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 In that regard, she noted that the Statute Law Revision Act 2007 – which repealed all public acts enacted before 1922 (except for specified exceptions) – included in the 'white list' of preserved legislation a number of acts which were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.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.