Keynote Address: Dispute Resolution Conference 2024

We were delighted to welcome the Attorney General of Ireland, Rossa Fanning SC, as the keynote speaker at our inaugural Dispute Resolution Conference.

The event showcased the growing importance of alternative dispute resolution (ADR) methods and the anticipated impact of class actions on corporate risk and consumer power.

The Attorney General shared his insights on Ireland’s advantages as a place to do business and resolve disputes effectively. Watch our video or read the full address.

Keynote address

Thank you to Mason Hayes & Curran for the invitation and to Will Carmody for the kind introduction. This is a firm that I have had a long relationship with - Mason Hayes & Curran was a firm that really backed me on the way up, and given that I may be ejected from constitutional office at a time not necessarily of my own choosing, I really hope that they continue to back me on the way down.

An often cited quotation attributed to the 17th century French philosopher Voltaire reads: “A long dispute means that both parties are wrong.”

This pithily captures the fundamental reality that, while disputes are an inescapable feature of modern commercial life, it is in the interests of all parties, and indeed in the public interest, that such disagreements should be resolved in an efficient and timely manner.

It is also a salutary warning to parties to a dispute and to their lawyers against taking up entrenched positions and arguing every point.

It encourages us to think carefully about the long-term implications of prolonging a dispute and resolving everything through litigation in order to gain some perceived short-term advantage.

During my time as Attorney General, I have given some thought to the question of how we ought to encourage parties to engage constructively to resolve disputes.

It was with that objective in mind that, with the approval of Government, I launched the State Litigation Principles in June 2023.

For those of you unfamiliar with them, they can be googled very quickly, but put simply, the Principles seek to codify existing best practice and explain how the State should consider the public interest before taking adversarial steps in litigation.

While not all civil litigation involves the State and central Government, I have expressed the hope that statutory bodies which conduct litigation independently of Government as well as larger corporate litigants, many of whom are represented in this room, might endeavour to follow the high standards set out in the State Litigation Principles.

However, it is ultimately not for me or Government to dictate how private parties will conduct themselves in court.

Moreover, it will not always be enough to rely on the good intentions and forbearance of parties to proceedings to ensure the effective resolution of disputes.

There must also be an effective legal system that creates appropriate incentives to ensure that parties are encouraged to behave reasonably and sensibly in their approach to dispute resolution.

After all, the overriding objective of any effective system of civil justice must be to ensure that disputes can be resolved fairly, in a timely manner and at proportionate cost [1].

The Government is committed to ensuring we have a system that lives up to these standards.

This is required in order to ensure that Irish citizens and others who live and work in Ireland can have recourse to an effective system for the administration of justice.

However, it is also an integral part of the State’s offering to businesses, both home-grown firms and multinational corporations, both of whom are well represented this morning.

Other speakers this morning will be addressing more of the detail on the options for alternative dispute resolution and the new rules on collective proceedings in Ireland.

In that context, I propose to focus on Ireland’s advantages as a place to do business and resolve disputes effectively, and some of the actions the Government has taken on foot of its commitment to maintaining and enhancing Ireland’s strengths in this regard.

Ireland is a politically stable, English-speaking country with a common law legal system that is familiar to international business.

Ireland as a common law system

So what are Ireland’s strengths as a legal system?

Both Gerard Kelly, of this parish, and I were part of an Irish delegation that made the arduous journey to Manhattan last week to extol the virtues of the Irish legal system and it might be no harm for me to reiterate some of the points that I made on that trip.

Simply put, Ireland is a politically stable, English-speaking country with a common law legal system that is familiar to international business.

Indeed, Ireland’s legal system has always had a very outward looking and international dimension.

Foreign judgments from around the common law world continue to be cited in our courts.

Many international businesses simply prefer the certainty and stability of a common law system.

Ireland uniquely combines our cultural, linguistic and legal links to the US and the rest of the Anglophone world with EU membership and access to an internal market of 450 million consumers.

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EU membership

For reasons I would prefer not to dwell on, it is perhaps more important this week than most, that I emphasise that Ireland is a committed Member State of the EU and has been for more than half a century.

Ireland’s access to the EU makes for a very favourable environment for businesses engaged in international trade in Europe, as goods and services can be traded between Ireland and other Member States with relative ease and minimal legal and regulatory friction.

Moreover, Ireland’s membership of the EU means that judgments of the Irish courts can be enforced across most of Europe with little additional cost or formality.

Ireland is therefore uniquely positioned to combine market access and the enforceability of judgments with a familiar legal system and public administration.

