Key Contacts: Eimear Collins – Partner | Gerald Byrne – Partner |
Ireland continues to prohibit third-party litigation funding in most circumstances due to the enduring common law doctrines of maintenance and champerty. While jurisdictions such as the UK and US have embraced third-party litigation funding as a tool to enhance access to justice, Irish courts have consistently reaffirmed the general prohibition, mostly notably in Persona Digital Telephony Ltd v Minister for Public Enterprise [2017] IESC 27.
More recently, the limits of these doctrines were again considered in Campbell v O’Doherty [2025] IEHC 223, in which the High Court was asked to determine whether a plaintiff’s use of crowdfunding to support litigation rendered her proceedings unlawful. The decision, delivered by Nolan J, provided a timely clarification on the application of these doctrines in modern litigation, particularly in cases involving public fundraising platforms like GoFundMe.
Modern Developments in Irish Litigation Funding
The Supreme Court’s decision in Persona Digital Telephony Ltd v Minister for Public Enterprise [2017] IEHC 27 reaffirmed the general prohibition of third-party litigation funding where the funder lacks a legitimate interest in proceedings.
In Campbell v O’Doherty, the plaintiff brought proceedings against journalist Gemma O’Doherty, alleging that the defendant had misappropriated the image of her deceased son and falsely claimed his death was linked to the COVID-19 vaccine. The defendant applied to strike out the proceedings under Order 19 Rule 28 of the Rules of the Superior Courts, arguing that they were frivolous, vexatious, and bound to fail. Central to her application was the claim that the plaintiff’s case was unlawfully funded via GoFundMe and was therefore tainted by maintenance and champerty.
The Legal Challenge in Campbell V O’Doherty
Maintenance refers to the support of litigation by someone with no connection to the case, while champerty is a form of maintenance where the supporter receives a share of the proceeds.
The defendant argued that the plaintiff’s use of crowdfunding breached the Maintenance and Embracery Act 1634 and relied on the Supreme Court’s decision in Persona. Nolan J acknowledged that the law remains unchanged since that 2017 decision: maintenance and champerty continue to exist in Ireland as both civil wrongs and criminal offences. However, he emphasised that the application of these doctrines must be carefully constrained so as not to unfairly restrict access to justice.
Citing Lynch J. in O’Keefe v Scales [1998] 1 IR 290, he noted:
“While the law relating to maintenance and champerty therefore undoubtedly still subsists in this jurisdiction, it must not be extended in such a way as to deprive people of their constitutional right of access to the courts to litigate reasonably statable claims.”
This principle became central to the court’s analysis.
The Court’s Analysis of Maintenance and Champerty
Nolan J drew a clear distinction between maintenance and champerty. Champerty, he explained, requires funding in return for a share of the proceeds. On the facts before the court, the donations were anonymous, modest is scale and made without any expectation of financial return. There was therefore no evidence of champerty.
Maintenance raised a more nuanced question. The applicable test, as articulated in Fraser v Buckle [1994] 1 IR 1, is whether the supporter has “neither an interest in the action nor any other motive recognised by law as justifying his interference.”
The plaintiff swore that the donations were made out of charity and solidarity. The GoFundMe page had been created by a community activist, not the plaintiff herself, and explicitly stated that the funds were to support her “battle against hate and negativity.” Nolan J accepted that evidence, concluding:
“This does not seem to me to be interference with litigation without just cause or without having legitimate interest.”
He reiterated that the burden on a party seeking to strike out proceedings on the basis of maintenance or champerty is exceptionally high. The court must be satisfied that both the plaintiff’s case is bound to fail and that the funding arrangement is unlawful. That threshold was not met on the facts of the case.
Implications for Crowdfunding and Litigation Funding in Ireland
This decision is significant in several respects. Firstly, it confirms that crowdfunding used to support litigation, when done without expectation of financial return and for charitable purposes, will not necessarily offend the doctrines of maintenance and champerty. It also reinforces the principle that access to justice must not be curtailed by procedural challenges based on speculative or unsubstantiated claims.
Concluding Remark
The Law Reform Commission (LRC) is currently reviewing Ireland’s litigation funding framework, having published a consultation paper in July 2023. A final report is anticipated in the near future. The decision in Campbell v O’Doherty represents a recognition from the judiciary that funding arrangements rooted in genuine public support and without prospects of financial gain should not automatically bar litigants from accessing the courts. It remains to be seen whether similar considerations will inform the LRC’s recommendations, and how conflicting policy considerations are weighed in its report.
