Ireland: Old Limitations On Third-Party Funding Still Apply

Last Updated: 31 May 2016
Article by Gearóid Carey


Historically, Irish law precluded parties with no connection or interest in proceedings from taking any part in or deriving any benefit from them. This was reflected in the common law principles of maintenance(1) and champerty,(2) which were given legislative footing in ancient statutes enacted long before Ireland was an independent state. In a recent decision, the High Court confirmed that both maintenance and champerty remain part of Irish law (and remain both torts and offences).(3) The decision is significant to third-party funders, which face a challenging legal landscape in Ireland.


The background to the High Court dispute arose out of the award of a mobile telephone licence in the 1990s. The plaintiff was the runner-up in a competition for the licence, arising from which the plaintiff commenced proceedings in 2001 claiming that there were irregularities with regard to the competition. The plaintiff recently advised the court that it could not continue to fund the litigation, but that a UK company was willing to do so for a share of the proceeds should the plaintiff prevail in the proceedings. Accordingly, the plaintiff sought a declaration that the proposed arrangement with the funder was not an abuse of process and did not contravene the principles of maintenance and champerty. At the outset, Judge Donnelly observed that not only was the underlying dispute unique, but the issue under consideration was the first Irish case directly concerning the acceptability of third-party funding.


The judge undertook a lengthy review of maintenance and champerty and their components as a matter of Irish law and recorded the defendants' contention that they were common law offences which had had statutory recognition for hundreds of years. She also paid particular attention to prior Irish authorities which had considered the relevant principles. The judge went on to look at applicable legislative provisions, including those enacted long before the foundation of the Irish State. In that regard, she noted that the Statute Law Revision Act 2007 – which repealed all public acts enacted before 1922 (except for specified exceptions) – included in the 'white list' of preserved legislation a number of acts which were concerned with maintenance and champerty.

At the end of her review, the judge felt that the plaintiffs were asking the court "to develop the law of maintenance and champerty beyond what has been generally understood in this jurisdiction". While she conceded that the application before her was unique, she stated that this did not enable her to depart from the considerable jurisprudence.

Although she felt that the approach adopted by the legislature in enacting the Statute Law Revision Act 2007 was not determinative, she held that it was significant because it retained maintenance and champerty as torts and offences. That legislation involved a continuation of the components of the torts and offences involved and it was the court's job to consider whether the third-party funding in respect of which approval was sought fell foul of these torts and offences.

The judge went on to cite English authority, which adopted a more lenient interpretation of maintenance by reference to 'legal impropriety'; but she also observed that Irish case law adopted a different approach. Although a leading English case had doubted "whether any of the attempts at giving definitions of what constitutes maintenance in the present day are either successful or useful",(4) subsequent Irish authority had approved of and used such definitions and the judge felt bound by these. She made particular reference to Judge Clarke in Thema and cited him to the following effect:

"In Ireland it is unlawful for a party without an interest (or some other legitimate concern including charity) to fund the litigation of another at all and, in particular, it is unlawful to fund litigation in return for a share of the proceedings. The only form of third party funding which is, therefore, legitimate in Ireland is one which comes within the exceptions to maintenance and champerty."(5)

She reiterated that "the law of maintenance and champerty continue to exist in this jurisdiction", and the jurisprudence is clear that "the provision of assistance with a view to supporting litigation in return for a share of the proceeds in the absence of a bona fide interest is contrary to public policy and constitutes an abuse of process". She went on to observe that:

"While 'modern ideas of propriety' may not necessarily include such deep suspicion of properly policed professional third party funding agreements having regard to changing views on public policy in other common law jurisdictions, the entrenched statements as to the prohibition of such type of agreements in this jurisdiction means that any amendment to that position may, at the very least, be for an appellate court, if not the legislature."

Ultimately, the judge concluded that maintenance and champerty continue to be torts and offences in Ireland and, as such, it is prohibited for an entity to fund litigation in which it has no independent or good-faith interest for a share of the profits. Consequently, such arrangements "cannot be viewed as being consistent with public policy in this jurisdiction".

The judge alluded to the implications that maintenance and champerty have for access to justice and the constitutional guarantee of equality. However, she acknowledged that the application before her was not a constitutional challenge and no declaration of unconstitutionality had been sought as part of the case. It may be that this is an avenue which a future applicant may pursue.


The decision confirms that third-party funding arrangements which constitute maintenance or champerty are not permissible as a matter of Irish law. While other common law jurisdictions are more receptive to third-party funding arrangements, the law in Ireland remains restrictive because of the continued existence of the torts and offences of maintenance and champerty. For potential plaintiffs, therefore, the possibility of seeking to avail of third-party funding to progress a claim in Ireland is limited. Great care should be taken before commencing litigation to determine whether the plaintiff can fund the case itself, as third-party funding as a subsequent option may not be possible.


(1) 'Maintenance' is the improper interference in proceedings, typically by way of providing financial assistance or support.

(2) 'Champerty' is a form of maintenance where financial support is provided by a party with no connection to the dispute in exchange for a share of the litigation proceeds.

(3) Persona Digital Telephony Ltd v Minister for Public Enterprise, [2016] IEHC 187.

(4) Per Lord Justice Fletcher Moulton in British Cash and Parcel Conveyors Ltd v Lamson Store Service Co, [1908] 1 KB 1006, page 1013.

(5) Thema International Fund plc v HSBC Institutional Trust Services (Ireland) Ltd, [2011] 3 IR654, page 662.

This article first appeared in the International Law Office Litigation newsletter, 24 May 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions