(Originally published in Law Ireland, Vol 1, Issue 6)

The laws of maintenance and champerty were applied in the case of Persona Digital Telephony Ltd v. Minister for Public Enterprise [2017] IESC 27, reported in this issue. The decision has already been the subject of criticism by Anthony Lester QC in a letter to the Irish Times on 26 May 2017, where he described the crimes and torts of maintenance and champerty as “archaic”. Lord Lester took the view that, if maintenance and champerty had not been abolished by the UK parliament 50 years ago, the courts of England would probably determine that they were incompatible with right of access to the courts enshrined in the European Convention on Human Rights.

In this regard, the judgment of Mr Justice Clarke is particularly worth reading. He discusses in some detail the difficulties of funding litigation in circumstances where it has become increasingly complex. He discusses the benefits and pitfalls of civil legal aid and “no foal, no fee” arrangements, and whether there is a problem in practice of access to justice. He concludes that the remedy for such problems lies with the legislature rather than the courts.

A related issue is the role of the lay litigant, which is not touched upon in Persona. The lack of a properly funded legal aid system has led to a plethora of litigants in person, and advices given by unqualified legal advisers. People with no legal training are more likely to advance unstatable arguments, or to take longer to make their cases. The courts are obliged to accommodate them, but at great cost to the system in terms of delays, and to other litigants in terms of both time and expense.

There must be particular sympathy for directors of companies who cannot afford proper legal advice. In the recent case of Allied Irish Banks Plc v. Aqua Fresh Fish Ltd [2017] IECA 77, the Court of Appeal confirmed that a director was not entitled to represent a company in court, and that only in exceptional circumstances would this rule be departed from.

In a “final observation” to his judgment in Persona, Mr Justice Clarke suggests that, if the executive and the legislature do not take steps to ensure there is no breach of the constitutional right of access to the courts, the courts “might have no option but to take measures which would not otherwise be justified”. It is not clear from Lord Lester’s short letter whether he considered these comments before criticising the decision.

The executive and the legislature might also take note another comment in Mr Justice Clarke’s judgment:

Unlike their counterparts in civil law jurisdictions, Irish judges do not have access to research departments and only, and then only in recent times, to a very small number of legal researchers. It is striking that each of the more than 80 judges who serve on the Slovakian Supreme Court have two researchers whereas the nine judges who serve on the Irish Supreme Court are forced to share a researcher between each two.”

It would be interesting to contrast this with the number of researchers available to government ministers and other members of the Oireachtas.

Mark Tottenham