Ancient law bars funding arrangement in Denis O’Brien case, court told

An ancient law that was dismissed as obsolete in Britain in 1967 was retained by the Government in 2007 and bars a funding arrangement in a legal claim against Denis O'Brien, Michael Lowry and the Irish State, the High Court heard on Thursday.

Ms Justice Aileen Donnelly has been asked to decide whether an English company called Harbour Litigation Funding is entitled to fund another company called Persona Digital Telephony and Sigma Wireless Networks in its claim in the Irish courts.

Harbour will take part of the proceeds if Persona’s litigation is successful.

Persona claims that businessman Denis O'Brien's Esat Digifone consortium won a competition for a mobile phone licence in 1996 by bribing the then Minister for Communications Michael Lowry — which is denied.

Persona was the runner-up in the licence competition. The case was brought against the Minister for Enterprise and the State. Mr O’Brien secured an order allowing him to be joined in the proceedings last year while Mr Lowry, now an Independent TD, is a third party to the case.

The funding arrangement that would finance Persona to bring the case to court is prohibited by the law of champerty, which was introduced during British rule and has not been updated since 1634. It was overturned in Britain by an Act of Parliament in 1967 but remains on the Irish statute books.

During two days of submissions Michael Collins SC, acting for Persona, said the law was obsolete and is undermined by the Constitution’s protection of the right to access to the courts.

Law of the land

At the High Court today Mr John O’Donnell SC, acting on behalf of the State, said the law may be old, but it is still the law of the land and was reaffirmed in 2007. He said that the Attorney General had, in 2007, carried out a public review of all laws enacted prior to 1922 and repealed thousands that were considered obsolete.

He said that leaving champerty on the books was not an oversight, but a deliberate policy of the Government which did not want to have unrelated third parties funding litigation in the hope of financial reward.

He said that any attempt by the court to reinterpret the law to allow Harbour fund the legal claim would be a breach of the separation of powers that ensures that only the Oireachtas can write new laws.

Mr O’Donnell also criticised the influence that the funding body would have over the process. Reading from the contract drawn up between Persona and Harbour, he said the funders would appoint a person to decide whether to reject any settlement made in the courts.

“It is the funder who has the whip hand as to who looks at this settlement and whether it is an appropriate one,” he said.

Mr O’Donnell will complete his submission to the High Court on Friday.