Introduction

Academic writing for publication may seem daunting to many law students, especially if it lacks the direction and prescribed scope of a college assignment. Consequently, while students frequently complete case-notes or other forms of legal writing for their modules, many refuse to reach beyond that for fear of having their work rejected, or spending countless hours correcting commas in the footnotes in an attempt to comply with the Publisher’s House Style (OSCOLA in our case).

However, for those with intellectual curiosity, passion and the relevant skills, writing a case-note or engaging in academic writing more generally can be a truly fruitful experience, granting an author not merely the potential prize of publication, but also a deeper understanding of the subject they take on. This piece will seek to deal with two questions:

1. The first being simply – why submit a case-note?
2. The second – what skills can aid one in doing so?

 

Writing a Case-Note

There is a certain appeal to writing a case-note. It grants prospective authors a semblance of structure for their research and enables them to explore current or compelling legal issues through the form of a summary and analysis of the developments brought about by a single case.

Potential authors may wish to express a novel piece of analysis they found in a case, expand an argument which they picked up from their time in law school or simply pursue a Case-Note as a means of getting published. Whatever one’s reason, there are plenty of resources a person may use to aid them in their research. Whatever one’s reason, what matters is that there is a point or view which can be expressed which the author thinks pertinent to convey. If you find it to be important, others might agree. Various resources exist to support author’s in articulating their points, from module reading lists to legal databases to the varied collection of reposted articles found on X (i.e. Twitter), hence there is no need to dismiss good ideas for the fear that they might not be good enough. It is, however, important to double check your sources. Not everything published online merits attention and thus, peer reviewed academic articles, cited by other academics in the field will often prove more valuable and indeed, more reliable.

 As our own Sam Walsh expressed at the most recent Author’s Night event “you may not get published, but you will learn a lot from the process”.^[1] What has been written will not simply disappear and hence, a rejection does not always have to be determinative. Articles are frequently reworked and resubmitted; thus  an initial rejection rarely equates to an absolute dismissal or defeat.

Mr. Adam Elbert also spoke at the event.^[2]  He noted that Case-Notes can fall under a range of categories, including but not limited to:

1. Practitioners’ Guides – a descriptive summary and succinct analysis of a case, often intended to enable solicitors and barristers to understand or argue a point of law in a courtroom setting.
2. A Dissenting Note – a piece centering on a disagreement with the judgment of a case. This piece will examine how the judge ruled on a particular issue by taking on the facts and legal precedence for a particular case to examine the judge’s reasoning, before making an argument that they erred in some way or misapplied the law in some way.
3. A Constructive Reassessment – a piece that involves the author taking a new perspective on a case, re-evaluating it or using a case as a means of indicating a potentially novel direction within a legal field. Authors may seek to re-examine a case through a different lens, whether it be republican, unitarian, utilitarian, deontological etc.

 

The Skills of Case-Note Writing

Though  case-notes can vary drastically in their structure and content, the legal reasoning of the argument and the accessibility of the piece are paramount in all. Thus, prospective author’s should take note of the following essential skills:

1. Be Clear - It is essential to be clear when writing a case note. Clarity of language and thought are incredibly important in conveying legal reasoning. There is always a temptation in case-notes and legal writing to lean into Latin maxims and highfalutin phrases, though there is rarely a need to do so if the legal reasoning is sound. Accessible language and a capacity to explain complex ideas in succinct terms will always prevail over sesquipedalian screeds. Furthermore, where possible, avoid the passive voice. If there is a tendency in the piece towards phrases such as “it is submitted” or “it is asserted”, this will need to be dealt with during the editing process. Though this style was once commonplace in barristerial practice, it is increasingly antiquated and rarely transmits well into legal writing. Similarly, an excessive use of personal phrases and pronouns can be equally problematic. The reasoning of the piece should be based in law, not one’s opinion or belief. Hence, the overuse of “in my opinion” or “I believe” only serve to erode the confidence of the piece’s argument. If a point is significant, state it confidently. It is the legal argument that readers care for, hence rely on your argument instead of forcing it to rely on you.
2. Content and Critical analysis – In respect of case notes, it is essential to lay out the facts of the case. The reader must be able to grasp what the case is about, how it came to court and what the judgment of the court was in that particular case. If the case-note delimits its exploration to a particular issue, judgment or section thereof, the summary should reflect that and limit its discussion to facts relevant to the case-note at issue. Once this has been adequately conveyed, the remainder of the piece should centre upon the author’s analysis of the fundamental issues at the heart of the case. A strong degree of independent critical analysis is key to any great Case-Note. Author’s must cut to the core of an issue, placing emphasis on what they consider to be the central developments or themes of a judgment. If the case-note centres upon a disagreement with a judgment of the court, this should certainly be expressed, albeit while being somewhat reverent to the judgment’s author. It does not serve an author to refuse engagement with judicial reasoning or to condemn its arbiter for ignorance and incompetence. A good case-note will afford opposing viewpoints the greatest benefit of reason and strive to contextualise their findings in a way which does not artificially bolster the author’s arguments through crafty phraseology and emotive or normative language. This is especially true of historical case-notes which may require additional context so as to place the judgment, especially a controversial one, in its contemporary setting. From there an alternative perspective or rebuttal can be offered in a transparent and balanced fashion.
3. Read the Case – Though one can afford to rely on secondary materials and university databases for the vast majority of assignments, the skill of actually reading a case is essential to undertake a case- Ideally, the author should read it more than once and take note of their own opinions before secondary literature is consulted. In some cases, reading the main judgment will suffice, but there will be loftier, more substantial cases which may benefit from an analysis of a lower court’s judgments, or even arguments made by counsel. These resources can prove pivotal for ascertaining the issues which a judge was considering in their determination of the relevant case. Reading other case notes may also prove helpful for a prospective author. Beyond this it is also worth noting that wide reading can improve a prospective author’s familiarity with a field and as such where possible, footnotes and links within articles should be utilised as a means of deepening one’s knowledge of the law. This is not a suggestion that every article must be consulted. Indeed many great authors recognise the value of sufficiency over perfection. Though striking that balance is important for the deliverance of a well-articulated piece of legal writing. Various sources, including the Law Quarterly Review, the Irish Judicial Studies Journal and our very own Trinity College Law Review can prove beneficial in that regard.
4.  Structure – There is no absolute requirement on structure. To the contrary, authors have a broad prerogative over how they design their piece. However, there must be a structure which is discernible and accessible to the reader. Streams of consciousness, superfluous or lengthy citations and confused maelstroms of legal scholarship, far from endearing an author to a publisher, can prove fatal for its prospects at publication. There must be adequate signposting as well as a succinct and effective introductory paragraph which indicates the form which the structure will take. It is essential to draft a piece and scrutinise it such that it can be refined for an audience beyond that of the author. Engaging others and asking them to read, critique or give feedback on a piece can result in useful guidance for the author and also may result in various spelling mistakes, grammatical errors or jarring structural issues being resolved before the piece is presented to a potential publisher.

