Irish consumers have had a right, since 1st May 2007 (the date of the coming into force of the Consumer Protection Act 2007) to sue (for example), a tour operator, or an airline which “overbooks”, not only for breach of contract, but, under Section 74 of the Consumer Protection Act 2007, in tort;

74.- …(2) A consumer who is aggrieved by a prohibited act or practice shall have a right of action for relief by way of damages, including exemplary damages, against the following:

(a) any trader who commits or engages in the prohibited act or practice;

(b) if such trader is a body corporate, any director, manager, secretary or other officer of the trader, or a person who purported to act in any such capacity, who authorised or consented to the doing of the act or the engaging in of the practice.”

“Overbooking” involves the sale of more “product” than a trader can supply (usually on the principle that some consumers will cancel). The Consumer Protection Act 2007 describes the practice in Section 55 (1) (l):

making an invitation to purchase a product without disclosing the existence of any reasonable grounds the trader may have for believing that the trader will not be able to supply, or procure another trader to supply, the product or an equivalent product at the price specified in the invitation, or to do so for a reasonable period of time or in reasonable quantities, having regard to the scale of any marketing or advertising of the product and the price specified (bait advertising);”

Of course, the dispute may eventually turn on whether “an equivalent product” was offered and, if accepted, supplied, but that factual dispute should be readily settled by the experience of the consumer; the consumer need only prove by comparison the discrepancy between the description of what was offered and the description of what was delivered.

A not insignificant element of the right to sue under Section 74 is that the right is not constrained by any arbitration clause in the contract with the consumer. In short, the right to issue proceedings is not precluded by the terms of Section 5 of the Arbitration Act 1980.

Is the Cabinet drunk?

Minister Coughlan seems shocked by the implied suddenness of a proposed EU directive to protect consumers. (See what she says HERE).

Did nobody tell her of the EU strategy for consumers? (See it HERE).

And what of this item of bluster from her press release?:

…the current body of legislation is a mix of the 1893 pre Independence legislation and the 1980 Act together with secondary legislation deriving from EU Directives. This has made it difficult for consumers and businesses to understand their rights and obligations.”

From a consumer point of view there is no need to go back to 1893. We purported to update the 1893 Sale of Goods Act 1893 with the Sale of Goods and Supply of Services Act 1980 and to benefit Irish consumers thereby.

It’s just guff to try to blame Britain (specifically Gladstone, in fact!) for yet another Irish Government failure.

And what are we to make of the expert group? We already pay for the personnel of the Law Reform Commission. Why should we have to pay for another group of persons duplicating its work?

Is there a special agenda that the Law Reform Commission does not know of and cannot be trusted with?

Perhaps the Commission is in the dog-house because of its proposal to facilitate multi-party litigation? Does the Government not know that that is where the EU is going? (See it HERE).

What specific document has the Government received from the EU? Minister Coughlan will be at the Council of Ministers that ultimately approves/disapproves the draft directive. Has she received better notice than the public has? (See the EU proposal HERE).

If Irish consumers are uncertain what Minister Coughlan’s expert group are looking at, send an email to EU consumer commissioner Maglena Kuneva HERE.

Maybe, just maybe, she will tell us.