Persona Digital Telephony Ltd & Sigma Wireless Networks Ltd and The Minister for Public Enterprise, Ireland and the Attorney General, and, by order, Denis O'Brien and Michael Lowry

Factual and Procedural Background

The Plaintiffs/Appellants sought to pursue long-running proceedings against State entities and private individuals arising out of the award of a mobile-telephony licence. Lacking resources to fund the complex litigation, they entered into a professional funding agreement with an overseas litigation funder (Company A). By notice of motion issued in the High Court on 25 March 2015, they requested a declaration that the agreement did not contravene the common-law prohibitions on maintenance and champerty. The High Court (Judge Donnelly) refused relief on 12 May 2016, holding the arrangement unlawful. The Supreme Court granted a “leap-frog” appeal (Determination [2016] IESCDET 106) confined to the validity of such third-party funding. On 23 May 2017 a five-judge Supreme Court dismissed the appeal.

Legal Issues Presented

1. Whether a professional third-party funding agreement, concluded during the life of existing proceedings and giving the funder a share of any recovery, is unlawful in Ireland by reason of the common-law torts and crimes of maintenance and champerty.
2. Whether the timing of the funding (mid-proceedings) or the alleged “public importance” of the underlying action alters that legal position.

Arguments of the Parties

Plaintiffs/Appellants' Arguments

• The ancient offences should not operate as a per se bar; courts must assess whether the particular agreement undermines the administration of justice.
• The agreement merely facilitates constitutional rights of access to the courts and freedom of contract; Company A exercises no improper control, following recognised UK codes of conduct.
• No Irish authority has squarely held professional funding unlawful; public policy has evolved in comparable common-law jurisdictions.
• The Court may incrementally adapt the common law without abolishing the torts, recognising that modern funding can co-exist with the protection of judicial integrity.

State Defendants' Arguments

• Maintenance and champerty remain statutory offences and actionable torts, expressly retained by the Statute Law Revision Act 2007; only legislation can alter that position.
• Irish precedent condemns funding by a stranger for a share of the proceeds; Company A lacks any bona-fide interest.
• Public policy risks—trafficking in litigation, interference with settlement and discovery, commoditisation of claims—justify a blanket prohibition.
• Access-to-justice concerns do not override the clear illegality; Plaintiffs may pursue alternative arrangements such as contingency (“no-foal-no-fee”) representation.

Fourth-Named Defendant and Third Party

• Adopted the State’s submissions, emphasising that permitting professional funders would erode legal certainty and invite future “pre-clearance” applications.
• Argued that the agreement granted Company A substantive control over settlement decisions, illustrating the very harm champerty seeks to prevent.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Denham (for the majority) confirmed that:

• The offences and torts of maintenance and champerty are expressly preserved by pre-1922 statutes retained in 2007; they form part of Irish law until changed by the Oireachtas.
• Maintenance consists of a stranger’s assistance in litigation; champerty is maintenance in exchange for a share of the proceeds. Company A’s agreement satisfied both elements.
• No recognised exception applied: the funder had no existing proprietary, fiduciary or other bona-fide interest in the claim.
• Constitutional and policy arguments—international commerce, access to justice, freedom of contract—are “parked”; the appeal was not a constitutional challenge, and re-defining the offences would amount to judicial legislation.
• The timing of the funding (mid-proceedings) and the alleged public importance of the underlying dispute are legally irrelevant; the rule is broad and per se.
• If reform is desirable, it must be undertaken by legislation after comprehensive analysis, possibly informed by forthcoming Law Reform Commission work.

Concurring opinions (Judges Clarke, MacMenamin and Dunne) agreed, highlighting wider concerns about access to justice but concluding that any solution—civil legal aid, conditional fees, regulation of funders—requires legislative, not judicial, action.

Holding and Implications

APPEAL DISMISSED.

The funding agreement was declared unlawful and unenforceable. The decision confirms that professional third-party funding of Irish litigation remains prohibited unless the funder possesses a genuine, pre-existing interest. While several judges expressed unease about the potential barrier this creates for complex, high-cost cases, the Court signalled that only the legislature can recalibrate the balance between access to justice and the traditional doctrines of maintenance and champerty. No new precedent was set beyond affirming the continuing force of the established rule.