Persona Digital Telephony Ltd & anor -v- The Minister for Public Enterprise & ors, [2016] IEHC 187 (2016)

Docket Number:2001 9223P
Party Name:Persona Digital Telephony Ltd & anor, The Minister for Public Enterprise & ors

THE HIGH COURT[2001 No. 9223 P]






JUDGMENT of Ms. Justice Donnelly delivered the 20th day of April 2016.

  1. This application comes before the court by way of notice of motion dated the 25th March, 2015, whereby the plaintiffs seek, inter alia, the following relief:-

    “An Order, by way of a Declaration or otherwise, pursuant to the inherent jurisdiction of this Honourable Court and/or Order 34 of the Rules of the Superior Courts, that in entering into this litigation funding arrangement with Harbour Fund III, L.P., the Plaintiffs are not engaging in an abuse of process and/or are not contravening rules on maintenance and champerty.”

  2. The relevant facts and background to this application are set out in detail in a previous judgment of this Court, Persona Digital Telephony Ltd. v. Minister for Public Enterprise (No. 1) [2015] IEHC 457, on a preliminary issue to this motion, which resulted in the defendants being granted disclosure of the litigation funding agreement between the plaintiff and Harbour III L.P. subject to certain limitations. As was observed by the Supreme Court in the decision of Comcast International Holdings Inc. and Ors. v. Minister for Public Enterprise and Ors.; Persona Digital Telephony Ltd. and Anor. v. Minister for Public Enterprise and Ors. [2012] IESC 50, and indeed this Court in the preliminary judgment, this is a unique case. Apart from the factors set out by the Supreme Court, this case is also noteworthy as it is the first case to come before the courts in Ireland directly concerning the acceptability of professional third party litigation funding.

  3. In contesting the plaintiffs’ application, the defendants, including the State defendants, submitted that maintenance and champerty are criminal offences as well as torts in Ireland. Maintenance and champerty, they submit, are generally described as common law offences which have had statutory recognition for hundreds of years. The State defendants relied upon the Maintenance and Embracery Act 1634, which applied certain Acts of the English Parliament then in operation to Ireland. The Statute Law Revision Act 2007, which repealed all public Acts enacted prior to 1922 save for a “white list” of statutes specifically reserved, retained three statutes concerned with maintenance and champerty. These statutes are the Maintenance and Embracery Act 1540; the Maintenance and Embracery Act 1634; and, the Statute of Conspiracy (Maintenance and Champerty) of unknown date.

  4. According to the State defendants, s. 1 of the Maintenance and Embracery Act, 1634 adopted four such statutes as passed in the English Parliament, namely:

    (i) the Maintenance and Champerty Act 1275;

    (ii) the Champerty and Embracery Act 1300;

    (iii) the Statute of Conspiracy (Maintenance and Champerty) of unknown date

    (iv) the Maintenance Act 1326.

    The Court is satisfied that at least one more then extant statute was also adopted by the Act of 1634; namely, the Ordinance Concerning Conspirators 1305 which provided a statutory definition of champertors.

  5. The defendants also relied upon the fact that maintenance and champerty are recognised torts in this jurisdiction. The State’s submissions recognised that “it is also difficult to discover the origin of the torts of maintenance and/or champerty.” Reference was made to a submission of counsel in argument in British Cash and Parcel Conveyors Ltd v. Lamson Store Service Company Ltd. [1908] 1 K.B. 1006, decided over one hundred years ago, to the effect that “maintenance was a common law wrong giving rise to a civil action before it was made by statute a criminal offence.” According to the State defendants:-

    “[w]hile the accuracy of the foregoing is difficult to affirm it is nonetheless clear that the torts at issue have been part of the infrastructure of our litigation system since in or around the time of its foundation.”

  6. A very brief synopsis of the plaintiffs’ arguments is that the doctrines of maintenance and champerty operate to prevent any undermining of the administration of justice and they submitted that the doctrines should be applied in light of modern conceptions of propriety. The plaintiffs submitted that, despite juridical statements that maintenance is the support of litigation by a stranger without just cause and that champerty is an aggravated form of maintenance where the litigation is supported in return for a share of the proceeds, these features do not set the limits of what the doctrines mean. The plaintiffs submitted that the professional third party funding scheme must be considered in context and the question should be asked whether in the round and on the whole the transaction amounts to unlawful maintenance/champerty or whether it will enable a claim of great public importance to proceed and ensure the attainment of the constitutional guarantee of access to justice.

