IESC 27 · Supreme Court

THE SUPREME COURT

[Appeal No: 72/2016]

Denham C.J.

McKechnie J.

Clarke J.

MacMenamin J.

Dunne J.

Between/

Persona Digital Telephony Limited and

Sigma Wireless Networks Limited

Plaintiffs/Appellants

and

The Minister for Public Enterprise, Ireland and the Attorney General

And By Order Denis O’Brien

Defendants/Respondents

and

Michael Lowry

Third Party

Judgment of Mr. Justice Clarke delivered the 23rd May, 2017.

1. Introduction

1.1 I fully agree with the judgment delivered by the Chief Justice in this matter and with the resolution which she proposes for this

appeal. I also agree with the observations of MacMenamin and Dunne JJ. My purpose in writing this concurring judgment is to make a

number of observations of my own about access to justice in modern circumstances. It is, of course, access to justice which lay at

the heart of the principal argument put forward on behalf of the plaintiffs/appellants (“Persona”) in suggesting that this Court should

revisit the parameters of the law of champerty.

1.2 However, before so doing I would observe that, in my view, one of the most powerful arguments put forward against a radical

change in the law of champerty (in the absence of legislation) was that advanced by Mr. Niall Buckley, counsel for the third party. Mr.

Buckley argued that there were strong, and importantly modern, considerations which lay against permitting third party funding not

least what he described as the potential risks inherent in the commoditisation of litigation. While those who have sought to disparage

the law on champerty have frequently referred, correctly so far as it goes, to its medieval origins, those arguments demonstrate that

there are important current and modern considerations which would need to be balanced very carefully in any analysis which might

lead to a change in the law in this area. It is for reasons such as those that I fully support the reasoning of the Chief Justice which

leads to the conclusion that it would be for this Court to engage, impermissibly, in legislation if it were to take onto itself the task of

radically changing the law in this area.

2. Some Observations

2.1 However, it is difficult to take an overview of the circumstances of this case without a significant feeling of disquiet. Serious

allegations are made against the State and others. Indeed in a previous judgment delivered by me in an appeal brought in these and

related proceedings (Comcast International Holdings Inc. & ors v. Minister for Public Enterprise & ors [2012] IESC 50), I suggested

that should the allegations made come to be proven in a court of competent jurisdiction they would amount to amongst the most

serious factual findings that would have been made by a court in this jurisdiction since the foundation of the State. In addition, given

the findings of the so-called Moriarty Tribunal, there is at least a basis for suggesting that the allegations might be capable of being

established. It would, of course, be for the trial court to consider whatever evidence may be presented, apply the rules of evidence

and its own judgment to all of the materials properly before the Court, and come to a conclusion in accordance with that evidence

and the law.

2.2 However, the source of disquiet which arises on this appeal stems from the very real possibility that this case might not go to trial

because of the difficulties encountered by the plaintiff/appellant (“Persona”) in being able to run the case without third party funding.

It is in that context that I feel that a number of observations are required.

2.3 In M.C. v. The Legal Aid Board [1991] 2 I.R. 43, Gannon J., in dismissing a claim to an entitlement to legal aid in nullity

proceedings, suggested that there was no obligation on the State to intervene in private civil disputes. In so doing Gannon J. said

that he was “not convinced that there is any provision in the Constitution which imposes a duty on the State to provide any form of

support for civil litigation among citizens”.

2.4 The types of measures which have, in the past, been found to operate as a barrier to the constitutional right of access to the

courts were formal legal requirements such as the fiat of the Attorney General which was required to bring the type of action

concerned in McCauley v. Minister for Posts & Telegraphs [1966] I.R. 345. Such a requirement was found to be an infringement of the

right of access to the court.

2.5 It is, however, worth noting that Lardner J., in Stephenson v. Landy & ors (unreported, High Court, Lardner J. 10th February

1993), considered that the constitutional regime applicable to legal aid in criminal cases, which was explained by this Court in The

State (Healy) v. Donoghue [1976] I.R. 325, had the potential to apply, mutatis mutandis, to wardship proceedings because they

involved the State. While there have, therefore, been some indications that the right of access to the courts in at least some types

of cases (certainly criminal cases and possibly some other forms of case involving the State) may involve certain obligations on the

State to ensure adequate representation, it would, I think, be fair to say that to date the right of access to the Court has arisen

more in the context of formal legal barriers rather than practical matters including resources and representation.