There are numerous cases and statutes which could serve as an ample foundation for a note. Authors may choose from a plethora of judgments or legislative developments which occur in Ireland and beyond. That being so, I have created a short, non-exhaustive list of cases which are current, compelling, or underexplored in their respective fields.

 

Heneghan v Minister for Housing [2023] IESC 18 – The Supreme Court found that sections of the Seanad (University Members) Act 1937 which governed the election of senators was unconstitutional and hence, the Oireachtas must enable graduates from universities and third level institutions outside of the National University of Ireland and the University of Dublin (i.e. Trinity College) to vote in elections for the University panel seats in the Seanad. The case deals with numerous issues including the rights of students at third-level, the distribution of Seanad seats and more practically the doctrine of suspended declarations and prospective effect for declarations of unconstitutionality. This case would be ideal for first time authors given the relatively short length of the judgment as well as the direct implication of the contents for students.

 

Fearn and others v Board of Trustees of the Tate Gallery [2023] UKSC 4 – A recent landmark ruling by the UK Supreme Court in the tort of nuisance, the court held that the viewing platform in the Tate Modern Gallery had allowed visitors to cause nuisance by overlooking into the adjacent apartment blocks. There was an expansion of the scope for nuisance in this case as well as a refutation of the ‘public utility’ defence. This case has been ongoing for years and the Supreme Court only issued judgment a year after hearing oral arguments. The case provides an overview to the area of the Tort while also grappling with questions including whether ‘mere overlooking’ can constitute a nuisance and ultimately the implication of the decision for planning authorities will prove substantial. Finally, given the trenchant minority in this case, it could also prove intriguing for author’s pursuing a dissent-based case-note.

 

DPP v Quirke (No. 1) [2023] IESC 5 – The first of two supreme court judgments relating to Patrick Quirke who had been convicted of the murder of Bobby Ryan in a case grounded on circumstantial evidence. The issue in this case was whether the warrant obtained to search his home applied to the seizure of computers which were used by An Garda Síochana to find that Mr. Quirke had conducted searches relating to body decomposition and DNA. The court here ruled such seizures were unlawful and laid out a distinction between physical and digital spaces in respect of warrants obtained and noted that both which separate special authorization. The case represents fertile ground for a discussion on the increasing prominence of electronic and digital evidence, particularly in light of other electronic initiatives such as the Garda Síochána (Recording Devices) Bill 2022 or it could be used with the later case of DPP v Quirke (No. 2) IESC 20 as a means of exploring the development of the test from DPP v JC [2015] IESC 31 in practice.

 

Godden v Hales (1686) 11 St Tr 1165 – The issue of this case was whether King James II and VII of England and Scotland respectively, could grant dispensation to Catholics from Penal Laws which barred them from office. The court here ruled that he indeed could and that dispensing from religious laws was one of various ancient rights inherent to monarchical executive power. This judgment itself has long been overtaken in UK Constitutional law and is less so recommended here for its fact than for the wider issues dealt with as well as the legal philosophy which it prompted. The role of the courts in policing and expanding the boundaries of powers, parliamentary supremacy, the role of the Monarch following the Bill of Rights 1689 compared with that which existed prior and the question of how freedom of expression subsequently developed.

 

Case T- 172/21 Valve v Commission – This 2023 case concerns copyright protected video game content and restriction to its cross-border provision within the EU. Therein the General court suggested that restricting passive selling would prove restrictive by object unless a domestic court were to declare such sales to amount to an infringement of copyright. The case presents some critical questions surrounding the exhaustion doctrine as well as the rights of copyright holders and as such could serve as a launchpad for more confident law students to engage with the novel developments in digital IP law.

 

Costello v Government of Ireland [2022] IESC 44 – Concerned the potential seizure of judicial jurisdiction by the CETA Tribunal and issues surrounding constitutional identity.

Burke v Minister for Education [2022] IESC 1 – Concerned the potential infringement of homeschooling rights by the government’s calculated grade scheme as well as the issue of delegations of executive power and the ability of the court to review such delegations.

C.W v Minister for Justice [2023] IESC 22 – Concerned the potential unconstitutionality of s. 3(5) of the Criminal Law (Sexual Offences) Act 2006, which stated that in cases of unlawful carnal knowledge, a reasonable mistake as to age was to be proved to the standard of ‘proof on balance of probabilities’. The court considered whether such a standard was incompatible with the presumption of innocence and Constitutional protection of rights of accused in Article 38.1. Issues ranging from the burden of proof to the policy consideration of protecting vulnerable victims are also discussed therein.

 

The Exciting World of Legal Writing

In summation, the world of legal writing is ripe and ready for new contributions. Diversity of thought and interest is crucial for the field and hence, where some authors will have strong views on deeply rooted issues of International law or developments abounding from the European Union, others may have equally valuable insights into areas as diverse and niche as Defamation reform, M&A procedures, injunctions or indeed, the legal developments surrounding the Glorious Revolution and the Bill of Rights. I myself, as well as many others, fall into the latter camp and as such, authors who feel strongly about a point should not feel prohibited by the scope of their subject. Impactful points do not always come with impactful reading times. Regardless of what subject you choose to explore, we very much hope writing a case-note will be an endeavour that you pursue, and one that you, above all, enjoy.

[1] Sam Walsh is a Final Year Law and French Undergraduate at Trinity College Dublin. He is the author of the piece ‘G.E v Commissioner of An Garda Síochana & Others: Sea Changes Rejected and an Age Old Tort Reassessed’ (2022) HLJ 140.

[2] Adam Elbert is a current PhD Candidate and Scholar of Trinity College Dublin specialising in Constitutional Law. He is also a former editor at Trinity College Law Review.

 

Introduction

While land and property have undeniable economic value, they have a further, perhaps more important, dimension to our lives. Property provides security, familiarity and shelter which is indispensable for our development as persons. Most obviously, this can be seen in the relationship we have with our homes. This essay will argue that the Irish Constitution, in separating Articles 40.3 and 43, recognises this kind of relationship between people and property, as opposed to viewing housing as a purely economic commodity. Furthermore, it argues that Article 40.3, if isolated in a meaningful way, can create a new lens through which homes and a right to housing can be viewed.

To illustrate this fully, the first section of this essay outlines the case law surrounding the relationship between Articles 40.3 and 43. It will surmise that most of the discussion so far has been focused on the standards of review of property rights, namely whether “the exigencies of the common good” and “the requirements of social justice” prevent State action from amounting to an “unjust attack” on property rights. It will propose that, following older case law, the articles are protecting two fundamentally different things, and that therefore the mixing of the standards of review by the Courts can be misleading. It will briefly discuss the role Article 40.5 could play here, given its increasing prominence in the protection of homes.

The second section of this essay will outline Margaret Radin’s theory of property, in particular the spectrum of personal to fungible property outlined in her paper ‘Property and Personhood.’^[1] It is proposed that this spectrum could be a valuable tool for assessing the strength of relevant property rights at play; at the very least, it demonstrates that there can be legal recognition of the non-economic value that property gives us. Using the personhood theory, I will attempt to evaluate an area of Irish property law where there is significant interaction between public authorities and individuals: compulsory purchase orders.

