Fraser v Buckle

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 30 September 1993
• Neutral Citation: 1993 WJSC-HC 3539
• Docket Number: [1992 No. 1682P],No 1682P/1992
• Court: High Court
• Date: 30 September 1993

FRASER v. BUCKLE

BETWEEN

SIMON FRASER AND ANOTHER

PLAINTIFFS

AND

DENNIS BUCKLE AND OTHERS

DEFENDANTS

1993 WJSC-HC 3539

No 1682P/1992

THE HIGH COURT

Synopsis:

CHAMPERTY

Property

Recovery - Assistance - Agreement - Consideration - Intestacy - Next-of-kin - Search - Success - Plaintiff searcher's claim to remuneration consisting of 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 - (1992/1682 P - Costello J. - 30/9/93) - [1994] 1 I.R. 1 - [1994] 1 ILRM 276

|Fraser v. Buckle|

CONTRACT

Legality

Champerty - Intestacy - Estate - Distribution - Next-of-kin - Search - Success - Plaintiff 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 - (1992/1682 P - Costello J. - 30/9/93) - [1994] 1 I.R. 1 - [1994] 1 ILRM 276

|Fraser v. Buckle|

WORDS AND PHRASES

"Champerty"

Property - Recovery - Assistance - Agreement - Consideration - Intestacy - Next-of-kin - Search - Success - Plaintiff searcher's claim to remuneration of 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 - (1992/1682 P - Costello J. - 30/9/93) [1994] 1 I.R 1 1994 1 ILRM 276

|Fraser v. Buckle|

WORDS AND PHRASES

"Public policy"

Champerty - Property - Recovery - Assistance - Agreement - Consideration - Intestacy - Next-of-kin - Search - Success - Plaintiff searcher's claim to remuneration of 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 - (1992/1682 P - Costello J. - 30/9/93) 1994 1 IR 1 1994 1 ILRM 276

|Fraser v. Buckle|

Citations:

BRUSSELS CONVENTION 1968

INTERNATIONAL TRACERS OF AMERICA V RINTER 139 N J SUPER 573 (APP DIV 1976)

BINCHY IRISH CONFLICT OF LAWS 549

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

HALSBURY'S LAWS 4ED V9 PARA 400

TREPACA MINES LTD (NO.2), IN RE 1963 CH 199

SOLICITORS ACT 1957 S65 (UK)

REES V DE BERNARDY 1896 2 CH 437

MCELROY V FLYNN 1991 ILRM 294

MARTELL V CONSETT IRON CO 1955 1 CH 363

LAURENT V SALE & CO 1963 1 WLR 829

TRENDEX TRADING CO V CREDIT SUISSE 1980 1 QB 629, 1982 AC 679

HASELDINE V HOSKEN 1933 1 KB 822

SPRYE V PORTER 7 E & B 58

STANLEY V JONES 7 BING 369

LAMENDAG TRADING CO V AFRICAN MIDDLE EAST PETROLEUM LTD 1988 1 QB 448

SANDERS V TEMPLAR 1993 3 AER 321

GILES V THOMPSON 1993 2 WLR 908, 1993 3 AER 321

DEVLIN V BASLINGTON 1993 3 AER 321

1 Judgment of Mr. Justice Costello delivered the 30th day of September 1993

I

THE FACTS.

2 The Plaintiffs seek to enforce separate written agreements made in February 1988 with each of the Defendants by which the Plaintiffs agreed to reveal to each of them details of the claim which each of them might have to inherit from an estate of an unnamed intestate and by which the Defendants agreed to pay a fee to the Plaintiffs equivalent to one third of the estate each might subsequently inherit. (The agreements included other terms relevant to these proceedings to which I will later refer). The Defendants claim that the agreements are unenforceable for a number of reasons, basic to all of them being an assertion that they are champertous. The facts which have given rise to the claim are not in dispute and can be summarised as follows.

3 The Plaintiffs are partners in a firm which carries on a business in London described as "genealogists and international probate researchers". They explained to the Defendants what they do is as follows. They endeavour to trace persons entitled to unclaimed property. They do so at their own expense. Should their inquiries be successful they ask for a commission of one-third, plus VAT, on the net amount or value actually recovered, by the person entitled from the source they have discovered. They stipulate that an agreement must be signed before they reveal the source of the fund, that no fees are charged until the beneficiary has recovered a share in the fund, that their commission is calculated on the net balance received after expenses incurred by the beneficiary have been deducted, that if the claim is unsuccessful they indemnify their clients in respect of their out-of-pocket expenses. The class of agreements into which the Plaintiffs enter with their clients are called in American Law "heir-locator contracts", a vivid and useful term which I will use throughout this judgment to identify the class of contract with which this case is concerned.

