Champerty and maintenance


Champerty and maintenance

Champerty and maintenance are doctrines in common law jurisdictions, that aim to preclude frivolous litigation. "Maintenance" is the intermeddling of a disinterested party to encourage a lawsuit.[1] It is "A taking in hand, a bearing up or upholding of quarrels or sides, to the disturbance of the common right."[2] "Champerty" is the "maintenance" of a person in a lawsuit on condition that the subject matter of the action is to be shared with the maintainer.[3] Among laypersons, this is known as "buying into someone else's lawsuit."

In modern idiom maintenance is the support of litigation by a stranger without just cause. Champerty is an aggravated form of maintenance. The distinguishing feature of champerty is the support of litigation by a stranger in return for a share of the proceeds.

Lord Justice Steyn , Giles v Thompson[4]

At common law, maintenance and champerty were both crimes and torts, as was barratry, the bringing of vexatious litigation. This is generally no longer so as during the nineteenth century, the development of legal ethics tended to obviate the risks to the public, particularly after the scandal of the Swynfen will case (1856–1864).[5] However, the principles are relevant to modern contingent fee agreements between a lawyer and a client and to the assignment by a plaintiff of his rights in a lawsuit to someone with no connection to the case. Champertous contracts can still, depending on jurisdiction, be void for public policy or attract liability for costs.

Contents

History

The restrictions arose to combat abuses in medieval England. Unscrupulous nobles and royal officials would lend their names to bolster the credibility of doubtful and fraudulent claims in return for a share of the property recovered.[6] Gradually, judicial independence was established and by the early 19th century Jeremy Bentham wrote:[7]

A mischief, in those times it seems but too common, though a mischief not to be cured by such laws, was, that a man would buy a weak claim, in hopes that power might convert it into a strong one, and that the sword of a baron, stalking into court with a rabble of retainers at his heels, might strike terror into the eyes of a judge upon the bench. At present, what cares an English judge for the swords of a hundred barons? Neither fearing nor hoping, hating nor loving, the judge of our days is ready with equal phlegm to administer, upon all occasions, that system, whatever it be, of justice or injustice, which the law has put into his hands.

By jurisdiction

Australia

In Australia, champerty and maintenance as common law causes of action (as either a crime or a tort) have mostly been abolished by statute. In New South Wales, champerty and maintenance were abolished by the Maintenance, Champerty and Barratry Abolition Act 1993.[8] In Victoria, champerty and maintenance was abolished as a tort by section 32 of the Wrongs Act 1958.[9] and as a crime by section 332A of the Crimes Act 1958[10]

England and Wales

Maintenance and champerty have not been crimes or torts since the passing of the Criminal Law Act 1967,[11] though embracery was a crime until until the Bribery Act 2010. However, the 1967 Act stated:

The abolition of criminal and civil liability under the law of England and Wales for maintenance and champerty shall not affect any rule of that law as to the cases in which a contract is to be treated as contrary to public policy or otherwise illegal.

section 14(2)

There are circumstances in which a non-party who funds litigation can be liable for costs,if the action fails.[12][13][14]

For instance, in Re Oasis Merchandising Services Ltd[15] the Court of Appeal reincarnated the tort against the assignment of a wrongful trading claim by a liquidator to a specialist litigation company to pursuing directors for wrongful trading. This has come under criticism given that claims against directors are enforced sub-optimally as company liquidators, typically accountants, are cautious to take on risks rather than save as much of the company as possible.

Hong Kong

In Hong Kong, champerty and maintenance were long thought to be obsolete both as a crime and a tort, but these two principles have been revived in recent years in response to the prevalence of recovery agents which present problems quite different from the mischief which historically these rules intended to combat.

The recovery agents typically perform "ambulance chasing" on accident victims, offering to arrange lawyers to handles their claims on a "no win no fee" basis. If the claim succeeds the recovery agents share a portion of the damages. This is seen as deception on uneducated victims who are ignorant to the availability of legal aid. The division of the damages in effect deprives the victims of the just compensation that they are entitled to for their bodily injury. The intermeddling of recovery agents in the lawsuit also presents ethical problems to lawyers, who may have undermined impartiality in advising on settlement. In response, the Department of Justice and the Law Society of Hong Kong carried out a massive publicity campaign aiming at educating the public to refuse recovery agents, citing that maintenance and champerty are criminal offences under the laws of Hong Kong.

In 2008, 21 people were arrested for champerty, maintenance and conspiracy. They were recovery agents "helping" accident victims on a "no win no fee" basis. One of the people arrested was a lawyer. Champerty and maintenance carries a sentence of up to seven years in Hong Kong.[16][17]

On 25 June 2009, a solicitor was convicted for conspiracy to maintain and a recovery agent for conspiracy to champer. They were found to have agreed to share 25% from the damages paid to the next friend of a 18-year-old traffic accident victim who suffered from permanent total loss of earning capacity. On 10 July 2009, the solicitor was sentenced to 15 months' imprisonment and the recovery agent to 16 months' imprisonment. (Case number: DCCC 610/2008)

New Zealand

Maintenance and champerty are torts, not crimes, under New Zealand law. Despite calls for their abolition, the New Zealand Law Commission recommended their preservation in a 2001 report titled Subsidising Litigation.[18]

