Civil litigation system

The court system

What is the structure of the civil court system?

Ireland is a common law jurisdiction and its court system was originally based on the English legal system, which is divided into two branches, criminal and civil. Broadly speaking, Irish civil courts hear disputes between individuals, organisations or the state.

In Ireland, the person who takes an action is known as the plaintiff. The person against whom an action is taken is known as the defendant. The court in which the action is heard depends on the level of compensation sought by the plaintiff - namely:

  • district courts have jurisdiction to hear claims up to €15,000;
  • circuit courts have jurisdiction to hear claims between €15,000 and €75,000; and
  • the High Court has jurisdiction to hear claims above €75,000.

Ireland has a Court of Appeal that sits between the High Court and Supreme Court, it hears all appeals from High Court decisions, and save in exceptional circumstances its decision is final.

The Supreme Court hears only cases of public significance or where an important point of law or constitutional issue is at hand. Finally, Ireland is a member of the European Union and any cases involving European law may be referred to the European Court of Justice, or the European Court of First Instance.

Judges and juries

What is the role of the judge in civil proceedings and what is the role of the jury?

Ireland has an adversarial court system and the role of judges in civil proceedings is to adjudicate on the merits of the cases in front of them. Judges listen to evidence presented by both sides, and to submissions made by the parties’ respective barristers (or solicitors) to decide which party shall win, and which party shall lose the case. Judges can ask questions of any of the witnesses presented, and of the lawyers involved in the case.

Although juries are not needed for the vast majority of civil cases, when they are used they are relied on to determine the facts which are in dispute. They must reach a decision considering only the evidence presented to the court during the course of the trial.

Pleadings and timing

What are the basic pleadings filed with the court to institute, prosecute and defend the product liability action and what is the sequence and timing for filing them?

Since 31 March 2005, all product liability actions must be commenced by summons whether issued in the district, circuit or high courts. Section 10(2) of the Civil Liability and Courts Act 2004 (the 2004 Act) outlines what is to be included in the summons. Product liability actions involving personal injury must be commenced by personal injuries summons.

A summons must be formally served, within one year of being issued, on each of the defendants either personally, by pre-paid post to the person’s residence or place of business, or to their solicitor, if they have confirmed they have authority to accept service.

Once service of a summons has been effected, a defendant must enter a memorandum of appearance to the summons. The defendant will then need to file a defence to the claim. The time limits for filing a defence will differ depending on the court in which the particular action is taking place (see question 1).

Personal injuries summons and defences must be verified by affidavit by the relevant party.

Pre-filing requirements

Are there any pre-filing requirements that must be satisfied before a formal lawsuit may be commenced by the product liability claimant?

Prior to instituting a claim for personal injuries in court, an application must first be made to the Personal Injuries Assessment Board (PIAB).

The PIAB, which is an independent body established by the PIAB Act 2003, deals with all personal injury claims (excluding medical negligence cases) for compensation in the first instance. Where the defendant does not wish for the PIAB to assess the claim, or if either side rejects the PIAB’s proposed reward, the matter can then be referred to court.

There are currently no pre-action protocols in this jurisdiction. However, through the Legal Services Regulation Act 2015, there are plans to introduce them in the context of clinical negligence claims.

Summary dispositions

Are mechanisms available to the parties to seek resolution of a case before a full hearing on the merits?

Yes. In the context of a contractual dispute arising from a defect product in which the relevant contract contains a valid alternative dispute resolution clause, then that will govern what mechanism is used to seek resolution of the case.

The Mediation Act 2017 places the obligation to consider mediation prior to filing proceedings on a statutory footing and litigants must confirm to the courts that they have considered mediation and provide evidence of same when filing their summons.

Under section 15 of the 2004 Act, at the request of any party to a personal injuries action, the court can direct that a mediation conference is held in an attempt to settle the action pretrial.

As a general rule, product liability claims can be settled at any time, prior to and during a court hearing.

Trials

What is the basic trial structure?

