Dermott Jewell: New bill a game-changer for consumer rights, if we get it right
We have to challenge the deep pockets of those who seek, with far too much regularity, to deny consumers their legal and fair entitlements under consumer law.
Last year saw the introduction of improved legal protections for Irish consumers purchasing across the EU in cash or by clicking through laptops, tablets, smartphones and even their watches. Buying is easy but finding resolutions after purchase is not quite so simple.
The Small Claims Court is a useful and cost-friendly route for resolving disputes, but it is slower than many would like and the maximum amount for a claim at €2,000 is likely to be out of touch as prices inflate.
A significant addition to the laws that provide access to justice for consumers is nearing completion for its entry into the Irish Statute Book. A draft bill, the Representative Actions for the Protection of the Collective Interests of Consumers Bill 2022-3, has been receiving consideration from a great many bodies, including the Consumers’ Association of Ireland, or CAI.
In the 56 years of the CAI’s history and, arguably, not since it launched the pilot scheme for the Small Claims Court in Ireland, has it been so engaged in trying to bring affordable access to justice for consumers.
The CAI has long been lobbying for consumers to have the benefit of access to justice for issues of mass harm or loss, by means of collective action in a court where a so-called qualified entity — such as the CAI — would take one case on behalf of many affected consumers.
We are now on the doorstep of the EU directive to be operating by June in every member state.
The draft dill provides the template for Ireland’s mechanism and is not dissimilar to the provisions being suggested by other member states.
But, for Ireland there are concerns about a number of the provisions, their effectiveness, and their fitness for purpose for Irish consumers.
Conditions set out in the directive, on the designation of an organisation as a qualified entity, are that the entity should be an association with the primary aim of protecting the interests of consumers. Independence is also a feature, as is the requirement that it also have the status of an NGO, or non-governmental organisation.
The Department of Enterprise is the statutory authority to inform the European Commission of a designated qualified entity for Ireland. The problem is that the bill, as currently drafted, provides that all costs for bringing the action must be provided by the designated qualified entity.
From a look back at the collective court cases taken in the EU, such as the VW dieselgate case, it is clear the costs are very significant and the time and resources require months of planning and years of commitment. Justice comes at a high cost.
The High Court is determined to be the body through which all representative actions for redress or any injunctive measure will be taken. From the outset, there has been a concern that the costs of this court will be a challenge.
On a positive note, the draft bill provides that the Minister for Justice may make regulations to provide for the removal of fees payable to the High Court by parties bringing representative actions under the act.
This would be of significant benefit to the qualified entity. Although, the costs of preparation and planning alone would be very high.
The CAI suggested that even if such measures were introduced, the legislation places considerable administrative burdens on the qualified entity. The qualified entity would need a well-resourced office with staff to complete the task of instigating representative actions.
The draft bill suggests that each individual consumer must instigate contact and opt-in to be represented in the case, and pay a modest fee which is yet to be determined by the minister.
Without some form of funding from Government or co-operative assistance, the CAI, and other bodies, have expressed doubt if this directive will be fully enacted, or utilised, for the benefit of Irish consumers.
Ireland is on a positive trajectory to make progress for consumer redress but we must get this right. With a deadline for implementation of June 25, we depend on our legislative drafters to ensure the bill is delivered with appropriate resources.
We have to challenge the deep pockets of those who seek, with far too much regularity, to deny consumers their legal and fair entitlements under consumer law.
- Dermott Jewell is policy and council adviser at the Consumers’ Association of Ireland
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