Fraser v Buckle

• Jurisdiction: Ireland
• Judge: O'Flaherty J.
• Judgment Date: 05 March 1996
• Neutral Citation: 1996 WJSC-SC 1113
• Court: Supreme Court
• Docket Number: (321/93),[S.C. No. 321 of 1993]
• Date: 05 March 1996

1996 WJSC-SC 1113

THE SUPREME COURT

Hamilton C.J.,

O'Flaherty J.,

Barrington J.,

(321/93)

FRASER v. BUCKLE

BETWEEN:

SIMON FRASER AND ANOTHER

Plaintiffs/Appellants

.V.

DENIS BUCKLE AND OTHERS

Defendants/Respondents

Citations:

FRASER V BUCKLE 1994 1 IR 1

REES V DE BERNARDY 1896 2 CH 437

BINCHY IRISH CONFLICT OF LAWS 549

DICEY & MORRIS CONFLICT OF LAWS V2 11ED 801–802, 1225–1226

GRELL V LEVY 1864 16 CB (NS) 73

CONTRACTUAL OBLIGATIONS (APPLICABLE LAW) ACT 1992

WINFIELD THE HISTORY OF MAINTENANCE & CHAMPERTY 35 LQR 50

JAMES LORDS OF ASCENDANCY: THE IRISH HOUSE OF LORDS & ITS MEMBERS 1600–1800 (1995)

KENNY V BROWNE 3 RIDG PAR CAS 462

LITTLEDALE V THOMPSON (1879–1880) 4 LR (IRL) 43

MCELROY V FLYNN 1991 ILRM 294

SPRYE V PORTER 1856 7 E & B 58

STANLEY V JONES 1831 7 BING 369

MCKINLEY V MIN FOR DEFENCE 1992 IR 333

MURRAY ON CONTRACTS 3ED 522

SOLICITORS (AMDT) ACT 1994 S68(2)

GILES V THOMSON 1994 1 AC 142

ROME CONVENTION ON LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS 1980

Synopsis:

CHAMPERTY

Property

Recovery - Assistance - Agreement - Consideration - Intestacy - Next-of-kin - Search - Success - Plaintiff searcher's claim to remuneration from defendant's share of estate - Public policy - Whether validity of contract to be determined in accordance with Irish law or proper law of contract - (321/93 - Supreme Court - 5/3/96) - [1996] 1 I.R. 1 - [1996] 2 ILRM 34

|Fraser v. Buckle|

CONTRACT

Legality

Champerty - Intestacy - Estate - Distribution - Next-of-kin - Search - Success - Plaintiff searcher's assistance in proving claim to estate of intestate - Searcher's claim to remuneration - Claim to portion of defendant's entitlement as next-of-kin - Public policy - Whether validity of contract to be determined in accordance with Irish law or proper law of contract - (321/93 - Supreme Court - 5/3/96) - [1996] 1 I.R. 1 - [1996] 2 ILRM 34

|Fraser v. Buckle|

WORDS AND PHRASES

"Champerty"

Property - Recovery - Assistance - Agreement - Consideration - Intestacy - Next-of-kin - Search - Success - Plaintiff searcher's claim to remuneration - Claim to portion of defendant's entitlement as next-of-kin - Whether validity of contract to be deter mined in accordance with Irish law or proper law of contract - (321/93 - Supreme Court - 5/3/96) [1996] 1 I.R. 1 - [1996] 2 ILRM 34

|Fraser v. Buckle|

WORDS AND PHRASES

"Public policy"

Champerty - Property - Recovery - Assistance - Agreement - Con sideration - Intestacy - Next-of-kin - Search - Success - Plain tiff searcher's claim to remuneration - Claim to portion of defendant's entitlement as next-of-kin - Whether validity of contract to be determined in accordance with Irish law or proper law of contract - (321/93 - Supreme Court - 5/3/96) [1996] 1 I.R. 1

|Fraser v. Buckle|

1 Judgment delivered on the 5th day of March, 1996 by O'Flaherty J. [nem diss]

2 This is an appeal brought by the plaintiffs from the dismiss of their action by Costello J. (as he then was) on the 30th September, 1993, [1994] 1 IR 1. The full fabric of the case has been so amply set out in the course of the judgment as to require only for me to set out in broad outline what the case is about and what is called for resolution in this appeal.

