SPv Osus Ltd v HSBC Institutional Trust Services (Ireland) Ltd & ors

Factual and Procedural Background

The Supreme Court heard an appeal brought by Plaintiff/Appellant against four respondent entities (collectively referred to here as Company A, Company B, Company C and Company D). The excerpted judgment is a concurring opinion delivered by Judge Clarke, who expressly adopts the primary analysis and the ultimate order proposed by Judge O’Donnell. Although the precise factual matrix of the underlying dispute is not set out in the passage provided, it is clear that the case concerns the attempted assignment of a cause of action to the Plaintiff/Appellant and the compatibility of that assignment with long-standing common-law rules on maintenance and champerty.

Legal Issues Presented

1. Whether, under Irish common law, a bare assignment of a cause of action is permissible or remains prohibited as a form of maintenance and champerty.
2. The extent to which courts can or should modify these common-law rules in the absence of detailed legislative regulation.
3. The broader question of how access-to-justice concerns should be balanced against the risks of an unregulated market in litigation claims.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The concurring opinion proceeds in the following steps:

• Adoption of Primary Judgment: Judge Clarke expressly agrees with the legal analysis and the order proposed by Judge O’Donnell, indicating consensus among the panel.
• Access-to-Justice Concerns: The judgment reiterates observations made in Persona about escalating litigation costs—particularly discovery obligations associated with electronic data—and the resulting barriers to effective vindication of rights.
• Distinction Between Funding and Assignment: The Court distinguishes third-party funding (where the wronged party remains the plaintiff) from assignment (where the assignee, who suffered no wrong, controls the litigation), noting that each raises distinct policy concerns.
• Need for Legislative Action: While acknowledging that both funding and assignment could form part of a solution to access-to-justice problems, the Court reasons that any significant change must be implemented through legislation establishing a “properly regulated scheme.”
• Risk of Unregulated Markets: Judicial recognition of bare assignments could create an unregulated market in litigation, with unpredictable and possibly harmful consequences.
• Corporate Structuring Observation: The judgment recognises that corporate share transfers can, in practice, achieve much of what an assignment would do, but considers this fact insufficient to justify judicially overturning established doctrine.
• Conditional Warning: The Court notes that if the legislature fails to act, the judiciary may eventually have no alternative but to revisit the doctrines to avoid denial of justice.

Holding and Implications

HOLDING: The Supreme Court concurred with the reasoning of Judge O’Donnell and adopted the order he proposed; the specific terms of that order are not detailed in the provided excerpt.

IMPLICATIONS: The decision reaffirms the existing common-law prohibition on the bare assignment of causes of action and underscores that any relaxation of this rule should come from the legislature, not the courts. No new precedent was set; rather, the Court maintained the status quo while signalling that continued legislative inaction might force judicial reevaluation in future cases.