A new light on Articles 40.3 and 40.5

This section will attempt to show that Article 40.3 should be isolated on the basis that it protects personal property, of which homes are paradigmatic. This is not to suggest that certain property rights are absolute, or that Article 40.3 offers an unenumerated right to housing. Here, we are merely focusing on the actual rights protected by these articles.

Article 40.3.2°

The Courts have held that Articles 40.3.2°, 40.5 and 43 all mutually inform each other.^[2] The exact nature of their relationship, however, continues to be explored.

Following a complete lack of private property protections in the 1922 Free State Constitution, the drafters of Bunreacht na hÉireann dedicated two provisions to it. As a consequence, much of the case law around property rights has considered the interaction between Articles 40.3 and 43 at length. Following early distinctions, it is now agreed that Article 43.2’s qualifications of “the principles of social justice” and “exigencies of the common good” can be used to inform the Court’s decision on whether the State has unjustly attacked property rights under 40.3.^[3]

This was not clear from the outset, however. In Blake v Attorney General,^[4] the Supreme Court endorsed Davitt P’s High Court decision in Southern Industrial Trust v Attorney General.^[5] This meant that, as a consequence of the ruling in Blake, Article 40.3.2° had a protective function distinct from Article 43:

Article 43 is headed by the words ‘Private Property’… It is an Article which prohibits the abolition of private property as an institution, but at the same time permits, in particular circumstances, the regulation of the exercise of that right[.]^[6]

Meanwhile, Article 40.3.2° protects the personal right of the citizen to property, and therefore has a higher standard of protection, since “the State is bound, in its laws, to respect and as far as practicable to defend and vindicate the personal rights of citizens.”^[7]

However, this distinction was not maintained. In Dreher v Irish Land Commission,^[8] it was held that a State action which is allowed under Article 43° cannot be contrary to Article 40.3°. Somewhat confusingly, O’Callaghan v Commissioner for Public Works ruled that where State action amounts to an unjust attack, no other provision of the Constitution can be invoked to make that attack just,^[9] including the principles of social justice and exigencies of the common good stated in Article 43°. This case still emphasised the close, mutually informative nature of the two articles, and its approach was followed in ESB v Gormley,^[10] Pine Valley Developments Ltd v Minister for the Environment,^[11] and Lawlor v Minister for Agriculture.^[12] In these cases, delimitations of the common good and social justice were imported to clarify the meaning of ‘unjust attack’ on personal rights.

Ultimately, Re Article 26 and Part V of the Planning and Development Bill 1999 resolves the conflicts between Blake and Dreher in favour of the Dreher interpretation,^[13] with the Supreme Court “clearly advocat[ing] a holistic reading of the two private property provisions”.^[14]

The conflation of these two articles has made the question of what amounts to an “unjust attack” identical to the question of what falls outside the scope of the common good and social justice. In J & J Haire and Company Ltd v Minister for Health,^[15] McMahon J enumerated several ways in which an interference with property rights could be ‘unjust’ under Article 40.3.2°, including “[a] lack of fair procedures, unreasonableness and irrationality, discrimination, lack of proportionality and, in some cases, lack of compensation.”

The overarching principle seems to be (1) that an attack on property rights is unjust where it does not further the common good or social justice, and (2) that it does not further the common good or social justice where measures are arbitrary, selective or discriminatory.

Article 40.5

Homes already receive special protection in the Constitution due to the fact that, in line with Article 40.5, they cannot be “forcibly entered, save in accordance with law.” Recently, the Courts have invoked  Article 40.5’s ‘inviolability of the dwelling’ provision to a greater extent, and in the case Clare County Council v McDonagh, the Supreme Court held that it was the corresponding domestic provision to the ECHR’s Article 8 protection of the ‘home.’^[16]

McDonagh is an interesting case because it demonstrates the weight given to homes in proportionality tests. A Traveller family successfully argued that the county council failed to apply the proportionality principle before evicting their caravans from public grounds. The test is to be applied in all cases concerning ‘homes’, held here to be simply a place of residence. But as a procedural article, Article 40.5 is silent on substantive principles: the forcible entry must simply be in accordance with law, not, say, in the “exigencies of the common good”. Any evaluation of the law itself must therefore be examined under a different article.

Shifting the discussion—increased protection for homes?

What seems to be absent from these discussions of ‘unjust attacks’ is the nature of the property itself, and the individual owner’s relationship with it.

Article 40.3 is titled ‘Personal Rights’. It is situated among three other rights: life, liberty and a good name, all of which are fundamental to our personal and social development. None of these other three, important as they are, have a further provision underlining their natural right status and delimitations. But by containing twoproperty protection provisions, it is submitted here that the Constitution creates a distinction between protecting property which is truly personal to us (such as our homes)^[17]  and protecting our capitalist system.

Margaret Radin’s Property for Personhood theory

In her influential paper ‘Property and Personhood’, Radin suggests that: “[t]he premise underlying the personhood perspective [of property] is that to achieve proper self-development—to be a person—an individual needs some control over resources in the external environment.”^[18]

The paper goes on to state that

[o]ne may gauge the strength or significance of someone’s relationship with an object by the kind of pain that would be occasioned by its loss. On this view, an object is closely related to one's personhood if its loss causes pain that cannot be relieved by the object's replacement. If so, that particular object is bound up with the holder.^[19]

It follows that, the protection afforded to particular property rights should be assessed according to their position on the scale of fungible (i.e. replaceable) to personal in our lives. Radin argues that state interference with the personal kind of property should be subject to stricter scrutiny by the courts. A paradigmatic example of this would be home ownership. The importance of homes can be most clearly illustrated in the conversations around homelessness, where it is recognised that those without a secure place to live suffer from more than just a lack of shelter. A home roots our place in society and offers dignity, security and protection. The involuntary deprivation of this can have huge physical and psychological tolls.

From the survey of case law, however, it is not altogether clear that the Irish courts have reviewed property rights along the lines of personal/fungible. The meaning of common good or social justice remains murky and vague, and the nature of the person-property connection is not really elaborated on beyond its status as a ‘natural right.’ This leaves open the risk that the allocation of property will come to take on a purely utilitarian sheen, or that the property’s economic value becomes the sole or primary consideration.^[20]

Taking a ‘personhood’ perspective of property provides us with a “moral basis” for choosing certain property rights to be more strongly protected than others.^[21] Article 40.3 could be an article which provides space for recognition of the fact that land and housing provide far more than purely economic value to us. In other words, it could implement Radin’s personhood theory into our constitutional law. The “principles of social justice” and “exigencies of the common good” still play a significant role in regulating our private property system. Any exceptions to these vitally important considerations should be more protective of the personal rather than the commercial sphere. This ensures that higher protections of the individual do not unduly interfere with efforts to create the most fair and just state possible.