2.6 Given that submissions based on the right of access to the courts formed an important part of the case put forward on behalf of

Persona it is, I think, appropriate to indicate that, in my view, there may well be an argument that, in modern circumstances, it may

be necessary to consider whether the right of access to the Court needs to be looked at on a broader basis which may, at least in

some cases, require consideration of whether that right is, in practise, effective even though there may be no formal barrier to its

exercise. As this case was not argued in that way it would be wrong to express any concluded view. Furthermore, to the extent that

the argument may involve practical questions, it is doubtful if there was sufficient material before the Court on which any meaningful

conclusions could have been reached in any event. However, it would, in my view, be remiss not to at least make some comments on

the issue.

2.7 As the Chief Justice has pointed out at para. 52(vii) of her judgment, the most common way in which litigation on behalf of

insufficiently resourced parties has been conducted in the State has been by means of individual lawyers making a decision to

represent clients without any guarantee of payment either in pure pro bono cases or, more frequently, under the so-called “no foal no

fee” system. It does have to be recognised that the latter system has provided, in the past, an effective means of representation in

at least many types of cases. A great deal of personal injury litigation, including difficult cases such as complex clinical negligence

proceedings, are still brought on that basis. Furthermore, certain types of cases involving the State and its agencies, including judicial

review, are frequently maintained in that way. This is a matter to which I will shortly return.

2.8 However, there are a number of factors which do need to be taken into account in any overall assessment of the extent to which

it might be said that there is effective access to justice today. The following is not necessarily an exhaustive list but seems to me to

represent some of the most significant features.

(a) It is clear from even a brief perusal of the figures produced by various international bodies concerning the number of

judges in various jurisdictions and the cost to the taxpayer in those jurisdictions of funding the justice system generally,

that the figures for number of judges and general cost are very significantly lower in common law countries compared with

comparable figures from the civil law world. It may not be quite so easy to estimate the degree of difference with a great

deal of precision for the figures are not necessarily compiled on exactly the same basis in each jurisdiction. For example,

certain types of disputes are dealt with by tribunals in some countries but courts in others. What exactly counts as a

court may differ somewhat from jurisdiction to jurisdiction. Numbers can be affected by the existence of, for example,

persons such as the lay magistrates who still exercise considerable jurisdiction in the United Kingdom. For these, and

doubtless other, reasons a precise comparison is not possible. But the position of common law countries at the bottom of

the scale is so pronounced that it cannot really be doubted but that the resources applied to the courts system are

significantly less in common law countries with consequential major savings to the taxpayers in those countries.

(b) The reason for this is, of course, fairly obvious. A much greater part of the burden of ascertaining the facts and

researching the law lies on the parties in a common law system. In almost all types of common law litigation it is for the

parties to produce the evidence which leads to findings of fact. That can include procuring the attendance of expert

witnesses as well as witnesses of fact. Furthermore, the parties have the job of researching the law and of informing the

Court of any legal materials which might be relevant to the Court’s consideration. Unlike their counterparts in civil law

jurisdictions, Irish judges do not have access to research departments and only, and then only in recent times, to a very

small number of legal researchers. It is striking that each of the more than 80 judges who serve on the Slovakian Supreme

Court have two researchers whereas the nine judges who serve on the Irish Supreme Court are forced to share a

researcher between each two. The consequence of that sort of situation is that there are significant limitations on the

extent to which the Court can do its own research and, thus, the practise which requires the parties to fill that gap.

(c) It would not be possible to reach any definite conclusion on such mattes without adequate evidence and there are,

doubtless, other factors which affect the cost of litigation both in common law countries generally and Ireland in

particular but there is at least a very strong arguable case that part of the reason, and most likely a significant part, is

the fact that there is a transference of the burden of carrying the litigation from the Court to the parties such that the

taxpayer saves a great deal of money but at the cost of litigants. If such facts were to be established there would, in my

view, be at least an argument that they would need to be taken into account in assessing whether there is effective

access to justice.

(d) It is also the case that litigation has become more complex. There are a whole range of reasons for this. Legislation,

both domestic and European, has become increasingly complicated. The areas of regulation are much greater. The detail

of the measures adopted are voluminous. In the context of certain types of cases, the presence of very large volumes of

electronically stored information which might, at least on one view, have a bearing on the just outcome of the

proceedings, can make an analysis of the facts all the more difficult. It seems to me that two consequences flow from

this.

