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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Campbell v O'Doherty [Trading as The Irish Light] (Approved) [2025] IEHC 223 (29 April 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC223.html
Cite as: [2025] IEHC 223

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APPROVED                                                               [2025] IEHC 223

 

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THE HIGH COURT

 

2023 2459 P

BETWEEN

 

EDEL CAMPBELL

PLAINTIFF

AND

                                    GEMMA O'DOHERTY T/A THE IRISH LIGHT

DEFENDANT

 

 

JUDGEMENT of Mr Justice Nolan delivered on the 29th day of April 2025

1.                  This is an application brought by the Defendant, by notice of motion seeking an order pursuant to Order 19 Rule 28 of the Rules of the Superior Courts ("the Rules") and/or the inherent jurisdiction of the court striking out the proceedings on the grounds that they are unlawful, vexatious, frivolous, an insidious attack on freedom of expression and press freedom and that the Plaintiff has no cause of action and that it is bound to fail.

2.                  The affidavits of the Defendant, however, raise an issue that the proceedings are unlawful since they amount to maintenance and champerty, because the Plaintiff has the benefit of the GoFundMe.com online service ("GoFundMe").

3.                  This judgment deals with whether in fact the Plaintiff's funding mechanism offends against the law relating to maintenance and champerty, as well as the application pursuant to Order 19 Rule 28.

Background

4.                  The background to this case is very sad. In the early morning of the 25th of August 2021, the Plaintiff's son took his own life. The Plaintiff alleges that the Defendant has misappropriated his image and used and distributed it for, what is described as, "self-promotion or profit", in that it is alleged that she falsely claimed in an article published by her, that he died as a result of the administration of the COVID-19 vaccine. It is alleged that she requested the Defendant to cease and desist from her alleged activities, both in her publication, the Irish light and on the internet, but she has failed to do so.

5.                  The Plaintiff seeks a declaration that the Defendant is not entitled to publish the image or the likeness of her son for any reason or purpose without her express written consent, an injunction restraining her from using or publishing or causing to be used or published his image or likeness in any medium and damages under the heading of a number of torts, including trespass to the person, negligent and/or willful infliction of emotional distress, breach of constitutional rights, including right to privacy as well as damages for harassment, aggravated exemplary and punitive damages.

The Progress of the Proceedings

6.                  On the 23rd of June 2023, Dignam J. made an order restraining the Defendant, her servants or agents pending the trial of the action from disclosing and/or publishing any confidential personal information including, but not limited to, the medical records of the Plaintiff and/or her deceased son, or publishing any confidential personal information about her or her dead son, and restraining the Defendant from encouraging or inciting others to publish such confidential information and harassing or intimidating or communicating or encouraging others from doing likewise.

7.                  On the 15th of January 2024, the Plaintiff brought an application for attachment and committal as against the Defendant for failing to abide by the order of Dignam J. It would seem that the Defendant was represented by a firm of solicitors at that stage, but they brought an application to come off record in February of 2024.

8.                  Thereafter, the Plaintiff brought a motion for judgment on the basis that the Defendant had not filed a defence. In the meantime, the Defendant filed an affidavit on the 16th of January 2024. Its content seemed to have been aimed, not just at the Plaintiff, but also at another judge of the High Court.

 

The Motion

9.                  The Defendant issued a motion on the 6th of December 2024, seeking to strike out the proceedings pursuant to Order 19 Rule 28 on the grounds set out above. However, in many ways the issue that she now complains of is set out in a previous affidavit filed on the 16th of January 2024.

10.              In that affidavit, she alleges that the Plaintiff is engaged in a malicious, vexatious and spurious campaign of stalking and harassing her, in circumstances where she says that she never made any allegation that the Plaintiff's son died as a result of a vaccine. She alleged that the Plaintiff has engaged in perjury and that all she was asking was why so many young people are dying. She alleged that since she is a journalist, this is a perfectly legitimate exercise for her to undertake. In the course of that affidavit, however, she made the case that the Plaintiff and her lawyers are receiving maintenance funds to finance the case against her and that that fund is contrary to law. That seems to be the genesis of the issue before the court.

