Friday, 6 September 2019

Questions (606)

Thomas P. Broughan


606. Deputy Thomas P. Broughan asked the Minister for Justice and Equality his views on the issue of litigation funding and access to justice; and if he will make a statement on the matter. [35632/19]

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Written answers (Question to Justice)

As the Deputy may be aware, the funding of litigation in this jurisdiction is illegal.  By way of information, both common law and the Statute Law Revision Act 2007 seek to prevent spurious or frivolous litigation through the torts and offences of “maintenance” and “champerty”. 

“Maintenance” may be defined as giving financial assistance or encouragement to a party to litigation by a person who does not have an interest in the litigation or any motive recognised by the law which would justify interference.  “Champerty” may be defined as an aggravated form of maintenance as it involves the support of litigation by a non-party for a share of the proceeds. 

Aspects of litigation funding are also considered to be contrary to public policy.  In particular, litigation funding may drive a market in legal claims and promote litigation for the benefit of the promoter rather than the litigant.  This in turn may create a substantial injustice to a defendant in an action.

As recently as 23 May 2017, the Supreme Court confirmed that professional third party funding does offend the rules of maintenance and champerty (Persona Digital Telephony Ltd. and others v The Minister for Public Enterprise, Attorney General and others). The Supreme Court also considered the potential for new legislation and other broader aspects of the policy approach in this area.

I am also mindful that there have been developments in relation to these matters in other common law jurisdictions. The torts and crimes of maintenance and champerty were abolished in England and Wales under the Criminal Law Act of 1967 and in a number of States in Australia. New Zealand on the other hand has retained both.

As the Deputy will appreciate, there are a number of legal and broader policy aspects of litigation funding that need to be further considered.  In that context, consideration will be given to the anticipated report and recommendations of the Law Reform Commission consultation arising from its June 2016 Issues Paper on "Contempt of Court and Other Offences and Torts Involving the Administration of Justice". I am advised that under Issue 6 of this paper, the Commission has opened up the retention of the related crimes and torts of “maintenance” and “champerty” to public consultation, along with the question of whether third-party funding of litigation should be permitted.