Academic literature on the topic 'Maintenance and champerty'
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Journal articles on the topic "Maintenance and champerty"
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Yeoh, Derric. "Third Party Funding in International Arbitration: A Slippery Slope or Levelling the Playing Field?" Journal of International Arbitration 33, Issue 1 (February 1, 2016): 115–22. http://dx.doi.org/10.54648/joia2016005.
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Common law jurisdictions have traditionally been averse to the notion of third party funding (‘TPF’) due to the ancient doctrines of champerty and maintenance. Founded on considerations of public policy, the laws of champerty and maintenance were targeted at frivolous and vexatious claims ‘fomented and sustained by unscrupulous men of power’. While common law jurisdictions such as the United Kingdom and Australia have removed prohibitions on TPF in arbitration, other common law jurisdictions are less eager to follow suit. In this article, the author argues that TPF in international arbitration should not be prohibited, but regulated, as it levels the playing field for claimants who are either impecunious or unable to bear the associated financial risks due to their limited financial resources. It examines the various arguments presented against TPF, such as the encouragement of frivolous claims, the control of the claim and conflict of interests, while also proposing various measures to curtail the risks of a slippery slope from TPF.
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Capper, David. "Three aspects of litigation funding." Northern Ireland Legal Quarterly 70, no. 3 (October 3, 2019): 357–69. http://dx.doi.org/10.53386/nilq.v70i3.268.
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This comment reviews three decisions of the Supreme Court of Ireland from the last three years which concern different aspects of litigation funding. Persona Digital Telephony Ltd v Minister for Public Enterprise is about the direct provision of financial support for litigation, something which the Supreme Court invalidated as contravening the ancient principles of maintenance and champerty. In SPV Osus v HSBC Institutional Trust Services the Supreme Court unsurprisingly struck down an assignment of a right to litigate as also savouring of maintenance and champerty. Finally in Moorview Development Ltd v First Active plc the Supreme Court considered when a third party supporting litigation in circumstances not covered by Persona Digital might be required to pay the costs of the defendant should the litigation supported be lost. Persona Digital is a decision of mainly Irish significance, but the other decisions have implications for the wider common law in relation to two matters. The first is whether the difference between financing a claim and buying it is more than a matter of form. The second is the appropriate approach of courts wherever situated to making a non-commercial funder of civil litigation liable to pay the costs of an opposing litigant.
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Molavi, Michael. "Law’s Financialization: Litigation Finance and Multilayer Access to Justice in Canada." Canadian Journal of Law and Society / Revue Canadienne Droit et Société 33, no. 3 (September 28, 2018): 425–45. http://dx.doi.org/10.1017/cls.2018.16.
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AbstractIn the aftermath of the Global Financial Crisis, states around the world have experienced sustained growth in the emerging industry of litigation finance in light of the perceived insularity of courtrooms from the instabilities and fluctuations of financial markets. In Canada, this nascent industry has been dominated by class actions given the high costs, risk exposures, and attractive rewards associated with collective redress. Such investments have been legitimated as promoting access to justice, a fundamental human right. This paper traces the historical and contemporary development of this legal dynamic of financialization by documenting the progressive liberalization of maintenance and champerty laws from the nineteenth century to the current period through a series of case studies, before exploring the legal economics of the emerging industry in Canada. In so doing, this paper critically examines the impacts of law’s financialization on multilayer access to justice.
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Eyongndi, David, and Faith N. Opara. "Arbitrating During and Post Covid-19: Nigeria and the Imperativeness of Adopting a Legal Framework on Third-Party Funding." Strathmore Law Journal 6, no. 1 (November 17, 2022): 181–211. http://dx.doi.org/10.52907/slj.v6i1.127.
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The advent of Covid-19 has led to the inability of parties fulfilling their commercial and contractual obligations. This inability has led to disputes and has negatively affected the financial fortune of many persons and businesses so that they may not afford or solely bear the cost of funding arbitration. To ensure that parties’ intention to arbitrate their disputes is not frustrated, Third-party funding (TPF), an acceptable practice in jurisdictions such as the United Kingdom (UK), Singapore, and Hong Kong, is a possible solution. Unfortunately, TPF is unknown to Nigerian law as it offends the common law doctrines of champerty and maintenance. This article, through a doctrinal methodology, examines the legislative effort towards institutionalising TPF in Nigeria and the ethical concerns advanced against it. The article argues that these concerns are more imaginary than real. Hence, they ought not to deter the adoption of TPF in Nigeria for intra- and post-Covid-19 funding of arbitration. It discusses the practice of TPF in the UK, Hong Kong, Singapore, South Africa, Ghana, and France in which these ethical concerns have been dealt with and draws lessons for Nigeria.
