14/10/2026
Briefing

Key takeaways

  • New rules under Order 15 of the Rules give representative actions a dedicated High Court procedure, so parties now have clear steps to follow from admissibility through to settlement

  • A new court fee exemption reduces the cost barrier for qualified entities, though legal costs and restricted funding options remain material considerations

  • ICCL v Microsoft confirms that once a representative action is admitted, defendants cannot compel further admissibility information under sections 19(10) and 19(11), though other procedural routes remain available

  • ICCL v Microsoft confirms there is no general reversal of the burden of proof under the GDPR, but once a plaintiff establishes that a defendant is a controller processing data that triggers GDPR obligations, the burden shifts to the defendant to prove compliance with Article 5(1) and/or Article 24(1)

New Rules

The Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 (the “Act”) allows a qualified entity to bring an action on behalf of consumers seeking injunctive and/or redress measures for infringements of consumer rights under a range of EU and Irish enactments. S.I. No. 488 of 2026, the Rules of the Superior Courts (Representative Actions for the Protection of the Collective Interests of Consumers Act 2023) 2026, came into operation on 12 October 2026 and apply to proceedings commenced on or after that date. These rules insert a new Part V (Order 15, Rules 40-46) into the Rules of the Superior Courts (the “Rules”), providing the first dedicated High Court procedure for representative actions under the Act which came into operation on 30 April 2024. This development coincides with the High Court’s first substantive judgment interpreting the Act in a closely watched data protection case, and with a new exemption from court fees for qualified entities bringing representative actions. The key points are set out below.

Court fee exemption for qualified entities

The Supreme Court, Court of Appeal and High Court (Fees) (Amendment) Order 2026 (S.I. No. 465 of 2026) came into operation on 11 September 2026. It means qualified entities no longer have to pay court fees (the stamp duty charged by the court office for issuing or filing documents) when bringing a representative action under the Act. The exemption covers only court fees, not legal costs generally, which remain subject to the ordinary costs rules. Qualified entities still face potential significant financial exposure in pursuing representative actions in Ireland, given the modest level of contribution they can seek directly from consumers and the existing prohibition on third party litigation funding. The Law Reform Commission’s awaited recommendations on third party litigation funding may address this issue.

Injunctions

The Act precludes a qualified entity from initiating a representative action seeking an injunction unless it has first requested the trader cease the infringement, requested consultations, or entered into consultations with that aim, and at least two weeks have passed since the trader received the consultation request (extendable by mutual agreement), with the infringement continuing or the trader refusing to engage. The Rules clarify the procedure for satisfying this precondition which requires the qualified entity to make an ex parte application to the Court, grounded on affidavit to satisfy the Court that it has sought to engage with the trader bringing the substantive injunction application.

Admissibility

Representative actions cannot automatically be pursued in Ireland. The High Court must be satisfied as to the admissibility of the representative action before it can proceed. In this regard, the Act requires the qualified entity to provide information to the High Court on funding, the nature of the claim and in particular the alleged infringement, and the class or classes of consumers affected by the alleged infringement. The Rules clarify the relevant procedure which requires the qualified entity to issue a motion on notice to the other side grounded on affidavit exhibiting its register entry, addressing the admissibility factors and confirming any ADR engagement under the Act. A defendant trader has the right to raise justified concerns as to whether the qualified entity satisfies the designation criteria and can file a replying affidavit opposing the application. The defendant trader can also bring its own application seeking an order declaring the representative action inadmissible.

Once admissibility is determined, the Rules provide that the High Court may give directions and make orders for the just, expeditious and cost-effective conduct of the proceedings.

Consumer lists

Consumers must actively opt in and notify the qualified entity to be represented in a representative action seeking redress, and may later withdraw that notification, of which the qualified entity must then inform the High Court. The Rules provide that the qualified entity must file a list of represented consumers before the admissibility hearing, with updated lists to be filed as further notifications are made, and again before trial unless the High Court directs otherwise. Copies also need to be served on the defendant.

Settlement facilitation

The Act gives the High Court power, following consultation with the parties, to invite them to reach a settlement within a reasonable time limit. The Rules provide that the High Court may act of its own motion or on a party’s application, fix a reasonable time limit, and adjourn the proceedings to facilitate settlement.

Consequential orders

The Act confers a broad discretionary power on the High Court to order redress measures, including compensation, repair, replacement, price reduction, contract termination or reimbursement and the Rules confirm that the High Court may make such consequential orders as are necessary to give effect to any redress measures it has ordered.

Settlement approval

A settlement reached between a qualified entity and a trader requires the approval of the High Court, and, once approved, it binds the qualified entity, the trader, and the individual consumers represented. The High Court must refuse to approve a settlement that is unfair, unenforceable, or contrary to law.

The Rules provide that approval for a settlement should be sought by way of an application to the High Court grounded on affidavit(s) addressing those criteria, and, where individual beneficiaries are not identified, explaining how redress will be given effect for the class concerned.

First judgment

The scope of a defendant’s rights at the admissibility stage was one of several issues addressed in the first substantive judgment delivered under the Act, ICCL v Microsoft Ireland Operations Limited [2026] IEHC 640, in which ICCL alleges that Microsoft has infringed the GDPR in its processing of data subjects’ personal data on its Xandr platform, which allows for the sale of online advertising space by real time bidding. In this judgment Mr Justice Mulcahy held that a defendant has no standalone entitlement under sections 19(10) and 19(11) of the Act to compel further admissibility information once the Court has deemed the action admissible, though it may still seek particulars, discovery, disclosure under section 34(2), or an order setting aside the admissibility order.

The judgment also addressed the burden of proof. Mr Justice Mulcahy confirmed there is no general reversal of the burden of proof under the GDPR, though a defendant will bear the onus of proving compliance with Article 5(1) and/or Article 24(1) of the GDPR once the plaintiff has established that a defendant is a controller of personal data and that there is processing of that data which triggers obligations on the controller with which Article 5(2) and 24(1) of the GDPR require the controller to demonstrate compliance. Where the plaintiff discharges its burden of showing that the relevant obligation under the GDPR is engaged, the legal and evidential burden of demonstrating compliance then falls to the controller.

As regards pleadings, Mr Justice Mulcahy held that the ordinary rules of pleading apply to both parties. Each party must plead to the material facts it relies on to establish the matters which it must prove. A defendant that bears the burden of proving GDPR compliance and wishes to make a positive case of compliance by way of defence must plead the material facts on which it will rely for that defence.

Looking ahead

The new procedural rules, together with the High Court’s early guidance in ICCL v Microsoft, give both prospective plaintiffs and defendant traders more certainty about how representative actions will be conducted. Businesses in sectors which fall within the scope of the Act’s broad range of relevant enactments, including financial services, data protection, travel, energy and telecommunications, should factor this procedural framework into their compliance and litigation risk planning.

If you would like to discuss any of the matters covered in this update in more detail, please get in touch with any member of our Litigation, Dispute Resolution and Investigations Group. 

This briefing is a general summary for information purposes only and does not constitute legal advice.