Supreme Court dismisses appeal on third-party funding, noting policy issues but upholding existing law.

THE SUPREME COURT

[Appeal No. 72/2016]

Denham C.J.

McKechnie J.

Clarke J.

MacMenamin J.

Dunne J.

BETWEEN:

PERSONA DIGITAL TELEPHONY LIMITED & 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 John MacMenamin dated the 23rd day of May, 2017

1. I agree with the judgment of the Chief Justice. I would, however, like to make some brief observations.

2. The first of these is that the allegations contained in this claim are undoubtedly very serious. At the same time it is important to

remember that the defendants, the notice party and Esat Digifone have denied that there was any wrongdoing.

3. In her judgment delivered today Dunne J. addresses some of the considerations which might tend to indicate that there is at least,

an arguable case that maintenance and champerty have fallen into disuse. Thus it may be said a question arises as to whether either

were carried forward by the enactment of the 1937 Constitution. This question must, however, be seen from the standpoint of the

legal authorities cited by the Chief Justice in her judgment.

4. Mr. Neill Buckley, B.L. made a series of interesting submissions on behalf of the fourth named defendant. In the course of these he

drew the Court’s attention to a number of scholarly articles which raised issues about the unforeseen consequences of third party

funding.

5. It may be true that such third party funding can enhance access to justice and foster development of the law but there are, also

other consequences. Should law cases which have a strong individual “personal rights” dimension be capable of assignment to a

funder or open to some kind of profit sharing arrangement? One of the historical objection to maintenance and champerty was the risk

of the perversion of justice. Perhaps that concern is less now. More modern concerns may involve the complexities of multi party

actions perhaps of low social value, which might have the effect of creating difficulties in already busy court lists. There may be

problems as to how to deal with cases with a multiplicity of plaintiffs, some with highly meritorious cases, and others less so. Not all

parties will be deserving of the same level of damages in such cases. In those circumstances who will be the arbiter if some parties

settle a claim and others do not?

6. There are, too, broader “regulatory” issues. Among these lie the questions as to whether third party funders should themselves be

regulated in law, and whether there should be statutory limits on the level of recovery. Who should bear responsibility for adverse

costs orders?

7. Clearly, therefore, significant policy questions might arise in the event of a finding of unconstitutionality in the case of maintenance

and champerty. But legislation takes time. All these are matters for another day, and, perhaps, for the legislature rather than the

courts.

8. A number of issues were left unresolved in this application. It is unclear whether the plaintiffs might still be in a position to obtain

solicitors and counsel who might undertake this case without a guarantee of remuneration. However, an objective appraisal of the

case would indicate that the proceedings would be long and complex.

9. Further points also remain open-ended. In the course of argument the question arose of a hypothetical situation in which the

funders might actually acquire a shareholding in the plaintiff companies, with the intention of procuring adequate funds to process the

litigation. This remains unresolved. There may, too, be other avenues which the parties may wish to explore arising from the highly

unusual, if not unique, nature of this litigation. That is a matter for themselves.

10. Finally, it is worth making the observation that the laws of defamation are not the only legal route whereby parties, be they

plaintiffs, defendants or notice parties, can vindicate their right to a good name. Other forms of action may achieve a similar result.