McElroy v Flynn

• Jurisdiction: Ireland
• Judge: Mr. Justice Blayney
• Judgment Date: 01 January 1991
• Neutral Citation: 1990 WJSC-HC 978
• Docket Number: No. 6587P/1989
• Court: High Court
• Date: 01 January 1991

1990 WJSC-HC 978

THE HIGH COURT

No. 6587P/1989

MCELROY v. FLYNN

BETWEEN

DAVID McELROY TRADING AS IRISH GENEALOGICAL SERVICES

PLAINTIFF

AND

CATHERINE JOSEPHINE FLYNN AND DANIEL O'FLYNN

DEFENDANTS

Citations:

REES V DE BERNARDY 1896 2 CH 437

SPRYE V PORTER 7 E & B 58

STANLEY V JONES 7 BING 369

HUTLEY V HUTLEY LR 8 QB 112

REYNELL V SPRYE 1 DM & G 660

Synopsis:

CHAMPERTY

Property

Recovery - Assistance - Agreement - Consideration - Estate of intestate - Search for next-of-kin - Defendant next-of-kin found by plaintiff - Defendant assigned part of share to plaintiff - (1989/6587 P - Blayney J. - 31/5/90) - [1991] ILRM 294

|McElroy v. Flynn|

CONTRACT

Legality

Champerty - Intestacy - Estate - Next-of-kin - Search - Defendant found by plaintiff to be entitled - Agreement that plaintiff obtain part of defendant's share - Agreement not enforceable - (1989/6587 P - Blayney J. - 31/5/90) - [1991] ILRM 294

|McElroy v. Flynn|

EQUITY

Relief

Champerty - Recovery - Assistance - Agreement - Consideration - Estate of intestate - Search for next-of-kin - Defendant next-of- kin found by plaintiff - Defendant assigned part of share to plaintiff - (1989/6587 P - Blayney J. - 31/5/90) - [1991] ILRM 294

|McElroy v. Flynn|

1 Judgment of Mr. Justice Blayney delivered the 31st day of May 1990

2 Mary Creedon, deceased, died intestate in London on the 22nd day of March 1988 leaving net estate valued at £323,224. The Defendants, who are a brother and sister living in Cork, are first cousins once removed of the deceased, and are entitled to a distributive share of her estate. It is estimated that their shares will be approximately £27,000 each.

3 Sometime after the death of the deceased, the British Treasury Solicitor inserted advertisments in various newspapers seeking next of kin. The advertisments stated that the deceased had left £450,000. One of these advertisments was seen by the Plaintiff who specializes in seeking next of kin for unclaimed estates. He immediately set about trying to trace next of kin of the deceased, and his researches resulted in his locating the two Defendants.

4 On the evening of the 26th January 1989, the Plaintiff, and his assistant Frances Norris, called on the first named Defendant (to whom I shall refer as Miss Flynn) at her residence in Cork. They told Miss Flynn that they were researchers and, having asked her a number of questions about her family, they became satisfied that she was one of the deceased's next of kin. They explained to her that they thought she was entitled to a share in a deceased's estate and said that they would be prepared to put forward a claim on her behalf and that their fee would be 25%. The Plaintiff then produced a typed form of Deed of Assignment which he read over to Miss Flynn and which was signed by her. This Deed is in the following terms:

"Deed of Assignment"

5 This Assignment is made between

6 Miss Catherine Josephine Flynn

7 9 Strawberry Hill,

8 Sunday's Well,

9 Cork City,

10 County Cork,

11 Ireland.

12 (hereinafter called "The Assignor" of the one part and David McElroy for and on behalf of "Irish Genealogical Services" 111 South Parade, Ravenhill Road, Belfast, BT7 2GN, Northern Ireland (hereinafter called "Mr. McElroy") of the other part. It is hereby agreed as follows:-

13 (1) In consideration of Mr. McElroy informing the Assignor that the Assignor has or may become entitled to the property referred to in Clause 2 hereof the Assignor hereby assigns to Mr. McElroy a 25% share or part of the said property plus V.A.T..

14 (2) The property to which the Assignor is or may become entitled is the beneficial interest in the estate of the late (hereinafter called "the deceased") or trust funds or other assets distributable by reason of the death of the deceased the Assignor being entitled as next of kin or beneficiary or as a blood relative of the deceased or as the personal representative beneficiary or next of kin of a person who himself was a next of kin beneficiary or blood relative of the deceased.

15 (3) It is hereby agreed that the share or part of the said property hereby assigned represents the total liability of the Assignor to Mr. McElroy for the consideration aforesaid.

16 (4) If the Assignor receives nothing in respect thereof he shall be under no obligation to Mr. McElroy.

17 (5) If this Deed is entered into by more than one person in the capacity of Assignor then all words in this Deed referring to the Assignor in the singular shall be construed as meaning and including the plural and in this Deed words importing the masculine gender shall include females where the context so admits.

18 In witness whereof the parties hereto have hereunto set their hands and seals on the dates as set out below.

19 Signed Sealed and Delivered

20 by the said Catherine Josephine Flynn at 9 o'clock this 26th day of January 1989 in the presence of:

21 (There follows the signature of Catherine Josephine Flynn, under which is typed "Assignor's Signature" and the signature of the Plaintiff under which is typed "Witness Signature").

22 The Plaintiff obtained the address of the second named Defendant (to whom I shall refer as "Mr. O'Flynn") from Miss Flynn, and the Plaintiff rang him from Miss Flynn's house and arranged to meet him in Blarney. Mr. O'Flynn signed a Deed in exactly the same form as that signed by his sister.

23 On the following day the Plaintiff travelled to London and delivered by hand to the Treasury Solicitor a letter claiming that Miss Flynn was a possible beneficiary of the deceased's estate.

24 The Plaintiff rang Miss Flynn from London to tell her that he had lodged her claim. She told him that she did not want him to pursue it; that he had deceived her. She had heard in the meantime from a rival of the Plaintiff's that the deceased was her cousin Mary Creedon, and that the estate was valued at £430,000.

25 Shortly after this the Defendants consulted their Solicitors who wrote on their behalf repudiating the Assignments.

26 That is a brief outline of the facts of the case which I will amplify when I come to deal with the issues that arise. The Plaintiff's claim is for a declaration that the Defendants have assigned to him 25% of their respective shares in the estate of the deceased, and for an Order directing them to take all such steps and execute all such documents as may be necessary to ensure payment to him of 25% of their respective shares.

27 The Defendants admit that they signed the Deeds of Assignment but plead that the agreement between them and the Plaintiff savoured of champerty and accordingly is unenforceable in equity. They also allege that their signatures to the two Deeds were procured by the undue influence of the Plaintiff.

28 The leading case on what amounts to an agreement savouring of champerty, and how it is viewed in equity, is Rees .v. De Bernardy 1896 2 Ch. 437, a decision of Romer J. The facts were as follows. In 1863 W. Howells died intestate in New Zealand possessed of real estate of considerable value. In 1884 the Defendant, a next of kin agent, became aware of the intestacy and set to work to discover the heir at law. Having first found a relative who was thought...