Government must not block access to justice

First published in the Sunday Business Post 20 September 2015

Why is the government once again attempting to deny Irish citizens access to justice?

A government source confirmed to Pat Leahy in last week’s Sunday Business Post that it would introduce legislation to copperfasten Ireland’s ban on third party litigation funding.

This obscure doctrine of champerty was introduced in Ireland during centuries ago under the Maintenance and Embracery Act 1634. The support of someone else’s legal claim in exchange for a share of the potential damages is a criminal offence in Ireland. Champerty was abolished in England and Wales in 1967. Third party litigation funding is standard practice in Australia and the US.

Ireland is an outlier within common law jurisdictions. Why does the government want to buck this international trend of making the justice system accessible to all, regardless of access to financial resources? For now it is not said. But it would essentially undermine one high profile case that is imminent.

The Persona/Sigma consortium was a runner-up in the 1996 competition for the mobile phone licence, which was awarded to Esat Digifone. In a long running High Court case, Persona/Sigma is challenging the decision, arguing it should have been the winner.

Persona/Sigma is claiming substantial damages for the loss of the mobile phone licence. Denis O’Brien has sought and been granted permission to join the case as a co-defendant with the state.

Persona does not have the financial resources to fund this expensive court action. It has engaged the services of Britain based Harbour Litigation, one of the world’s largest litigation funders. The High Court will rule in October on the propriety of the arrangement.

The government will oppose this. If it loses it may seek to introduce legislation to copperfasten the existing provisions in preventing third party funders from operating in Ireland. If this succeeds, Persona/Sigma will be unable to take their action against the State.

This is a politically sensitive case. Yet it must not blind the government to the broader general principle of access to justice. Ireland is behind the international curve of recent innovative developments in Britain and the US on third party funding.

This is not the first time that the Irish government has tried to deny Irish citizens equality before the law because they did not have deep pockets.

Mrs Josie Airey made legal history in 1979 when the European Court of Human Rights upheld her claim that the Irish government denied her access to justice.

The Corkwoman successfully argued that her right to a “fair and public hearing” under Article 6 of the European Convention on Human Rights was breached because she could not afford the legal fees to get a legal separation from her violent husband.

The concept of a justice system defined by fairness to all citizens, not just the rich and powerful, was already long established in Britain under the 1949 Legal Aid and Advice Act. This act enabled the vindication of rights for ordinary citizens without fear or favour. Mrs Airey and her barrister Mary Robinson forced the Irish government to uphold it’s Republican principles of equality before the law and introduce a free civil legal aid scheme.

Why is Mrs Airey’s struggle for justice different to that of Persona?

In his graveside oration on Friday for the executed 1916 rebel, the Taoiseach made reference to the Proclamation. Commandant Thomas Kent died for a Proclamation which proclaimed that the “Republic guarantees religious and civil liberty, equal rights and equal opportunities of all its citizens.”

These are not just words on paper. They are the fundamental values of a country’s justice system.

This danger of values becoming just words on paper is what motivated the President of the UK Supreme Court to explain why he believes in third party litigation funding.

“In order for a state to remain inclusive it must not just express a commitment to the rule of law: it must provide effective mechanisms through which its citizens have genuine access to the courts. Only then can they begin to have equality before the law; only then can they hold the powerful to account; only then can they render their legal rights a true reality rather than words on paper.”

In his 2013 lecture to Harbour Litigation, Lord Neuberger of Abbotsbury also expressed his concern that when citizens are financially unable to gain access to justice, “then the possibility exists for society to become exploitative, as some elements take advantage of the fact that they can ignore the law with relative impunity.”

Third party litigation funding has dramatically developed in the last year to include crowdfunding platforms which offer investors the chance to invest in commercial or public interest cases.

Last November saw the launch of LexShares in the US. Claimants or their attorneys can apply to have cases posted on the site. “We’re revolutionising access to the justice system,” asserts the blurb on their website. “By helping connect plaintiffs with capital, we level the playing field for those unable to afford access to the justice system,” it claims. All six of the “lawsuit investment opportunities” on the LexShares website have secured full funding, ranging from $85,000 to $250,000.

In June this year, CrowdJustice was established in the UK. It crowdsources funding for public interest cases through its website because “it shouldn’t be scary or prohibitively costly to access the law.”

One example from the CrowdJustice website is Denise Brewster’s Supreme Court case for equal pension rights to cohabiting couples. Although the Derry woman from Coleraine lived with her partner for ten years, she is prohibited from benefiting from the payments her deceased partner made into his occupational pension.

Denise turned to CrowdJustice for the £4,000 fees because “I don’t want another partner to go through what I have gone through. It is hard enough trying to come to terms with such a loss, without the additional financial and emotional burden,” she said.

If the government succeed in banning third party litigation funding in Ireland, they do so at the expense of justice itself. This seems contrary to Article 40.3.1 of the Constitution which protects the implied right that rule of law must be readily accessible to all.

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