Civil cases for product liability are generally heard by a judge sitting alone. As a general rule, evidence is given orally at trial.

Factual evidence can be adduced by witnesses as to fact. It is for the parties to the action to adduce their own expert evidence or to agree on a single expert to provide evidence to the court and those experts can then be questioned by the judge and cross-examined by the opposing party.

Group actions

Are there class, group or other collective action mechanisms available to product liability claimants? Can such actions be brought by representative bodies?

Class, group or other collective action mechanisms are not available in Ireland.

An Irish Law Reform Commission report on multiparty litigation was published in 2005 that recommended the introductions of a procedure called a multi-party action (MPA). Pursuant to that, in November 2017, members of the Irish parliament introduced the Multi-Party Actions Bill (MPA Bill 2017), which is making its way through the legislative system. However, at present, there is no mechanism for MPAs in this jurisdiction.

Despite the above, MPAs in Ireland tend to be dealt with by way of ‘test cases’. Test cases arise where a number of separate claims arise from the same circumstances and one case, or a group of cases, is put forward to trial. However, the outcome of test cases are not binding on subsequent cases that come before the courts.

In certain limited circumstances (Order 18, Rules of the Superior Courts), it is possible for plaintiffs to apply to the court for several causes of action to be united within one action, where they can be conveniently disposed of together by the court.

In April 2018, the European Commission adopted its New Deal for Consumers package. The New Deal for Consumers includes a proposal for a directive on representative actions for the protection of the collective interests of consumers. It is proposed that it will be possible for a qualified entity, such as a consumer organisation, to seek redress, such as compensation, replacement or repair, on behalf of a group of consumers that have been harmed by an illegal commercial practice. Negotiations on the proposed directive are ongoing.

Timing

How long does it typically take a product liability action to get to the trial stage and what is the duration of a trial?

As outlined in question 3, all product liability claims involving personal injury must first be submitted to the PIAB but can be heard before the courts if the defendant so wishes, or if either party rejects the PIAB’s proposed award of damages.

The length of time it takes for an action to get to trial stage depends on the efficacy of the parties in dealing with pleadings and court procedure as well as the complexity of the matters at hand. In reality, most matters are not heard for a period of between 18 months and two years from service of proceedings. However, any interlocutory applications (eg, discovery applications) will also have a delaying effect and it would not be unusual for matters not to be heard for three years or more.

Evidentiary issues and damages

Pretrial discovery and disclosure

What is the nature and extent of pretrial preservation and disclosure of documents and other evidence? Are there any avenues for pretrial discovery?

Pretrial preservation

There is a general obligation to preserve documents for disclosure once litigation is in contemplation. In addition, section 12 of the PIAB Act 2003 allows for the plaintiff to make an application to oblige the defendant to preserve evidence the plaintiff may need to prove their case. There may also be regulatory and professional sanctions applicable where evidence is destroyed or suppressed, particularly in the healthcare and life science sectors.

Although rare, the court can also make an Anton Piller order - a form of injunction requiring the defendant to permit the plaintiff or the plaintiff’s agents to enter the defendant’s premises, to inspect documents or other articles and remove any that belong to the plaintiff - though generally these will not be required.

Pretrial discovery

Generally, discovery formally arises after close of pleadings, that is, when the defendant serves their defence. On the whole, discovery is voluntary; however, in circumstances where either side fails to comply with a request for voluntary discovery then either the defendant or plaintiff can make an application to the courts for an order for discovery. Parties can agree discovery at an early stage and if they do not agree discovery can be court-ordered.

When discovery has been ordered by the court, parties are obliged to swear affidavits of discovery in respect of privileged and non-privileged documentation.

Evidence

How is evidence presented in the courtroom and how is the evidence cross-examined by the opposing party?

In the courtroom, evidence is presented via oral testimony (viva voce), which stems from the rule against ‘hearsay’. Experts and witnesses put forth by each party may be asked questions by the judge appointed to hear the case as well as being subject to cross-examination.

