting for purposes outside his trade business or profession.  A trader is any corporate or natural person, public sector or private, acting for the purpose of a trade, business, craft or profession.

A trader is established where he has a place of business. In the case of a corporation, it is established at the place of its central administration or statutory seat or at any branch, agency or establishment form which the claim arises.


Online Dispute Resolution Platform

A 2013 EU Regulation requires member states to establish an online dispute resolution (ODR) platform. Both consumers and traders may use the platform in order to resolve disputes. The Commission has established a network of ODR contact points. Each state must designate one ODR contact point hosting, at least two ODR providers.

The EU Commission operates and maintains an online platform which was launched in 2016.

The platform can be accessed online via the “Your Europe” portal. It is designed to be an interactive and user-friendly website, which is open to all consumers and traders in the EU.  It is available in all official EU languages and is to be free of charge.

The Commission has established a network of ODR contact points. Each state must designate one ODR contact point hosting, at least two ODR providers. In 2015, Ireland designated the European Consumer Centre Ireland as the ODR contact point in the State for the purposes of the Council Regulation. The Centre is charged with the functions of the ODR contact point under the Regulation.


References and Sources

Irish Texts

Consumer Law Rights & Regulation    Donnelly & White (2014)

Consumer Protection Act 2007 Annotated  Bird (2008)

Consumer Rights Long (2004)

Commercial & Consumer Law: Annotated Statutes O’Reilly, P (2000)

UK Texts

Consumer Sales Law: The Law Relating to Consumer Sales and Financing of Goods 3rd ed

John MacLeod, James Devenney (2019)

Electronic Consumer Contracts in the Conflict of Laws 2nd ed Zeng Sophia Tang (2018)

The Law of Consumer Redress in an Evolving Digital Market: Upgrading from Alternative to Online Dispute Resolution Pablo Cortes (2017)

Blackstone’s Statutes on Commercial & Consumer Law 2017-2018 Francis Rose

Consumer and Trading Standards: Law and Practice 2017 Bryan Lewin, Jonathan Kirk

Woodroffe and Lowe’s Consumer Law and Practice Woodroffe and Lowe’s Consumer Law and Practice 10th ed Geoffrey Woodroffe, Chris Willett, Christian Twigg-Flesner (2016)

Butterworths Trading and Consumer Law Looseleaf Annual Subscription Deborah L. Parry, Roland Rowell (2016)

Butterworths Commercial and Consumer Law Handbook 8th ed Richard B. Mawrey, Tobias Riley-Smith (2015

Consumer and Trading Standards: Law and Practice 4th ed

Legislation

Sale of Goods Act 1893 56 & 57

Sale of Goods and Supply of Services Act 1980

The 2011 Report of the Sales Law Review Group,

Consumer Protection Act 2007 19/2007

Competition and Consumer Protection Act 2014 29/2014

Orders Re Price Display (retained

Prices Act 1958.

Prices (Amendment) Act 1965

Prices (Amendment) Act1972

Orders made under Prices Acts 1958 and 1965 were carried over on repeal of the 1958 and 1965 Acts by 19/2007

Prices and Charges (Tax-inclusive Statements) Order 1973, S.I.

Charges (Hairdressing) Display Order 1976, S.I. No. 156 of 1976

Retail Prices (Food in Catering Establishments) Display Order 1984, S.I. No. 213 of 1984

Consumer Information (Advertisements) (Disclosure of Business Interest) Order 1984, S.I. No. 168 of 1984417

Consumer Information (Advertisements For Concert Or Theatre Performances) Order 1997, S.I. No. 103 of 1997

Retail Price (Diesel and Petrol) Display Order 1997, S.I. No. 178 of 1997

Retail Price (Beverages in Licensed Premises) Display Order 19/2007

Consumer Information Act Orders

Consumer Information (Advertisements For Airfares) Order 2000, S.I. No. 468 of 2000

Consumer Protection Act 2007 (Commencement) Order 2007,S.I. No. 178 of 2007

Consumer Protection Act 2007 (Establishment Day) Order 2007,S.I. No. 179 of 2007

Consumer Protection (Fixed Payment Notice) Regulations 2007,S.I. No. 689 of 2007

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2011, S.I. No. 560 of 2011

Consumer Protection (Consumer Information) (Articles of Precious Metals) Regulations 2012, S.I. No. 143 of 2012

