Matheson updates

Higher financial thresholds for merger notifications
Matheson
  • Competition & Antitrust
  • Ireland
  • 01 November 2018

Minister for Business, Enterprise and Innovation Heather Humphries recently laid the Competition Act 2002 (Section 27) Order 2018 before the Houses of the Oireachtais. This will have the effect of increasing the financial thresholds for M&A requiring a notification to the Competition and Consumer Protection Commission. This is the first time that a minister has used their powers under Section 27 of the Competition Acts from 2002 to 2017.

Higher merger control thresholds: welcome news for private equity
Matheson
  • Competition & Antitrust
  • Ireland
  • 25 October 2018

The Department of Business, Enterprise and Innovation recently published legislation that substantially increases the financial thresholds at and above which notification of a transaction is required to the Competition and Consumer Protection Commission. From 1 January 2019, only mergers where the acquirer and target each generate €10 million or more and together generate €60 million or more turnover in Ireland will trigger mandatory notification.

CCPC serves up sharp reminder to Irish restaurant trade
Matheson
  • Competition & Antitrust
  • Ireland
  • 23 August 2018

The Competition and Consumer Protection Commission's (CCPC's) current scrutiny of the Restaurants Association of Ireland serves as a reminder that trade associations must be careful to stay within the lines and avoid encouraging or inadvertently facilitating anti-competitive agreements between their members. Compliance training is an essential tool to prevent unwanted scrutiny from the CCPC and other authorities.

Non-compete clauses – staying within the boundaries
Matheson
  • Competition & Antitrust
  • Ireland
  • 28 June 2018

Non-compete clauses can provide important protection for purchasers who have a legitimate interest in maintaining the value of the business they are acquiring. However, careful consideration must be given to the drafting of non-competes in order to avoid allegations of anti-competitive conduct – which is a criminal offence in Ireland – and scrutiny from competition regulators such as the Competition and Consumer Protection Commission and the European Commission.

Proposed legislation granting additional competition enforcement powers
Matheson
  • Competition & Antitrust
  • Ireland
  • 07 June 2018

A new bill has been proposed in the Oireachtas to grant the Competition and Consumer Protection Commission (CCPC) civil enforcement powers. At present, where the CCPC identifies a suspected breach of competition law, it must petition the court to impose criminal penalties. Under the amendment bill, the CCPC would be empowered to levy administrative fines against firms or individuals for anti-competitive practices. This would bring Ireland into line with most other EU member states.

Gun jumping investigations: implications for the Competition and Consumer Protection Commission
Matheson
  • Competition & Antitrust
  • Ireland
  • 10 May 2018

Ireland has recently shown an increased interest in gun jumping, the prohibited practice of implementing a transaction without having first obtained merger control clearance. In February 2018 the Competition and Consumer Protection Commission confirmed that it had launched an investigation into suspected gun jumping by Armalou Holdings Limited of Lillis O'Donnell Motor Company Limited.

Assisting lay litigants: recent guidance
Matheson
  • Litigation
  • Ireland
  • 07 November 2017

Straitened times have led to an increase in litigation before the courts involving lay litigants or litigants in person acting without formal legal representation. Notwithstanding that such litigants may not have instructed a solicitor or barrister, they sometimes appear with assistance from a non-legally qualified third party. Recent practice directions across the various levels of the court provide important guidance on the scope of such assistance.

Supreme Court decision puts after-the-event insurance under spotlight
Matheson
  • Insurance
  • Ireland
  • 10 October 2017

A recent Supreme Court decision confirming that third-party litigation funding in return for a share of the proceeds is unlawful in Ireland has put after-the-event (ATE) insurance back in the spotlight as the only legitimate alternative method of funding litigation. Although a relatively new insurance product, a number of insurers are now providing ATE insurance in Ireland.

Minimum Competency Code to incorporate implementation of EU Insurance Distribution Directive
Matheson
  • Insurance
  • Ireland
  • 19 September 2017

The Minimum Competency Code 2017 has been introduced to incorporate the implementation of the EU Insurance Distribution Directive, the EU Markets in Financial Instruments Directive II and associated European Securities and Markets Authority guidelines and the European Regulations 2016. The main changes under the code relate to the qualification and experience requirements of the staff of financial services providers.

Fasten your seat belts: driverless cars to rev up insurance industry
Matheson
  • Insurance
  • Ireland
  • 13 June 2017

The existing legislative and regulatory framework for motor insurance in Ireland is driver-centric and needs to adapt for the era of autonomous vehicles. At present, driving is defined as 'managing and controlling' a vehicle. This is not appropriate for autonomous vehicles, where the technology and not the driver controls the vehicle. The legal landscape must keep pace with this cutting-edge technology and efforts must be made now to consider how best to address the various issues which will arise.

