The High Court has ordered Persona Digital Telephony Ltd. and Sigma Wireless Networks Ltd. to disclose a redacted version of their litigation funding agreement to the defendants for the purpose of deciding a separate funding application. The court did not decide whether the agreement breached rules on maintenance or champerty, or amounted to an abuse of process.
The companies are pursuing claims arising from the award of Ireland’s second GSM mobile telephone licence to ESAT Telecommunications Ltd. after a competition in which they were unsuccessful applicants. They seek damages and other relief against the State defendants. They say they cannot continue the proceedings without third-party funding from Harbour Fund III Limited Partnership, under an agreement made in March 2015.
The plaintiffs asked the court to rule on whether entering the funding arrangement was an abuse of process or contravened the rules on maintenance and champerty. The defendants sought access to the agreement, arguing they needed to examine its terms to address those issues. The plaintiffs said they had disclosed the funder’s identity and general commitments, and argued that fuller disclosure could give the defendants an unfair tactical advantage, including knowledge of when funding might run out.
Ms Justice Donnelly said the funding application had to be heard in the context of adversarial proceedings, and that the defendants should be able to participate. The court also needed to see the wording of the agreement’s commitments, rather than rely only on the summary provided in affidavits. The judge noted that this was the first time third-party litigation funding had come directly before the Irish courts and that the funding application could affect whether the plaintiffs could continue their case.
The order requires disclosure to the court and the other parties, but permits redactions for now covering the funding budget, timeline, conditions for release of funds, the funder’s remuneration, and the precise circumstances in which funding may be terminated. The judge said those details could later be found relevant at the hearing of the funding application. If so, the court could hear further arguments on whether they should be considered by the court alone or disclosed to the other parties.
The judge concluded that full disclosure was not then necessary for fair determination of the funding application. The ruling addressed only what material must be disclosed at this preliminary stage; the legality of the funding arrangement remained for the later hearing.