Litigation Funding in Ireland: At the Crossroads of Ancient Doctrine and Modern Imperative

Litigation funding in Ireland stands at a pivotal crossroads, caught between the enduring grip of ancient legal doctrines and the pressing demands of modern access to justice. While most common law jurisdictions have moved to relax prohibitions on third-party funding, Ireland continues to uphold the centuries-old principles of maintenance and champerty, effectively barring outside investment in legal claims except in limited circumstances. This legal stance, recently reaffirmed by the Supreme Court, has significant implications for individuals and businesses seeking redress but lacking the financial means to pursue litigation, especially as the country aspires to position itself as a leading common law hub in the post-Brexit era. As calls for reform grow louder and the Law Reform Commission reviews the issue, the debate over litigation funding in Ireland highlights the tension between tradition and the imperative to ensure fair and equitable access to the courts.

1.0 Introduction: An Enduring Anomaly in the Common Law World

1.1 Setting the Context: Ireland’s Outlier Status

Ireland occupies a unique and increasingly anomalous position within the global common law landscape concerning third-party litigation funding (TPLF). While most comparable jurisdictions—including the United Kingdom, the United States, Australia, and Canada—have progressively liberalised their legal frameworks to permit and regulate the commercial funding of legal disputes, Ireland maintains a general prohibition rooted in medieval legal doctrines.¹ This stance, judicially reaffirmed in the 21st century, renders Ireland a “distinct outlier” in an interconnected global economy where litigation funding has become a mainstream financial and legal tool.⁵ The country’s position is not one of quiet stasis but of active, evolving tension, as ancient principles collide with the modern commercial and constitutional pressures of a globalised world.⁶

1.2 The Central Tension: Access to Justice vs. Public Policy

At the heart of the Irish debate lies a profound and unresolved tension between two competing public policy objectives. On one side is the constitutional right of access to the courts, a principle that gains particular salience in a jurisdiction acknowledged for its high litigation costs.⁸ The financial barriers to entry can be so prohibitive that meritorious claims may be stifled, effectively denying citizens and businesses access to justice.¹ On the other side stands the long-standing public policy against “trafficking in litigation,” which aims to protect the integrity of the judicial process from being debased into a speculative commodity.¹³ This policy is animated by fears that the involvement of for-profit funders could encourage frivolous lawsuits, compromise a lawyer’s duty to the court, and corrupt the administration of justice.¹⁷

1.3 Judicial “Disquiet” as a Catalyst for Change

A critical dynamic propelling the current momentum for reform is the explicitly stated “disquiet” of the Irish Supreme Court. In the landmark 2017 case of Persona Digital Telephony Ltd v Minister for Public Enterprise, while the majority felt compelled to uphold the existing prohibition, several judges expressed profound unease with the practical consequences of their decision. The outcome was described in stark terms as “deeply disturbing” and “manifestly troublesome” from an access to justice perspective.²⁰ This judicial commentary was more than mere academic observation; it functioned as a clear and powerful signal to the legislature, the Oireachtas, that the status quo was becoming constitutionally untenable.

This dynamic is not one of judicial overreach but of a carefully calibrated constitutional dialogue. The Supreme Court recognised that the prohibition on funding was rooted in statutes that the Oireachtas had recently and deliberately affirmed, and therefore respected the separation of powers by deferring to the legislature.²³ However, the concurring judgment of Mr Justice Clarke went further, issuing what has been widely interpreted as a conditional warning: should the legislature fail to act to remedy a situation where constitutional rights are being impaired, the courts, as “guardians of the Constitution,” might be left with no alternative but to intervene and develop the law themselves.⁵ This judicial pressure has been a primary driver of the current reform agenda, creating an imperative for the Oireachtas to legislate, lest it risk a court-led, and potentially less regulated, evolution of the law.

1.4 Thesis and Report Structure

This report argues that while Ireland’s strict prohibition on third-party litigation funding remains the general rule, a confluence of irresistible forces—including sustained judicial pressure, targeted legislative exceptions for specific economic sectors, and a comprehensive ongoing review by the Law Reform Commission (LRC)—signals an inexorable, albeit cautious and incremental, move towards a regulated funding market. The static legal landscape of past decades has given way to a period of profound transition. This report will trace this evolution by examining the deep-rooted legal foundations of the prohibition, analysing the judicial decisions that have both reinforced and chipped away at it, dissecting the recent legislative turning points that have created a new bifurcated reality, and assessing the likely path of future reform as charted by the Law Reform Commission.