4 The Plaintiffs have agents in the United States (a firm called Blake and Blake) who informed them in October 1987 of the estate of an intestate then being administered in the courts of New Jersey, that of Evelyn Herbert, a single woman, who had died on the 17th January 1986 in that State. There had been no information identifying her next-of-kin and so, as required by New Jersey law, notice of her death was given to the Attorney General. A preliminary inquiry having been held, in August 1986 the State began proceedings in the Superior Court of New Jersey to appoint a Conservator to take charge of her property and to establish who were her heirs. Notice of these proceedings were given by publication in New Jersey and in Ireland.

5 The Plaintiffs have worked closely with a Mr. David McElroy who carries on in Ireland a business similar to the Plaintiffs from an address in Belfast. On the 16th November 1987 they wrote to him proposing the terms of a joint partnership agreement in relation to the estate of Evelyn Herbert. They undertook to negotiate with the heirs a genealogical agreement, and then to submit a claim on behalf of any heir which might be traced, to be responsible for all legal fees in representing the claims to the appropriate surrogate court, and they proposed that they would be entitled to receive 60% of all negotiated fees received and that Mr. McElroy would undertake research and obtain necessary documentation in support of the claim and in consideration of so doing would receive 40% of all negotiated fees received, both parties bearing their own expenses.

6 Mr. McElroy agreed to these terms and set to work. His efforts quickly bore fruit. He traced four persons who appeared to be the only next-of-kin of Evelyn Herbert, Mrs. Byrne, a married lady who lives in Limerick, Mrs. Doherty, a married lady who lives in Donegal, Mr. Denis Buckle, an architect living in Killiney, Co. Dublin, and a brother of Mr. Buckle living in Scotland. All were cousins, on the mother's side, of the deceased. Mrs. Byrne, Mrs. Doherty and Mr. Denis Buckle are now the Defendants in these proceedings, separate proceedings in Scotland having been taken against Mr. Buckle's brother, Mervyn C. Buckle.

7 Having obtained from Mr. McElroy the names of the probable next-of-kin, the Plaintiffs arranged for a representative to call on each of them and to inform them in general terms of the research which the Plaintiffs had undertaken without disclosing the name of the deceased or the whereabouts of the estate. This visit was followed on the 24th November by a letter to each in identical terms. It gave the particulars of the Plaintiffs" business which I have summarised above, it offered to forward references if required and pointed out that the advice of a solicitor should, if required, be obtained. This was followed by telephone calls and then further letters on the 8th December which suggested that each would execute a Power of Attorney in the Plaintiffs" favour, a course proposed, it was said, by their American agents. By this time the fact that the estate in question was in the United States had been disclosed, and draft agreements were subsequently forwarded for consideration.

8 Mr. Mervyn Buckle consulted a solicitor in Motherwall in Scotland - Mr. Livingstone, a Consultant in the firm of Messrs. Ballantyne and Copeland - who later acted for all four of the next-of-kin. The Plaintiffs corresponded with him and on the 22nd January 1988 suggested that as "we are dealing with an estate in America where the work of Genealogists such as ourselves is not liked at all and the Attorney General is extremely hostile", an assignment in the Plaintiffs favour should be executed of the rights in the deceased estate of each of the putative next-of-kin. This was not done and neither was a Power of Attorney created. The opposition of the Attorney General to the type of agreements which were being proposed was again referred to in a letter of the 8th February and because of this the Plaintiffs suggested that the draft agreement they were proposing be amended to include a term that the proper law of the contract would be that of England and Wales. They also strongly urged that the US Lawyer which they recommended, Mr. John Hargrove, be instructed to act on behalf of the next-of-kin. On the 23rd February 1988 separate agreements which had been signed by all four next-of-kin were sent back to the Plaintiffs by Mr. Livingstone.

THE CONTRACT.

9 The Plaintiffs had kept the three Irish next-of-kin informed of their correspondence with Mr. Livingstone and of the amendments to the draft agreement which were being discussed. They posted the final draft to each of them in Ireland. They were signed on the 17th and 18th February and returned in the manner just indicated. Each contract was in the following terms:

"You have informed me that, unknown to me, I may be entitled to inherit from the estate of someone who has died."

10 If you will reveal to me details of my claim and I subsequently inherit from the estate it is agreed that:-

11 1. You will be entitled to a fee equivalent to one third of the value of...