11.              Thereafter, she brought this motion. In a document titled 'Statement of Counterclaim', which seems to act as a form of defense, she pleads the kernel of her case, as far as this application is concerned, is at para. 11:

"The plaintiff has also sought to gain financially from her media harassment campaign against the defendant by taking unlawful proceedings against her which are supported by an illegal third party fund set up with her and her lawyers by a political activist Christopher Skelton who defamed the defendant by calling her an evil monster and the most hated woman in Ireland. This fund is in direct breach of the law on maintenance and champerty and is a criminal offence and civil tort. The statements made about the defendant in the fund are grossly injurious to the defendants good name and represent contempt of court."

12.              In the affidavit grounding the Notice of Motion, she repeated her defense and said that the Maintenance and Embracery Act of 1634 states that no injunction is permitted in any case that is third party funded. I shall return to her affidavit since as matters transpired, it constituted her submissions to court.

13.              In her affidavit sworn on the 4th of July 2024, the Plaintiff sets out the circumstances surrounding the creation of her GoFundMe page. At the time of swearing, the fundraiser page had raised €24,234.00. Since there is a transaction fee and VAT on any money donated, the entirety of the monies received was €23,281.52.

14.              The largest sum is of €1,000 which came from an anonymous donor. With the exception of the top six donors, the remaining 990 donations are below the sum of €100. The average donation is said to be €23. She then exhibits the extracts from the page confirming this. She says that she has lodged the balance of the monies with her solicitor and that small sums have been paid to assist with the outlay and court appearances. As of yet, her solicitor or counsel have not charged any fees.

15.              She concludes her affidavit by saying she believes that each of the 996 donors sincerely and genuinely donated for reasons of charity. She believes that the application is wholly unfounded, malicious and an attempt to frustrate the progress of the case.

The Submissions of the Defendant

16.              The hearing of the motion can only be described as bizarre. Whilst the Defendant did not file any formal submissions, instead, she read her affidavit as a form of legal submission. Sadly, the affidavit contained remarks concerning a member of the judiciary which I refused her to read into, what she describes as, the record, not only because of its content but also because it was not in any way relevant to the application which she was making.

17.              Suffice to say that her case falls under three specific headings. The first relates to her assertion that the Plaintiff's funding amounts to maintenance and champerty. The second relates to an argument in regard to the Coroners Act 1962 and that the hearings held in that court are held in public. Finally, she argues that she is entitled under the Constitution, to freedom of speech and freedom of the press. Her argument being that these proceedings are an attempt to stifle those freedoms.

18.              She submits that the Maintenance and Embracery Act of 1634 remains the law having been retained by the Statute Law Revision Act of 2007. She referred to the case of Persona Digital Telephony Ltd v Minister for Public Enterprise, Ireland [2017] IESC 27, which I will deal with in some detail below. She argues that the nature of the funding which the Plaintiff has sought the benefit from, amounts to maintenance and champerty. In those circumstances, if the action is found to be so tainted by maintenance and champerty, the injunction, which has already been obtained from Dignam J., falls away.

19.              Her submission in relation to the Coroners Act is less coherent. She says that inquests must be held in public and that there are no exceptions. She argues that the death of a young man is a matter of public interest, particularly in the manner which she alleges he died. This also goes to her argument in relation to the freedom of expression and the freedom of the press. However, she was unable to bring me to any provisions of the Act which might be relevant, expressing the view that the court should know the law. Neither did she bring me to any case law which would support the contention that the case should be dismissed at this stage, on this basis.