Court of Appeal confirms no general duty of good faith in Irish contract law
Matheson
  • Litigation
  • Ireland
  • 28 March 2017

A recent Court of Appeal decision has restored certainty that under Irish law there is no general duty of good faith in the context of commercial contracts. The decision has a wide application and is of interest to all parties across the entire spectrum of commercial contractual arrangements. It clarifies important questions in relation to the proper approach to the interpretation and implication of terms in a commercial contract.

Consumer Insurance Contracts Bill 2017
Matheson
  • Insurance
  • Ireland
  • 21 February 2017

The Consumer Insurance Contracts Bill 2017 recently passed the second stage in the Dáil (the lower house of Parliament) and will now proceed to the committee stage. The bill will apply to consumer insurance contracts only. It will replace the existing duty of disclosure with a statutory duty to answer specific questions carefully and honestly and will allow the insured to claim damages for late payment of claims by insurers. At present, there is no timeline for implementation.

New court rules: delay in SI 255 implementation
Matheson
  • Litigation
  • Ireland
  • 07 February 2017

Two new statutory instruments (SI 254/2016 and SI 255/2016), which make wide-ranging reforms to the procedural rules applicable to civil litigation, recently entered into force. However, a number of the rules contained in SI 255 are dependent on the assignment of list judges and registrars to the chancery and non-jury lists. The High Court has stated that it does not intend to assign either list judges or registrars until the necessary resources have been put in place.

Leapfrog appeals and third-party funding: Persona v Ireland
Matheson
  • Litigation
  • Ireland
  • 31 January 2017

In a recent case, the High Court upheld a centuries-old prohibition on litigation funding by a third party in return for a share of the proceeds with the party that has a genuine interest in the case. Both parties sought leave for a leapfrog appeal of the High Court's decision to the Supreme Court. The Supreme Court determined that this case did in fact meet the 'exceptional circumstances' requirement to justify a leapfrog appeal.

Judicial endorsement of Central Bank inquiries
Matheson
  • Litigation
  • Ireland
  • 24 January 2017

The Central Bank's inquiry process received resounding endorsement by the High Court in decisions against two former directors of the Irish Nationwide Building Society, Michael Fingleton and John Stanley Purcell. In July 2015 the Central Bank published a notice of inquiry confirming that it was to investigate alleged regulatory breaches. Fingleton and Purcell brought separate challenges aimed at overturning the decision, but the claims were recently dismissed.

Avoidance of life assurance policy for non-disclosure of material facts
Matheson
  • Litigation
  • Ireland
  • 03 January 2017

The High Court recently upheld a finding of the Financial Services Ombudsman that an insurer was entitled to avoid a life assurance policy on the grounds of non-disclosure. Significantly, the decision turned on the strength of the proposal form and serves as a useful reminder to insurers of the importance of a well-drafted proposal form.

Avoidance of life assurance policy for non-disclosure of material facts
Matheson
  • Insurance
  • Ireland
  • 20 December 2016

The High Court recently upheld a finding of the Financial Services Ombudsman that an insurer was entitled to avoid a life assurance policy on the grounds of non-disclosure. Significantly, the decision turned on the strength of the proposal form and serves as a useful reminder to insurers of the importance of a well-drafted proposal form.

Mediation not always appropriate
Matheson
  • Litigation
  • Ireland
  • 27 September 2016

A recent High Court decision reaffirms that not all cases are appropriate for mediation. Although the Irish courts are supportive of mediation and recognise the benefits that it may bring in the context of a commercial dispute, the court rules pursuant to which proceedings might be adjourned to facilitate mediation will not always be invoked. In considering whether to make an order pursuant to the relevant rule, various factors are relevant to the exercise of the courts' discretion.

Cross-examination and interlocutory applications
Matheson
  • Litigation
  • Ireland
  • 16 August 2016

A recent High Court decision confirms that cross-examination of deponents of affidavits will not generally be permitted on an interlocutory application. This decision serves as a useful reminder that interlocutory applications typically proceed by way of affidavit evidence only. Accordingly, a party involved in an interlocutory application should think twice before seeking to cross-examine a deponent.

Supreme Court guidance on litigation limits
Matheson
  • Litigation
  • Ireland
  • 05 July 2016

The Irish judiciary has long been cognisant of the rights of all parties to access the courts and have a right to a fair hearing. However, due to straitened economic circumstances, litigation is increasingly conducted by litigants in person, meaning that strict compliance with court procedures is not always possible. The Supreme Court recently offered some guidance with regard to the allocation of court resources and the extent to which litigants might be indulged by the court.

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