Compulsory acquisition orders

Compulsory acquisition orders allow public authorities to acquire private land without the consent of the owner. They make up a complex area of law, governed by over seventy pieces of legislation, the oldest of which dates back to 1845.^[22] They are often crucial to the building of important public infrastructure,^[23] or protection of historic monuments.^[24] They are also infringements on the property rights of individuals, so it is recognised that mitigatory measures may be required to make the breach less drastic. This section will briefly consider the roles of compensation and provision of specific reasons, and will argue that our current law fails to live up to the personhood protection of private property through under-development of these mitigatory measures.

Compensation

Compensation is technically not mandatory in Ireland when property is compulsorily acquired (other constitutions, such as the Lebanese and Greek ones, have put compensation on a constitutional footing).^[25]However, in practice, compensation at full market value is usually the starting point, with reductions needing further justification.^[26] Given recognition of the fact that compensation cannot truly replace a unique good like land (both judicially^[27] and in popular culture^[28]), it can be a poor substitute which does not truly reflect the value which has come to be attached to the property.

Specific reasons

In Hendron v Dublin Corporation,^[29] the High Court held that a local body looking to acquire land would require a “solid reason and not a pious hope or a mere pretext” for seizing it.^[30] As the LRC has noted, “[t]his case from 1943 reflects an approach that does not appear to be the position of the more modern judiciary.”

A public authority is not required to give specific reasons for the acquisition of land.^[31] In other common law jurisdictions, notably the US, vague reasons like ‘economic development’ have been considered sufficient in cases where the state has acquired private land from one individual to give to another.^[32] While this question has not yet been considered by the Irish courts, a strong deferential approach to the legislature on the meaning of the common good and social justice may see the same stance adopted here.^[33]

In their paper, Compulsory Acquisition of Land,^[34] the Law Reform Commission suggested that for homes, An Bord Pleanála should be required to give detailed reasons for the compulsory acquisition of homes (see Issue 2 of the paper).^[35]  The property for personhood view ascribes a powerful importance to the home which should require concrete reasons to dislodge.^[36] A CPO-stricken homeowner is entitled to know the State’s exact proposed use of their land, and should be able to see the benefits of acquisition realised. This involves the citizen more in the community and provides greater transparency.

Conclusion

This essay has argued that Article 40.3 has the scope to provide a more ‘personhood’ view of property which limits—or reformulates—the role of social justice, in order to bring about higher protections for homes, particularly in contexts such as compulsory purchase orders. This would lead to increased legal recognition of the fact that homes, and property in general, provide far more than just economic benefits.

[1] Margaret Jane Radin, ‘Property and Personhood’ (1982) 34(5) Stanford Law Review 957.

[2] Reid v Industrial Development Agency [2015] IESC 82 [43].

[3] Re Article 26 and the Employment Equality Bill 1996 [1997] IESC 6, (1997) 2 IR 321.

[4] [1982] IR 117 (SC).

[5] Attorney General v Southern Industrial Trust (1957) 94 ILTR 161, 168.

[6] Blake v Attorney General [1982] IR 117 (IESC), original emphasis.

[7] Ibid, my emphasis.

[8] [1984] ILRM 94 (SC).

[9] [1985] ILRM 364 (SC).

[10] [1985] IR 129 (SC).

[11] [1987] IR 23 (SC).

[12] (1990) 1 IR 356 (HC).

[13] [2000] IESC 20, (2000) 2 IR 321.

[14] Hogan and others, Kelly: the Irish Constitution (5th ed, Bloomsbury Professional 2018) [7.8.65].

[15] [2009] IEHC 562 (17 December 2009).

[16] [2022] IESC 2, (2022) 1 ILRM 353.

[17] Even Marx and Engels recognised this type of distinction in Karl Marx and Friedrich Engels, The Communist Manifesto (Penguin Books, 1979) 96.

[18] Radin, ‘Property and Personhood’ (n 1) 957.

[19] Radin, ‘Property and Personhood’ (n 1), 959.

[20] Rachael Walsh, ‘The Principles of Social Justice—The Compulsory Acquisition of Private Property for Redevelopment in the United States and Ireland’ (2010) 32 DULJ 1, 19-20.

[21] Radin, ‘Property and Personhood’ (n 1), 959.

[22] Law Reform Commission, Issues Papers: Compulsory Acquisition of Land (LRC IP 13—2017) [2.02].

[23] Crosbie v Custom House Dock Development Authority (1996) 2 IR 531 (IESC).

[24] O’Callaghan v Commissioners of Public Works [1985] ILRM 364 (IESC).

[25] Dreher v The Irish Land Commission [1984] ILRM 94; Central Dublin Development Association v Attorney General (SC) (1975) 109 ILTR 69, 86.

[26] Reid v Industrial Development Agency (n 2).

[27] Crosbie v Custom House Dock (n 23).

[28] Plenty of books and movies centre around stories of people with strong connections to land, including the 1997 Australian comedy film The Castle.

[29] [1943] IR 566 (IEHC).

[30] Ibid, 573.

[31] Clinton v An Bord Pleanála [2007] 4 IR 701

[32] Kelo v City of New London 545 US 469 (2005).

[33] Central Dublin Development Authority; Crosbie v Custom House Dock Development Authority [1996] 2 IR 531. Also Rachael Walsh, ‘The Principles of Social Justice (n 20), 5-11.

[34] Law Reform Commission, Issues Papers: Compulsory Acquisition of Land (LRC IP 13—2017).

[35] Ibid, [2.07], [10.16].

[36] Compulsory acquisition of shares is not allowed under Irish law, but compulsory acquisition of homes is legally sound.

Introduction

The housing crisis has been a pervasive part of the Irish experience in the past decade, acutely felt by young and old. Thousands of people are suffering in insecure and inadequate accommodation.^[1] The endless media commentary on the subject is wearing us all down: the housing crisis almost has the same conversational value as the weather. Deprived of the choice of affordable and appropriate housing in which to kickstart an independent adult existence, our cohort of about-to-graduate fellow students are planning their emigration with resigned sighs. We hope desperately that somewhere else it will be different.

It has been estimated that we will need to accommodate approximately 49,000 people per year until 2051 in housing that is not currently available.^[2] As a reaction to this, the Irish government produced the Housing for All plan in which they committed to investing €20 million euros until 2025 in housing development.^[3] In the recently published National Development Plan for 2021 until 2030, the government states that they expect 400,000 new dwellings will need to be constructed by 2031 to address the present strains on the housing market and expected population increase over the next decade.^[4] Unfortunately, the construction of 400,000 new homes could not have come at a worse time, environmentally speaking.

Sectoral Emissions Ceilings

Discussions are emerging in the media and academia, both in Ireland and internationally, concerning the unaccounted greenhouse gas (‘GHG’) emissions associated with construction, and the impact of this source of emissions on the achievement of our residential sector emissions reductions targets.^[5] Last summer, the Government produced sectoral emissions ceilings which are designed to achieve a 51 per cent reduction in national GHG emissions by 2030.^[6] They are not exactly legally binding, but they are part of the larger framework created by the Climate Act 2021, and reflective of the target to limit global warming to 1.5° in accordance with the Paris Agreement and EU law.^[7] Of concern to this paper is the residential sector’s emissions ceiling which was capped at 4 million tonnes of carbon dioxide (equivalent) by 2030, representing a 44-56 per cent reduction in emissions from those recorded in 2018.^[8] The 2021 carbon budget programme has a five-year term, and excess emissions are carried forward to the next budget period with corresponding reductions.