20.              As part of what could be described as robust criticism, she alleges that these proceedings are an attempt to stifle her ability to speak on matters of importance, as a citizen and more particularly, as a journalist. She alleges that she has been accused of harassment and of being defamed. She urges the court to protect her good name by dismissing the claim. She says that she has been subject to a witch hunt in circumstances where she says she never said what is alleged in relation to the Plaintiff's son and the use of a very small photograph of the deceased, which she continually held up in court, was freely available on the internet. She believes that it is going to be hard for her to get a fair trial and that there has been a breach of due process by the fact that the Plaintiff went on the radio to make complaints about her and has engaged in perjury.

The Submissions of the Plaintiff

21.              Mr. Lynham SC on behalf of the Plaintiff, in his short oral submission, says that this application is misconceived at this stage and that evidence has to be heard at trial in relation to the case. Witnesses will have to be put in the witness box and be subject to examination and cross examination. Therefore, in relation to the submission that the case should be dismissed, all of that must be determined on the basis of oral evidence. The issues which she raises are questions of fact which will have to be tested in a courtroom.

22.              In regard to the allegation that the funding of the Plaintiff is maintenance and champerty, he says that it could never be champerty since no other party is seeking any financial advantage from the litigation. In relation to maintenance, he says that all of the donations were made out of concern for the Plaintiff, in an attempt to help her and therefore, were charitable by nature, as set out in the Plaintiff's affidavit. Further, he says that the issue of maintenance and champerty cannot be used to shut out a statable case, which is what the Plaintiff has and points to her constitutional right of access to the courts.

23.              In relation to the jurisprudence in regard to dismissing cases pursuant to Order 19 Rule 28, he says that the facts of this case do not support the legal tests to be applied. In essence, however, an application of this nature must fail since the court cannot determine the matter on affidavit.

24.              The thrust of the Plaintiff's submission is that the donation by third parties is to assist in the costs of litigation are not maintenance if they are done for charitable motives. It seems to me that this is the core issue which this court has to decide.

Order 19 Rule 28

25.              Notwithstanding that observation, the court must still deal with the motion and the issues it raises.

26.              Order 19 Rule 28:

"28. (1) The Court may, on an application by motion on notice, strike out any claim or part of a claim which:

(i)                 discloses no reasonable cause of action,

(ii)              or amounts to an abuse of the process of the Court, or 

(iii)            is bound to fail, or 

(iv)             has no reasonable chance of succeeding."

27.              The rule provides that a court may order a pleading to be struck out on the grounds that it discloses no reasonable cause of action where it can be shown by the pleadings to be frivolous or vexatious. In Aer Rianta Cpt v Ryanair Ltd [2004] IESC 23, the Supreme Court held that, on its plain wording, the rule applies only where it is sought to strike out an entire pleading, and not part of a pleading. The jurisdiction is one which a court would be slow to exercise, and it should exercise with caution, a point which is emphasised in all of the jurisprudence. As noted above, the Defendant has only relied upon one case relating to maintenance and champerty and has offered no case law in relation to the application to dismiss under Order 19 Rule 28.

 

Discussion Relating to the Coroners Act and Freedom of Expression

28.              The Defendant's argument, as summarised above in relation to the Coroners Act, is that such hearings are held in public. While she did not develop the argument, her point seems to be that since they are held in public, and since she is a journalist, she is perfectly entitled to comment upon them.

29.              While the provisions of the Coroners Act do not say that inquests should be held in public, it certainly is the case that inevitably, they are. In those circumstances, it seems to me it is perfectly correct to say that since the Defendant acts as a journalist, she is free to report and comment upon what happens in the Coroner's Court. It is not at all clear, however, that she ever attended the Coroner's Court in relation to its inquiry into the death of the Plaintiff's son. Even if she did not attend, it seems to me that so long as she is acting within the law, she is entitled to report on such matters.

30.              Further, the Defendant is correct, in principle that she is entitled to freedom of speech, so long as she acts within the law. That is one of the issues in this case.