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2012, S.I. No. 435 of 2012

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2013, S.I. No. 409 of 2013

Consumer Protection Act 2007 (National Consumer Agency) Levy Regulations 2014, S.I. No. 458 of 2014

Consumer Protection Act 2007 (Competition and Consumer Protection Commission) Levy Regulations 2015, S.I. No. 457 of 2015

European Communities (Cooperation Between National Authorities Responsible for the

Enforcement of Consumer Protection Laws) Regulations 2006, S.I. No. 290 of 2006 [Minister

European Communities (Cooperation Between National Authorities Responsible for the

Enforcement of Consumer Protection Laws) (Amendment) Regulations 2008, S.I. No. 316 of 2008  European Communities (Single-Member Private Limited Companies)European Communities (Protection of Consumers in Respect of Contracts made by Means of Distance Communication) (Amendment) Regulations 2010, S.I. No. 370 of 2010

European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010, S.I. No. 555 of 2010

European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) Regulations 2011, S.I. No. 73 of 2011

European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2012, S.I. No. 485 of 2012 [

European Union (Public Limited Companies) (Directive 2012/ European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) Regulations 2013, S.I. No. 122 of 2013

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2013, S.I. No. 160 of 2013

European Communities (Cooperation between National Authorities Responsible for the Enforcement of Consumer Protection Laws) (Amendment) (No. 2) Regulations 2013, S.I. No. 200 of 2013

European Union (Consumer  nformation, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2014, S.I. No. 336 of 2014

European Union (Protection of Consumers in respect of Timeshare, Long-term Holiday Product, Resale and Exchange Contracts) (Amendment) Regulations 2014

European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 343 of 2015

European Union (Alternative Dispute Resolution for Consumer Disputes) (No. 2) Regulations

2015, S.I. No. 368 of 2015

European Union (Traded Companies — Corporate Governance Statements) Regulations 2015, S.I. No. 423 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 500 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2016, S.I. No. 32 of 2016

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016

Competition and Consumer Protection Act 2014 (Commencement) Order 2014, S.I. No. 366 of 2014

Competition and Consumer Protection Act 2014 (Establishment Day) Order 2014, S.I. No. 367 of 2014

Consumer Protection Act 2007 (Grocery Goods Undertakings) Regulations 2016, S.I. No. 35 of 2016

Consumer Protection Act 2007 (Competition and Consumer Protection Commission) Levy Regulations 2016, S.I. No. 479 of

2016

District Court (Consumer Protection Act 2007) Rules 2009, S.I. No. 106 of 2009

European Communities (Unfair Terms in Consumer Contracts) Regulations 1995, S.I. No. 27 of 1995 [

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2000, S.I. No. 307 of 2000

European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003, S.I. No. 11 of 2003

European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) (Amendment) Regulations 2005, S.I. No. 71 of 2005

European Communities (International Financial  European Communities (Cooperation Between National Authorities Responsible for the Enforcement of Consumer Protection Laws) Regulations 2006, S.I. No. 290 of 2006

European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004, S.I. No. 853 of 2004

Circuit Court Rules (Consumer Protection Act 2007) 2008, S.I. No. 585 of 2008

European Communities (Court Orders for the Protection of Consumer Interests) Regulations 2010, S.I. No. 555 of 2010

European Communities (Unfair Terms in Consumer Contracts) Amendment) Regulations 2013, S.I. No. 160 of 2013

European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013, S.I. No. 484 of 2013

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2014, S.I. No. 250 of 2014

European Communities (Unfair Terms in Consumer Contracts) (Amendment) Regulations 2014, S.I. No. 336 of 2014

European Union (Alternative Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 343 of 2015

European Union (Alternative Dispute Resolution for Consumer Disputes) (No. 2) Regulations 2015, S.I. No. 368 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2015, S.I. No. 500 of 2015

European Union (Online Dispute Resolution for Consumer Disputes) Regulations 2016, S.I. No. 32 of 2016

European Union (Consumer Information, Cancellation and Other Rights) (Amendment) Regulations 2016, S.I. No. 336 of 2016