Wednesday 21 February 2018

Bid to overturn ban on €10m fund to fight O'Brien case

The Supreme Court has been urged to overturn a ruling preventing an English company funding a legal action over the 1996 award of the State’s second mobile phone licence to Esat Digifone, a company of businessman Denis O’Brien. (Stock image)
The Supreme Court has been urged to overturn a ruling preventing an English company funding a legal action over the 1996 award of the State’s second mobile phone licence to Esat Digifone, a company of businessman Denis O’Brien. (Stock image)

Tim Healy

The Supreme Court has been urged to overturn a ruling preventing an English company funding a legal action over the 1996 award of the State's second mobile phone licence to Esat Digifone, a company of businessman Denis O'Brien.

Unless the Supreme Court does so, Persona Digital Telephony said it will have to drop its case against the State, Mr O'Brien and former government minister Michael Lowry because it does not have the estimated €10m necessary to continue it.

The case is of significant public importance and it is in the interests of justice and public policy to let it proceed, Michael Collins SC argued. The court must decide if the type of third-party funding involved here is contrary to public policy and his side contended it was not.

Counsel was opening the appeal by Persona and Sigma Wireless Networks Ltd against a High Court decision the intended funding arrangement with Harbour III Limited Partnership is impermissible because of the law here on maintenance and champerty.

Maintenance involves improper interference in civil proceedings often by way of provision of financial assistance.

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 in the spoils of any proceeds from the litigation or some other profit.

Non-party funding of litigation here is permitted only where it does not breach either of these prohibitions.

Persona argued its arrangement with Harbour does not contravene the rules.

Should the case be successful, it is understood the funder will get some 40pc of any proceeds or damages.

Opposing the appeal, John O'Donnell SC, for the State, argued Irish law does not permit maintenance or champerty, that position was reinforced in 2007 by legislation and any change could only be effected by legislation, not the courts.

The appeal continues.

Irish Independent

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