31.              However, at this stage of the case, her entitlement to comment upon what happens in the Coroner's Court, and her constitutionally entitled right to freedom of speech, are not a basis alone to strike out the Plaintiff's action as being frivolous and vexations and bound to fail, in accordance with the jurisprudence relating to the rule. It is possible that these arguments may amount to a defence to the Plaintiff's cause of action, but that is not a matter that I can determine at this point and will be a matter for the trial of the action. The law relating to applications to dismiss proceedings under Order 19 is restrictive.

32.              This is a jurisdiction which is sparingly exercised, as all of the case law shows, or as Costello J. (as he then was) said "exercised sparingly and only in clear cases" (see Barry v Buckley [1981] IR 306). The onus is on the Defendant to establish that the Plaintiff's claim is bound to fail (Salthill Properties Ltd v Royal Bank of Scotland [2009] IEHC 207). Therefore, it is worthwhile to engage with the Plaintiff's cause of action.

 

The Plaintiff's Cause of Action

33.              The Plaintiff seeks a number of reliefs in her Statement of Claim. Firstly, she seeks a declaration that the Defendant is not entitled to use the image and/or likeness of her son for any reason or purpose without her express consent. She seeks an injunction to stop the Defendant from using or publishing an image or likeness of her son and she seeks damages.

34.              Those damages are for trespass to the person, negligent and/or willful infliction of emotional distress, breaches of constitutional rights including those protected under Article 40.3.2 of the Constitution, breaches of her constitutional right to privacy and/or harassment. She also seeks aggravated, exemplary or punitive damages.

35.              While the nature of the Plaintiff's cause of action, which is not in any way argued before me, is potentially novel, it seems to me that it is at least arguable that she is entitled to maintain a claim that the Defendant is not entitled to use the image or likeness of her son. I have not been referred to any caselaw in relation to the issue, but it does seem to me that it is at least arguable. If the original cause of action is arguable, then it too is arguable that she would be entitled to an injunction. Indeed, she already has an injunction. The Defendant has not sought to lift that injunction, only to try to dismiss the entire case on the basis of this application.

36.              This is not to decide the issue, that will be a matter for the trial. At this preliminary stage, all I can do is ask the question as to whether the Plaintiff's case is bound to fail. It seems to me that I cannot say that it is.

37.              Further it seems to me, that it is at least arguable that there is a claim for negligent and/or willful infliction of emotional distress. Again, if that follows, then a claim for damages for such a tort, which does exist, is maintainable. I do not have to comment about whether the Plaintiff is entitled to aggravated, exemplary or punitive damages, since that clearly will be something that will arise from a trial and it will be a matter for the trial judge to decide, as to whether such damages are appropriate in the event of the Plaintiff succeeding in her claim.

38.              Therefore, since I cannot determine the case, the test that I must apply pursuant to Barry and the consequential case law, is whether the Plaintiff has put forward a credible basis for suggesting that she may, at trial, be able to establish the facts which are necessary for success in the proceedings (see Lopes v Minister for Justice, Equity and Law Reform [2014]  2 IR 30).

39.              Applying that test, it seems to me that the Defendant, upon whom the onus rests, has not established that the Plaintiff will be unable to establish facts which would be necessary for her to succeed at trial. Therefore, under these headings, it seems to me I must refuse the application. However, what remains is the substantive part of the application, namely, that the proceedings are unlawful since they offend against the law of maintenance and champerty.

 

The Law Relating to Maintenance and Champerty

40.              As is clear from the issues that I have raised above, maintenance and champerty is of great antiquity. Indeed, in many of the old cases, the words are interchangeable. In Reynell v Sprye [1852] 42 E.R. 708, a case from over 100 years ago, Knight Bruce LJ set as follows:-

"Such an understanding, such an agreement... may or may not have amounted strictly in point of law to champerty or maintenance so as to constitute a punishable offence, but it must in my judgment be considered clearly against the policy of the law, clearly this to us, clearly such a court of equity ought to discourage and relieve against."