3 The appellants were partners in a London firm, which carried on a business described as "genealogists and international probate researchers", or which in the United States of America is referred to as "heir-locators". In October, 1987, the appellants were informed by their US agents that the estate of one Evelyn Herbert who had died intestate, with no apparent next-of-kin, was being administered in the courts of New Jersey. Following this, the appellants successfully traced four persons entitled to this estate, three of whom resided in this jurisdiction and one in Scotland. The latter compromised his claim and has no part in these proceedings. Having informed the respondents of their possible inheritance but without disclosing the name of the deceased, the appellants entered into agreements with each of them whereby the respondents agreed to give the appellants a one-third share of any sums which they might inherit from the estate, in return for which the appellants agreed to disclose the identity of the deceased. One of the terms of the agreements was that the proper law of the contract was to be the law of England and Wales. This came about, as the appellants very honourably disclosed, because of the dislike of the Attorney General of New Jersey for their activities and the opposition they would have encountered if they litigated their claims in that State.

4 The appellants, after disclosing the identity of the deceased, embarked at their own expense, on considerable preparation for the court proceedings in New Jersey, which proved to be successful for the respondents. As a result, the respondents inherited a net sum of $763,758.87 between them. However, the appellants did not receive their share of the proceeds because the respondents contended that the agreements were unenforceable as being champertous. But they did accept that the appellants were entitled to fees to be assessed on a quantum meruit basis.

5 For the appellants, it was submitted that the law of champerty was inapplicable to such contracts, that such contracts were not champertous and as the agreements related to proceedings outside Ireland they could not be said to be contrary to Irish public policy.

6 The learned trial judge found for the respondents. In determining whether the proper law of the contract should be applied, he first considered the validity of such agreements in the context of Irish public policy. On this basis, he found that the contracts savoured of champerty and were unenforceable as being contrary to Irish public policy because of the dangers associated with these agreements which could compromise the proper administration of justice. He dismissed the argument put forward by the appellants that such agreements should not be held contrary to Irish public policy as a result of recent English decisions, on the basis that these cases did not deal with heir-locator agreements nor did they imply that heir-locator agreements no longer infringe the law of champerty. He further held that heir-locator agreements were contrary to Irish public policy whether they related to estates in Ireland or abroad.

7 As a subsidiary finding, he said that he was satisfied that the proper law of the contract was the law of England and Wales and that the choice of law made by the parties in their contracts was a bona fideone. There was a disagreement between the expert witnesses (both Queen's Counsel) who gave evidence at the trial on English law as to whether or not these agreements were enforceable under that law. Because of that dispute he had to find, as a matter of fact, what the law of England was and he reached the conclusion that Rees .v. De Bernardy [1896] 2 Ch. 437 had not been over-ruled by any subsequent decision in England and that he should accept it as establishing the principles of English law relevant to the facts of this case. He was further satisfied that the agreements were contrary to English public policy even though they related to litigation in New Jersey. He therefore held that under the proper law of these contracts they were unenforceable.

8 I would uphold the judge's essential finding and dismiss the appeal. However, while I propose to adopt the same order as he did in dealing with the respective laws, I would put the issue of the proper law of the contract in the vanguard of my decision rather than assign it the subsidiary position that the learned trial judge did.

9 The essential validity of a contract is generally determined by the proper law of the contract. No problem arises in this case as to the proper law of the contract because the parties expressly provided for it in their agreements. 1 If a contract is valid under the proper law of contract, it will not be enforced if it offends against Irish public policy (Binchy, Irish Conflicts of Laws, p. 549 and Dicey and Morris, The Conflict of Laws (11th Ed.) Vol 2., pp. 1225–1226 and pp. 801–802). Before the public policy issue is drawn down however, reference must be made to the proper law of contract in order to determine whether the contract is valid or invalid according to the foreign law. A choice of law will normally be given effect to providing it is bona...