Between prohibition and reform: Recent developments in Irish litigation funding

Introduction

Third-party litigation funding remains largely unlawful in Ireland, primarily due to the enduring common law doctrines of maintenance and champerty. (Maintenance is the funding of litigation in which the funder has no interest. Champerty is the funding of litigation in exchange for a share of the proceeds of that litigation.) These doctrines prohibit third parties from funding litigation in which they have no legitimate interest, a stance that sets Ireland apart from many other common law jurisdictions. For example, in the UK third-party litigation funding has been well established for over a decade and is credited with playing a key role in many group and consumer claims.

Limited Exceptions

Two key legislative developments were introduced in 2023 to allow for limited exceptions to the general prohibition.

• The Courts and Civil Law (Miscellaneous Provisions) Act 2023 allows third-party funding in the context of international commercial arbitration and related proceedings, though these provisions have not yet been commenced as of 2 July 2025.
• The Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 enables designated “Qualified Entities”, such as consumer organisations, to bring representative actions on behalf of consumers. While this Act permits third-party funding “insofar as permitted in accordance with law,” it does not override the general prohibition, meaning external commercial funding remains restricted unless it falls within a lawful exception.[1]

The Law Reform Commission (LRC) is also currently reviewing the broader legal framework around litigation funding.[2] A confirmed date for its final report has not yet been published but given previous typical timelines for other LRC projects, there is some cautious expectation that it may issue in the latter half of 2025.

Recent Case Law Developments

The general position that prohibitions against maintenance and champerty remains fully part of Irish law was affirmed by the Supreme Court in 2017 in Persona Digital Telephony Ltd v Minister for Public Enterprise[3]. In that case the Court considered a leapfrog appeal on the issue of “whether third party funding, provided during the course of proceedings (rather than at their outset) to support a plaintiff who is unable to progress a case of immense public importance, is unlawful by reason of the rules on maintenance and champerty”. 

While acknowledging the complexity and cost of litigation, and the potential benefits of funding for access to justice, the Court emphasised that public policy concerns, such as the risk of abusive litigation and interference with the administration of justice, underpin the prohibition.  The Supreme Court declined to reform the law from the bench, stating that any reform of these doctrines is a matter for the Oireachtas, not the judiciary.

Two recent cases have explored the boundaries of that Persona decision, offering insight into how Irish courts may approach funding arrangements in evolving contexts.

1. In Campbell v Irish Light[4], the High Court ruled that crowdfunded donations for litigation, where donors had no financial interest, did not amount to maintenance or champerty, as the donations were deemed charitable.

The defendant had sought to strike out the plaintiff’s proceedings, claiming that the plaintiff’s crowdsourced funding arrangements amounted to maintenance and champerty and were contrary to the decision in Persona.

It was accepted that the plaintiff had received financial contributions from approximately 1,000 individuals, averaging €23 each, to support her legal action. The plaintiff contended, however, that these donations were made for altruistic reasons, not for personal gain. On that basis, she argued that the funding did not constitute maintenance, and since no donor stood to profit from the outcome, it could not be considered champerty.

The High Court reiterated that maintenance involves providing support or encouragement in litigation by someone with no legal interest or recognised justification for doing so. The central issue, the Court noted, was whether the donors’ motives qualified as a legally acceptable justification. Given the high threshold required to strike out proceedings at an early stage and the absence of any challenge to the plaintiff’s claim that the donations were charitable, the Court declined to grant the defendant’s application.

2. In Scully v Coucal[5], the Supreme Court addressed whether a Polish judgment, obtained on foot of a Polish third-party funded claim, could be enforced in Ireland, despite Irish law prohibiting the assignment of a bare cause of action as contrary to the prohibition against champerty. The case arose after investors in a failed Polish property venture assigned their claims to an Irish company, Coucal Ltd, which successfully sued the developer, Mr. Scully, in Poland. When Coucal sought to enforce the €6.33 million judgment in Ireland, Mr. Scully objected, arguing that the assignment violated Irish public policy, particularly the prohibition on champerty.

The Supreme Court overturned the Court of Appeal’s refusal to enforce the judgment. Chief Justice O'Donnell emphasized that Irish courts are not being asked to validate the assignment under Irish law, but rather to recognise a judgment lawfully obtained in another EU Member State (which did not have similar restrictions regarding the assignment of bare cause of action). He stressed that public policy exceptions under the Brussels Recast Regulation must be interpreted narrowly and should only apply where enforcement would fundamentally conflict with the legal order of the enforcing state. The Court found that the public interest in mutual recognition of EU judgments outweighed domestic concerns about third-party funding, especially given the absence of any abusive or speculative litigation practices in the case.

Conclusion

These recent decisions in Campbell and Scully suggest a subtle but notable shift in the Irish courts’ approach to third-party litigation funding. While the core prohibitions on maintenance and champerty remain firmly in place, the judiciary appears increasingly willing to distinguish between exploitative funding arrangements and those that serve legitimate access to justice objectives, particularly where EU law or charitable motives are involved. Whether these cases mark the beginning of a broader liberalisation or remain confined to their facts will likely depend on the outcome of the LRC’s forthcoming recommendations on third-party litigation funding.

[1] So far only two organisations have been designated Qualified Entities – the Irish Council for Civil Liberties (ICCL) and the European Centre for Digital Rights (noyb). In May 2025, the ICCL announced that  it had secured permission to bring Ireland’s first ever class action. The case targets a “Real-Time Bidding” (RTB) data breach involving Microsoft’s advertising system, which the ICCL claims affects consumers across the EU.

[2] The final report and recommendations of the LRC is awaited following the closure of submissions to its 2023 Consultation Paper.

[3] 2017 IESC 2017

[4] 2025 IEHC 223

[5] 2025 IESC 20