(e) First it is at least arguable that the increasing complexity of litigation has led to a corresponding increase in the

difficulty which an unrepresented party would have in being able to represent themselves in any meaningful way in at

least certain types of cases. It may well be the case, of course, that there remain cases which a litigant in person who

chooses to inform themselves on relatively straightforward legal questions might be able to “do their own case”. In such

cases it might be said that there would be an advantage to having skilled legal representation but the fact that it might

be advantageous to secure the services of an experienced advocate does not, necessarily and in and of itself, mean that

a party could not at least make a reasonable attempt at doing the case themselves. However, there is a very real

likelihood that the increasing complexity of litigation has placed many more cases outside the scope of effective self-

representation. That certainly is the experience of many judges. These are not just cases which might be run better by

an experienced advocate but rather cases which cannot, in any meaningful or true sense, be run at all without legal

assistance. How, for example, could a litigant in person without legal assistance comply with detailed obligations of

disclosure including issues of privilege and the like in a case involving a great deal of documentation? It follows that it may

well be the case that there has been a very material increase in the number and type of case where the undoubted right

to run the case as a litigant in person might be argued not to represent effective access to the Court in any meaningful

sense.

(f) But there is another consequence of the increasing complexity of litigation. It is one thing for lawyers to be prepared

to take on relatively short litigation at the risk that they will not be paid unless they are successful. A business model, if

that is how one might term it, which took on the risk that some work throughout the year will not be remunerated, may

nonetheless prove economically viable provided that the downside risks are not too great. But the increasing complexity

of litigation can undoubtedly lead to situations where there are two significant inroads into the effectiveness of that

model. First the more of the lawyer’s time and effort which has to go into a case in which there is no guarantee of

payment the bigger the risk. The extent to which it makes economic sense to take on risk, in at least some types of

cases, must come into question.

(g) Furthermore, there are many types of case where bringing the litigation to the door of the Court not only requires

effort on the part of the lawyers but also significant expenditure. It is one thing to take on the risk that one will not be

paid for a period in time. It is an altogether greater risk if the consequences of losing, and not, therefore, getting an order

for costs against a mark, is that the lawyer concerned (in such circumstances normally a solicitor) has incurred very

significant personal expense which will now be lost. Many discovery projects involve the employment of a large number of

young lawyers to sift through a great deal of documentation (frequently much of it electronic) for the purposes of

identifying relevant materials and dealing, at least initially, with questions of privilege and the like. Many of the young

lawyers concerned take on that work because it provides some guaranteed income in their early years of practice. It

would be wholly unrealistic to expect such young lawyers to do that kind of work on the basis that they would only be

paid if the litigation were successful. But a consequence of that fact is that someone must pay them. For an impecunious

party that means that a lawyer agreeing to take such a case on a “no foal no fee” basis will be required to fund the

discovery process at the risk that that money will be lost in the event that there is not an effective order for costs at the

end of the day. Like comments could be made about procuring expert evidence. All of this means that there must be a

significant risk that the “no foal no fee” system, at least in its current form, may increasingly prove to be less effective in

providing access to justice in practise.

(h) All of the above analysis is designed to demonstrate that it is at least arguable that there is a very real problem in

practise about access to justice. An assessment of the precise extent of the problem would require detailed evidence

and, therefore, nothing which I say should be taken as indicating a concluded view. Nonetheless it is worth recording that

the experience of the courts suggests that there may well be problem, that it may well be significant and that there are

at least arguable grounds for suggesting that it is growing.

2.9 I consider that it can be said that there is at least an arguable case that the constitutional right of access to the court may

include an entitlement that that right be effective, not just as a matter of law and form, but also in practise. If that be so there may

well be an argument, based on the above analysis, that there is an increasing problem emerging in relation to that constitutional

entitlement. But the real question which arises in this case is as to whether the possibility that there might be a finding that there is

an impairment, at least in some cases and in some circumstances, of the constitutional right of access to the courts based on the

sort of considerations on which I have touched, could lead to the Court altering the parameters of the law of champerty.