2.0 The Legal Bedrock: Maintenance and Champerty in Irish Law

2.1 Defining the Ancient Doctrines

The prohibition against third-party litigation funding in Ireland is founded upon the twin medieval concepts of maintenance and champerty, which are both torts and criminal offences in the jurisdiction.¹

Maintenance is defined as the “intermeddling of a disinterested party to encourage a lawsuit”.¹⁷ In modern legal parlance, it is the improper support or financial assistance provided to a party in litigation by a person who has no legitimate, pre-existing, and independent interest in the proceedings.¹⁴ The historical rationale was to prevent powerful individuals from using the courts as a weapon to oppress their rivals by stirring up quarrels.¹⁷

Champerty (from the Old French champart, meaning a share of the produce of the land) is an aggravated form of maintenance. Its distinguishing feature is that the third-party supporter provides funding not out of malice or officiousness, but in exchange for a share of the proceeds or “spoils” of the litigation if it proves successful.¹⁷ As Lord Justice Steyn stated in

Giles v Thompson, “The distinguishing feature of champerty is the support of litigation by a stranger in return for a share of the proceeds”.¹⁷ This is precisely the business model of the modern third-party litigation funding industry.

These doctrines emerged from the unique social and political conditions of medieval England, where unscrupulous nobles and royal officials would lend their influence to bolster fraudulent claims in return for a share of the recovered property, often using their retinues to intimidate courts and juries.¹⁷ This historical context is a world away from the complex, high-value commercial disputes that dominate the modern conversation about litigation funding.

2.2 The Statutory Foundation and its Modern Affirmation

In Ireland, the prohibition is not merely a common law relic but is anchored in statute. The principal legislative instrument is the Maintenance and Embracery Act 1634, an act passed by the pre-Union Parliament of Ireland.¹ This Act explicitly imported into Irish law all English statutes concerning maintenance, champerty, and embracery that were then in force.¹⁷

The enduring relevance of this 17th-century law was cemented by a pivotal and much more recent legislative act. In 2007, the Oireachtas enacted the Statute Law Revision Act 2007, a major piece of legislative housekeeping designed to repeal thousands of obsolete pre-1922 statutes.¹⁶ In this comprehensive review, the legislature made a conscious and deliberate decision to expressly retain the 1634 Act and other related statutes concerning maintenance and champerty.¹⁶

This modern legislative affirmation became the cornerstone of the Supreme Court’s subsequent jurisprudence. It demonstrated a clear and recent parliamentary intention to keep the doctrines alive, transforming them from archaic principles into tenets of modern Irish law. This act of legislative retention is the primary source of the current legal and political impasse. The Supreme Court found itself unable to “develop” the common law in a direction that was diametrically opposed to the legislature’s recently expressed will. This created a legislative paradox: the Oireachtas is now being urged by the judiciary and other stakeholders to solve an access to justice problem that it effectively entrenched in 2007.

2.3 The Modern Prohibition Confirmed: Landmark Supreme Court Judgments

The precise scope and unyielding nature of the prohibition in the modern era have been defined by two seminal Supreme Court decisions.

2.3.1 Persona Digital Telephony Ltd v Minister for Public Enterprise IESC 27

This is the definitive modern authority on the illegality of commercial litigation funding in Ireland.

• Facts: The plaintiffs, Persona Digital Telephony Ltd, were pursuing a case of immense public importance, alleging corruption in the State’s 1996 awarding of the second mobile telephone licence.¹⁴ Having run into financial difficulties during the protracted litigation, they sought to enter into a funding agreement with Harbour Litigation Funding, a specialist UK-based funder. In return for financing the legal costs, Harbour was to receive a significant share of any damages awarded.¹⁴ Faced with legal uncertainty, the plaintiffs sought a declaration from the High Court that this arrangement was lawful.¹⁴
• Judgment: The High Court refused the declaration, and on a direct “leapfrog” appeal, the Supreme Court, by a 4-1 majority, dismissed the appeal. It held unequivocally that the proposed funding agreement was champertous and therefore unlawful, void, and contrary to public policy.¹
• Reasoning: The Court’s reasoning was grounded in judicial deference to the separation of powers. Chief Justice Susan Denham, delivering the lead judgment, emphasised that the doctrines of maintenance and champerty remained part of Irish law by virtue of the 1634 Act, which had been deliberately preserved by the 2007 Act.²² The Court concluded that it was not its role to effectively legislate from the bench by varying the scope of these offences. Such a complex policy issue, with wide-ranging implications, was deemed “more suited to legislation, after the benefit of a Law Reform Commission Report”.²³ The
  Persona judgment firmly closed the door on the possibility of a common law evolution to permit TPLF and placed the responsibility for any change squarely on the shoulders of the Oireachtas.