There can be some exceptions to the live testimony or ‘best evidence’ rule - for example, where parties can agree contents of medico-legal reports or where evidence can be provided via affidavit.

Expert evidence

May the court appoint experts? May the parties influence the appointment and may they present the evidence of experts they selected?

Parties are able to appoint experts to advance their case and to prepare reports.

Section 41(1) of S.I. 254/2016 Rules of the Superior Courts (Conduct of Trials) 2016 gives the court the power to appoint ‘a person to assist the court in understanding or clarifying a matter, or evidence in relation to a matter, in respect of which that person has skill and experience’. Section 41(3) allows the court to appoint an assessor either nominated by the parties or nominated by the court. The assessor’s report is intended to assist the judge in reaching their final decision.

Section 58(2) (iv) allows the court either on the judge’s discretion or at the request of the parties to appoint a joint single expert.

The use of assessors and single joint experts is extremely rare in this jurisdiction.

Compensatory damages

What types of compensatory damages are available to product liability claimants and what limitations apply?

In Ireland, damages are usually paid by way of lump sum payment, rather than any other form of payment, such as an annuity. As a general rule, damages are calculated in the amount considered necessary to put the injured party back in the position they would have been in had the relevant wrong not occurred.

Section 1(1) of the Liability for Defective Products Act 1991 (the 1991 Act) defines ‘damage’ as death or personal injury, loss or damage or destruction of any item (used for private use or consumption) other than the defective product. There are two main categories of damages, as follows.

General damages

General damages are those seen to flow from the defendant’s wrongful act and can include loss of expectation of life or pain and suffering.

When making awards of general damages, section 22 of the PIAB Act 2003 obliges the judiciary to consider the Book of Quantum, which provides general guidelines as to the amount of compensation a person may be awarded in an action for personal injury.

Special damages

These are damages awarded for financial loss and quantifiable expense suffered and incurred by the plaintiff as a result of the defendant’s wrongful act. For example, special damages can be awarded for loss of earnings (past and future) and medical expenses.

Non-compensatory damages

Are punitive, exemplary, moral or other non-compensatory damages available to product liability claimants?

The primary purpose of any award is to compensate the injured plaintiff. Punitive or exemplary damages are not commonly awarded in Ireland, but may be awarded in exceptional circumstances such as if a defendant’s conduct is particularly affronting and egregious or where there has been a deliberate violation of an individual’s rights.

Litigation funding, fees and costs

Legal aid

Is public funding such as legal aid available? If so, may potential defendants make submissions or otherwise contest the grant of such aid?

Legal aid is available in Ireland but it is rarely provided in product liability claims. To succeed in gaining legal aid, the plaintiff must successfully pass a means and merit test and they may be required to make a contribution to the costs. The majority of personal injury claims are funded by the plaintiff in their entirety.

Third-party litigation funding

Is third-party litigation funding permissible?

No. The Supreme Court confirmed in Persona Digital Telephony Limited v The Minister for Public Enterprise, Ireland & ors [2016] IEHC 187, that third-party funding of litigation in Ireland would be considered champerty and maintenance, which are prohibited by Irish law.

Champerty is where a third party receives a share of what the plaintiff recovers, in the event that their action succeeds. Maintenance is the provision of financial assistance by a party with no legitimate interest in the claim to the party bringing an action.

This case also confirmed that for third-party litigation funding to be established in Ireland, it would have to be brought about by legislative change rather than through the courts.

Contingency fees

Are contingency or conditional fee arrangements permissible?

In Ireland, contingency fees are viewed as champerty, which is against the law. There is, however, a widespread and accepted culture of solicitors taking on cases on a ‘no win, no fee’ basis. That is to say, if the plaintiff’s action is unsuccessful, the solicitor will not charge a professional fee for their services.

‘Loser pays’ rule

Can the successful party recover its legal fees and expenses from the unsuccessful party?

