The Supreme Court dismissed an appeal by Persona Digital Telephony Limited and Sigma Wireless Networks Limited seeking to change the law on champerty to permit third-party litigation funding. In a concurring judgment delivered on 23 May 2017, Mr Justice Clarke agreed with the Chief Justice’s judgment and the resolution proposed for the appeal. He said a major change to the law without legislation would amount to the Court legislating.
Clarke J said the appeal raised concerns about access to justice, including the possibility that Persona might be unable to bring its case to trial without third-party funding. He noted that serious allegations had been made against the State and others, and referred to findings of the Moriarty Tribunal as a basis for saying the allegations might be capable of proof. He stressed that it would be for a trial court to assess admissible evidence and reach its own conclusions. The allegations were not findings in this appeal.
The judge said there was an arguable question whether the constitutional right of access to the courts must be effective in practice, as well as in law. He pointed to the growing complexity and cost of litigation, and the limits of self-representation and “no foal no fee” arrangements in some cases. But he said the issue had not been argued in that way and there was not enough material before the Court to reach a meaningful conclusion. He expressed no concluded view on whether practical difficulties had impaired the constitutional right.
Clarke J also said there were several possible responses to access problems, including civil legal aid, changes to lawyer-client fee arrangements, greater court resources or legitimate third-party funding. Each involved policy choices and potential costs or other problems. He agreed that choosing among them was primarily for the Oireachtas or the Executive, rather than the courts.
He added a caveat: if a court were later to find a constitutional breach, and the legislature or Government failed to take adequate action after being given an opportunity, the courts might have to take measures to remedy it. That was a conditional observation, not a finding that a breach had occurred or an order requiring action in this case.