2.3.2 SPV Osus Ltd v HSBC Institutional Trust Services (Ireland) Ltd IESC 44

This subsequent Supreme Court case addressed a related but distinct issue: the sale or assignment of a legal claim to a third party. It confirmed that the public policy underpinning the prohibition on champerty extends with equal, if not greater, force to the “trafficking in litigation.”

• Facts: The case arose from the fallout of Bernard Madoff’s colossal Ponzi scheme. An investment fund, SUS, held a claim in the Madoff bankruptcy proceedings in the US. To facilitate a sale of this claim to investors, SUS assigned the claim to a special-purpose vehicle, SPV Osus Ltd (SPV). The shares in this SPV were then overwhelmingly acquired by third-party distressed debt investors who had no connection to the original loss.¹⁵ The SPV then initiated proceedings in Ireland against the fund’s Irish-based custodian, HSBC.³⁵
• Judgment: The Supreme Court affirmed the decisions of the High Court and Court of Appeal, holding that the assignment of a “bare cause of action” to an unconnected third party who lacks a genuine, pre-existing commercial interest is void and unenforceable under Irish law.¹⁵
• Reasoning: The Court’s logic flowed directly from its decision in Persona. Mr Justice O’Donnell reasoned that if it is contrary to public policy to permit a third party to fund litigation in return for a share of the proceeds, then it must be even more offensive to that policy to allow a third party to purchase the claim outright, remove the original wronged party from the proceedings, and pursue the action for its own commercial profit.²⁵ The Court drew a critical distinction between arrangements where the original wronged parties remain the ultimate beneficiaries of the litigation and those where the cause of action is sold as a commodity to a stranger.³² This judgment solidified the prohibition against the “commodification of litigation” as a core tenet of Irish public policy.²⁵

3.0 Cracks in the Armour: Permitted Exceptions and Judicial Pragmatism

Despite the stern prohibition confirmed in Persona and SPV Osus, the legal framework is not entirely monolithic. The Irish courts have long recognised certain exceptions and have demonstrated a degree of pragmatism in accommodating modern commercial realities, creating fissures in the otherwise solid wall of prohibition.

3.1 The “Legitimate Interest” Exception

The rule against maintenance is not absolute. It is not unlawful for a third party to provide financial support for litigation if that party has a genuine, bona fide, and pre-existing interest in the outcome of the case.²⁹ This exception prevents the doctrines from being applied in an overly rigid manner that would preclude legitimate forms of support. The most commonly cited examples of a legitimate interest are:

• Shareholders and Creditors: A shareholder in a company that is a party to litigation is considered to have a sufficient interest to fund that company’s legal action.¹ Similarly, a creditor of an insolvent company can lawfully fund the liquidator to pursue claims, as the success of that litigation will increase the pool of assets from which the creditor may be repaid.¹

The courts will, however, scrutinise the nature of this interest to ensure it is substantial and not merely a contrived device to circumvent the rules against champerty. As the Supreme Court clarified in the context of assigning claims, the interest must be genuine and proportionate, not so small as to be a fig leaf for what is, in substance, trafficking in litigation.³⁰

3.2 ‘After the Event’ (ATE) Insurance: A Judicial Workaround

A significant development in the landscape has been the judicial acceptance of ‘After the Event’ (ATE) insurance. ATE is a specialised insurance policy taken out by a litigant after a legal dispute has arisen. It typically covers the policyholder’s liability for their opponent’s legal costs (an adverse costs order) if the case is lost, and may also cover their own disbursements.¹

The legality of ATE insurance was decisively addressed by the High Court in the 2014 case of Greenclean Waste Management v Leahy (No. 2) IEHC 314. In a landmark judgment, Mr Justice Hogan held that ATE insurance does not breach the rules on maintenance and champerty and is therefore a valid and permissible product in Ireland.⁸

The court’s reasoning drew a crucial conceptual distinction. It characterised ATE not as a speculative investment in the “spoils” of litigation, but as a legitimate contract of insurance designed to indemnify a litigant against a specific risk—an adverse costs order.¹⁴ It was viewed as a modern commercial product that facilitates access to justice by removing the potentially crippling fear of a large costs bill, rather than as a form of “trafficking in litigation”.¹⁴ The Court of Appeal later wryly observed that ATE insurance had “crept into this jurisdiction,” acknowledging its de facto acceptance.³⁹ Furthermore, the courts have accepted that a valid ATE policy can be relied upon by a plaintiff to resist an application for security for costs, provided the policy is effective and offers sufficient coverage.¹

