Alice-Mary Higgins (Independent) | Oireachtas source

I move amendment No. 61:

In page 33, between lines 37 and 38, to insert the following:

“(10) Where a provider prepares a compensation scheme it shall ensure that end-users are informed, in a clear and comprehensible way, that the compensation scheme does not prejudice their right to pursue compensation in respect of a specified failure by other legal means or proceedings.”.

This amendment creates a specific positive duty on a provider publishing a compensation scheme to inform the consumer that this compensation scheme does not prejudice their rights to further compensation by other legal means. This section is again generally quite tightly written and thorough in respect of clarifying what the duties are on providers in terms of compensation schemes. This is all very welcome. The section also clarifies that acceptance of compensation does not prejudice consumers' right to pursue compensation by other means.

The provisions of this section are good in terms of making it clear that it does not prejudice these rights but there is a slight gap in that many or most consumers will not be reading this legislation. Although the legislation is, therefore, clear on the obligations around compensation schemes and that these do not prejudice any other legal action, there is a slight gap whereby there is not an obligation for the consumer to be informed of this situation. There should be a positive legal duty on the provider to inform the customer not just around the compensation schemes that may be available to them but also that this does not prejudice their other options. It is about that second part in the section to ensure that the consumer, who is the relevant party here, is aware of this right. It is quite possible in this context that consumers may assume that the only thing they are entitled to is whatever form of compensation a company may have offered to them. Most consumers will not be talking to lawyers or necessarily reading the legislation. They will be asking what their rights are and what they are entitled to in these cases and they may just get told they are entitled to a compensation scheme, full stop. This amendment is in the spirit of this section and of its intention and it is just trying to ensure the section has the desired effect.