Judgments Of the Supreme Court


Judgment
Title:
Persona Digital Telephony Limited & anor -v- Minister for Public Enterprise & ors.
Neutral Citation:
[2017] IESC 27
Supreme Court Record Number:
72/2016
High Court Record Number:
2001 9223 P
Date of Delivery:
05/23/2017
Court:
Supreme Court
Composition of Court:
Denham C.J., McKechnie J., Clarke J., MacMenamin J., Dunne J.
Judgment by:
MacMenamin J.
Status:
Approved
Result:
Appeal dismissed
Details:
Dissenting Judgment by McKechnie J.
Judgments by
Link to Judgment
Concurring
Dissenting
Denham C.J.
Clarke J., MacMenamin J., Dunne J.
McKechnie J.
Clarke J.
Denham C.J., MacMenamin J., Dunne J.
MacMenamin J.
Denham C.J., Clarke J., Dunne J.
Dunne J.
Denham C.J., Clarke J., MacMenamin J.




THE SUPREME COURT
[Appeal No. 72/2016]

Denham C.J.
McKechnie J.
Clarke J.
MacMenamin J.
Dunne J.
      BETWEEN:
PERSONA DIGITAL TELEPHONY LIMITED & SIGMA WIRELESS NETWORKS LIMITED
PLAINTIFFS/APPELLANTS
AND

THE MINISTER FOR PUBLIC ENTERPRISE, IRELAND AND THE ATTORNEY GENERAL, AND, BY ORDER, DENIS O’BRIEN

DEFENDANTS/RESPONDENTS
AND

MICHAEL LOWRY

THIRD PARTY

Judgment of Mr. Justice John MacMenamin dated the 23rd day of May, 2017

1. I agree with the judgment of the Chief Justice. I would, however, like to make some brief observations.

2. The first of these is that the allegations contained in this claim are undoubtedly very serious. At the same time it is important to remember that the defendants, the notice party and Esat Digifone have denied that there was any wrongdoing.

3. In her judgment delivered today Dunne J. addresses some of the considerations which might tend to indicate that there is at least, an arguable case that maintenance and champerty have fallen into disuse. Thus it may be said a question arises as to whether either were carried forward by the enactment of the 1937 Constitution. This question must, however, be seen from the standpoint of the legal authorities cited by the Chief Justice in her judgment.

4. Mr. Neill Buckley, B.L. made a series of interesting submissions on behalf of the fourth named defendant. In the course of these he drew the Court’s attention to a number of scholarly articles which raised issues about the unforeseen consequences of third party funding.

5. It may be true that such third party funding can enhance access to justice and foster development of the law but there are, also other consequences. Should law cases which have a strong individual “personal rights” dimension be capable of assignment to a funder or open to some kind of profit sharing arrangement? One of the historical objection to maintenance and champerty was the risk of the perversion of justice. Perhaps that concern is less now. More modern concerns may involve the complexities of multi party actions perhaps of low social value, which might have the effect of creating difficulties in already busy court lists. There may be problems as to how to deal with cases with a multiplicity of plaintiffs, some with highly meritorious cases, and others less so. Not all parties will be deserving of the same level of damages in such cases. In those circumstances who will be the arbiter if some parties settle a claim and others do not?

6. There are, too, broader “regulatory” issues. Among these lie the questions as to whether third party funders should themselves be regulated in law, and whether there should be statutory limits on the level of recovery. Who should bear responsibility for adverse costs orders?

7. Clearly, therefore, significant policy questions might arise in the event of a finding of unconstitutionality in the case of maintenance and champerty. But legislation takes time. All these are matters for another day, and, perhaps, for the legislature rather than the courts.

8. A number of issues were left unresolved in this application. It is unclear whether the plaintiffs might still be in a position to obtain solicitors and counsel who might undertake this case without a guarantee of remuneration. However, an objective appraisal of the case would indicate that the proceedings would be long and complex.

9. Further points also remain open-ended. In the course of argument the question arose of a hypothetical situation in which the funders might actually acquire a shareholding in the plaintiff companies, with the intention of procuring adequate funds to process the litigation. This remains unresolved. There may, too, be other avenues which the parties may wish to explore arising from the highly unusual, if not unique, nature of this litigation. That is a matter for themselves.

10. Finally, it is worth making the observation that the laws of defamation are not the only legal route whereby parties, be they plaintiffs, defendants or notice parties, can vindicate their right to a good name. Other forms of action may achieve a similar result.







Back to top of document