41.              In Fraser v Buckle [1994] 1 IR 1 Costello J. (as he then was) set out the general principles of law of maintenance and champerty, which he said were easily ascertained and not controversial. He said:

"Maintenance has been defined as the giving of assistance or encouragement to one of the parties to inaction by a person who is neither an interest in the action nor any other motive recognised by law as justifying his interference. Champerty is a particular kind of maintenance, that is maintenance of an action in consideration of a promise to give to the maintainer a share of the subject matter or proceeds thereof."

42.              He quoted from the decision of Lord Denning MR in In Re Trepca Mines Ltd (No 2) [1963] Ch 199:

"Champerty is derived from campi partition (division of the field). It occurs when the person maintaining another stipulates for a share of the proceeds. The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tainted, for his own personal gain, to inflame the damages, to suppress the evidence, and even to sorbonne witnesses. These fears may be exaggerated; But, be that so or not, the law for centuries has declared champerty to be unlawful and we cannot do otherwise than enforce the law; And I may observe that it is received statutory support in the case of solicitors.

43.              Therefore, what the case law shows is that if an individual or a group of individuals where to fund litigation without just cause or excuse, it would be regarded as being against public policy.

44.              The case of C Martel v Consett Iron Co Ltd [1955] Ch 199 363 is of some interest. In that case, the owner and trustee of an angling club claimed injunctive relief against the Defendant company who was said to be polluting their river. An association of similar owners set up to prevent the pollution supported the Plaintiffs, who are members of the association in the form of an indemnity in respect of costs. The Defendants moved a similar application to the one before this court. Their argument was that such an agreement was an abuse of process because it was being maintained by a third party who did not have a sufficient common interest in the subject matter of the action. The court held on the facts that the association held a sufficient common interest in the subject matter of the action and therefore, were not acting illegally.

45.              In the case of O'Keefe v Scales [1998] 1 IR 290 Lynch J. in the Supreme Court dealt with issues similar to this case. In a claim of professional negligence against her previous solicitor, she included a claim relating to the costs of employing her new solicitor in the case. He said:

"While the law relating to maintenance and champerty therefore undoubtedly still subsists in this jurisdiction, it must not be extended in such a way as to deprive people of their constitutional right of access to the courts to litigate reasonably statable claims. In the present case, unlike Fraser v Buckle or McIlroy v Flynn, the appellant seeks to stifle the respondents' action before any plenary hearing and consequently she would have to make out a clear case if she were to succeed, analogous to the onus on a party bringing a motion to dismiss an action on the basis that the statement of claim discloses no cause of action or that the proceedings are frivolous and/or vexatious."

46.              The Plaintiff has referred me to the case of Persona Digital. That case raised the single issue as to whether the professional funding agreements are contrary to public policy and are champertous.

47.              In her judgment, Denham C.J. quoted The Law Reform Commission's Issues Paper on "Contempt of Court and other offences and torts involving the administration of Justice", (LRC IP 10 - 2016). In its overview it states:

"The crime, and tort, of maintenance occurs where a third party supports litigation without just cause. Champerty is an "aggravated form" of maintenance where the third party supports litigation without just cause in return for a share of the proceeds". (Greenclean Waste Management Ltd. v. Leahy p/a Maurice Leahy & Co. Solicitors (No. 2) [2014] IEHC 314)".

48.              The key words from that quote are "without just cause". She also noted the views of the Court of Appeal in SPV Osus Ltd v HSBC Institutional Trust Services (Ireland) Ltd [2018] IESC 44 where Ryan P., at para. 34, described the position as follows:

"The general understanding which is not in dispute is that champerty is a variety of maintenance, in fact a more severe or heinous version. Broadly speaking, maintenance is interfering in litigation by supporting it financially without having any legitimate interest in the case which could justify the interference. Champerty is taking a share in the outcome of the case in return for funding it." (emphasis added).

