Horse of a different colour

A recent Supreme Court judgment, in which the Law Society participated as amicus curiae, provides clarity on the issue of ‘no foal, no fee’ arrangements. Jonathan White mounts up

On 17 June, the Supreme Court delivered judgment in the cases of Howley v Howard and Howley v McClean.

These appeals by Mr Howard and Ms McClean were from judgments of the High Court (16 January 2024) and Court of Appeal (28 March 2025).

The appellants – as taxpayers against whom the sums of €2.4 million (including interest) and €625,000 (including interest), respectively, in unpaid taxes are due – claimed that certain contractual agreements between the Collector General (Mr Howley) and a panel of nominated solicitors, in respect of the recovery of legal costs, had champertous features, so as to render those agreements unenforceable. 

Champerty occurs where there is a further agreement that a person who gives the aid shall receive a share of what might be recovered in the action.

The appellants objected to two aspects of those agreements: firstly, a percentage fee structure and, secondly, what they contended was a champertous, and thus unlawful, ‘no foal, no fee’ element.

It is primarily with the clarity provided by the Supreme Court on the ‘no foal, no fee’ aspect that this article deals.

Ride on pony

In the High Court, when granting judgment for the amount of taxes, surcharges, and interest claimed by the respondent, Quinn J did not accept the appellants’ contention that the respondent’s fee arrangement with a panel of solicitors was champertous.

The appellants appealed to the Court of Appeal, principally on the grounds that the High Court had erred to that end. The Court of Appeal upheld the High Court decision and dismissed the appeal.

On 16 June 2025, the appellants each applied to the Supreme Court for leave to appeal to that court pursuant to article 34.5.3 of the Constitution, seeking to set aside the judgments of the High Court and Court of Appeal.

By determinations dated 19 September 2025, the Supreme Court granted that leave in respect of the champerty issue.

By letter dated 9 January 2026 to the Law Society, the Supreme Court confirmed that, given the potential importance of a decision in the appeals for fee arrangements and the solicitor’s profession, it would welcome the participation of the Law Society as an amicus curiae in those appeals.

In particular, the Supreme Court sought the Law Society’s views on:

• The common-law position in relation to champerty and conditional fee arrangements;
• The effect of section 11 of the Attorneys’ and Solicitors’ Act 1870;
• The effect of section 149 of the Legal Services Regulation Act 2015; and
• The constitutional implications (if any) of the possible interpretation of these provisions, having regard, in particular, to articles 34.1 and 40.3 of the Constitution.

The Law Society furnished written submissions on these issues, and attended to make oral submissions at a Supreme Court hearing on 19 March 2026. The attorney general also participated as an amicus in the appeals.

Back in the saddle

On 17 June 2026, the Supreme Court dismissed the appeals and affirmed the Court of Appeal order.

The judgment of Hogan J (with whom Woulfe, Murray, Collins, and Donnelly JJ agreed) held that the contractual arrangements between the respondent and the panel of nominated solicitors providing for a fee uplift in debt-collection cases, while champertous at common law, now came within a statutory exception and were no longer unlawful. 

Section 149(1)(a) of the Legal Services Regulation Act 2015 permits a percentage fee structure in recovery of debts or liquidated sums.

Further, he indicated that, as the practice of ‘no foal, no fee’ fee arrangements was carried over as part of the pre-existing law in 1937 by virtue of article 50.1 of the Constitution, that practice did not amount to champerty in Irish law.

Counsel for the respondent confirmed at the hearing that it was not proposed by the respondent to claim fees on the basis of, or by reference to, the ‘no foal, no fee’ clause in the contract in question.

Hogan J held that it would, nonetheless, be in the public interest to provide clarity on the issue, on a strictly obiter basis, given its importance and relevance to the fee arrangements currently prevalent in the legal system [paragraphs 36-37].

Long grey mare

Hogan J considered that, before 1922, ‘no foal, no fee’ arrangements of the kind in question were lawful and, further, that judicial interpretation of section 11 of the Attorneys’ and Solicitors’ Act 1870 reflected that.

He was, therefore, of the view that this position represented the common law prior to 1922, and that this was carried forward by article 73 of the Constitution of the Irish Free State in 1922 and, later, by article 50 of the 1937 Constitution.

As such, he was also of the view that, as that interpretation of the 1870 act had been current for more than 150 years, the court should not disturb it. He noted that ‘no foal, no fee’ arrangements were long-established in the Irish legal system, with the population as a whole acting on the basis of their legality [paragraphs 38-54, 82].

Turning to the post-1922 developments in England and Wales, Hogan J noted that, while the majority of the case law suggested that ‘no foal, no fee’ type arrangements were unlawful, he was unpersuaded by the justifications for that approach.

He was more convinced by the reasoning in Thai Trading Co v Taylor, a contrary English authority, and was of the view that, as such, the common-law rules as to maintenance and champerty should not be extended so as to render unlawful the ‘no foal, no fee’ system.

He observed that, from a series of Irish cases (including McHugh v Keane and Synnott v Adekoya) and regulatory measures (regulation 6(b) of the Legal Services Regulation Act 2015 (Advertising) Regulations 2020), there were clear indicators that the ‘no foal, no fee’ system is not regarded as unlawful.

He was also of the view that, from a constitutional right of access to the courts perspective, for that right to be effective, an existing practice (here, the ‘no foal, no fee’ practice) whereby persons of modest means can obtain access to justice, should not lightly be held to be unlawful [paragraphs 55-69, 83].

Hogan J concluded that, insofar as the contractual agreement in question included a clause providing for a form of ‘no foal, no fee’ arrangement, that clause was not champertous or otherwise unlawful [paragraphs 85-86].

Wild horses

While noting the strictly obiter nature of that conclusion, this judgment provides clear guidance that it is the unanimous view of the Supreme Court that ‘no foal, no fee’ fee arrangements are permissible.

Therefore, in the event that there is a challenge to such fee arrangements in future litigation where the issue does not fall to be determined on the facts arising, it appears clear from the extensive and detailed consideration of this issue in these appeals, and the clarity of the conclusion reached, that the obiter reasoning of the Supreme Court will be followed.

Jonathan White is a solicitor in the regulatory legal services section of the Regulation Department at the Law Society of Ireland.