  7. With equal brevity, the defendants submitted that the torts of maintenance and champerty are still extant and that the courts, including the Supreme Court, have defined maintenance and champerty in terms that clearly encompass the funding agreement at issue in these herein proceedings. According to the defendants’ submissions, on long settled principles, the funding agreement is void for illegality. The defendants submitted that the plaintiffs were asking the court to vary the scope of the offences and torts of maintenance and champerty; an action which is beyond the jurisdiction of the court.


  8. A preliminary objection was raised by the defendants regarding the jurisdiction of the court to make the declaration set out in para. 1 above. Order 34 of the Rules of the Superior Courts governs the procedures to be adopted when making an application regarding a special case. The defendants argued that the application did not comply with the procedural requirements of O. 34; one of those requirements being that both parties concur in the statement of a question of law to the court. There is no concurrence between the parties here; therefore, this Court cannot proceed under O. 34.

  9. Cognisant of the restrictions placed upon the Court in this regard, the plaintiffs submitted that O. 34 is merely illustrative of the fact that the court has a jurisdiction to grant declaratory orders. Counsel relied upon the inherent jurisdiction of the court to grant such declaratory orders, such jurisdiction said to be evidenced under O. 19 r. 29 which enables the court to make declarations as to rights, both in relation to civil and criminal law. Order 19 is derived from s. 155 of the Courts of Chancery (Ireland) Act 1867 and was repeated in the Rules of the Superior Courts in 1905, 1963 and again in their present edition.

  10. The plaintiffs relied upon the decision of Clarke J. in Omega Leisure Ltd. v. Superintendent Charles Barry and Ors. [2012] IEHC 23 which examined whether the plaintiff, who sought to establish a bingo hall, was entitled to conduct gaming and lotteries in circumstances where it did not hold such a licence but acted as an agent for those who did. The defendants in Omega contested whether Omega Leisure Ltd. had standing to raise the issues by way of seeking declaratory relief. Clarke J. stated, at para. 2.3:-

    “The State argued that the court could not give, as it were, a carte blanche clearance to Omega certifying, in effect, that its activities were lawful. That point was accepted in part by Omega but nonetheless the principal aspect of the dispute between the parties under this heading was as to whether there was anything, in principle, unlawful about a company such as Omega conducting, on a large scale and on an agency basis, regular bingo sessions on behalf of charitable organisations who had the benefit of an appropriate licence under the 1956 Act.”

    Clarke J. quoted from Henchy J., speaking on behalf of the Supreme Court, in Tormey v. Ireland [1985] I.R. 289 as he considered the full original jurisdiction of the High Court when a jurisdiction had been granted to another court, the final sentence of which is particularly apposite:-

    “Save to the extent required by the terms of the Constitution itself, no justiciable matter or question may be excluded from the range of the original jurisdiction of the High Court.”

  11. Clarke J. observed that the inherent jurisdiction of the court flows from Art. 34.3.1˚ of the Constitution and he cited from Walsh J., speaking for the Supreme Court, in Transport Salaried Staffs’ Association and Ors. v. Córas Iompair Éireann [1965] I.R. 180 at 202-203 regarding the nature of declaratory relief in such proceedings:-

    “In modern times the virtues of the declaratory action are more fully recognised than they formerly were and English decisions and dicta in recent years have indicated a departure from the conservative approach to the question of judicial discretion in awarding declarations. A discretion which was formerly exercised ‘sparingly’ and ‘with great care and jealousy’ and ‘with extreme caution’ can now, in the words of Lord Denning in the Pyx Granite Co. Ltd. Case [1958] 1 QB 554, at p. 571, be exercised ‘if there is good reason for so doing,’ provided, of course, that there is a substantial question which one person has a real interest to raise and the other to oppose. In Vine v. The National Dock Labour Board [1957] 2 WLR 106, Viscount Kilmuir L.C., at p. 112, cites with approval the Scottish tests set out by Lord Dunedin in Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. [1921] 2 AC 438, who said, at p. 448:-

    ‘The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, some one presently existing who...

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