A Step Closer to Litigation Funding?

Earlier this week, the Irish Superior Courts delivered judgments in two separate cases which will be of interest to those following the status of third party litigation funding in Ireland.

Unlike in many other common law jurisdictions, third party litigation funding is not generally permissible in Ireland as maintenance and champerty remain unlawful. However, it is generally accepted that this strict prohibition contributes to issues regarding access to justice and many expect reform in the near future (beyond permitting third party funding in the context of international commercial arbitrations and related proceedings under section 124 of the Courts and Civil Law (Miscellaneous Provisions) Act 2023, once commenced).

In Campbell vs Irish Light [2025] IEHC 223, the Defendant, in the context of an application to strike-out the Plaintiff’s proceedings on the basis that they were unlawful, vexatious and bound to fail, also argued that the proceedings being prosecuted by the Plaintiff were unlawful because the Plaintiff had the benefit of online fundraising, which someone else had set up on her behalf. The Defendant argued that this amounted to maintenance and champerty and was therefore unlawful, citing the Supreme Court’s decision in Persona Digital Telephony Ltd vs Minister for Public Enterprise, Ireland [2017] IESC 27. It was not disputed that the Plaintiff was in receipt of monies which had been donated by c. 1,000 individuals, with an average donation of EUR23, intended to assist with the funding of her litigation. However, the Plaintiff averred that the donors had donated for charitable reasons. On this basis, the Plaintiff argued that the donations could not amount to maintenance and that, as no one was seeking to gain financially from the litigation, it could not amount to champerty.

The High Court noted that maintenance was the giving of assistance or encouragement to one of the parties in an action by a person who has neither an interest in the action nor any other motive recognised by law as justifying his interference. The Court further noted that the issue at hand was what amounts to an “other motive recognised by law”. In light of the very high bar which the Defendant had to meet to have the proceedings struck-out at this stage and in light of the fact that there was no challenge to the Plaintiff’s assertion that the donor’s motives were charitable in nature, the High Court refused the Defendant’s application. 

In Scully v Coucal [2025] IESC 20, the Supreme Court overturned the decision of the Court of Appeal, which had held that a Polish judgment was not enforceable in Ireland because it was manifestly contrary to public policy. The Court of Appeal made this conclusion on the basis that the Polish judgment was obtained on foot of an assignment of claims by the original claimants to a company in which the original claimants had an interest. It was argued that the assignment permitted the onward assignment of a bare cause of action. The assignment of a bare cause of action is not permitted as a matter of Irish law as it said to “savour of champerty” and it was on this basis that the Court of Appeal refused to enforce the Polish judgment.

In overturning the decision of the Court of Appeal, the Supreme Court held that just because public policy would preclude something if done in Ireland, under Irish law, it does not necessarily follow that an Irish Court must deny recognition when done elsewhere and in accordance with the law of the legal system of the Member State whose judgment the Irish Courts are generally bound to recognise and enforce. The Supreme Court found that the public policy considerations that weigh against enforcement of an assignment of a cause of action are “substantially balanced if not outweighed” by the public policy in favour of giving effect to judgments given in courts of another Member State. The Court also found that the public policy against enforcement of assignments of actions was not static.

While third party litigation funding is still outlawed in Ireland, these two judgments potentially show a willingness on the part of the judiciary to adopt a more liberal approach to certain issues touching upon maintenance and champerty. It will be interesting to see whether these judgments are indicative of a developing trend towards the liberalisation of the law in this sphere or whether they are merely confined to their facts.