The Greenclean decision demonstrates a clear judicial willingness to modernise the application of the law where possible. However, it does so by drawing a fine conceptual line between risk mitigation (which is permissible) and speculative investment for profit (which is not). This distinction, while legally significant, has become increasingly artificial. In both ATE insurance and TPLF, a sophisticated commercial third party assesses the merits of a case and stands to make a significant profit if the case succeeds, while bearing a financial loss if it fails. The focus on the form of the transaction—an insurance policy versus a funding agreement—rather than its economic substance reveals the fragility of the current legal framework and strengthens the argument for a comprehensive legislative overhaul that addresses the underlying principles directly and consistently.

3.3 The “Corporate Anomaly”

A further significant inconsistency in the current law, highlighted by the Law Reform Commission and acknowledged by the judiciary, is the ability of corporate entities to achieve a result substantively identical to third-party funding through corporate restructuring.¹ As Mr Justice Clarke observed in

SPV Osus, it has never been suggested that it is impermissible for the shares in a plaintiff company to be sold to a new owner.⁴¹ In such a transaction, the new shareholder effectively acquires the beneficial interest in the company’s cause of action. Through clever corporate structuring, a claim can be isolated in a specific entity, which is then sold to a third party, who can then fund the litigation and reap the rewards. This “corporate anomaly” allows parties to achieve through corporate law what is expressly forbidden by the law of champerty, undermining the coherence and purpose of the public policy prohibition through a distinction based on legal form rather than economic substance.

The complex and bifurcated legal landscape that currently exists is summarised in the table below, which provides a snapshot of the status of different litigation support mechanisms.

Table 1: Comparative Analysis of Litigation Support Mechanisms in Ireland (Current State)

Mechanism	Legal Status	Key Legal Authority/Statute	Core Principle/Limitation
Third-Party Litigation Funding (General Commercial Litigation)	Unlawful	Persona Digital Telephony Ltd v Minister for Public Enterprise IESC 27	Prohibited by the doctrines of maintenance and champerty. Considered trafficking in litigation for profit.
Third-Party Litigation Funding (International Commercial Arbitration)	Lawful (once commenced)	Courts and Civil Law (Miscellaneous Provisions) Act 2023 (amending Arbitration Act 2010)	The torts and offences of maintenance and champerty are disapplied for international commercial arbitration and related proceedings.
Assignment of a Bare Cause of Action	Unlawful	SPV Osus Ltd v HSBC IESC 44	Void as contrary to public policy if the assignee has no genuine, pre-existing commercial interest.
‘After the Event’ (ATE) Insurance	Lawful	Greenclean Waste Management v Leahy (No. 2) IEHC 314	Considered a valid contract of insurance to mitigate risk, not a champertous investment in the proceeds of litigation.
Funding by Party with Legitimate Interest	Lawful	Long-standing common law exception (affirmed in Persona)	Permitted where the funder (e.g., a shareholder or creditor) has a bona fide, independent interest in the litigation.
Funding for Consumer Representative Actions	Ambiguous / Generally Unlawful	Representative Actions for the Protection of the Collective Interests of Consumers Act 2023	Permitted “insofar as permitted in accordance with law,” which, given the general prohibition, effectively prevents it for now.

4.0 The Legislative Turning Point: A New Bifurcated Reality (The 2023 Acts)

The year 2023 marked a watershed moment for litigation funding in Ireland. After decades of judicial reinforcement of the status quo, the Oireachtas enacted two key pieces of legislation that, together, shattered the monolithic prohibition and introduced a new, deliberately bifurcated legal reality. These acts represent the first concrete steps towards legislative modernisation, though their approaches and immediate effects differ dramatically.

4.1 A Gateway for Global Commerce: The Courts and Civil Law (Miscellaneous Provisions) Act 2023

This Act represents the first direct and unambiguous legislative reform in the area, creating a specific carve-out from the general prohibition.² It achieves this by inserting a new Section 5A into the

Arbitration Act 2010.³¹

• Key Provision: The central provision of the new section, once commenced by ministerial order, explicitly states that the torts and offences of maintenance and champerty do not apply to a defined category of “dispute resolution proceedings”.³ The Act further provides that a third-party funding contract for such proceedings, provided it meets any criteria prescribed by the Minister for Justice, shall not be treated as contrary to public policy or otherwise illegal.³¹
• Scope: The scope of this liberalisation is narrow and targeted. It is confined to “international commercial arbitration” and directly related court proceedings, such as applications to set aside or enforce an award, as well as any associated mediation or conciliation.² It pointedly does
  not apply to domestic litigation or domestic arbitration.
• Implications: This reform is a clear and strategic policy decision designed to enhance Ireland’s competitiveness as a global hub for international dispute resolution and legal services.³¹ By aligning its rules with those of major arbitral seats like London, Paris, and Singapore, Ireland aims to attract high-value international commercial disputes. The effect is to create a modern, liberalised funding regime for a specific, sophisticated class of international commercial user, while leaving the domestic framework untouched.