This also makes Irish law a credible choice when deciding on the law that should be applicable to a contract.

The concentration of these global industries in Ireland has allowed a vibrant and dynamic legal services sector to develop

Economy and legal services

Another key advantage of determining disputes in Ireland is our thriving economy, which is evidenced by the presence of multinational companies from a wide range of industries within the State.

It is worth recording here a few basic facts about the extent of the multinational presence here in Ireland:

• 8 of the top 10 financial services companies in the world have their home in Ireland, with an all-time high of 52,800 people employed in the international financial services sector.
• Ireland is the global leader in aviation finance and aircraft leasing.
• 9 of the world’s top 10 pharma companies have substantial operations in Ireland and Ireland is the third largest global exporter of pharmaceuticals.
• 14 of the world’s top 15 medtech companies have operations in the State, making Ireland the second largest export of medtech products in the EU.
• Ireland is recognised internationally as a global tech hub - the top 5 global software companies and 9 of the top 10 US technology companies all have a strategic presence in Ireland.
• Ireland is the second largest exporter of computer and IT services in the world, with 37,000 employees, generating €35 billion in exports per annum.

All in all, IDA Ireland reported that more than 300,000 people were directly employed by multinational companies in Ireland at the end of last year. This figure is all the more striking in circumstances where it excludes the large numbers of businesses and workers whose livelihoods are supported by the demand generated by having large and successful businesses operating in Ireland.

The presence of so many multinational companies here is not just a sign of Ireland’s success, but it is also something which itself has had a positive impact on our dispute resolution infrastructure.

The concentration of these global industries in Ireland has allowed a vibrant and dynamic legal services sector to develop that has genuine expertise in managing everything from high value commercial disputes to complex regulatory proceedings.

For those of us who are in practice for several decades, the size and sophistication of the market for legal services in Ireland is unrecognisable now to what it was a couple of decades ago.

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Courts and resources

This supply of talented and skilled lawyers is complemented by the expertise, competence and independence of Ireland’s judiciary.

The provision of sufficient resources and staff to allow the judiciary to perform its functions is a key priority of Government.

In February 2023, the Government published the report of the Judicial Planning Working Group and committed to implementing its recommendations which include substantial increases in the numbers of judges.

This included an additional 24 judges before the end of 2023, all of whom have been appointed.

A further expansion of the judiciary with the appointment of a further 20 judges under Phase Two of that Report is likely to be considered by Government following the establishment of the new Judicial Appointments Commission, work on which remains ongoing.

The expansion of the number of judges will support existing measures such as the establishment of the Commercial Court, a division of the High Court established in 2004 which has had great success in resolving high value litigation with greater expedition than other High Court lists.

It achieves this through more activist case management by specialist judges and in a similar vein, in December last year, I had the opportunity to speak at the launch of the newest specialised division of the High Court – the Planning and Environmental Law Court.

The much needed innovation of the establishment of this Court is designed to accelerate the resolution of planning disputes to facilitate the development of physical infrastructure to support business, and it complements other steps the Government is taking, such as the continued progress towards the enactment of the Planning & Development Bill which is scheduled for Report Stage in the Seanad on 24 September.

Multi-party litigation

However, it is not simply a matter of the Government providing additional resources to facilitate effective dispute resolution in court.

It is also vital to ensure that court procedures are updated to allow judicial resources to be deployed efficiently.

This observation brings me to an area which will be discussed by the second panel later this morning.

It is often the case that multiple plaintiffs will have very similar claims against the same defendant.

For example, if a large company providing a good or service directly to consumers breaches a provision of consumer law, it may be that very large numbers of people will wish to bring almost identical claims against the same defendant.

Resolving each of those very similar claims individually has the potential to be very time-consuming, costly and inefficient. Indeed, in respect of relatively low value claims as may arise from breaches of consumer law, it is often impractical for individuals to bring an individual claim.

Historically, the Irish courts adopted a pragmatic approach to such claims. A test case or a pathfinder case was often selected and progressed first. This serves as a precedent for the remaining cases although there is no formal link between the two. This practice will continue in the areas that are not affected by recent legislative reform in this area.

But following the recommendations of the Review of the Administration of Civil Justice, the Government has now formalised rules for collective proceedings for consumer claims in the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023, which was signed into law by the President in July last year.

The Minister for Enterprise, Trade and Employment, Peter Burke made the order commencing the 2023 Act with effect from 30 April 2024.