There is a general principle in Irish legal proceedings that ‘costs follow the event’; that is, the losing party must pay the costs of the successful party. Costs include lawyers’ fees, court fees and any expenses related to the prosecution or defence of the action.

However, the court has full discretion with respect to the award of costs and can depart from the general principles set out above in circumstances where, for example, it finds improper conduct on the part of the successful party or if the action was a test case and the implications of the finding has the potential to affect a large group of people.

Generally, a party will not recover 100 per cent of its costs.

Sources of law

Product liability statutes

Is there a statute that governs product liability litigation?

The 1991 Act transposed the EU Product Liability Directive 85/374/EC into Irish law and is the primary source of product liability legislation in Ireland. The 1991 Act adds to rather than replaces the already existing remedies available in both tort and contract and provides for strict liability in circumstances where damage is caused wholly or partly by a defect in a manufacturer’s product.

Traditional theories of liability

What other theories of liability are available to product liability claimants?

Traditional theories of liability are available to product liability claimants and these are as follows:

Tort

The tort of negligence also applies in addition to statutory obligations and claims for defective products can therefore be brought in tort. The relevant test is whether the individual (eg, manufacturer, supplier or importer) owed a duty of care to the injured party that was breached, and this breach caused the alleged damage.

Contract

In Ireland, sales of goods are regulated by the Sale of Goods Act 1893, and the Sale of Goods and Supply of Services Act 1980, this legislation implies a contractual obligation on the seller to ensure that their products are of merchantable quality. This implied term will have been breached if the products in questions are:

  • not fit for purpose or purposes for which goods of that kind are commonly bought;
  • not as durable as it is reasonable to expect having regard to the description given to them, the price and all other relevant circumstances; or
  • where a product can foreseeably be considered to breach the implied term that a product correspond with its description.

In addition to the Sale of Goods Acts, the European Communities (Certain Aspects of the Sale of Consumer Goods and Associated Guarantees) Regulations 2003 (2003 Regulations) apply to contracts for the sale of goods to consumers. The 2003 Regulations require that goods delivered under a contract of sale to the consumer must be in conformity with that contract.

Criminal

Under the European Communities (General Product Safety) Regulations 2004 (the GPSR), which implemented EC Directive 2001/95, it is an offence to place ‘unsafe’ products onto the market.

The GPSR define a ‘producer’ as being:

  • manufacturer of the product;
  • manufacturer’s representative in the European Union (if the manufacturer is not established in the EU);
  • the importer (in certain circumstances); or
  • other professionals working within the supply chain of the dangerous product.

Under the legislation, distributors are also held liable if they supply or attempt to supply a dangerous product, or one that they would reasonably presume to be dangerous.

Consumer legislation

Is there a consumer protection statute that provides remedies, imposes duties or otherwise affects product liability litigants?

The following consumer protection statutes in Ireland impose duties or otherwise affect product liability litigants:

Consumer Protection Act 2007

The Consumer Protection Act 2007 established the former National Consumer Agency and the Competition Authority. These were subsumed by the Competition and Consumer Protection Commission (CCPC), which was created by the Competition and Consumer Protection Act 2014 and is responsible for product safety. It is charged with enforcing legislations aimed at protecting consumers, and its broad remit includes product safety legislation.

Sale of Goods Acts

The Sale of Goods Acts impose an implied condition into contracts for the sale of goods that the goods supplied are of merchantable quality and where a buyer expressly or by implication makes known to a seller any particular purpose for which the goods are being bought, there is an implied condition that the goods are reasonably fit for that purpose.

2003 Regulations

Under the 2003 Regulations, any lack of conformity that becomes apparent within six months from the date of delivery of the goods must, unless the contrary is proved, be presumed to have existed at the time of delivery of the goods. The seller is liable to the consumer for any lack of conformity that exists at the time the goods were delivered. If the goods do not conform, the consumer may request that the seller repairs the goods or replaces them free of charge. If either of those remedies is impossible or disproportionate, the consumer may require an appropriate reduction of the price or have the contract rescinded. The consumer is also entitled to a reduction or rescission if the seller has not completed the repair or replacement within a reasonable time or without significant inconvenience to the consumer. The consumer is not entitled to rescission if the lack of conformity is minor.

