I move amendment No. 1:
In page 15, between lines 30 and 31, to insert the following:
“Maintenance and champerty shall not apply to a representative action brought by a qualified entity
20. (1) The Minister may, for the purposes of this Act, by regulation prescribe criteria, including criteria relating to transparency in relation to funders and recipients, for third-party funding contracts.
(2) In this section, “third-party funding contract” means a contract or agreement between a party or potential party to dispute resolution proceedings and a third-party funder, for the funding of all or part of the costs of the proceedings either on a philanthropic basis or in return for a share or other interest in the proceeds.”
As always, the Minister of State, Deputy Calleary, is very welcome. I will speak briefly on this amendment which seeks to ensure that maintenance and champerty do not apply to dispute resolution proceedings as a new subsection in section 19. This is a point we raised at the pre-legislative scrutiny stage and on Second, Committee and Report Stages in the Dáil. As it currently stands, the legislation states that all costs will be borne by the qualified entity. This point is complicated by the nature of the cost of bringing a court case, as well as the fact that only nominal fees can be accepted by qualified entities. Hence, the difficulty this poses for qualified entities can be seen.
Dr. Johnny Ryan from the Irish Council of Civil Liberties pointed out that Article 21 of the directive provides that member states shall take account of the non-profit making character of qualified entities in ensuring a lack of funding is not a bar to bringing representative actions. We believe the Bill needs to be slightly reconfigured to enable non-profit organisations to source funding for collective actions, given that it will not be free or, indeed, cheap to take such actions. Failure to resolve this would mean customers will be disadvantaged. Indeed, not applying maintenance and champerty to dispute resolution proceedings is precisely what the Government did for international arbitration in section 114 of the Courts and Civil Law (Miscellaneous Provisions) Bill 2022.
I note from the contribution of the Minister of State on Report Stage in the Dáil that the whole issue of champerty and maintenance is being considered by the Law Reform Commission. I am further aware that a report is due on the matter and it will place the issue of champerty into a context that we can proceed with. On that point, does the Minister of State have an idea when that report will be finalised? After the report is issued, how does he intend to proceed to address this issue? Will the Minister of State give me a commitment that qualified entities will be allowed scope to raise funds for collective redress actions through philanthropy or other such benign measures?