4.2 A Framework in Waiting: The Representative Actions for the Protection of the Collective Interests of Consumers Act 2023

While the arbitration reform was a decisive step, the second major piece of 2023 legislation created a framework that is currently defined by its own internal contradiction. This Act transposes the EU Representative Actions Directive (EU 2020/1828) into Irish law, establishing for the first time a formal mechanism for collective redress (a form of class action) on behalf of consumers who have been harmed by breaches of a wide range of EU and Irish laws.²

• The Funding Conundrum: The Act directly confronts the issue of funding in Section 27, which provides that a representative action may be funded by a third party “insofar as permitted in accordance with law”.⁴
• The Practical Impasse: This carefully worded phrase creates a legislative catch-22. While it acknowledges the practical necessity of funding for potentially vast and complex collective actions, it simultaneously defers to the existing general prohibition on TPLF. This leaves the new regime in a state of suspended animation. The “Qualified Entities” (QEs) designated to bring these actions must be non-profit organisations.⁴⁵ Under regulations, they are permitted to charge each consumer who opts into an action a maximum fee of just €25.⁴⁶ This nominal contribution is wholly inadequate to cover the significant legal costs and, crucially, the risk of a multi-million euro adverse costs order that would accompany such litigation. Without access to external third-party funding, it is highly questionable whether any QE will have the financial capacity or risk appetite to launch a major representative action, thus undermining the entire purpose of the Act.⁴⁹
• A Catalyst for Broader Reform: By creating a right and a mechanism that are rendered largely unworkable by the prevailing funding laws, the Representative Actions Act serves as a powerful, built-in catalyst for further, more general reform.⁴ It makes the argument for extending funding beyond international arbitration not just a matter of principle, but of practical necessity to give effect to the legislature’s own stated intent.

The combined effect of the 2023 legislation is the deliberate creation of a “two-tier” system of access to justice in Ireland, where the availability of modern funding tools depends entirely on the nature of the dispute and the identity of the litigant. This has introduced an unsustainable legal and political tension into the system. A multinational corporation resolving a commercial dispute via arbitration in Dublin can now secure TPLF. In stark contrast, a group of Irish consumers harmed by a defective product, an Irish SME embroiled in a “bet the company” dispute with a larger rival, or a liquidator seeking to pursue claims for the benefit of creditors cannot. This creates a clear and legislatively sanctioned imbalance in the “equality of arms” between different categories of litigants. This bifurcation is likely a temporary political compromise, designed to address the immediate economic imperative of remaining a competitive arbitration seat while deferring the more contentious and complex domestic questions to the Law Reform Commission. However, this solution is inherently unstable. It creates such a compelling and visible disparity that it makes the case for extending regulated funding to other areas—especially consumer actions, to make the 2023 Act effective—almost overwhelming. The legislature has, in effect, built a modern vehicle for collective redress but refused to supply the fuel, making the argument for providing that fuel all the more powerful.

5.0 Charting the Future: The Law Reform Commission’s Agenda

With the judiciary having signalled its unease and the legislature having taken tentative, targeted steps, the intellectual heavy lifting for comprehensive reform has been delegated to the Law Reform Commission (LRC). In July 2023, the LRC published its landmark Consultation Paper on Third-Party Litigation Funding, a comprehensive document that effectively shifted the national debate from “if” funding should be permitted to “how” it should be legalised and regulated.¹ The Commission sought submissions from interested parties, and its final report, which will serve as the primary blueprint for future legislation, is anticipated to be published in 2025.¹

5.1 The Core Policy Arguments (as identified by the LRC)

The Consultation Paper meticulously framed the debate by setting out the key policy arguments both for and against the legalisation of TPLF, drawing on domestic concerns and international experience.

