Tuesday 25 July 2017

Court rejects appeal on third party funding

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Tim Healy

AN English company cannot fund legal action here taken over the 1996 award of the State's second mobile phone licence to a company headed by businessman Denis O'Brien, the Supreme Court has ruled.

The Supreme Court upheld the High Court's April 2016 finding that Persona Digital Telephony's funding arrangement with Harbour III Limited Partnership is impermissible. Harbour was to get an estimated 40pc of any return from the litigation against the State and Mr O'Brien whose Esat Digifone company won the licence.

The court upheld a finding that the Persona arrangement was unlawful under laws prohibiting "maintenance and champerty".

Chief Justice Susan Denham said third party funding to support a plaintiff is unlawful and none of the exceptions to that provision applied in the case.

A person who assists another's case without a bona fide independent interest acts unlawfully, she held.

Maintenance involves improper interference in civil proceedings including by providing financial help. Champerty refers to financial support provided in exchange for a share of proceeds if the case is won.

A number of judges voiced disquiet that the ruling may prevent a case of major importance going to court.

There is "a very real problem" in practice about access to justice, Mr Justice Frank Clarke said.

Mr Justice William McKechnie said he personally would defer making any order and invite the State to address the "deeply disturbing" situation of Persona being unable to prosecute its case "solely because of the continuing existence of ancient principles of law".

Irish Independent

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