Chief Justice highlights the need to consider litigation funding reform for access to justice in Ireland

The Chief Justice of Ireland has spoken out, identifying reform of third-party litigation funding, as a possible means through which access to justice can be improved in Ireland. Ireland is one of the last jurisdictions in the world where litigation funding is largely prohibited by law.

Mr Justice Donal O’Donnell said consideration of the reform and regulation of third-party funding was one of several areas in which efforts could be made to improve access to justice.

Speaking last month, at an event on access to justice, he noted it was not enough to provide access to courtrooms and judges when “ordinary citizens, or indeed, substantial businesses” face many barriers that limit their capacity to bring disputes to court and obtain a fair resolution.

Litigation funding is subject to the rules of maintenance and champerty in Ireland. While such rules have been abolished in other common law jurisdictions, both remain criminal offences in Ireland. This means professional litigation funding is unlawful and third-party funders are currently unable to offer their service to litigants in the jurisdiction.

“I think it is now better understood that progress in this area involves careful work by those who are attempting to simplify court procedures, voluntary groups providing advice and assistance, private practitioners providing services sometimes pro bono, and perhaps consideration of the reform and regulation of third-party funding models for private litigation,” he said.

At present, the only types of third-party funding allowed are where the funder has a legitimate interest in the proceedings, such as a shareholder in a company involved, and after the event insurance, where an insurer who provides cover to plaintiffs to protect them if their litigation is unsuccessful.

This is not the first time the issue has been raised in Ireland, a civil law review group headed by former High Court President Peter Kelly in 2020 found third party funding may facilitate access to justice for poorly resourced claimants who, in the absence of a comprehensive civil legal aid system, may not otherwise be able to pursue a legitimate claim.

Erso Capital is active across Europe and welcomes talk of reconsideration of the outdated enforcement of champerty and maintenance laws in the jurisdiction. We are standing by ready to support Irish litigants in need of funding, should Ireland join other common law jurisdictions around the globe in acknowledging the need for litigation funding to provide access to justice.