Funding arrangement in legal claim barred as ancient law remains

An ancient law that was dismissed as obsolete in Britain in 1967 was retained by the Irish Government in 2007 and bars a funding arrangement in a legal claim against Denis O’Brien, Michael Lowry and the State, the High Court heard yesterday.

Justice Aileen Donnelly has been asked to decide whether an English company called Harbour Litigation Funding is entitled to fund another company called Persona Digital Telephony and Sigma Wireless Networks in its claim in the Irish courts. Harbour will take part of the proceeds if Persona’s litigation is successful.

Persona claims that Businessman Denis O’Brien’s Esat Digifone consortium won a competition for a mobile phone licence in 1996 by bribing the then minister for communications Michael Lowry — which is denied. Persona was the runner-up in the licence competition.

The case was brought against the minister for enterprise and the State. Mr O’Brien secured an order allowing him to be joined in the proceedings last year while Mr Lowry, now an independent TD, is a third party to the case.

The funding arrangement that would finance Persona to bring the case to court is prohibited by the law of champerty, which was introduced during British rule and has not been updated since 1634.

Speaking at the High Court, John O’Donnell, for the State, said the law may be old, but it is still the law of the land and was reaffirmed in 2007. He said the attorney general had, in 2007, carried out a public review of all laws enacted prior to 1922 and repealed thousands that were considered obsolete.

“In 2007 when the legislature was looking at the statutes it would retain or repeal it elected not to amend the laws relating to maintenance and champerty,” adding: “Because the legislature did not change the law on maintenance and champerty it is not for the courts to develop a common law in respect of the statutes.”