Notably, the emissions ceilings framework also provides for 26 MtCO²eq of unallocated savings which the government hopes will arise due to “emerging technologies, changing scientific consensus or policies”.^[9] Friends of the Irish Environment have begun proceedings to quash these sectoral emissions ceilings on the basis that the unallocated savings have been “picked from the sky.”^[10] Despite the lack of enforceability and potential impracticality of the targets, they are, for now, a relatively helpful means to quantify our progress – and our failures.

Housing and GHG Emissions

Housing results in GHG emissions from energy and electricity use by occupants, in addition to transport costs associated with commuting between one’s residence and workplace.^[11] These ‘operational emissions’ are being reduced in Ireland through retrofitting and the transition to renewable energy sources.^[12] However, construction of new dwellings involves the heavy use of non-renewable materials, takes up land that could be used for wildlife and biodiversity, and is an energy-intensive process.^[13] These more subtle carbon impacts are labelled ‘embodied emissions’ and have been increasingly given more attention in carbon accounting literature. Combined, researchers have calculated that the operational and embodied emissions of the built environment in Ireland are currently responsible for upwards of 37% of national emissions.^[14]

Armed with these figures, it is alarming to read the Irish Green Building’s Council’s recent report outlining the emissions trajectory of the buildings sector in Ireland based on the government’s plans for housing and infrastructural works in the coming decades.^[15] The researchers found that works envisioned by the National Development Plan, National Retrofit Programme and Housing for All, if completed, would produce double the built environment’s embodied emissions and considerably increase the annual operational emissions for the building sector.^[16] The researchers note that while operational carbon emissions will decrease as renewable energy sources begin to dominate and retrofitting homes increases their energy efficiency, there will be a five-fold surge in embodied emissions from the materials and construction process involved in adding 400,000 residential buildings to the market.^[17] If such a path is taken, embodied emissions will be responsible for 40 per cent of all residential emissions by 2030, when they are currently only responsible for one third of emissions. The bad news is that there will be negligible reductions in the total GHG emissions for the residential sector if the 2030 housing targets are achieved.^[18]

(Tentative) Solutions

Placed in the eye of the storm, it seems the Irish State has committed itself to fulfilling two conflicting obligations: increasing housing supply en masse, while simultaneously halving national carbon emissions by 2030. This appears to be an irreconcilable conflict, as housing development in the way that we want and think we need is simply unsustainable. Our neoliberal political mindset that relies on an oversupply of housing to improve its quality and reduce its price ignores the reality that there are elements of home and the natural environment in which it sits that remain non-commodifiable. We must ask ourselves how we want to live on this ever-warming planet, and then shape our physical structures and legal rules to fit this new lifestyle.

It is my view that we can create a sustainable housing system that satisfies basic housing needs without destroying the planet in the process. Revamping building regulations is one vital component of this process. Embodied carbon in buildings has become a hot topic of conversation amongst building regulation specialists and a ‘whole life carbon’ approach is likely to be included in the next iteration of the European Union’s Energy Performance Building Directive.^[19] This means that embodied carbon will be considered thoroughly in the form and structure of new housing construction. The EU’s new approach follows the exemplary lead of Sweden, Denmark, France, Finland and the Netherlands who all introduced a whole life carbon accounting approach to energy reduction in the construction sector.^[20] These regulations can place a cap on the GHG emissions that each building may produce, require that certain sustainable materials be used, or limit the floor space per-capita so as to reduce land take and demand for materials.

We can also make use of existing buildings. The transformation of over one hundred and fifty thousand vacant, derelict or underused properties in Ireland will be essential to increasing housing supply without causing a massive increase in embodied emissions. The new tax and fiscal incentives to encourage private redevelopment of vacant properties is a start, but we need to think more progressively to make use of the valuable environmental resources that are existing buildings.^[21] For example, the State – and by extension, Local Authorities - could use their social justice prerogatives under Article 43.2.1° of the Irish Constitution to intervene in certain people’s private property rights and purchase their vacant properties compulsorily for purposes of social housing provision or affordable purchase schemes. As our social order changes and three-generational homes fall out of disuse, we also need to consider the idea of splitting existing houses into self-contained apartments or cohousing strategies.^[22]

Additionally, the potential referendum on inserting a right to housing, depending on the verdict in the impending Housing Commissions report,^[23] could be an excellent legal counterpoint to the strong private property protections in the Constitution that politicians have regarded as being an obstacle to progressive State intervention in the housing system.^[24] Increased opportunities for public intervention in private property could lead to a collective re-organisation of the housing system with principles of sustainability and sufficiency placed at its core, without undermining totally the institution of private property guaranteed by Article 43.1.2° of the Irish Constitution.

As a final note, Ostrom has argued persuasively that polycentric and localised governance structures like that of the Irish planning system are the most effective means of achieving transformative and lasting improvements in the physical environment.^[25] The local planning authorities and An Bord Pleanála are at the front line of housing development in Ireland, and their position as such must be given more attention. Where these public authorities are endowed with effective legal tools such as the Environmental Impact Assessment process, when based in scientifically approved environmentally protective reasoning, they can ensure that any development that is taking place does not benefit the economy at the sake of the environment. Additionally, reforming the Planning and Development Act 2000 to explicitly define “sustainable development” would strengthen this normatively neutral concept and ensure that the environment is weighed more heavily against competing economic and social policy considerations. The improved definitional framework could require considerations of calculated carbon footprints, proportion of land take and projected impact on wildlife or biodiversity to be integrated more deeply into the planning permission process. Key to the success of “sustainable development” in restricting unsustainable development is the use of scientific imperatives and accurately calculated planetary boundaries.^[26]

Conclusion

Leading Irish social policy analyst Rory Hearne has commented that “the connection between housing and the environment urgently needs to be moved centre stage in both the housing and climate debates”.^[27] Indeed, this is a subject and conflict that requires a great deal more consideration by lawyers, environmental scientists and the residential construction industry as a whole. It is only through a combination of collective and individual efforts that we will learn how to live within our planetary boundaries. The series of tentative solutions offered here are merely the tip of the iceberg; innovative regulation and policy will be necessary to transform housing systems around the world from a path of growth-dependency to one of sufficiency and sustainability.

[1] Simon Communities of Ireland, ‘Homeless Figures Press Release’ (30 September 2022) and Department of Housing, Local Government and Heritage, ‘Summary of Social Housing Assessments 2021 – Key Findings’ (30 March 2022) available here, accessed 19 October 2022. Isabel Baptista et al, From Rebuilding Ireland to Housing for All: international and Irish Lessons for Tackling Homelessness (Focus Ireland, 2022), 33.

