High Court Considers Maintenance and Champerty

The old concepts of maintenance and champerty exclude participation in litigation by parties who have no connection to it. These concepts were recently considered by the High Court in the context of a crowd-funding scenario. Our Commercial Litigation team explores the background and the resulting decision.

The High Court recently considered the old concepts of maintenance and champerty which are crimes and civil wrongs under Irish law. Maintenance is where someone, who has no interest in the litigation or no proper justification for interference, supports a party in bringing litigation. Champerty is where the maintainer gives financial support in return for a share of the proceeds of the litigation. It is often described as an aggravated form of maintenance. The terms are often used together and, in the old cases, the words were used interchangeably[1].

Background

The case of Campbell v O’Doherty[2] involved the question of whether the use of images or likenesses of the plaintiff’s deceased son by the defendant could be restrained. There was an associated claim for damages under a number of tortious headings. An injunction pending the trial of the action had already been obtained. The relevant decision arose in the context of an application by the plaintiff to strike out the proceedings on the basis that, among other things, they:

• Were frivolous and vexatious
• Disclosed no cause of action, and
• Were bound to fail

One of the issues raised was that proceedings were unlawful as they amounted to maintenance and champerty since the plaintiff had the benefit of the GoFundMe.com online service.

It was claimed that, contrary to law, the plaintiff and her lawyers were receiving maintenance funds to finance the case. The circumstances of the creation of the GoFundMe page were set out in an affidavit, at which point in time the net funds stood at some €23,000. Most of the 996 donors were anonymous and the funds were transferred to the plaintiff’s solicitors. The costs for things like expenses and attending court had been paid out of the funds, but no fees were charged for solicitors or barristers. The plaintiff also swore that she believed each person who donated did so out of genuine charitable intentions.

Decision

Mr Justice Nolan reviewed the respective parties’ arguments. He noted that the core issue for the court to decide was whether the donation by third parties to assist in the costs of litigation constituted maintenance if they were done for charitable purposes. He considered that issue in light of the law relating to maintenance and champerty, concepts he characterised as being of “great antiquity”. Both Irish and English case law[3] was cited regarding the general principles of maintenance and champerty, which were “easily ascertained and not controversial.” He observed that “the case law shows.. that if an individual or a group of individuals where [sic] to fund litigation without just cause or excuse, it would be regarded as being against public policy.”

He then considered where it would not be contrary to public policy. He noted the Supreme Court decision in O’Keefe v Scales[4] where it was observed that maintenance and champerty “must not be extended in such a way as to deprive people of their constitutional right of access to the courts…” He also mentioned an English case[5] which was “of some interest”, where an angling club took legal action to protect their river. The case was funded by a group of similar persons, including the plaintiffs, and the court ruled that this type of funding was permissible. The court determined the association had a sufficient common interest in the matter and was therefore not acting illegally.

Mr Justice Nolan specifically quoted from the decision of former Chief Justice Denham in Persona Digital[6]. In that case, she referred to a Law Reform Commission Issues Paper[7], and said that maintenance and champerty only arise where the maintainer acted “without just cause”. Mr Justice Nolan highlighted those words as the most important part of the quote. He also referred to another decision former Chief Justice Denham mentioned, adding his own emphasis:

“The general understanding which is not in dispute is that champerty is a variety of maintenance, in fact a more severe or heinous version. Broadly speaking, maintenance is interfering in litigation by supporting it financially without having any legitimate interest in the case which could justify the interference. Champerty is taking a share in the outcome of the case in return for funding it.”[8]

He drew a clear distinction between maintenance and champerty and was satisfied here that the Campbell v O’Doherty proceedings were not champertous. This was because, since the vast majority of the donors were anonymous, there was no evidence they would receive any financial gain from the case. However, Mr Justice Nolan conceded the position regarding maintenance was more difficult to determine. It arose where support is given by a person who “has neither an interest in the action nor any other motive recognised by law as justifying his interference”, so the issue was what is “other motive recognised by law”.

Referring to O’Keefe v Scales, he agreed that if someone tries to stop a case before it is even heard, they must make a strong argument – similar to the high bar required when asking the court to dismiss a case because the legal documents show no valid claim. Therefore, “the onus placed upon the Defendant in this case, that the proceedings should be struck out on the basis that they are tainted by maintenance or champerty, is very high indeed.”

Here, the sworn evidence was that the GoFundMe page was created by a local community activist rather than the plaintiff. That activist had, on the webpage, called on potential donors to assist the plaintiff in her “battle against hate and negativity”. Additionally, the plaintiff herself had sworn that the donors had been motivated by reason of charity, something which the defendant did not contradict.

Mr Justice Nolan ruled that the objective of the application was to stifle the action so the bar must be set very high. While the court could not say what the donor’s motivation was, the plaintiff’s sworn evidence was that it was for a charitable purpose and the purpose of the GoFundMe page was clearly stated. That did not appear to be interference with litigation without just cause, or without having a legitimate interest. It would therefore be wrong to prevent the case from going to trial.

Conclusion

The decision is important because it gives some additional guidance on the principles of maintenance and champerty, especially in a crowd-funding scenario. It makes clear that when either principle is used to try to end a case early through an application like this, a high standard must be met. For maintenance to apply, it must be clearly shown that the support is being provided without a genuine or legitimate interest in the case. However, if the reason for getting involved is clear and the motivation is legitimate, then charity does not appear to have to be the only acceptable reason. As far as champerty goes, if it is apparent that those participating will not receive any financial gain, it should not arise.

For more information and expert advice on commercial disputes, contact a member of our Commercial Disputes team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

[1] See Knight Bruce LJ in Reynell v Sprye [1852] 42 ER 708.

[2] Campbell v O’Doherty [2025] IEHC 223

[3] Fraser v Buckle [1994] 1 IR 1; In re Trepca Mines Ltd (No 2) [1963] Ch 199.

[4] [1998] 1 IR 290

[5] C Martel v Consett Iron Co Ltd [1955] Ch 199

[6] Persona Digita Telephony Ltd v. Minister for Public Enterprise, Ireland [2017] IESC 27

[7] ‘Contempt of Court and other offences and torts involving the administration of Justice’ (LRC IP 10-2016)

[8] SPV Optimal Osus Ltd v. HSB Institutional Trust Services (Ireland) Ltd [2018] IECA 44. Mr Justice Nolan used the citation for the Supreme Court judgment but the quotation is actually from the Court of Appeal ruling. He also referred to Persona Digital where it was noted that maintenance arose where there was assistance “from other than charitable motives”.