Paul Murphy on Qualified Entities and Group Action Limits

Thanks, Chair, and thanks for the presentations. Just to start with a question about the issue of your opinion on why the Government has adopted such a narrow approach to qualified entities and your attitude in terms of whether they should have gone further, in particular in the question of the possibility that it is clear in the Directive that for domestic actions Member States could allow qualified entities on an ad hoc basis. My assumption in terms of what that would look like, but also I could be wrong here, so I am interested in you describing it to me, is that an issue could emerge by a bunch of apartment owners across the state affected by the same issue, affected by wanting to take an action against a designated construction builder or whatever, and they form an association and effectively the state, there would be some process whereby the state would say, yes, now you are a designated entity or a qualified entity, you can pursue on that basis, is that what that is talking about? So the question is really for the three of you, one, if you have an opinion as to why the Government has gone for a much more narrow approach in terms of their taking what is set out in the Directive as the rule for cross-border actions, they are applying that internally for domestic actions as well, and secondly, if you think that that should be expanded. Thank you. Thank you. Thank you. Thank you. Thank you. Thank you. Don't all rush at once. Everyone is working forward. Well, I highlighted in my presentation Article 4 and then the Qualified Entities Representative Actions within the Directive and then linking it with Head 16. But again, I don't want to be, you know, Mr. Preamble, but I'll read out Preamble 24. It says consumer organisations, and this is taking into account your issue, and as I say, the preambles are the philosophy. Consumer organisations in particular should play an active role in ensuring the relevant provisions of European law are compliant with. They should all be considered well-placed to apply for status of qualified entity in accordance with national law, depending, and that's national law, depending on national legal traditions, public bodies could also play, and we've said that in the terms of possibly some, you know, possibly the CCCP being involved some way by a member armed understanding, could also play an active role in ensuring the relevant provisions of the union law are complied with. So I think if I look at the preamble and then the Article 4 and 3, and it specifies those bodies or NGOs that have a public activity in the protection of consumer interests, I think that the Department correctly have gone down that line, because that's the philosophy behind it. Now, in terms of I think what you're asking, and what I'm asking is that in the ministerial regulations, possibly the minister may open the doors a little bit in terms of that, but as the Consumers Association here, we would like it to be kept kind of that there are bodies that are protecting consumers' interests. And then if you look at the long list of legislation at the back again, it's all consumer protection legislation. So that's my view. Thanks. Thanks, Deputy. So in terms of ad hoc designation, in our response to the consultation, we supported the idea that there might be ad hoc designation for, you know, as you say, for a specific group of consumers who were particularly interested in one issue would be keen that shouldn't slide into the association of aggrieved burger buyers, you know, so that it's important that it doesn't then facilitate a compensation culture and vexation and litigation. I think there was a question earlier about the impact on insurance costs. So that balance to make sure that these cases are taken when there's a genuine grievance rather than on a speculative basis is important. Yes. But subject to that, there may be cases in which an association formed for the purposes of, you know, a narrow issue that didn't meet all the criteria for a general purpose QE might be designated. We wouldn't be opposed to that. Okay. Thanks. Thanks. I guess I would consider it to be a relatively, not so much restrictive, but it's a cautious approach. And, you know, I think it goes back to the difficulties that arise if a real US-style class action culture takes root. It is taking root across Europe now. It's taking root in the UK. It's taking root in Germany and in the Netherlands. And the example that I used in my paper was to illustrate really the challenges in getting that balance right. Because, you know, on the one hand, that Wendy's case has been held up as a pinup of an excessive and abusive shakedown type litigation in which the harm is imperceptibly low. At the same time, it's also being held up as a case where actually a food lawyer was seeking to vindicate the rights of those who had been injured by that. So, I do think the law society isn't saying anything should be rushed into because law has a tendency to evolve beyond the original intention even. So, that, you know, a cautious approach isn't necessarily a bad one. I do at the same time want to reiterate that the possibility to implement the reforms that have been talked about and that were reflected in a private member's bill are also reasonably cautious and balanced, I feel, and allow for a fairly comprehensive and strict legal test to be applied in the case of certification. And it's the certification point that I think in the US is very lenient. Okay. Yeah. Thanks a lot. Yeah. Just to maybe jump off from that, which is this issue of direct access to multi-party actions. I mean, the Consumer Association of Ireland is like you're really stressing in your opening statement. We're not looking for this. We don't want it. We're not a favorite. Like, what's so bad about it? About giving people direct access to taking cases together? Like, I do think often it's kind of spun about, you know, oh, there's this culture in the US of people taking vexatious claims. Your classic case of the woman getting burned by the coffee in McDonald's. But, you know, McDonald's knew that the coffee was dangerously hot. She suffered third degree burns. It was then spun to make it look bad. But actually, like, it seems to me that in a country whereby things are very balanced in favour of business against ordinary people, that actually the facility of US consumers to take class action suits actually pushes things, rebalance things a little bit. So I'm just interested, like, what is the downside of direct access? Well, Deputy, I don't want to name the Deputy, but there was a question on the 17th of February asked of the Minister, or the Thánaiste Minister, if the EU directive allowing for class action lawsuits is still scheduled to be imposed into Irish law. And I just highlight that in the sense that the two things are being mixed together, you know, the way, you know, the law society have their views on multiparty actions. You have your views on multiparty actions. I'm a lawyer, and that's great. And it's great for things. We're here sitting about a particular directive that's bringing this right for consumers to take representative actions. And if I kind of highlight to you the type of action that I'd be hoping to do, I mean, last weekend Aer Lingus obviously had some difficulties at the airport. That's under EU legislation. And maybe they'll compensate people in the correct way. But there could be people that won't be compensated correctly. And I'd be hoping that that would be something that a certain number of consumers would come, you'd get a representative action. I know the issue is that this one goes towards the High Court. So, you know, you're immediately into a very, very difficult area, but possibly even just putting down the representative action. You've got so many consumers or whatever. Maybe the trader, i.e. Aer Lingus, will come and say, well, look, let's negotiate about that. We don't really want to go down this route. We'll put our hands up and say, yeah, yeah, yeah. So that's in a way what we want to do. So it's kind of not so much. Obviously, there will be some cases that may go to the High Court. But in some ways, the High Court, you know, once it's 75,000 or more has to go to the High Court. And you know yourself how tedious and long that can be and all the documentation that you have. So it's not really a quick process. So, I mean, we would have preferred even with a directive or whatever, something at a lower level, maybe. Because see, in some member states, this is done via administrative courts. So they can go to administrative court and have a little ruling and then they go to the other court in terms of compensation or whatever. But we are where we are. And that's why we would like the directive to be transposed and in line with that. And that's really, I don't find multi-party actions might help consumers in the long run. But, you know, we're not against them necessarily. But simply you're saying that the directive isn't this. Yeah, it's fine. What I've constantly tried to say, and I know Michael and everything, is that when we came in here, we didn't want this to become a discussion about class actions. And, you know, the great class action in the US and the consumer, you know, because in a way, it's minimum harmonization from Europe. And it looks like we're really not kind of hitting the ball, as Deputy Bruton has said, you know, we're falling under. And I think that's, I think that's a sad situation. I know the way, the multi-action is a different thing. Thanks David, more for you. Yeah.