The Gazette 1994

NOVEMBER 1994

GAZETTE

were realised, they could compromise the proper administration of justice by means of unjust adjudications. (4) There was no reason for restricting the appli- cation of these principles to heir-locator agreements concerning estates situated in Ireland since the dangers with which such agreements are associated still ex- ist and can equally arise in respect of estates located abroad as litigation in relation to them may still come before Irish courts. It followed that Irish public policy should condemn heirlocator agreements whether they related to es- tates located in Ireland or abroad. (5) Therefore the agreements under which the plaintiffs claimed were unenforce- able under Irish law because they were champertous. Furthermore, such agree- ments were contrary to Irish public pol- icy and therefore Irish law should be applied to these contracts whether or not they were enforceable under their proper law. Per curiam : The proper law of these agreements was the law of Eng- land and Wales which regarded such agreements as being contrary to public policy. Hence they were unenforceable under their proper law. Per curiam: Even if the lex loci solutionis of these contracts was New Jersey law, as these agreements were only unenforceable and contrary to public policy in New Jersey and not illegal this would not in itself constitute a sufficient reason for refusing to enforce the contracts in Ire- land. Reported at [1994] 1 ILRM 276 Practice - Discovery - Privilege - Claim for specific performance - Counterclaim - Al- legation of malicious prosecution and abuse of court process - Plaintiffs action dis- missed - Discovery sought of documents relating to legal advice obtained by plaintiff - Whether professional privilege applied - Professional privilege not to be applied where this would be injurious to interests of justice Facts The plaintiff sought an order for specific performance against the defen- dant in respect of an alleged agreement for the sale of shares in a company. The defendant brought a motion to dismiss the action on the grounds that it dis- closed no cause of action or, alterna- tively, was vexatious and an abuse of the process of the court. This motion was dismissed. The defendant then en- tered a defence and counterclaim. Upon the conclusion of the plaintiff's evi- dence at the hearing of the case, the trial Patrick Murphy v. Anthony M.D. Kirwan: Supreme Court (Finlay CJ, O'Flaherty and Egan JJ) 29 July 1993

be the heirs to an estate but they did not at this stage disclose the identity of the deceased. On 17 and 18 February 1988 the plaintiffs entered into agreements with the defendants whereby the defen- dants agreed to give the plaintiffs a one- third share of any sums they might sub- sequently inherit from the estate in re- turn for which the plaintiffs would dis- close the identity of the deceased and assist in the presentation of the defen- dants' claim. It was a term of these agreements that the proper law of the contract was to be the law of England and Wales. The plaintiffs then informed the defendants of the identity of the deceased and gave considerable co-op- eration and assistance in the prepara- tion and the presentation of the defen- dants' claims. On 1 December 1989 the New Jersey court decided that the de- fendants and Mr Mervyn Buckle were the heirs entitled to the estate. The gross funds available for distribution amounted to $930,674.98 which, after proper deductions, left a sum of $763,758.87 available for distribution amongst the four next-of-kin. This sum was distributed to the defendants but no money was paid over to the plaintiffs as the defendants denied the plaintiffs' entitlement to a fee based on their shares in the estate on the grounds that the agreements were unenforceable be- cause they were champertous. How- ever, they accepted the plaintiffs' enti- tlement to fees on a quantum meruit ba- sis. The plaintiffs claimed that the law of champerty no longer applied to these types of contracts, that in any event the contracts were not champertous, that since the agreements related to pro- ceedings outside Ireland they could not be said to be contrary to Irish public policy and that the courts should apply the proper law of the contract which was that of England and Wales. The defendants claimed that the court should first consider whether the agree- ments were contrary to Irish public pol- icy and if they were should refuse to enforce them irrespective of what the proper law says. Held by Costello J in dismissing the plaintiffs' claim: (1) The agreements which the law of champerty condemns are agreements by which one party agrees to maintain litigation in which he has no genuine interest in considera- tion of a promise to receive a share of the proceeds of the litigation. (2) The law condemns champertous agree- ments because of the dangers associ- ated with such agreements, namely the temptation that the maintainer might inflame the damages, suppress evi- dence or suborn witnesses. (3) These agreements were contrary to public pol- icy because, if these associated dangers

judge acceded to the defendant's appli- cation to dismiss the action and directed that the counterclaim should be ad- journed sine die with liberty to re-enter. The defendant sought further and bet- ter discovery in relation to the counter- claim, including all documents relating to legal advice sought or obtained or given to the plaintiff prior to and during the proceedings. The plaintiff objected to the production of the relevant docu- ments on the basis of legal privilege. Costello J ordered that the documents should be produced for inspection on the grounds that the exception to the principle of professional privilege ap- plied in the case of a claim for malicious prosecution or an abuse of the process of the court. The plaintiff appealed. Held by the Supreme Court (Finlay CJ and O'Flaherty J; Egan J dissenting) in dismissing the plaintiff's appeal: (1) Professional privilege must not be ap- plied so as to be injurious to the interests of justice and to those in the administra- tion of justice where persons have been guilty of conduct of moral turpitude or of dishonest conduct even though it may not be fraud. (2) It is injurious to the interests and administration of jus- tice that a person would falsely and maliciously bring an action and abuse for an ulterior or improper purpose the processes of the court. (3) In a claim for malicious prosecution or abuse of the processes of the court, the first require- ment, though not necessarily a proof in itself, is to establish that the claim as brought failed in its entirety or that it was bound to do so. (4) The second requirement which likewise does not necessarily constitute proof of mali- cious prosecution or an abuse of the processes of the court, is to establish that the claim's failure was not derived from the resolution by the court of a conflict of evidence regarding primary facts or arose from a special legal de- fence. (5) Where a person makes a claim of malicious prosecution or abuse of the processes of the court and seeks discov- ery notwithstanding a claim for profes- sional privilege in respect of a legal ad- viser's communications, he does not have to prove the allegations which he is making as a matter of probability or in accordance with the onus of proof appropriate to the total hearing of the action. Instead it is sufficient that the allegations are supported to an extent that they are, in the view of the court, viable and plausible. (6) In the present case there was sufficient evidence of a plausible or viable case to support the defendant's claim to warrant the mak-

ing of the order sought. Reported at [1994] 1 ILRM 293

2