3. Implications for the Law of Champerty

3.1 For the purposes of the argument, and only on that basis, I will in this section of this judgment assume that it can be established

that there is an impairment of the constitutional right of access to the court which stems from the fact that there are at least some

cases where the right is impermissibly interfered with by virtue of it not being possible, for resources type reasons, to exercise the

right in practice to any reasonable extent. What then might the consequences be for the law of champerty?

3.2 The problem, of course, is that there are many ways in which such difficulties might be alleviated. Legal aid is one. Adjustments

to “no foal no fee” or conditional fee type arrangements might be another. Changes in the balance between the obligations of the

parties and the resources provided by the Court might be a third. Clearly some form of legitimate third party funding could be a fourth.

Doubtless there might be other possibilities or, indeed, combinations of some or all of those already mentioned.

3.3 Each of those potential solutions brings its own problems. Civil legal aid, particularly in a common law country, can be very

expensive for the taxpayer. Indeed, it would appear that some of the measures in favour of third party funding adopted in other

countries have been designed precisely to reduce the burden on the taxpayer of funding an adequate civil legal aid system.

3.4 Allowing for different types of financial arrangements between lawyers and their clients runs the risk of giving rise to exactly the

same kind of problems which were relied on by the State in arguing against third party funding on this appeal. Furthermore, such

measures might lead, depending on how the model was implemented, to inequalities whereby an impecunious plaintiff might have to

give over to their lawyers some of the award to which a court had found them to be entitled as a matter of law, while a well

resourced plaintiff might not be so obliged. Doubtless other problems might well be identified depending on the precise model adopted.

3.5 A recalibration of the role of the parties and the Court might, of course, form part of any solution but, as the figures for court

funding to which I have already referred demonstrate, that would almost certainly come at a significant cost to the taxpayer.

Adjusting for the relative populations of the two countries it is illustrative to note that, were Ireland to have the same number of

judges per head of population as Germany, Ireland might have something of the order of 1,250 judges. Between all courts we have a

total of under 170. Moving to a more civil law type litigation system might well save parties a lot of money, might solve problems

about legal aid and the like, but it can readily be anticipated that it would come at a very significant cost indeed to the taxpayer.

3.6 The policy problems associated with third party funding were well explored in this case and there is no need to repeat them here.

3.7 There is, therefore, no pain-free solution to the problem. But it follows that the choice of solution is very much a matter of policy

and, at least initially, not one in which the courts can properly have any involvement having regard to the Separation of Powers. It

follows in turn that, even if a court were to be satisfied that there was a sufficient diminution, in practise, in the right of access to

the Court to warrant a finding of a breach of constitutional rights, it would not necessarily follow that the solution would be to

materially change the law of champerty. As noted earlier any one of many possible solutions might be adopted or indeed a

combination. It is for that reason that I fully agree with the Chief Justice’s conclusion that the choice of policy solution is very much

a matter for the legislator or the Executive and not for the Court.

4. A Final Observation

4.1 However, I would add one caveat. It has long been said that the courts must act to find a remedy in any case where there is a

breach of constitutional rights. While the choice, as a matter of policy, between a range of possible ways in which a potential breach

of constitutional rights might be removed is fundamentally a matter for either the Oireachtas or the Executive, it may be that

circumstances could arise where, after a definitive finding that there had been a breach of constitutional rights but no action having

been taken by either the legislature or the government to alleviate the situation, the courts, as guardians of the Constitution, might

have no option but to take measures which would not otherwise be justified.

4.2 For such a situation to arise it would, of course, be necessary for a court first to conclude that there was, in fact, a breach of

constitutional rights established. That would require a consideration of the legal issues which might arise surrounding the extent to

which the constitutional right of access to the Court extends to matters which may, in practise although not as a matter of law,

significantly impair the effectiveness of the right. Such a conclusion would also require a detailed analysis of the factual situation in

modern conditions.

4.3 However, if a breach were to be established and a court were to so hold, it would clearly be appropriate for the Court to afford

the Oireachtas and/or the Executive an opportunity to decide what the best solution might be. If, however, in such circumstances no

action whatsoever was taken (or action which clearly was insufficient to meet whatever requirement had been identified) then there

might very well be a strong argument that the Court’s jurisdiction would necessarily have to extend to taking whatever measures

were necessary.

4.4 Where there is a constitutional problem and policy choices as to its solution, then it is clearly for the Oireachtas and/or the

Executive to choose which possible answer should be adopted. But there are strong grounds for believing that there cannot, in those

circumstances, just be no answer.