[2] Eoin Burke-Kennedy, ‘50,000 new homes needed every year to solve housing crisis – industry report’ (Irish Times Online, 12 August 2021) available here, accessed 8 October 2023.

[3] Department of Housing, Local Government and Heritage, Housing for All – A New Housing Plan for Ireland (2021).

[4] Department of Public Expenditure and Reform, ‘National Development Plan 2021-2030’ (16 February 2018), 15.

[5] Sylvia Thompson, ‘Developers, architects and builders must incorporate carbon reduction measures into construction’ (The Irish Times, 2 Feb 2023).

[6] See Department of the Taoiseach, ‘Press Release: Government announces sectoral emissions ceilings, setting Ireland on a pathway to turn the tide on climate change’ (28 July 2022) available here, accessed 8 October 2023. The sectoral emissions ceilings were created in accordance with Section 9 of the Climate Action and Low Carbon Development (Amendment) Act 2021.

[7] In accordance with Article 2(1)(a) of The Paris Agreement on Climate change, adopted at the 21st Conference of the Parties, (Paris: United Nations, 12 December 2015) and the EU Emissions Targets and Regulation (EU) 2021/1119 of the European Parliament and of the Council of 30 June 2021 establishing the framework for achieving climate neutrality.

[8] ibid

[9] Kevin O’Sullivan, ‘Sectoral emissions ceilings published by Government for carbon budgets up to 2030’ (Irish Times Online 26 Sep 2022) available here, accessed 8 October 2023.

[10] Ellen O'Riordan, ‘Environmental group lodges legal action over emissions cuts ‘picked from the sky’’ (The Irish Times, Monday 27 Feb 2023), accessed 8 October 2023.

[11] Aidan Duffy, ‘Land Use Planning in Ireland-a Life Cycle Energy Analysis of Recent Residential Development in the Greater Dublin Area’ (2009) 14(3) International Journal of Life Cycle Assessment, 268–77 and Georgia Pozoukidou, ‘15-Minute City: Decomposing the New Urban Planning Eutopia’ (2021) 13(2) Sustainability, 928.

[12] European Union (Energy Performance Of Buildings) Regulations 2019 (S.I. No. 183/2019) as enacted under Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings (recast) as amended by Directive (EU) 2018/844 of the European Parliament and of the Council of 30 May 2018 [2010] OJ L153/13.

[13] M. Röck, M.R.S. Saade, M. Balouktsi, et al, ‘Embodied GHG emissions of buildings – The hidden challenge for effective climate change mitigation’ (2020) 258 Applied Energy, 114107.

[14] Richard O’Hegarty, Stephen Wall and Oliver Kinnane, for the Irish Green Buildings Council (V4, In Draft) Whole Life Carbon in Construction and the Built Environment in Ireland (October 3rd, 2022), 10.

[15] ibid

[16] Ibid, 5.

[17] Ibid, 21, 26.

[18] Ibid, 36.

[19] Richard O’Hegarty, Oliver Kinnane, ‘Whole life carbon quantification of the built environment: Case study Ireland’ (2022) 226 Building and Environment, 109730, 13.

[20] Harpa Birgisdóttir, ‘Why Building Regulations Must Incorporate Embodied Carbon’ (Buildings and Cities 30 October, 2021) available here, accessed 8^th March 2023. Ministry of the Interior and Housing, National Strategy for Sustainable Construction Denmark (2021) available here, accessed 8^th March 2023.

[21] Section 80 of the Finance Act 2021

[22] Maria Sandberg, ‘Downsizing of Housing’ (2017) 38(2) Journal of Macromarketing, 154-167.

[23] Jack Horgan-Jones, ‘Right-to-housing referendum: Recommendations due this month on wording of vote’ (Irish Times, 4 Jan 2023) available here, accessed 8 March 2023.

[24] Hogan & Keyes, ‘The Housing Crisis and the Constitution’ (2020) available at SSRN 3731506.

[25] Elinor Ostrom, ‘Beyond Markets and States: Polycentric Governance of Complex Economic Systems’ (2010) 100(3) The American Economic Review, 642.

[26] David Hunter, ‘An Ecological Perspective on Property Theory’ (1998) 12 Harvard Environmental Law Review, 311.

[27] Rory Hearne, Housing Shock: The Irish Housing Crisis and How to Solve It (Policy Press, 2020), 239.

Should private companies, such as social media platforms, be made to
respect the right of freedom of expression?

Early in the digital age, cyberlibertarian John Perry Barlow declared that the internet would become 'a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.' However, as the internet has evolved, hate speech, bullying and harassment on social media has meant that the deleting of posts and the suspension of accounts is an all too common occurrence.

Looking at it from the angle of the private company, this is perfectly acceptable. Private companies, unlike public companies, are free to develop their guidelines according to their own mission and values. Users sign up to the terms and conditions when accessing the platform. And accordingly, the company has the rights to remove anything they don’t want on their platform – and this is not limited to speech that is directed towards hate or violence.But when a platform is so pervasive – think Facebook – that there is no meaningful alternative, then one can argue that the guidelines should evolve to ensure
compliance with human rights. These guidelines should prevent speech that threaten, or insult groups based on colour, race, religion, national orientation or disability (hate speech). And not only in the country where the company is established – but everywhere.

Arguably, President Trump’s suspension from Instagram and Facebook is a good example of where a company’s guidelines justified its action. In two of his posts about the capital riots, Trump praised and supported people involved in a continuing riot where individuals were injured and died, lawmakers were at serious risk of harm, and a key democratic process was disrupted. Taking this into account and the continuing threat of violence and disruption in Washington DC, the Oversight Board deemed Facebook’s actions to temporarily suspend President Trump, necessary and proportionate. They did so under a
justified limitation of the freedom of expression. His enticement of violence had violated both the company's policy and the human rights policy.

Yet, this does however go fundamentally against the spirit of freedom of expression. Is this acceptable? How does a company determine what qualifies as hateful or damaging? Or judge when an opinion becomes a targeted attack on an individual or group?
Companies that try to do this, don’t always get it right. Referencing Facebook again, their guidelines on nudity have triggered violations of cultural expression highlighting that what’s acceptable in one culture is not tolerated in another. And their ‘real name’ policy – which aims to ensure you always know exactly who you are connecting with, violates the right to privacy for people who rely on anonymity for pseudonyms to express themselves.

Nevertheless, I believe that private companies should be made to respect the right of freedom of expression, albeit within clearly defined objective guidelines about what is acceptable and what is not. Striking the balance is the challenge. What is considered admissible for free speech is often difficult to establish, making it hard for private companies to objectively draw a line on what is acceptable to all. In English law, it’s common practice to ask what the man on the Clapham omnibus would say. He represents
the view of the hypothetical, ordinary and reasonable person. Yet, what might work in the UK will not necessarily work elsewhere because national legal and regulatory frameworks differ between countries and are not always consistent with international standards.