Arguments FOR Legalisation: The LRC identified four principal arguments in favour of reform ¹:

1. Access to Justice: This is the paramount argument. TPLF would enable individuals and businesses with meritorious claims to pursue them, where they would otherwise be abandoned due to the high cost and financial risk of litigation.
2. Equality of Arms: It would level the playing field in disputes where there is a significant power imbalance, preventing well-resourced defendants from forcing weaker parties into accepting unsatisfactory settlements.
3. Insolvency Proceedings: It would enhance the value of insolvent estates by providing liquidators with the funds needed to pursue valuable claims against third parties, thereby increasing the pool of assets available to creditors.
4. Addressing the “Corporate Anomaly”: It would resolve the glaring inconsistency whereby TPLF-like outcomes can already be achieved through the sale of shares in a plaintiff company, bringing transparency and regulation to a practice that currently exists in the shadows.

Arguments AGAINST Legalisation: The LRC also outlined five main arguments against, or risks associated with, legalisation ¹:

1. Frivolous and Vexatious Litigation: A concern that a new pool of capital would encourage the pursuit of speculative, weak, or meritless claims, thereby abusing court processes.
2. Under-compensation of Claimants: The risk that funders will take a disproportionately large share of any damages award, leaving the genuinely injured party not fully compensated for their loss.
3. Increased Legal Costs: The possibility that the availability of funding could lead to an escalation in the overall cost of legal services and the duration of litigation.
4. Increased Insurance Premiums: A potential knock-on effect where the increased volume or cost of litigation could lead to higher liability insurance premiums for businesses.
5. Inappropriateness for Certain Disputes: The view that TPLF is unsuitable for particularly sensitive areas of law, such as personal injury claims, family law, or defamation, where the personal and non-monetary aspects of the dispute are paramount.

5.2 Models for Legislative Reform

The LRC’s paper considered three main legislative pathways to reform the law ²⁷:

1. The “Abolition” Approach: To abolish the common law and statutory offences and torts of maintenance and champerty outright, leaving the market to operate freely, subject only to general principles of contract law and abuse of process.
2. The “Preservation” Approach: To abolish the specific doctrines of maintenance and champerty but to enact legislation that preserves the underlying public policy principles against the abuse of litigation.
3. The “Statutory Exception” Approach: To retain the general prohibition on maintenance and champerty but to create specific, regulated statutory exceptions allowing TPLF in certain defined categories of cases.

The LRC itself, along with key stakeholders like the Law Society of Ireland, has indicated that the “statutory exception” approach is the most probable and prudent path forward for Ireland.²⁷ This approach reflects a deep-seated institutional caution. The goal is not to simply import a liberalised model from another jurisdiction, but to build a bespoke Irish solution from the ground up. It would allow policymakers to surgically address identified access-to-justice gaps—for instance, in insolvency, commercial disputes, and consumer actions—while explicitly excluding other areas deemed too sensitive, such as personal injury litigation.²⁷ This incrementalism prioritises regulatory control and risk mitigation over unfettered market freedom. However, it will inevitably lead to a more complex and fragmented legal landscape in the medium term, creating a patchwork of rules where funding is permissible for one type of case but not another. This will likely generate its own set of challenges and potential for satellite litigation concerning the scope and interpretation of the new statutory exceptions.

5.3 The Regulatory Question: Designing a Safeguarded Market

The LRC’s paper makes it clear that any liberalisation of the law will be accompanied by the creation of a robust regulatory framework to safeguard the integrity of the justice system and protect litigants.²⁷ The design of this framework is the central question facing policymakers. Key elements under consideration include:

• Disclosure: A consensus appears to be forming around the need for mandatory disclosure. The LRC stated that it “sees value” in requiring funded parties to disclose, at a minimum, the fact that they are in receipt of funding and the identity of the funder to both the court and the opposing party.⁵⁵
• Funder Control: Strong measures will be needed to prevent funders from exercising excessive control over strategic litigation decisions, particularly settlement. The LRC has suggested that ceding such control could be defined as professional misconduct for the solicitor involved.⁵⁵
• Capital Adequacy: Regulations will almost certainly require funders to demonstrate that they have sufficient capital to meet their funding commitments throughout the life of a case and to cover any potential adverse costs liabilities.
• Caps on Funder Returns: To address the concern of claimant under-compensation, policymakers will need to consider whether to impose a cap on the percentage of an award that a funder can recover. The European Parliament has proposed a 40% cap as a potential benchmark, a figure also noted by the Law Society of Ireland in its submission.⁵⁶
• A Designated Regulator: The question of who should police the new market is critical. The Law Society has proposed that the Central Bank of Ireland would be the most appropriate body, given its extensive experience in regulating complex financial products and institutions, rather than creating a new, specialist regulator from scratch.⁵⁶

6.0 Comparative Perspectives: Lessons from England and the EU

As Ireland stands on the cusp of reform, it does so with the significant advantage of being able to observe and learn from the experiences of other jurisdictions that have already travelled this path. The developments in its nearest neighbour, the UK, and at the broader European Union level provide both a potential roadmap and a series of cautionary tales.