Criminal law

Can criminal sanctions be imposed for the sale or distribution of defective products?

Yes. Under the GPSR, criminal sanctions can be imposed for the sale or distribution of defective products. These Regulations also give the CCPC powers to ensure that only safe products are placed on the market. Distributors and producers are under an obligation to cooperate with and inform the CCPC about any unsafe products placed on the market, and can be guilty if they fail to adhere to these obligations. A person found liable on conviction can be made subject to a fine not exceeding €3,000 or to a term of imprisonment not exceeding three months, or both.

At present, there is no legislation providing for an offence of corporate manslaughter in Ireland. The Corporate Manslaughter Bill introduced in 2016 followed a Law Reform Commission Report in 2005 which recommended that this new offence be created. However, this has yet to become law.

Novel theories

Are any novel theories available or emerging for product liability claimants?

As mentioned in question 7, members of the Irish parliament have introduced the MPA Bill 2017, which is making its way through the legislative system. Should this Bill become law, this would be the first formal basis on which plaintiffs could bring group actions for product liability, which would have a significant impact on the legal landscape in this jurisdiction.

Product defect

What breaches of duties or other theories can be used to establish product defect?

Statute

The 1991 Act states that a product will be considered defective if, taking into consideration all the circumstances, it does not provide the level of safety that consumers are entitled to expect and this includes:

  • presentation of the product;
  • the use to which it could reasonably be expected that the product would be put; and
  • the time when the product was put into circulation.

Tort

To establish tortious liability, the injured party must show that:

  • there was a duty of care owed to them;
  • this duty was breached; and
  • as a result of said breach, damage was done to them.

Manufacturers could also be held liable if they fail to issue adequate instructions or warnings about the safety of the product, for example, in relation to risks the product poses.

Contract

The 2003 Regulations assist consumers by establishing a presumption that any lack of conformity that becomes apparent within six months of the date of delivery of the goods is deemed to have existed at the time of delivery of the goods. The burden of proof rests on the seller to prove the contrary. This presumption does not apply if it would not be a reasonable inference that the lack of conformity existed at the time of delivery by reason of the nature of the goods concerned or the nature of the lack of conformity concerned.

The Sale of Goods Acts imply a contractual obligation on the seller that the goods supplied are of ‘merchantable quality’ (that is, that they are as fit for the purpose or purposes for which goods of that kind are commonly bought and as durable as it is reasonable to expect having regard to any description applied to them, the price (if relevant) and all other relevant factors). If products are deemed as failing to meet this standard, then a seller is in breach of the implied term.

Criminal

Criminal liability is governed by the GPSR. This legislation outlines a number of offences under which producers or distributors can be prosecuted. These include placing unsafe products on the European market or supplying or attempting to supply a product that they know or should reasonably suspect to be unsafe.

Defect standard and burden of proof

By what standards may a product be deemed defective and who bears the burden of proof? May that burden be shifted to the opposing party? What is the standard of proof?

The onus generally in the laws of contract and tort is on the injured party to establish damage, and the defect and the causal link between both. This is also outlined in section 4 of the 1991 Act.

The standard of proof in statutory, tort and contract claims is ‘on the balance of probabilities’, that is, 51 per cent or ‘more likely than not’, whereas in criminal proceedings, the standard of proof must be proven to be ‘beyond reasonable doubt’.

The 1991 Act operates on terms of strict liability; therefore negligence of the defendant is not a consideration. The majority of personal injury claims are founded on a combination of tortious, contractual and statutory basis.

The 2003 Regulations assist consumers by establishing a presumption that any lack of conformity that becomes apparent within six months of the date of delivery of the goods is deemed to have existed at the time of delivery of the goods. The burden of proof rests on the seller to prove the contrary. This presumption does not apply if it would not be a reasonable inference that the lack of conformity existed at the time of delivery by reason of the nature of the goods concerned or the nature of the goods concerned or the nature of the lack of conformity concerned.