I believe that international reform, global standards, and robust processes can help. Today, the rules of social media companies are ambiguous, convoluted, and obscure. Facebook’s community standards are famously hard to find and consist of thousands of words of fine print. This makes it unlikely for users to understand, follow the regulations stipulated and apply them correctly. Given that human right law requires that speech restrictions are precise and accessible to all who live under them, social media rules and regulations of use should clearly be improved. For this I propose that there should be an external source of standards globally. A single body of transparent standards for private companies to adhere to. And rather than pages of text that you can skip over with the tick of a box, individuals should be made to watch a short impactful video explaining what is and is not allowed and why. And that the breaking of these rules can lead to suspension and or a ban. Only then would access to a social media platform be allowed.  There should also be a robust process for people to understand what rule they may or may not be
violating. They should understand how decisions are made, what the rules are and what the basis of adjudication is in any individual instance.

To protect freedom of expression, it is also vital to try other interventions to persuade people not to post harmful content in the first place so that there are no more incidents like what happened to Molly Russell. Molly died in 2017 from an act of self-harm while suffering from depression and the negative effects of on-line graphic content selected and provided to her on the basis of algorithms. Yet, that content was posted by someone initially. If there was more rigorous screening of identities and people were accountable for their content – this would not have happened. Facebook’s real name policy strives to
achieve this, but it requires very little, if any validation that you are who you say you are.

In conclusion I firmly believe private companies such as social media platforms should be made to respect the right of freedom of speech. It is a fundamental right, it promotes tolerance, is part of individual autonomy, and an essential part of a well-run democracy. Moreover, it is enshrined in Article 19 of the Universal Human Rights Declaration. However, companies should be clear and unambiguous about where the limitations lie because an unregulated system that can harm and damage is entirely unacceptable. By setting clear, authoritative, and widely endorsed parameters social media platforms could work towards creating a safer online environment.

Introduction

Litigation crowdfunding can be defined, per Raghupathi, as ‘a large number of individuals (the crowd) who are willing to donate, represent the financial backer; [i]instead of investing a large sum of money toward the litigation, most of these individuals donate small amounts’.^[1] This is emerging as an important means of litigation funding, particularly with the establishment of platforms such as ‘CrowdJustice’ as a quick and easy means of donating to a particular cause or individual.^[2] As an approach to financing litigation it has the potential to enable activists and advocates to advance cases on behalf of marginalised groups. However at present there is a risk that litigation crowdfunding would run afoul of the rules of maintenance and champerty. The former refers to the funding of litigation by a person who has no legitimate interest in the proceedings.^[3] The latter is funded by a third party where the third party is promised a portion of the proceedings in the event of successful litigation.^[4] This article will focus on the benefits and challenges of litigation crowdfunding for access to environmental justice.

 

Environmental Ligation and Crowdfunding

From an environmental perspective, litigation crowdfunding could further allow marginalised communities to pursue cases advancing environmental justice. This may be necessary given the deficiencies in Ireland’s current system of  legal aid for environmental cases. In Friends of the Irish Environment v the Legal Aid Board for example,^[5] the NGO which had successfully taken the case that struck down Ireland’s deficient Climate Action Plan,^[6] was denied access to civil legal aid. This denial was on the basis that the NGO was not a natural person, meaning environmental activists must identify an individual willing to incur significant financial risk, due to the possibility of an adverse costs order, to be eligible for some form of civil legal aid. Litigation crowdfunding on the other hand would circumvent these difficulties by spreading the potential financial risk among a large body of individuals or alternatively by securing a pre-emptive costs fund. This is highly relevant for access to justice and public interest litigation, with panellists at the recent Voluntary Assistance Scheme of the Bar of Ireland Conference noting that strategic litigation is often a battle of attrition related to costs.^[7]

Indeed, crowdfunding has already been utilised in an ECHR context to bring cases pertaining to the intersection between human rights and the climate crisis. The platform ‘CrowdJustice’ was used to fund the case taken by a group of Portuguese children, who claim that European Convention Member States are violating their right to life by failing to act on climate change.^[8] The ECHR has accepted the case and is expected to make a ruling on the matter in the coming months. More recently, ‘CrowdJustice’ has been used in the UK to fund a case being taken by climate activists alleging that the UK governments Net Zero strategy is insufficient to achieve its stated objective of reaching net zero emissions by 2050.^[9]

Does the fact that both Strasbourg and the UK have allowed the use of crowdfunding make it more likely that Irish courts will be lenient in the context of crowdfunding environmental cases? The answer is not entirely straightforward. Firstly, the ECHR contains no rule against champerty, as the latter is derived from common law tradition, which is distinct from Convention jurisprudence. In a UK context, the rules against champerty have been relaxed and some third-party funding is allowed, subject to regulation via the Code of Conduct for Litigation Funders and judicial oversight of funding agreements.^[10] There is also a self-regulating independent body called the Association of Litigation Funders to police the actions of crowdfunding litigation platforms.^[11] Ireland has yet to follow the UK in implementing such a regulatory framework. In the absence of further guidance, Ireland remains wedded to more traditional, and therefore strict prohibitions on champerty and maintenance. There is however an exception to the rule against champerty where the third party can demonstrate they have a legitimate interest in the case. The scope of what constitutes a legitimate interest in the context of public interest litigation remains somewhat unclear. This is evident from the most recent ruling on the matter in Persona Digital Telephony Ltd v. Minister for Public Enterprise, Ireland, [2017] IESC 27.

 

Implications of Persona for Crowdfunded Environmental Litigation

Persona saw the plaintiffs enter into a funding arrangement with a third-party investment fund in order to pursue litigation that would challenge the awarding of a mobile phone licence contract to the company Esat Digifone, owned by prominent businessman Denis O’Brien. They asserted that such an arrangement should be allowed on the basis that the case was of public importance and could not proceed without the third-party funding. The Court dismissed this claim, with Denham CJ stating “I do not find the fact that the funding was provided during the course of the proceedings a relevant factor. Nor do I consider the fact that the case is described as one of immense public importance to be a relevant factor”.^[12] Further, any suggestion that the common lawn on champerty be developed to accommodate cases of public importance was broadly dismissed as a matter best left to the legislature.^[13] This would imply that the court is highly tentative to vary the rule in order to broaden the use of third-party funding. Under the current formulation each donor would effectively need to prove a legitimate interest in the case.