6.1 The UK Experience: A Mature Market and a Cautionary Tale

England and Wales represent the most developed and mature market for third-party litigation funding in Europe. The journey there offers valuable lessons for Ireland.

• Evolution and Regulation: The process of liberalisation began with the Criminal Law Act 1967, which decriminalised the offences of maintenance and champerty.³² This paved the way for the gradual, court-led development of a sophisticated TPLF market, which is now one of the world’s largest, with assets under management in the billions of pounds.⁵⁷ The market has operated for years under a system of voluntary self-regulation, led by the Association of Litigation Funders (ALF) and its Code of Conduct. However, membership in the ALF is not mandatory, meaning not all funders are subject to its rules.¹⁸
• The PACCAR Disruption: The risks inherent in a legal framework built on evolving common law rather than clear statute were starkly exposed in the 2023 UK Supreme Court decision in R (PACCAR) v Competition Appeal Tribunal.⁵⁹ In a ruling that sent shockwaves through the industry, the Court held that many common forms of litigation funding agreements (LFAs)—specifically those where the funder’s return was calculated as a percentage of the damages recovered—were technically “Damages-Based Agreements” (DBAs) under existing legislation. As they did not comply with the strict regulations governing DBAs, they were deemed unenforceable.⁵⁹ This decision threw the validity of a vast number of existing and historical funding agreements into doubt and created enormous legal and commercial uncertainty.
• The Civil Justice Council (CJC) Review: In response to the PACCAR crisis and broader concerns about the industry, the UK government commissioned a major review by the Civil Justice Council (CJC). Its final report, published in June 2025, recommended a fundamental overhaul of the system.⁶¹ The key recommendations included the urgent enactment of legislation to legislatively reverse the
  PACCAR decision and the replacement of the voluntary self-regulatory model with a comprehensive statutory regulatory regime.⁶² This comprehensive review provides a detailed blueprint for the type of robust, statutory framework that Ireland might now consider.

6.2 The European Dimension: A Push for Harmonisation

Simultaneously, there is a clear and growing momentum at the European Union level to create a harmonised regulatory framework for TPLF across all member states.

• EU Parliament Resolution: In September 2022, the European Parliament passed a significant resolution calling on the European Commission to propose a Directive aimed at establishing “common minimum standards” for responsible private funding of litigation.³ The proposed directive, annexed to the resolution, includes detailed provisions on the authorisation and ongoing supervision of funders by a public authority, transparency obligations, rules to prevent conflicts of interest, a fiduciary duty of care for funders towards claimants, and measures to protect claimants from disproportionate awards going to funders.⁶⁶
• European Commission Study: This political push was followed by a major study on behalf of the European Commission, published in March 2025, which mapped the TPLF landscape across the EU.⁵ The study highlighted Ireland’s outlier status and provided a comprehensive analysis of stakeholder views on the need for and nature of potential regulation.
• Implications for Ireland: Any future EU directive on TPLF would be binding on Ireland. This means that whatever domestic reforms the Oireachtas enacts, they will have to meet, at a minimum, the standards set at the EU level. This provides a regulatory “floor” and ensures that any Irish market will be built on a foundation of strong consumer and claimant protection principles from its inception.

Ireland is in the uniquely advantageous position of being a “latecomer” to TPLF reform. It can learn directly from the UK’s journey, particularly the chaos caused by the PACCAR decision, which underscores the critical importance of creating a clear, unambiguous, and comprehensive statutory framework from the outset, rather than relying on the uncertain evolution of common law. At the same time, the EU’s harmonisation agenda provides a clear blueprint of the likely minimum regulatory standards that will be required. This dual perspective strongly suggests that Ireland will “skip” the light-touch, self-regulatory phase that characterised the UK’s development and move directly to a robust, statutory, and EU-compliant regulatory model. This will likely result in a more stable and predictable, if perhaps less flexible, funding market from day one, avoiding the “growing pains” and legal uncertainty that have marked the UK’s experience.