Possible respondents

Who may be found liable for injuries and damages caused by defective products?

Statute

The 1991 Act lays liability firmly at the door of the ‘producer’ of the defective product. ‘Producer’ is defined as:

  • the manufacturer or producer of a finished product;
  • the manufacturer or producer of any raw material or the manufacturer or producer of a component part of a product;
  • in the case of the products of the soil, of stock-farming and of fisheries and game, which have undergone initial processing, the person who carried out such processing;
  • any person who, by putting his or her name, trademark or other distinguishing feature on the product or using his or her name or any such mark or feature in relation to the product, has held him or herself out to be the producer of the product; or
  • any person who has imported the product into a member state from a place outside the European Communities in order, in the course of any business, to supply it to another.

Tort

In tort, liability extends to anyone who is found to have breached a duty of care that they owed to a party who suffered damage as the result of a defective product. This could cover a number of individuals involved in the supply chain of the product.

Contract

Privity of contract in Irish law means that only those parties ‘party’ to a contract can enforce the rights and obligations under the contract. This in effect means that a seller will only be liable in contract to a buyer with whom they have contracted, and third parties have no right to enforcement of the contract.

Criminal

The GPSR make it an offence to place ‘unsafe’ products on the market. The GPSR define a ‘producer’ as being:

  • manufacturer of the product;
  • manufacturer’s representative in the European Union (if the manufacturer is not established in the EU);
  • the importer (in certain circumstances); or
  • other professionals working within the supply chain of the dangerous product.

Under the GPSR, distributors can also be held liable if they supply or attempt to supply a dangerous product, or one which they would reasonably presume to be dangerous.

Causation

What is the standard by which causation between defect and injury or damages must be established? Who bears the burden and may it be shifted to the opposing party?

In both common law and the 1991 Act, the burden is on the plaintiff to prove a causal link between the physical or psychological injury or damage sustained by them and the alleged defective product.

If the plaintiff cannot prove that, ‘on the balance of probabilities’, their injury was sustained as a direct result of the defendant’s wrongdoing then they have failed in establishing causation.

Post-sale duties

What post-sale duties may be imposed on potentially responsible parties and how might liability be imposed upon their breach?

The CCPC is responsible for market surveillance and product recalls in Ireland and has power to take all ‘reasonable measures’ to ensure the safety of products being placed on the Irish market. Failure to comply with a product recall order can result in criminal and financial sanctions and could give rise to a civil claim.

The GPSR state that a product recall must be considered as a last resort, and section 9(2) states that the CCPC is required to act in a ‘proportional manner’.

Sections 6 and 7 of the GPSR outline the post-sale duties and obligations of distributors and producers. Duties of producers include a duty to provide consumers with all relevant information relating to the product to enable them to assess the risks inherent in the product as well as adopting measures commensurate with the characteristics of the product which they have placed on the market, to enable them to be informed of the risks which the product might pose, or take appropriate action (if necessary) to include withdrawal from the market, recall of the product and warning consumers.

Distributors duties include acting with due care to ensure that any product he or she supplies is a safe product and not supplying or attempting to supply a product they know is, or should reasonably presume as a result of their profession to be, dangerous.

Limitations and defences

Limitation periods

What are the applicable limitation periods?

Statute

The 1991 Act allows a period of three years from the date on which the cause of action arose (two years for claims under the 1991 Act for personal injuries). The date runs from the date on which the claimant became aware, or should have become aware, of the damage.

The 1991 Act also allows for a ‘long stop provision’ that has the effect of extinguishing a plaintiff’s rights on expiry of 10 years from the date that the product was put into circulation, unless in the interim the plaintiff has instituted proceedings against the producer.

Criminal

The GPSR do not set out a specific time period within which a prosecution can be brought but the general applicable length of time in respect of summary offences is six months.