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PACHAHARA, Shantanu, and Vikas GANDHI. "THIRD-PARTY FOUNDING IN INTERNATIONAL COMMERCIAL ARBITRATION: IT IS ABOUT TIME FOR REGULATIONS." Conflict Studies Quarterly, no. 41 (October 5, 2022): 60–77. http://dx.doi.org/10.24193/csq.41.4.
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Third-party funding (TPF) is a species of the common law doctrine of maintenance and champerty. With the burgeoning of global trade, the need for funding arbitral proceeding of high magnitude have witnessed an upward trend. TPF is a method wherein the impecunious party to the dispute enters into a contract with a third-party, who is not a party to the arbitration agreement, to finance the arbitration proceeding and run the risk of either paying or receiving the proceeds, costs, or award awarded against or in favor of such party. TPF, on one hand, provides a gateway to justice to the impecunious party and on the other hand, causes an impediment to the recognition and enforcement mechanism of arbitral awards. TPF flourishes as an alternative to support arbitral proceedings by acting as an investment for the financers but what impact it has on the market, in the long run, is still unclear. TPF assists the struggling party to appoint highly qualified specialists and a learned arbitrator through financial assistance but restricts the party autonomy and raises justifiable doubts as to the independence and impartiality of the arbitrator due to the leverage the financer holds in such an arrangement. Last but not least, TPF may also, at times, result in the disclosure of attorney-client communication to the financer. The present article is an analytical study of TPF as a mechanism in international commercial arbitration and what challenges it poses to its practice. Moreover, the article places reliance on the work of various scholars, and adopting the inductive approach of reasoning, reflects upon the plausible remedies for challenges that TPF poses to international commercial arbitration. Keywords: Third-Party Funding; Commercial Arbitration; International; Challenges; Regulation.
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M. Muriithi, Peter. "Champerty and Maintenance: The Legality of Third-Party Funding in Arbitration in Common Law Jurisdictions." SSRN Electronic Journal, 2022. http://dx.doi.org/10.2139/ssrn.4073476.
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Lombard, Sulette, and Andre Boraine. "Comparative Notes on the use of Commercial Litigation Funding in Insolvency: Australia and South Africa." Potchefstroom Electronic Law Journal 26 (November 21, 2023). http://dx.doi.org/10.17159/1727-3781/2023/v26i0a15975.
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This article explores the application of third-party litigation funding (TPLF), also referred to as commercial litigation funding, in insolvency litigation by way of a comparison of the legal position in Australia and South Africa. It proposes that TPLF could offer significant benefits by enabling liquidators of insolvent estates to pursue and enforce claims through civil proceedings with the aim of swelling the assets of the insolvent estate, ultimately to the advantage of the creditors. Since both jurisdictions share elements of English law, both were confronted with the English law doctrines of champerty and maintenance initially being regarded as impediments to the development and/or use of TPLF. Currently, and mainly due to developments in terms of case law, the concept of TPLF has in principle been accepted in both jurisdictions. However, in Australia the development originally transpired in the field of insolvency litigation. In South Africa the context was more in the confines of general litigation. It is submitted that the South African system could benefit by considering various aspects of the Australian system regarding the use of TPLF in insolvency litigation. It remains a question whether or not the respective systems would benefit by adopting comprehensive regulatory measures to regulate TPLF.
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Howie, Rachel, and Geoff Moysa. "Financing Disputes: Third-Party Funding in Litigation and Arbitration." Alberta Law Review, December 2, 2019, 465. http://dx.doi.org/10.29173/alr2582.
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Third-party funding is an arrangement where an entity with no prior interest in the merits of a dispute provides funding to a party involved in the dispute. Traditionally, this funding was specifically to assist the party to the dispute by financing its legal fees and costs and could be obtained in a number of ways, such as through insurance or loans from financial institutions. Third-party funding has seen significant growth and an increase in sophistication in recent years, resulting in a departure from this traditional model concurrent with the rise of commercial litigation funders whose entire business is providing non-recourse investment in disputes. This article explores both the changes in models of third-party funding — which can include some or all of: (1) paying for legal fees and disbursements, (2) indemnifying against the risk of an adverse costs order, (3) stepping in to provide security for costs, (4) providing working capital or portfolio funding for bundles of claims, and (5) the rise of institutional third-party financing in Canada. In particular, this article will explore some of the specific applications of third-party funding to the energy industry, including “David and Goliath” claims, claims involving state asset expropriation, and the use of funding as a tool for risk allocation in asset sales.
This article will also discuss the development and current state of the legal framework and case law in Canada with respect to third-party funding, along with third-party funding across different contexts and types of disputes. This includes the evolution of the law of maintenance and champerty and a discussion of key legal and ethical issues engaged by third-party funding arrangements including confidentiality, privilege, disclosure, conflicts of interest, and control of the dispute.