United States

Obviously this concept exists in US jurisprudence but disdained by "fans of entrepreneurial lawyering in the academy and elsewhere." There has been recent common usage of the term in the media in Nevada[1] and Ohio.[2]

See also

Notes

  1. ^ Curzon, L.B. (2002). Dictionary of Law (6th ed.). London: Longman. pp. 260. ISBN 0-582-43809-8. 
  2. ^ Coke (1641) Institutes
  3. ^ Curzon, L.B. (2002). Dictionary of Law (6th ed.). London: Longman. pp. 61. ISBN 0-582-43809-8. 
  4. ^ [1993] 3 All ER 321 at 329
  5. ^ Pue, W. W. (1990). "Moral panic at the English Bar: Paternal vs. commercial ideologies of legal practice in the 1860s". Law and Social Inquiry 15 (1): 49–118. doi:10.1111/j.1747-4469.1990.tb00275.x. 
  6. ^ Winfield (1919)
  7. ^ Works (Bowring (ed), 1843) vol 3, pp 19–20
  8. ^ "MAINTENANCE, CHAMPERTY AND BARRATRY ABOLITION ACT 1993". www.austlii.edu.au Australasian Legal Information Institute. http://www.austlii.edu.au/au/legis/nsw/consol_act/mcabaa1993408/. Retrieved 2008-12-22. 
  9. ^ "WRONGS ACT 1958". www.austlii.edu.au Australasian Legal Information Institute. http://www.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s32.html. Retrieved 2008-12-22. 
  10. ^ "Crimes Act 1958 - SECT 322A". www.austlii.edu.au Australasian Legal Information Institute. http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s322a.html. Retrieved 2008-12-22. 
  11. ^ Criminal Law Act 1967, ss.13-14
  12. ^ Superior Courts Act 1981, s.51(1) and (3)
  13. ^ Aiden Shipping Co Ltd v. Interbulk Ltd [1986] AC 965
  14. ^ Arkin v Bouchard Lines [2005] EWCA Civ 655
  15. ^ [1998] Ch 170
  16. ^ Caution issued on recovery agents
  17. ^ 包攬訴訟屬刑事可判囚
  18. ^ Subsidising Litigation, pages 2 and 11. Wellington: New Zealand Law Commission. ISBN 1877187720. Published 30 April 2001. Accessed 28 May 2009. Also published as New Zealand Parliamentary Paper E 3172.

References


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Look at other dictionaries:

  • champerty and maintenance — Champerty is the process whereby one person bargains with a party to a lawsuit to obtain a share in the proceeds of the suit. Maintenance is the support or promotion of another person s suit initiated by intermeddling for personal gain.… …   Law dictionary

  • champerty — cham·per·ty / cham pər tē/ n pl ties [Anglo French champartie bargaining for a share of disputed property, from champart share of crops paid as rent, share of property in dispute, from champ field + part portion]: an unenforceable agreement by… …   Law dictionary

  • maintenance — main·te·nance n 1 a: the act of providing basic and necessary support b: the state of having such support 2: a financial means of providing necessary assistance: as a: alimony b …   Law dictionary

  • maintenance — The upkeep or preservation of condition of property, including cost of ordinary repairs necessary and proper from time to time for that purpose. Bogan v. Postlewait, 265 N.E.2d 195, 197. See also maintain Sustenance; support; assistance; aid. The …   Black's law dictionary

  • maintenance — The upkeep or preservation of condition of property, including cost of ordinary repairs necessary and proper from time to time for that purpose. Bogan v. Postlewait, 265 N.E.2d 195, 197. See also maintain Sustenance; support; assistance; aid. The …   Black's law dictionary

  • maintenance — Making repairs and otherwise keeping premises or instrumentalities in good condition. Support of a person. Wall v Williams, 93 NC 327. The act of improperly, for the purpose of stirring up litigation and strife, encouraging others either to bring …   Ballentine's law dictionary

  • maintenance and champerty — two former torts and crimes striking at a third party s support of another s litigation. Maintenance is the stirring up of litigation by supporting a party without having a just cause or excuse for so doing: Re Trepca Mines Ltd (No. 2) [1963] Ch …   Law dictionary

  • Champerty — Cham per*ty, n. [F. champart field rent, L. campipars; champ (L. campus) field + part (L. pars) share.] 1. Partnership in power; equal share of authority. [Obs.] [1913 Webster] Beaut[ e] ne sleighte, strengthe ne hardyness, Ne may with Venus… …   The Collaborative International Dictionary of English

  • Maintenance — Main te*nance, n. [OF. maintenance. See {Maintain}.] 1. The act of maintaining; sustenance; support; defense; vindication. [1913 Webster] Whatsoever is granted to the church for God s honor and the maintenance of his service, is granted to God.… …   The Collaborative International Dictionary of English

  • Maintenance — For the Wikipedia maintenance, see Wikipedia:Maintenance. Maintenance may refer to: Biological science Maintenance respiration Maintenance of an organism Non technical maintenance: High maintenance, slang expression Child support or alimony, also …   Wikipedia


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