49.               In Persona Digital, Dunne J.  noted

"Maintenance is said to consist in the unlawful taking in hand or upholding of or assisting in civil suits, or quarrels of others, to the disturbance of common right, and from other than charitable motives." (Archbold's Pleading, Evidence and Practice in Criminal Cases, 32nd ed., (1949)). (emphasis added).

The Law Applicable to the Facts

50.              As noted above, there is a clear distinction between maintenance and champerty. Champerty involves a party funding litigation with the hope of making a financial gain. That clearly is not what happened here. The vast majority of the donations are anonymous, and therefore, it could not be said that they will receive any financial gain from the case. Nor was any evidence put forward by the Defendant that that was so. Therefore, I find that these proceedings are not champertous.

51.              However, the issue of maintenance is a more difficult issue to determine. As Costello J. noted in Fraser, maintenance is the giving of assistance or encouragement to one of the parties in an action by a person who has neither an interest in the action nor any other motive recognised by law as justifying his interference.

52.              The issue to be addressed is what is "other motive recognised by law".

53.              In O'Keefe v Scales [1998] 1 IR 290 Lynch J. found that the Appellant was trying to stifle the Respondent's action before any hearing. In those circumstances, he said that she would have to make out a clear case, analogous to the onus on a party bringing a motion to dismiss an action on the basis that the pleadings disclosed no cause of action or that the proceedings are frivolous and or vexatious, as in the other application the Defendant has brought. I agree.

54.              It is clear from this Supreme Court authority, therefore, that the onus placed upon the Defendant in this case, that the proceedings should be struck out on the basis that they are tainted by maintenance or champerty, is very high indeed.

55.              The sworn evidence before the court is that the GoFundMe page was created by a local community activist, not the Plaintiff. On the webpage, the activist exalts potential donators to assist the Plaintiff with the cost of her litigation against the Defendant. He ends by saying "We want to let Edel know she is not alone and she is very much supported in this battle against hate and negativity" and that any surplus monies will be given to a charity of the Plaintiff's choice.

56.              The affidavit of the Plaintiff states that her belief in respect of the donors is that they sincerely and genuinely donated by reason of charity. The Defendant asserts, however, that the activist is motivated to damage her but has put forward no evidence to support this allegation other than the contents of the web page, but crucially she does not contradict the assertion of the Plaintiff that the motivation for the donors is for a charitable purpose.

Decision

57.              Given that the whole purpose of this application is to try and stifle the Plaintiff's cause of action, the bar must be set very high. At this remove, the court cannot say what the motivation of the many donators may be, but all the court can do is rely upon the sworn testimony of the Plaintiff, that they donated for a charitable purpose.

58.              This does not seem to me to be interference with litigation without just cause or without having legitimate interest, as noted in SPV Osus Ltd. The purpose of the GoFundMe page is clearly stated. The donations are to assist the Plaintiff, in what the person who established the page said, and presumably by the people who made the donations believe, to be a battle against hate and negativity. It seems to me that the evidence is not there to support the application. There is no evidence to suggest champerty, and the evidence that is before the court suggests that the donations are for a charitable purpose.  In those circumstances, it would be inappropriate to prevent this case, at this preliminary stage, going to trial.

59.              Therefore, I refuse the application to dismiss the case on the grounds that it is maintenance and champerty.

60.              Nonetheless, it is appropriate to point out that the onus of proof rests with the Plaintiff in establishing both the facts and the imputation to those facts that she alleges to succeed in her case. The Defendant says she never said the words complained of. However, all these matters will be for the hearing of the action.

61.              As to legal costs, my provisional view is that the Plaintiff, having been successful in this application, would be entitled to recover her costs against the Defendant in accordance with the default position under Section 169 of the Legal Services Regulation Act 2015. This matter will be listed before me on the 14th of May 2025 at 10.30 for submissions on the form of the final order and on legal costs.

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