The 2023 Act seeks to transpose an EU Directive which now permits consumers to be represented by “qualified entities”. [3] It is envisaged that these will be independent, non-profit organisations that will be designated by the Minister to be able to take claims on behalf of consumers for breaches of consumer laws relating to financial services, food safety, health, data protection, technology, energy and telecommunications.

The first such qualified entity, the Irish Council for Civil Liberties, was designated over the summer and it likely that more entities will be designated in the coming months.

Qualified entities are empowered to seek a wide range of remedies including monetary compensation, contract termination, repair, replacement or an injunction requiring the defendant to cease any breach of the relevant legislation.

The aim of the 2023 Act is to allow claims for breaches of consumer law to be determined efficiently, swiftly and at proportionate cost.

In so doing, it will also give confidence to businesses that are in compliance with consumer law that the rules will be effectively enforced against any of their competitors who seek to gain an advantage by refusing to follow the law.

Moreover, the enactment and implementation of this legislation may assist in informing other proposals for civil justice reform in the area of collective proceedings.

Ireland is also a jurisdiction that takes the resolution of disputes outside of court seriously, and rightly so.

Alternative dispute resolution

Finally, I want to say something briefly about the importance of resolving disputes outside of court.

As Justice Sandra Day O’Connor, the first female Justice of the Federal Supreme Court of the United States, said: “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”

Ireland is also a jurisdiction that takes the resolution of disputes outside of court seriously, and rightly so.

That is particularly clear from the framework supporting arbitration in Ireland. Ireland has sophisticated and effective legislative architecture to facilitate alternative dispute resolution in the Arbitration Act 2010.

This legislation incorporates best international practice in the field of international arbitration and applies these rules to domestic arbitrations as well.

It does this by adopting the UNCITRAL Model Law on International Commercial Arbitration, which is expressly given the force of law in Ireland by the text of the legislation [4], and by implementing other international agreements.

The 2010 Act provides for ease of recognition and enforcement of arbitral awards, including foreign awards. There are very limited grounds for opposing/rejecting recognition and enforcement of such awards.

The 2010 Act respects party autonomy in choosing arbitration and limits court intervention in recognition of that autonomy.

This legislation also supports the efficient management of court applications that may sometimes arise in relation to arbitration.

Separately, an acknowledgement of the importance of alternative dispute resolution can also be seen in the provisions of the Mediation Act 2017.

The 2017 Act facilitates mediation by allowing courts to invite the parties to proceedings to consider whether the dispute could be resolved by mediation [5] and gives to the courts a jurisdiction to adjourn the proceedings to facilitate this [6].

It also permits the court to consider any unreasonable refusal or failure by a party to consider using mediation or to attend mediation following an invitation to do so [7].

Section 14 of the 2017 Act requires a solicitor to advise their client, before issuing proceedings on their behalf, of the possibility of resolving the dispute by mediation and the potential advantages of doing so.

It also requires the solicitor to file a statutory declaration affirming that they have done so when issuing proceedings.

In a judgment delivered in June of this year in Byrne v Arnold [8], Mr Justice Kennedy demonstrated that there are real consequences to a failure to comply with this obligation, depriving a successful party of some of their costs by reason of a failure to agree to mediate.

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Conclusion

I started out with the observation that where a dispute drags on too long, it may sometimes fairly be stated that, in truth, nobody has won.

There aren’t many winners when a speech drags on too long either.

The efficient resolution of disputes, through the courts or through alternative dispute resolution mechanisms, is a matter of public interest.

This is not only to ensure that the people who live and work here can secure the benefits of the administration of justice, but also to ensure that Ireland continues to provide an environment that supports businesses, domestic and international, as they continue to build on our thriving economy.

Thank you for listening, and enjoy the rest of this morning’s discussion.

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The content of this article is provided for information purposes only and does not constitute legal or other advice. If you have a question about any of the topics discussed at this event, don't hesitate to contact a member of our Dispute Resolution team.

[1] See for example Adrian Zuckerman, Zuckerman on Civil Procedure: Principles of Practice (4th edn, Sweet & Maxwell 2021) chapter 1. See also the Civil Procedure Rules in England and Wales, in particular CPR 1.1.

[2] Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (Commencement) Order 2024, SI 2024/181.

[3] Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC [2020] OJ L409/1.

[4] Arbitration Act 2010, section 6.

[5] Mediation Act 2017, section 16.

[6] Mediation Act 2017, section 18.

[7] Mediation Act 2017, section 21. See also the Legal Services Regulation Act 2015, section 169(1)(g).

[8] Byrne v Arnold [2024] IEHC 308.