7.0 Conclusion and Recommendations

7.1 Synthesis: A Jurisdiction in Transition

Ireland’s legal framework for litigation funding is at a historic inflection point. The long-standing, monolithic prohibition, authoritatively reaffirmed by the Supreme Court in Persona and SPV Osus, is now actively giving way to a more nuanced, complex, and fragmented reality. The system is no longer static; it is a jurisdiction in transition. The legislative carve-out for international commercial arbitration has created a two-tier system of access to funding. The new consumer representative actions regime, a key pillar of EU consumer protection policy, remains hamstrung by the practical impossibility of funding such actions under the current domestic rules. The entire landscape is under intense and comprehensive review by the Law Reform Commission, with widespread expectation that its final report will trigger decisive legislative action. The question is no longer whether change will come, but what form it will take.

7.2 The Inevitable Path Forward

The trajectory is clear: Ireland is moving, cautiously but inexorably, towards the establishment of a regulated market for third-party litigation funding. The monolithic prohibition is no longer sustainable in the face of compelling access to justice arguments, sustained judicial pressure, and the demands of a globalised economy. The final report from the LRC, expected in 2025, will be the foundational blueprint for this new era. All indications suggest that the reform will not be a “big bang” liberalisation but will instead follow the “statutory exception” model. This will involve a careful, incremental process of opening up specific, defined areas of litigation to funding, while likely maintaining the prohibition for others. The final framework will be heavily shaped by the practical need to make the Consumer Act 2023 workable, the strategic desire to learn from the UK’s regulatory stumbles, and the legal obligation to comply with emerging EU-wide standards.

7.3 Recommendations for Stakeholders

Navigating this period of transition requires strategic foresight from all parties involved in the Irish legal system.

7.3.1 For Litigants and Legal Counsel

• Strategic Assessment: Parties contemplating or involved in litigation must now conduct a threshold strategic assessment. If a dispute qualifies as “international commercial arbitration,” third-party funding is a viable and legally sanctioned option to be explored. For all other forms of domestic litigation, the general prohibition remains firmly in place, and reliance must be placed on the established exceptions, such as funding from a party with a legitimate interest or the use of ATE insurance to mitigate costs risk.
• Future-Proofing: When drafting commercial contracts, legal counsel should be mindful of the potential for future legislative change. The choice of dispute resolution clause—whether it provides for domestic litigation or international arbitration—now carries significant implications for a party’s ability to access funding, a factor that should be explicitly considered and advised upon.

7.3.2 For Litigation Funders

• Current Opportunity: The immediate and only certain market opportunity for litigation funders in Ireland lies exclusively in the international commercial arbitration sector. Funders should focus their efforts on this newly liberalised space.
• Future Market Entry: Funders with an interest in the broader Irish market should closely monitor the LRC’s final report and the subsequent legislative process. It is crucial to anticipate that the regulatory burden in any new domestic market is likely to be significant from the outset. The Irish framework will likely bypass a light-touch, self-regulatory phase and move directly to a formal, statutory regime requiring adherence to strict capital adequacy, transparency, disclosure, and consumer protection standards aligned with EU proposals.

7.3.3 For Policymakers and the Oireachtas

• Clarity is Paramount: The most critical lesson from the UK’s PACCAR decision is the danger of legal ambiguity. Any new legislation liberalising funding in Ireland must be clear, comprehensive, and unambiguous in its definitions and scope. This is essential to provide certainty to the market, prevent the diversion of resources to years of satellite litigation over the interpretation of the new rules, and build a stable foundation for access to justice.
• Design a Balanced Regulatory Regime: The central challenge for the Oireachtas will be to strike a careful balance that genuinely promotes access to justice while erecting robust safeguards against the risks of abuse identified by the LRC. This requires the careful design of rules governing:

1. Scope: A clear and precise definition of the types of cases eligible for third-party funding.
2. Oversight: The establishment of a well-resourced and expert regulatory body. The Law Society’s suggestion of tasking the Central Bank of Ireland with this role warrants serious consideration, leveraging its existing expertise in financial services regulation.
3. Transparency: The implementation of mandatory and early disclosure of funding arrangements to ensure that the courts and opposing parties are fully aware of a professional funder’s involvement and identity.
4. Protection: The enactment of clear statutory protections for funded parties, including a potential cap on the funder’s percentage recovery to prevent claimant under-compensation, and a strict prohibition on funders exercising undue control over litigation strategy and settlement decisions.

• Resolve the Consumer Act Impasse: An immediate priority for any legislative reform package must be to create a viable and explicit funding pathway for consumer representative actions. Without this, the Representative Actions for the Protection of the Collective Interests of Consumers Act 2023 will remain a laudable but largely symbolic piece of legislation, failing to deliver on its core promise of effective collective redress for Irish consumers.

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