Factual and Procedural Background
The Plaintiff's son tragically took his own life on 25 August 2021. The Plaintiff alleges that the Defendant, a journalist trading as Company A, misappropriated the son's image and distributed it falsely claiming that his death resulted from administration of the COVID-19 vaccine. The Plaintiff requested the Defendant to cease and desist from these activities, which the Defendant failed to do.
The Plaintiff seeks a declaration preventing the Defendant from publishing the image or likeness of her son without express written consent, an injunction restraining such use, and damages for various torts including trespass to the person, emotional distress, breach of constitutional rights including privacy, harassment, and aggravated damages.
Procedurally, the High Court made a restraining order against the Defendant on 23 June 2023 preventing publication of confidential personal information related to the Plaintiff and her deceased son. The Plaintiff later applied for attachment and committal against the Defendant for breach of that order. The Defendant’s solicitors withdrew in early 2024, and the Defendant filed affidavits denying allegations and asserting that the Plaintiff’s litigation funding via an online fundraising platform (GoFundMe) amounts to unlawful maintenance and champerty. The Defendant sought to strike out the proceedings under Order 19 Rule 28 of the Rules of the Superior Courts on grounds including vexatiousness, frivolity, and illegality of the funding mechanism.
Legal Issues Presented
- Whether the Plaintiff's litigation funding through an online fundraising platform constitutes maintenance or champerty, rendering the proceedings unlawful.
- Whether the proceedings disclose a reasonable cause of action or are frivolous, vexatious, or bound to fail, justifying striking out under Order 19 Rule 28.
- Whether the Defendant’s rights to freedom of expression and freedom of the press under the Constitution justify striking out the proceedings.
- The applicability of the Coroners Act 1962 regarding public inquests and the Defendant’s entitlement to comment on such matters.
Arguments of the Parties
Defendant's Arguments
- The Plaintiff’s litigation funding via GoFundMe constitutes unlawful maintenance and champerty, contrary to the Maintenance and Embracery Act 1634, as retained by later legislation.
- The proceedings are vexatious, frivolous, and an insidious attack on freedom of expression and the press.
- The Defendant contends she never made the alleged false claims about the cause of death and that her journalistic activities, including commentary on public inquests, are constitutionally protected.
- The Defendant asserts the injunction against her should fall if the funding is unlawful.
- The Defendant alleges the Plaintiff’s litigation is supported by an illegal third-party fund established by a political activist with malicious motives.
Plaintiff's Arguments
- The Plaintiff submits the case is not suitable for dismissal on affidavit and requires trial with oral evidence and cross-examination.
- The funding is charitable in nature with no financial gain sought by donors, distinguishing it from champerty.
- The Plaintiff asserts the constitutional right of access to the courts cannot be restricted by maintenance and champerty arguments.
- The Plaintiff contends the Defendant has not met the high threshold required to strike out the proceedings under Order 19 Rule 28.
- The Plaintiff denies the Defendant’s allegations of malicious intent and asserts the fundraising is motivated by genuine charitable support.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Aer Rianta Cpt v Ryanair Ltd [2004] IESC 23 |
Application of Order 19 Rule 28: striking out entire pleadings only, with caution. |
Confirmed the restrictive jurisdiction of striking out pleadings and that such jurisdiction should be exercised sparingly. |
| Barry v Buckley [1981] IR 306 |
Order 19 Rule 28 should be exercised sparingly and only in clear cases. |
Guided the court’s approach to the high threshold for dismissal on motion. |
| Salthill Properties Ltd v Royal Bank of Scotland [2009] IEHC 207 |
Onus on moving party to show claim is bound to fail. |
Reinforced the burden on the Defendant to establish no reasonable prospect of success. |
| Reynell v Sprye [1852] 42 E.R. 708 |
Definition and policy against maintenance and champerty. |
Historical foundation for the court’s understanding of maintenance and champerty as contrary to public policy. |
| Fraser v Buckle [1994] 1 IR 1 |
Definitions of maintenance and champerty. |
Provided authoritative definitions and principles guiding the court’s analysis of the funding issue. |
| In Re Trepca Mines Ltd (No 2) [1963] Ch 199 |
Champerty condemned due to potential abuses and personal gain. |
Supported the court’s reasoning that champerty involves financial gain and is unlawful. |
| C Martel v Consett Iron Co Ltd [1955] Ch 199 |
Third party funding lawful if funder has sufficient common interest. |
Distinguished from the present case as the Plaintiff’s donors have no financial interest. |
| O'Keefe v Scales [1998] 1 IR 290 |
Maintenance and champerty must not deprive constitutional right of access to courts; high bar for striking out. |
Instructed the court to apply a high threshold before dismissing claims on maintenance grounds. |
| Persona Digital Telephony Ltd v Minister for Public Enterprise, Ireland [2017] IESC 27 |
Professional funding agreements and public policy re: champerty. |
Clarified that maintenance and champerty relate to funding litigation without just cause and for financial gain. |
| SPV Osus Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2018] IESC 44 |
Maintenance defined as financial support without legitimate interest or just cause. |
Supported the court’s conclusion that charitable donations do not constitute unlawful maintenance. |
| Lopes v Minister for Justice, Equity and Law Reform [2014] 2 IR 30 |
Test for whether claim has credible basis to succeed at trial. |
Applied to determine that the Plaintiff’s claim is not bound to fail and should proceed to trial. |
Court's Reasoning and Analysis
The court first considered whether the Plaintiff’s litigation funding via the online fundraising platform constituted unlawful maintenance or champerty. It distinguished champerty, which involves funding litigation for financial gain, from maintenance, which is the provision of assistance without legitimate interest or just cause.
The court found no evidence that the Plaintiff’s funders sought financial gain, noting the majority of donations were small, anonymous, and motivated by charity. The fundraiser was established by a community activist, not the Plaintiff herself, and the stated purpose was charitable support. The Defendant did not contradict the Plaintiff’s assertion regarding donors’ motives.
Accordingly, the court held the funding did not amount to champerty. The question of maintenance was more nuanced, but the court emphasized the high threshold required to strike out proceedings on this ground, especially given the constitutional right of access to courts.
The court also addressed the Defendant’s arguments regarding the Coroners Act and freedom of expression. While acknowledging the Defendant’s right to comment on public inquests, the court found these arguments insufficient to justify dismissal at this preliminary stage.
Applying the test from Lopes v Minister for Justice, the court determined the Plaintiff had put forward a credible case that was not bound to fail. The court emphasized that the issues raised, including the alleged torts and constitutional claims, required full trial with evidence and cross-examination.
Consequently, the court refused the Defendant’s application to strike out the proceedings under Order 19 Rule 28 and rejected the claim that the litigation funding was unlawful maintenance or champerty.
Holding and Implications
The court REFUSED the Defendant’s application to strike out the Plaintiff’s proceedings on grounds of maintenance, champerty, frivolity, vexatiousness, and constitutional arguments.
The ruling means the Plaintiff’s claim will proceed to trial where the factual disputes, including the alleged misuse of image, funding motives, and constitutional issues, will be fully examined. No new precedent was established beyond reaffirming the high threshold for striking out claims on maintenance and champerty grounds and the importance of constitutional access to courts.
The court also provisionally indicated that the Plaintiff would be entitled to recover legal costs from the Defendant for this application, subject to further submissions.