Tort

The Statute of Limitations Act 1957 and the subsequent Amendment Acts in 1991 and 2000 outline the time limits in which personal injury actions must be brought. For personal injuries, the limitation period was reduced by the 2004 Act to two years for personal injuries actions on or after 31 March 2005.

Contract

Statute of Limitations legislation also applies under contract, and the limitation period is six years from the date of the alleged breach of contractual duty, specifically this is the date that the breach occurred, and not the date the injury or damage was suffered.

The statutory time limits can act as full defences to a claim and can have the effect of barring a plaintiff’s ability to seek redress.

State-of-the-art and development risk defence

Is it a defence to a product liability action that the product defect was not discoverable within the limitations of science and technology at the time of distribution? If so, who bears the burden and what is the standard of proof?

The Product Liability Directive (Directive 85/37/EC) and the 1991 Act (section 6(a)) set out a ‘state of the art’ defence that allows the producer to argue that the defect would not have been discoverable at the time the product was put into circulation because of the limitations of science and technology at the time.

The burden to prove this defence is on the defendant, and they must show on the balance of probabilities that the discoverability of the defect was hindered by the limitations of science and technology at the time.

Compliance with standards or requirements

Is it a defence that the product complied with mandatory (or voluntary) standards or requirements with respect to the alleged defect?

Section 6(d) of the 1991 Act allows the defendant to argue ‘that the defect concerned is due to compliance by the product with any requirement imposed by or under any enactment or any requirement of the law of the European Communities’.

Other defences

What other defences may be available to a product liability defendant?

Statute

All defences available to producers are set out under section 6 of the 1991 Act. The other defences (not listed above) can be summarised as follows:

  • that he or she did not put the product into circulation; and
  • that the defect which caused the damage did not, on the balance of probabilities, exist at the time when the product was put into circulation by him or her.

Tort

A claim in tort will fail in the event that the defendant can establish that no duty of care existed between him or her and the plaintiff. Should such a duty exist, the plaintiff’s claim will fail if the defendant can establish that the duty was not breached. A claim in tort will also fail in circumstances where the injury or loss flowing from a breach of an establish duty of care were not reasonably foreseeable and too remote. The plaintiff fails to establish causation if they fail to demonstrate that, on the ‘balance of probabilities’, the alleged injury they sustained was caused by a defect in the product.

In Ireland, the defence of ‘contributory negligence’ is available in personal injury claims under the Civil Liability Act 1961. Section 34(1) of the Act states that where it can be shown in an action that the damage suffered by the plaintiff was caused partly by the negligence or want of care of the plaintiff then the damages recoverable will be apportioned accordingly.

Contract

Defences as regards breach of contract will ultimately depend on the specific terms of the contract itself, such as limitation of liability clauses.

Appeals

What appeals are available to the unsuccessful party in the trial court?

First instance rulings in all civil cases in Ireland can be appealed to a higher court.

Appeals from the High Court are generally made to the Court of Appeal, which sits between the High Court and Supreme Court. Save in exceptional circumstances, the decision of the Court of Appeal is final unless referred to the Supreme Court, which hears only cases of public significance or where an important point of law or constitutional issue is at hand.

Appeals to the Court of Appeal are made to a panel of three judges who have access to all of the material that was before the High Court. However, witnesses will not be re-examined and it is not generally possible to adduce new evidence.

Jurisdiction analysis

Status of product liability law and development

Can you characterise the maturity of product liability law in terms of its legal development and utilisation to redress perceived wrongs?

The 1991 Act is the primary piece of legislation in Ireland as regards product liability but this is robustly supplemented by the principles of common law as well as requisite European product regulations.

The development of product liability legislation in Ireland has advanced steadily over the years, not least because of EU product regulatory changes. European product regulation is generally considered to be significantly developed and mature in nature and is consistently developing. For example, in January 2017, the European Commission launched a public consultation seeking feedback as to whether the Product Liability Directive was ‘fit for purpose’.

