The Supreme Court dismissed an appeal concerning third-party litigation funding, with Justice Dunne agreeing with the judgment of Chief Justice Denham and adding observations on champerty and maintenance.
In a judgment delivered on 23 May 2017, Justice Dunne said those doctrines remain torts in Irish law. But the appeal did not ask the court to decide whether they continue to exist as criminal offences, and she said it would be inappropriate to reach a conclusion on that question in this case.
The underlying High Court decision, delivered on 20 April 2016, concerned a funding arrangement involving Harbour III L.P. The trial judge said the funder had no independent interest in the litigation and that professional third-party funding for a share of the profits was prohibited by the law on maintenance and champerty. The judge also said the application did not raise a constitutional challenge to those rules.
Justice Dunne noted that the Supreme Court had not been asked to examine the constitutionality of the torts or offences, and no declaration of unconstitutionality had been sought. Any questions about constitutional rights, including access to justice, were left for a suitable challenge.
The judgment described champerty as bringing or pursuing another person’s case at one’s own cost in return for a share of the land or gains in dispute. Maintenance was described as unlawfully supporting another person’s civil suit or quarrel. Justice Dunne noted that there had been no prosecutions for either offence since the foundation of the State, and possibly longer.
She raised questions about whether the criminal offences are defined with enough certainty for a prosecution, including what intention would have to be proved. She said financial assistance in return for a share of an action’s proceeds would likely be an element of champerty, but left the further questions for a future case in which the offences’ status is properly raised and argued.
The court’s order was to dismiss the appeal. Justice Dunne’s observations did not decide the unresolved criminal-law questions.