{"id":28617,"date":"2023-10-29T23:55:01","date_gmt":"2023-10-29T23:55:01","guid":{"rendered":"https:\/\/legalblog.ie\/?p=28617"},"modified":"2023-11-12T00:10:33","modified_gmt":"2023-11-12T00:10:33","slug":"funding-anothers-case","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/funding-anothers-case\/","title":{"rendered":"Funding Another&#8217;s Case"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/funding-anothers-case\/#Maintenance_and_champerty\" title=\"Maintenance and champerty\">Maintenance and champerty<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/funding-anothers-case\/#Permitted_Maintenance\" title=\"Permitted Maintenance\">Permitted Maintenance<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/funding-anothers-case\/#Champerty\" title=\"Champerty\">Champerty<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/funding-anothers-case\/#Assistance\" title=\"Assistance\">Assistance<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/funding-anothers-case\/#Solicitor_No_Foal_No_Fee\" title=\"Solicitor No Foal No Fee\">Solicitor No Foal No Fee<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/funding-anothers-case\/#Contrast_with_UK\" title=\"Contrast with UK\">Contrast with UK<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Maintenance_and_champerty\"><\/span>Maintenance and champerty<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Maintenance is the of giving assistance to or encouraging of another in taking legal action by a person who does not have an interest in the action or other motive sufficient to justify his involvement.\u00a0 At common law, barratry was committed by a person who moved, encouraged and maintained suits or quarrels.<\/p>\n<p>Barratry was an indictable offence at common law, which has largely became obsolete. Maintenance is a misdemeanour at common law.\u00a0 It is also prohibited by various statutes.\u00a0 Maintenance is a civil wrong and a person may be liable in damages to the other party to the action.\u00a0 The action may be brought by a party to the proceedings which have been maintained if he has suffered special damages.<\/p>\n<p>Maintenance applies only to civil proceedings.\u00a0 It arises only if an action is commenced.\u00a0 However, a person who without reasonable and probable cause instigates another to bring action may incur civil liability to the defendant similar to that incurred in maintenance.<\/p>\n<p>There are exceptions to the general principle against maintenance of an action that have been recognised at common law.\u00a0 Charity may justify what would otherwise constitute maintenance.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Permitted_Maintenance\"><\/span>Permitted Maintenance<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A person may maintain near kinsmen, employees, neighbours, coreligionists from charitable motivations.\u00a0 He must have a bona fide belief in the justice of the action.\u00a0 He need not have made a full inquiry into the matter, provided that he has reasonable ground.\u00a0 A mercenary bargain if accompanying the charitable motive may take it out of the exception. Where there is no question of poverty, the kinship exception may not be available.\u00a0 Some cases have restricted it to relatively near relatives.<\/p>\n<p>A persons may encourage another\u2019s litigation, where he reasonably believes that they have a common interest in the action.\u00a0 It \u00a0must be a common interest recognised at law on the subject matter of the action or issues between the parties to the case.\u00a0 The common interest must be directly in \u00a0issue and must be real and definable.\u00a0 The interest is most commonly a proprietary interest. It must not be sentimental or incidental to the matter in hand.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Champerty\"><\/span>Champerty<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Champerty is a type of maintenance.\u00a0 It is maintenance in consideration of a promise to share in the proceeds of recovery of litigation.\u00a0 Champerty is not subject to a defence of the types mentioned above.<\/p>\n<p>An agreement with the champertist will not be enforced.\u00a0 This extends to all agreements which \u201csavour of\u201c champerty\u201d\u00a0 They are said to be against the public policy by tending to promote unnecessary litigation.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Assistance\"><\/span>Assistance<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An agreement to give information in return for getting a share of property recovered is potentially legal.\u00a0 If however, the person giving the information is to recover or actively assist in recovering the property, the agreement may not be enforced.<\/p>\n<p>An agreement to supply funds or legal assistance for litigation in return for a share of the proceeds is void as champertist.\u00a0\u00a0An agreement which is champertist is void and unenforceable.\u00a0 An agreement to indemnify a person against a civil wrong is unenforceable and may constitute a civil wrong in itself.\u00a0 However an agreement to indemnify a person against costs and damages made in for some legitimate interest is permitted.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Solicitor_No_Foal_No_Fee\"><\/span>Solicitor No Foal No Fee<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Some cases indicate that an agreement by a solicitor to charge no costs is unobjectionable.\u00a0 If the solicitor acts bona fide and seeks to discover whether there is a proper cause \u00a0of action, it is permissible to take a case on the basis of not receiving a fee.\u00a0 An agreement to pool fees for recoveries by a copyright society has been upheld.<\/p>\n<p>Funding, being made by a party without an interest in the litigation and for the purpose of a share in the profits amounts to maintenance and champerty on those authorities. In so far as maintenance and champerty are rules of public policy, it has already been determined that these professional third party funding agreements give rise to legal impropriety which offends those rules.<\/p>\n<p>Offences<\/p>\n<p>The ingredients of the offences (and also the torts) of maintenance and champerty have been stated clearly by the Superior Courts of Ireland to prohibit professional third party funding, there are no grounds for entering into an examination of whether the interpretation given to the torts and offences is in accordance with the Constitution.<\/p>\n<p>Maintenance and champerty continue to be torts and offences in this jurisdiction. There is a prohibition on an entity funding litigation in which it has no independent or bona fides interest, for a share of the profits. A professional third party litigation funder, will generally haves no independent interest in present litigation.<\/p>\n<p>Funding, being made by a party without an interest in the litigation and for the purpose of a share in the profits amounts to maintenance and champerty on those authorities. In so far as maintenance and champerty are rules of public policy, it has already been determined that these professional third party funding agreements give rise to legal impropriety which offends those rules.<\/p>\n<p>The ingredients of the offences (and also the torts) of maintenance and champerty have been stated clearly by the Superior Courts of Ireland to prohibit professional third party funding, there are no grounds for entering into an examination of whether the interpretation given to the torts and offences is in accordance with the Constitution.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Contrast_with_UK\"><\/span>Contrast with UK<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There is a difference in approach between the Irish courts and those of England and Wales. Maintenance and champerty continue to be torts and offences in Ireland. There is a prohibition on an entity funding litigation in which it has no independent or bona fides interest, for a share of the profits. A professional third party litigation funder, will generally haves no independent interest in present litigation.<\/p>\n<p>Third party funding arrangements cannot be viewed as being consistent with public policy in this jurisdiction or that modern ideas of propriety in litigation have expanded to such an extent to afford this Court the opportunity to characterise this funding arrangement as acceptable.<\/p>\n<p>Third party funding arrangements cannot be viewed as being consistent with public policy in this jurisdiction or that modern ideas of propriety in litigation have expanded to such an extent to afford this Court the opportunity to characterise this funding arrangement as acceptable.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-28617\" data-postid=\"28617\" class=\"themify_builder_content themify_builder_content-28617 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Maintenance and champerty Maintenance is the of giving assistance to or encouraging of another in taking legal action by a person who does not have an interest in the action or other motive sufficient to justify his involvement.\u00a0 At common law, barratry was committed by a person who moved, encouraged and maintained suits or quarrels. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[360,271],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/28617"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=28617"}],"version-history":[{"count":5,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/28617\/revisions"}],"predecessor-version":[{"id":29192,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/28617\/revisions\/29192"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=28617"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=28617"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=28617"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}