Product liability litigation milestones and trends

Have there been any recent noteworthy events or cases that have particularly shaped product liability law? Has there been any change in the frequency or nature of product liability cases launched in the past 12 months?

In the recent Irish case of Dineen v DePuy International Limited [2017] IEHC 723, the plaintiff Ms Joan Dineen had taken a claim against DePuy International Limited in respect of an alleged personal injury as a result of the alleged failure of an ASR hip used in her hip replacement that was manufactured by the defendant. There are in excess of 1,000 claims in respect of alleged injuries caused by the defendant’s ASR hips. The Irish courts approved an alternative dispute resolution (ADR) scheme, whereby certain of the claims could be assessed by a panel of senior counsel and retired members of the judiciary on a ‘without prejudice’ basis, and without admission of liability.

Ms Dineen chose to pursue her claim through the court and the case went to full hearing where she was awarded damages of €321,000 by the Irish High Court. It was regarded as a ‘test case’ in respect of the remaining claims.

There are a further six cases against DePuy before the courts in 2019, alleging personal injury by the defective hips. Interestingly, in 2018, 100 cases against DePuy were resolved, and almost none of them utilised the ADR process put in place.

The European Court of Justice judgments in Boston Scientific Medizintechnik GmbH v AOK Sachsen-Anhalt Die Gesundheitskasse (C-503/13) and N W v Sanofi Pasteur MSD SNC (C-621/15) should also be noted.

Climate for litigation

Describe the level of ‘consumerism’ in your country and consumers’ knowledge of, and propensity to use, product liability litigation to redress perceived wrongs.

Consumerism and the desire for transparency are on the rise in Ireland. A study of 420 people by Accenture in December 2018 reflected that about 59 per cent of Irish consumers want companies to take firm ethical and moral standpoints as regards environmental and social issues.

People are more aware and educated about their rights and this information has the effect of making them more litigious and inclined to redress any alleged wrongdoings via litigation. There are a number of consumer-related websites, and even the very nature of the rise and increase of consumer reviews have all contributed to heightened awareness of the rights available to consumers if they purchase a defective product.

In 2017, the EU introduced the New Deal for Consumers aimed at strengthening enforcement of and modernising EU consumer law. While there is no specific reference to product liability, the increase of consumer legislation and discussion in the media only serves to heighten consumer awareness in respect of their rights and may have the effect of making them more litigious in the area of product liability.

Efforts to expand product liability or ease claimants’ burdens

Describe any developments regarding ‘access to justice’ that would make product liability more claimant-friendly.

There are no particular current developments per se, but if the MPA Bill 2017 passes into legislation then the landscape as regards collective or class actions in Ireland could change dramatically and perhaps product liability could become significantly more claimant-friendly.

The European Parliament has approved a proposed new Consumer Sale of Goods Directive, which will repeal the existing 2003 Regulations. The draft directive:

  • extends the period within which a defect emerging is presumed to have been present on delivery from six months to two years;
  • allows a consumer to choose to have defective products repaired or replaced free of charge;
  • allows a consumer to obtain a price reduction or to terminate the contract where the lack of conformity is not or cannot be remedied through repair or replacement; and
  • imposes an obligation on the seller when remedying a lack of conformity by replacement of goods, to take back the replaced goods at its own expense.

Update and trends

Emerging trends

Are there any emerging trends or hot topics in product liability litigation in your jurisdiction?

As outlined in question 7, the MPA Bill 2017 is making its way through the legislative system in Ireland. If this is enacted into law, it would make indelible changes to the legal system. This is currently a hot topic within the Irish jurisdiction.

Other jurisdictions have witnessed a rise in product liability claims in relation to fitness trackers and wearables and, while we have not yet seen this trend before the Irish courts, this may not remain the case for long. This comes in the era of the ‘internet of things’. As new technologies and the use of these become more prevalent, product liability legislation may need to adapt to accommodate these technologies and provide assistance as to the analysis of where liability will fall in the event of a personal injury claim.