However, it should be noted that Clarke J previously recognised that the scope of a legitimate interest included ‘charity’.^[14] Indeed he went on to say ‘‘[s]hareholders and creditors of the impecunious party could thus be ordered to pay costs, however, unconnected entities providing funding out of charitable intent could not”. This line of reasoning could leave the door open for crowdfunded litigation.^[15] A small donation from a vast pool of donors does not come with the expectation of a return on proceeds, while environmental justice cases could potentially fall within the definition of ‘charity’. Matters may be complicated however where the crowdfunding platform makes a small return on the collected fees where the case is successful. Axia Funder in the UK, for example, relies on attracting investment funds through the promotion of cases with a high likelihood of success and provides a return on investment where cases are successful.^[16] Such a model could potentially be used in environmental cases taken against fossil fuel companies that have a likelihood of compensation, however they would run contrary to the rules outlined in Persona. Thus, the court, in the absence of a regulatory scheme, would need to rule on whether each form of crowdfunding can be considered charitable on a case-by-case basis. This may complicate environmental justice cases, particularly given the courts’ fear that ‘‘[p]ermitting entirely unregulated third party funding … as a means of solving the problem of access to justice runs the real risk of creating more problems than it solves”.^[17]

Bridging the Regulatory Gap

It is clear that the courts see the contours of third-party litigation funding as a matter seriously implicated in questions of public policy. They have recurrently noted the potential interplay between third-party litigation funding and the constitutional right of access to the courts with an apparent commitment to altering the rules of maintenance and champerty in an appropriate case. Crucially they note that this would arise in the event the legislature did not act thereby facilitating an inhibition of the right of access to the courts. The emergent consensus is that this is principally an issue for the legislature to address albeit with a residual role for the courts.^[18] It would also be helpful more generally for the state to establish a regulatory scheme cornering litigation crowdfunding in order to avoid unnecessary semantics within litigation, particularly when environmental justice cases can be considered urgent, in light of both the existential and policy need to achieve net zero emissions by 2050.^[19]

Thus the state should follow the UK in providing further guidance on what can and cannot be considered a legitimate means of providing funding. In this regard, it may be helpful to draw up a list of legitimate crowdfunding sites, with sites such as CrowdJustice being eligible to apply for recognition. The state could also clarify what can be considered a ‘legitimate interest’, perhaps allowing for funding to be granted where a case is pursued to challenge or enforce state policy. For example, cases that seek to ensure the Climate Action Plan is adequately pursued by the government could be considered ‘legitimate’. A code of conduct similar to the UK’s would also assist in policing crowdfunding platforms and ensure donors are not exploited where plaintiffs fail to acquire the funding needed to pursue the case. The need for such intervention is well-documented with members of the judiciary, including Chief Justices, recurrently noting the need to adequately reform this and related areas of law with a view to ensure effective access to the courts.^[20] Addressing this matter prior to it becoming an experimental exercise by advocates or similar groups is strongly advised.

 

Conclusion

Crowdfunding litigation could be a game changer for improving access to environmental justice. Allowing climate activists to capitalise on the power of individual finance could see a greater breadth of cases taken and a reduced risk of financial collapse should those cases be unsuccessful. However, as Persona has demonstrated, there remains significant ambiguity between ‘legitimate’ crowdfunding litigation and funding which would contravene the rules of champerty. It is therefore recommended that a regulatory scheme be established that would identify legitimate interests with reference to broader social agendas such as the National Climate Action Plan, the National Action Plan Against Racism and the National LGBTQ+ Inclusion Strategy among others. Such a scheme would allow activists to link their cause to the public interest without broadening the scope of the rule beyond judicial comprehension. Environmental justice is one facet of a wider spectrum of cases that would benefit from crowdfunding litigation. Decision makers should now prepare to adopt regulatory schemes that recognize and embrace its potential for achieving widespread social justice.

 

[1] Viju Raghupathi et al., ‘Understanding the nature and dimensions of litigation crowdfunding: A visual analytics approach’ [2021] 16(4) PLOS ONE.

[2] See < https://www.crowdjustice.com/how-it-works/> for more on how crowdjustice works as a platform.  See also Michael Elliot, ‘Trial by Social Media: The Rise of Litigation Crowdfunding’ (2018) 84 University of Cincinnati Law Review 2.

[3] Hilary Biehler, 'Maintenance and Champerty and Access to Justice - The Saga Continues' 59 Irish Jurist (NS) 130 provides a useful discussion of this concept in an Irish context.

[4] ibid.

[5] [2020] IEHC 347; This is distinct from the ruling which forced the Irish government to draw up a new Climate Action Plan, FIE v Government of Ireland [2020] IESC 49.

[6] For more on this see Orla Kelleher, ‘A critical appraisal of Friends of the Irish Environment v Government of Ireland’ (2020) Review of European, Comparative and International Law.

[7] PILA, ‘Law & Social Change: PILA reports on the Bar of Ireland Voluntary Assistance Scheme Conference 2022’ (5 October 2022) <https://www.pila.ie/resources/bulletin/2022/10/05/law-social-change-pila-reports-on-the-bar-of-ireland-voluntary-assistance-scheme-conference-2022> accessed 11 October 2022.

[8] Duarte Agostinho and Others v. Portugal and 32 Other States (2020) ECHR Communication 39371/20 and Sandra Laville, ‘Portuguese children to crowdfund European climate change case’ (The Guardian 25th September 2017) https://www.theguardian.com/world/2017/sep/25/portuguese-children-crowdfund-european-climate-change-case-sue-47-countries accessed 26/06/2022.

[9] See  ‘Net Zero: The Government must take the climate crisis seriously’ <https://www.crowdjustice.com/case/net-zero-government-climate/ for the link to the funding page and Goodlaw Project V Secretary Of State For Business Energy And Industrial Strategy (2022) Co/199/2022 for the Court order accepting the case for judicial review.

[10] Simon Latham and Glynn Rees, ‘The Third Party Litigation Funding Law Review: United Kingdom – England &amp; Wales’ (The Law Reviews 22 November 2021) <https://thelawreviews.co.uk/title/the-third-party-litigation-funding-law-review/united-kingdom-england--wales>  accessed 22/06/2022.

[11] ibid.

[12] Persona Digital Telephony Ltd v. Minister for Public Enterprise, Ireland, [2017] IESC 2 Denham CJ at 54.

[13] ibid MacMenamin J at 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.’

[14] Thema International Fund Plc v HSBC Institutional Trust Services (Ireland) Ltd[2011] IEHC 357 Clarke J at 5.6. This aspect of the case was quoted approvingly in Persona by Denham CJ at 51.

[15] ibid.

[16] ibid (n 1).

[17] SPV Osus Ltd v. HSBC Institutional Trust Services (Ireland) Limited &amp; Others [2018] IESC 44 Clarke CJ at 2.2.

[18] Hilary Biehler, 'Maintenance and Champerty and Access to Justice - The Saga Continues' 59 Irish Jurist (NS) 137.

[19] Policy considerations are derived from the Paris Agreement 2015, the European Green Deal 2020, the National Climate Action Plan 2021 and the Climate Action and Low Carbon Development (Amendment) Act 2021 among others.

[20] Law Society Gazette, ‘’Shrinking sub-set’ of cases stifles access to justice’ (6 October 2021) < https://www.lawsociety.ie/gazette/top-stories/2021/10-october/shrinking-sub-set-of-disputes-in-court-compromises-access-to-justice> accessed 11 October 2022; Andrew McKeown ‘Chief Justice launches report on litigation funding and class actions’ (Irish Legal News, 31 January 2020) < https://www.irishlegal.com/articles/chief-justice-launches-report-on-litigation-funding-and-class-actions> accessed 11 October 2022.