Third-Party Funding of Litigation - Denis O'Brien Esat Digiphone Case

Pickpocket

Hi.

Judgement in this case was reserved back in November. What's the story with it? I would have thought we'd have had a decision by now.

I have nothing invested in it, just waiting on the outcome for a research project.

Thanks.

Grab All Association

A High Court judge has refused to allow an English company to fund a legal action against the State, businessman Denis O'Brien and former government minister Michael Lowry.

The decision, based on a law that dates back to 1634, means that the case will not go ahead as the plaintiff does not have enough money to pay the legal fees.

Ms Justice Aileen Donnelly said today that third party funding in such cases is illegal under Irish law.

The plaintiff, James Boyle of Persona Digital Telephony, said he does not have the €10 million needed, and will therefore have to drop the case.

Mr Boyle had sought to take a case after his company lost out on a mobile phone licence that was issued to Denis O'Brien's Esat Digifone consortium in 1996. He claimed that Esat won the competition by bribing the then minister for communications Michael Lowry - which is denied.

While third party funding of legal cases is common in Britain, it is banned in Ireland under the ancient law of 'champerty'.

It states that no third party should be allowed to fund a legal case in the hope that they will take a share of any financial award.

The law is believed to date back to Roman times and became part of Irish law during British rule when the Maintenance and Embracery Act was passed in 1634. This case was the first time that a direct challenge has been made to the law in an Irish court.

In her judgment, Justice Donnelly said that she had considered arguments made by Persona's legal team that the constitutional right to access to the courts should supersede an ancient law that had been abandoned in Britain and elsewhere.

She said that she accepted an affidavit filed by Mr Boyle in which he said that he is "nowhere near the estimated €10 million required to finance the proposed litigation."

She said that Mr Boyle had confirmed that if the funding arrangement is not approved, he will have no other means of prosecuting the case.

She added that Persona's legal team had said their claim is "of great public importance" and that if she allowed the funding arrangement she would ensure "the constitutional guarantee of access to justice".
But citing numerous judgments by Irish courts upholding the law of champerty, she said third party funding arrangements, "cannot be viewed as being consistent with public policy in this jurisdiction."

She said third party funding remains a civil wrong and a criminal offence in Ireland, regardless of changes in attitude to similar arrangements in Britain or elsewhere.

She also pointed out that Persona had not challenged the constitutionality of the law and that the Superior Courts of Ireland have upheld the elements of champerty.

Justice Donnelly further noted that the legislature upheld the law on champerty in 2007 when it held a review of ancient laws and disposed of some of them.

Citing a previous judgment from 2011, she wrote: "In Ireland it is unlawful for a party without an interest to fund the litigation of another at all and, in particular, it is unlawful to fund litigation in return for a share of the proceeds."

At a brief hearing she concluded: "In the circumstances, I refuse the relief sought by the plaintiffs."

http://www.rte.ie/news/2016/0420/783117-court-persona-digital-telephony/

Sad. I'm sure her legal reasoning is impeccable but in a case involving allegations of serious corruption, it is less than satisfactory to see it dismissed on an ancient technicality.

Its also time we moved away from costs following the winner model and to the system where each party looks after their own costs. It has become foolhardy for the average citizen to seek justice when facing an opponent with seriously deep pockets.

L1011

Deleted User wrote: »

Its also time we moved away from costs following the winner model and to the system where each party looks after their own costs. It has become foolhardy for the average citizen to seek justice when facing an opponent with seriously deep pockets.

This would lead to (more, as we already have a lot...) 'lay litigants' involved in vexatious litigation constantly.

godtabh

L1011 wrote: »

This would lead to (more, as we already have a lot...) 'lay litigants' involved in vexatious litigation constantly.

Cant a judge through the case out for being vexatious?

Robbo

godtabh wrote: »

Cant a judge through the case out for being vexatious?

Happens all the time with lay litigants but they basically have to be heard out and due process has to be observed. That's what the "stars" of the Freeman thread here trade off.

I think a lot of the comment off the back of this judgment is coloured by the fact that O'Brien and Lowry are involved.

If you were to spin it a different way, use words that evoke different responses and obfuscate the parties, I'm sure the reaction would be in broad agreement with the judgment.

To clickbait it up: "Genius lawyer invokes ancient law to defeat Vulture Fund using a zombie Irish company to sue the Taxpayer."

L1011

L1011 wrote: »

This would lead to (more, as we already have a lot...) 'lay litigants' involved in vexatious litigation constantly.

Thats an excuse, not a justification. Any middle class person would be foolish to engage in legal action because of the costs risk. The very wealthy and those with no assets to lose have a definite and unfair advantage.

hullaballoo

Costs generally follow the event but there are alternative Costs orders available and sometimes granted, such as part and party costs

L1011

Deleted User wrote: »

Thats an excuse, not a justification. Any middle class person would be foolish to engage in legal action because of the costs risk. The very wealthy and those with no assets to lose have a definite and unfair advantage.

No, I see it as a very solid justification.

Increasing the ability of people to take nonsense cases is not a good thing. Changing the costs system is not going to increase the number of noble and good cases being taken but will hugely increase the nonsense clogging up the system.