Ireland: Commercial – An Overview Of 2013

We hope that 2013 was a good year for you and your firm and that 2014 brings new opportunities and further success. We saw a number of developments in the Irish market last year and you can watch a short video from IDA Ireland with local highlights here, including updates on a number of our clients.

We have prepared a short overview of key developments in the Commercial environment during 2013. We hope this proves helpful and if you require any additional information on these topics do please contact one of our team.

1. European Commission Calls on the US to Restore Trust in EU-US Data Flows

A recent communication published by the European Commission set out the actions that the Commission asserts need to be taken to restore trust in the flow of data between the EU and the US. This came as a response to the allegations by former US National Security Agency ("NSA") contractor Edward Snowden that the NSA was spying on overseas internet traffic via its PRISM programme, as well as apparently eavesdropping on the mobile phones of political leaders.

The Commission called for action in six areas:

  • a swift adoption of the EU's data protection reform, the General Data Protection Regulation;
  • augmenting the Safe Harbour Scheme - the Commission made 13 recommendations to improve the functioning of the Scheme;
  • strengthening data protection safeguards in the law enforcement area;
  • using existing Mutual Legal Assistance Treaties and sectoral agreements to obtain data;
  • addressing European concerns in the ongoing US reform process (review of US national security authorities' activities); and
  • promoting privacy standards internationally.

The Commission, along with the US authorities, is seeking to identify remedies to the data flow concerns by summer 2014 and to implement them as soon as possible. The Commission will also review whether the concerns relating to the functioning of the Safe Harbour Scheme have been dealt with adequately.

2. Consumer Rights Directive

The Consumer Rights Directive (2011/83/EC) (the "Directive") was transposed into Irish law in December 2013, by virtue of the European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (SI No. 484 of 2013) ("2013 Regulations"). The 2013 Regulations will come into operation on 13 June 2014 and will apply to contracts concluded after that date.

The Directive consolidates and simplifies the currently distinct laws for distance contracts (such as contracts concluded online, over the telephone, or by post), off-premises contracts (contracts concluded away from the trader's premises, such as in the consumer's home or workplace) and other types of consumer contracts. It aims to increase consumer confidence and to facilitate cross-border shopping, in particular over the internet. In addition, it is intended that the Directive will decrease the costs for businesses offering goods and services to consumers in other EU Member States, by ensuring a level playing field and increasing legal certainty with respect to these types of transactions.

Once in operation, the 2013 Regulations will revoke the current European Communities (Cancellation of Contracts Negotiated Away from Business Premises) Regulations 1989 (SI No. 224 of 1989) and the European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communications) Regulations 2001 (SI No. 207 of 2001).

The 10 most important changes for consumers in the new Directive, as described by the European Commission, are:

  • the elimination of hidden charges and costs on the Internet;
  • increased price transparency;
  • banning pre-ticked boxes on websites;
  • a 14-day cooling off period, extended from 7 days;
  • improved refund rights;
  • introduction of an EU-wide model withdrawal form;
  • elimination of excessive surcharges for the use of credit cards and hotlines;
  • clearer information on who bears the cost of returning goods;
  • better consumer protection in relation to digital products; and
  • common rules for businesses making it easier to trade across Europe.

The Directive is aimed at achieving a business-to-consumer internal market, striking the right balance between a high level of consumer protection and the competitiveness of enterprises.

While the codification of law is helpful, a number of the measures will require businesses to review their practices to ensure compliance. In particular, the elimination of excessive credit card surcharges and the extension from 7 to 14 days for the return of goods are likely to have a material impact on businesses that trade online.

3. Slattery v Friends First Life Assurance Company Ltd

Arguably the most important Irish contract law case of 2013 is Slattery v Friends First Life Assurance Company Ltd. This judgment serves as a reminder to maintain caution throughout commercial transactions and, in particular, to remain alert to potential amendments or additions to the terms of contracts.

While the High Court also awarded damages against the Defendant for breach of confidentiality, one of the more interesting issues was the Court's approach to interpreting the commercial documents before it.

These proceedings arose out of an unsuccessful business venture, namely, the purchase of the St. Regis Hotel in Washington DC. The Plaintiff's private equity firm, Claret Capital, and the Defendant were part of a consortium involved in the purchase of the hotel for a total cost of $173.25m. To secure the deal, the Defendant agreed to advance loans to two Claret Capital related companies, over which the Plaintiff provided a personal guarantee.

The Court granted rectification of the transactional documents on grounds of a unilateral mistake by removing a clause that sought to limit the Plaintiff's liability on foot of the personal guarantee. The Defendant was unaware that one of the transaction documents contained a clause, which had been added in a late draft and not flagged in the mark-ups exchanged between the parties which purported to mitigate the effect of the personal guarantee. In reaching its conclusion, the Court relied on the principle that one has to look at the common intention of the parties as to the nature of the contract before the mistake arose. This essentially led to the Court re-interpreting an agreement, drafted by commercial lawyers, in order to rectify an attempt by the Plaintiff to mitigate the effect of the personal guarantee.

Given that the High Court was prepared to look behind this heavily negotiated commercial contract to ascertain the true intention of the parties, there is a risk that this approach might undermine the enforceability of contracts as they are written, resulting in potential legal uncertainty.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
14 Nov 2018, Seminar, Dublin, Ireland

We will host our commercial litigation seminar on Investigations and White Collar Crime on Wednesday 14 November in our offices on Barrow Street, Dublin 4.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions