Consumer Protection Act 2007
Civil relief by way of prohibition orders.
71.— F90[(1) In this section, "prohibited act or practice" does not include:
(a) a contravention of section 59(2) (respecting weighing facilities in grocery retail);
(b) a contravention of section 60(1) (respecting preventing the reading of prices);
(c) in relation to a financial service (within the meaning of the Central Bank Act 1942) provided by a trader who is a regulated financial service provider (within the meaning of that Act), a failure or refusal by the trader to provide—
(i) a remedy to which a consumer is entitled under section 85 (1) or 86 (2)(a) of the Act of 2022, or
(ii) a reimbursement to which a consumer is entitled under section 90 of the Act of 2022;
(d) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is unfair under section 132 of that Act;
(e) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is presumed to be unfair under section 133 of that Act;
(f) the use by a trader in a consumer contract (within the meaning of the Act of 2022) of a term that is not transparent in contravention of section 134 (1) of that Act.]
(2) Any person, including the Agency or any other public body that is prescribed for the purposes of this subsection, may apply to the Circuit Court or High Court for an order prohibiting a trader or person from committing or engaging in a prohibited act or practice.
F91[(2A) An application may be made under subsection (2) for—
(a) an interim order,
(b) an interlocutory order, or
(c) an order for an indefinite period or for a period specified in the application.]
(3) An application under subsection (2) shall be on notice to—
(a) the trader or person against whom the order is sought, and
(b) the Agency, if the applicant is not the Agency.
(4) In determining an application under this section, the court shall consider all interests involved and, in particular, the public interest.
(5) If the applicant for an order under this section is not the Agency, the court may not make the order unless the Agency has been afforded an opportunity to be heard and adduce evidence.
(6) If the court considers it necessary or appropriate in the circumstances, taking into account all interests involved and, in particular, the public interest, the court may make an order under this section without proof of any actual loss or damage or of any intention or negligence on the part of the trader.
F91[(6A) Where an application under this section relates to a particular prohibited act or practice which relates to any of Parts 2 to 5 of the Act of 2022, an order may be made in relation to any similar prohibited act or practice (or prohibited act or practice having like effect) committed or engaged in by a trader.]
(7) In making an order under this section, the court may impose terms or conditions in the order that the court considers appropriate, including a requirement that the trader or person publish a corrective statement, at the trader’s or person’s own expense and in any manner the court considers appropriate, in respect of the matters the subject of the order.
(8) An application under this section to the Circuit Court shall be made to the judge of the Circuit Court for the circuit in which the prohibited act or practice concerned is being committed or engaged in.
(9) The Circuit Court shall have jurisdiction to hear and determine an application under this section which it is satisfied it is appropriate for it to deal with as a court of local and limited jurisdiction and, for the purpose of the court’s satisfying itself of that matter, the matters to which it shall have regard include—
(a) the nature and extent of the prohibited act or practice concerned, and
(b) the estimated cost of complying with the order to which the application relates.
(10) If, in relation to an application under this section to the Circuit Court, that court becomes of the opinion, during the hearing of the application, that it is not appropriate for the Circuit Court to deal with the application, it may, if it so thinks fit, transfer the application to the High Court.
(11) Subsection (10) is without prejudice to the jurisdiction of the Circuit Court to determine an application under this section which, at the time of the making of the application, it was satisfied it had jurisdiction to deal with.
(12) Where an application is transferred under subsection (10) to the High Court, the High Court shall be deemed to have made any order of a procedural nature that was made by the court from which it is so transferred in the proceedings in relation to the application.
(13) A trader commits an offence who, without reasonable excuse, fails to comply with an order under this section and is liable on conviction on indictment or on summary conviction, as the case may be, to the fines and penalties provided in Chapter 4 .
Substituted (29.11.2022) by Consumer Rights Act 2022 (37/2022), s. 159(a), S.I. No. 596 of 2022.
Inserted (29.11.2022) by Consumer Rights Act 2022 (37/2022), s. 159(b), (c), S.I. No. 596 of 2022.
Modifications (not altering text):
Certain functions of National Consumer Agency under section extended to Commission for Communications Regulation (13.06.2014) by Communications Regulation Act 2002 (20/2002), s. 10(1A)-(1E), as inserted by European Union (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013), reg. 34(1)(c), in effect as per reg. 1(2).
Functions of Commission.
[(1A) The functions of the Agency specified in subsection (1B) are (insofar as they relate to the provision of electronic communications networks, electronic communications services, associated facilities and premium rate services) also functions of the Commission, and subsections (1B) to (1E) have effect for the purposes of this subsection.
(1B) The functions of the Agency referred to in subsection (1A) are the functions of the Agency under section 67, section 71, section 73, sections 75 to 77, section 80, sections 83 to 87 and section 90 of the Consumer Protection Act 2007 in relation to the European Communities (Consumer Information, Cancellation and Other Rights) Regulations 2013 (S.I. No. 484 of 2013).—
(1C) Subsection (1A) operates to vest in the Commission, concurrently with the vesting in the Agency of those functions by the Consumer Protection Act 2007, the functions specified in subsection (1B).
(a) functions so specified are, subject to any relevant co-operation agreement entered into under section 21 of the Consumer Protection Act 2007, capable of being performed by either the Agency or the Commission, and
(b) subject to subsection (1E), references to the Agency in the provisions of the Act specified in subsection (1B) are to be read as including references to the Commission and those provisions otherwise apply.
(1E) Where any section of the Consumer Protection Act 2007 specified in subsection (1B) provides for anything to be done in relation to the Agency (whether the giving of notice to it, the submitting of a thing to it or the doing of any other thing) then, if a co-operation agreement entered into under section 21 of that Act so specifies, it is sufficient compliance with the section concerned if the thing is done in relation to the Agency or the Commission as is specified in that agreement.]
Dental Council prescribed as public body for purposes of subs. (2) (28.03.2019) by Consumer Protection Act 2007 (Section 71(2)) (Dental Council) Regulations 2019 (S.I. No. 126 of 2019).