Dissertations / Theses on the topic "Maintenance and champerty"
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Waye, Vicki Catherine. "Markets for Legal Claims." Faculty of Law University of Sydney, 2007. http://hdl.handle.net/2123/1585.
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PhDAccess to justice is an important human right that ensures adequate redress for harm, and which consequently helps deter future wrongdoing. Without access to justice citizens are precluded from the full enjoyment of their economic and social entitlements. The cost of litigation is a significant impediment to access to justice. Although the courts have attempted to increase access to justice by broadening the range of available dispute resolution options and by improving productivity through the implementation of case flow management systems, the cost of prosecuting claims remains disproportionately high and unaffordable for most small to medium sized claimholders. Legal claim assignment to parties able to aggregate claims and to apply their expertise as litigation entrepreneurs to deal with claim prosecution efficiently is one means of redressing the imbalance between the cost of claim prosecution to individual claimholders compared to the value of their claims. However, the well-entrenched doctrines of maintenance and champerty prohibit legal claim assignment. The continued resort to the doctrines of maintenance and champerty despite a strong and independent modern judiciary reflects distaste for claim commodification. However, the advent of litigation funding and its acceptance by the High Court of Australia in Campbell’s Cash and Carry v Fostif Pty Ltd (and to some extent United Kingdom and United States courts) on access to justice grounds has challenged conventional maintenance and champerty dogma. Together with other measures such as the introduction of conditional fee agreements that shift the cost of funding access to justice from the public to the private purse, the resistance to full claim alienability has been significantly weakened. The thesis argues that full claim alienability is favoured on normative and efficiency grounds and examines developments in Australia, England and the United States, which portend toward claim commodification. In addition, the thesis examines regulatory instruments required to ensure that the present partial claim market and the potential full claim market operates fairly and efficiently. It also considers how claim commodification may affect the relationship between legal practitioners and claim holders. [Please note: For any information on access to the full text please conact the author.]
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Carvalho, Cláudia Sofia Rodrigues. "Non-recourse funding agreements em Portugal : natureza e obstáculos." Master's thesis, 2021. http://hdl.handle.net/10400.14/36669.
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Neste trabalho analisar-se-á a razão de ser e natureza dos contratos Non-Recourse Funding Agreements, começando por se contextualizar os mesmos no âmbito do fenómeno do financiamento de litígios por terceiros e por se descrever os obstáculos que este fenómeno tem vindo a enfrentar ao longo da história. De seguida, apresentar-se-á a noção destes contratos, bem como as suas principais características, e tentar-se-á categorizá-los à luz dos instrumentos existentes no Direito Português. Da mesma forma, tem-se por propósito analisar os obstáculos à tradução destes instrumentos para o nosso país, bem como o tipo de financiamento a que estes se poderão subsumir. Por fim, é ainda objeto do presente trabalho dissecar-se se este novo tipo de financiamento influencia o governo das sociedades comerciais. No fundo, esta dissertação tem o objetivo de responder a três questões jurídicas: qual a natureza dos Non-Recourse Funding Agreements; se podem ser trazidos para o ordenamento jurídico português; e quais as suas consequências no financiamento e no governo das sociedades comerciais. Neste trabalho conclui-se que o potencial destes instrumentos é imenso, mesmo num mercado como Portugal em que os litígios, em geral, têm uma menor dimensão do que nos ordenamentos jurídicos em que estes contratos proliferam. Contudo, e porque de facto existem barreiras jurídicas, deve existir uma regulação mais ou menos exaustiva destes contratos.This paper proposes to analyze the reasoning behind Non-Recourse Funding Agreements as well as their nature, starting with their inclusion in the Third-Party Funding phenomenon and with a brief explanation of the obstacles this phenomenon has faced throughout history. Subsequently, we will define these contracts and describe their main characteristic, as well as try to categorize them in light of Portuguese Law. Similarly, this paper proposes to analyze the hindrances behind bringing these instruments to our country as well as what kind of financing they represent. At last, in this paper we shall dissect if this new type funding can have Corporate Governance consequences. At heart, this dissertation has the objective of answering three questions: what is the nature of Non-Recourse Funding Agreements; can they be brought to Portugal; what are their consequences in the financing and governing of companies. This paper concludes that these instruments have great potential, even in a smaller market like Portugal where millionaire law suits aren’t as common as in other jurisdictions where Third-Party Funding is booming. Despite that, further regulation must exist given that there are obstacles to surpass in order to create and grow this market in Portugal.
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Khoza, Mpho Justice. "Third-party litigation funding agreements : a comparative study." Diss., 2019. http://hdl.handle.net/10500/25716.
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In third-party litigation funding agreements, funders agree to finance a litigant’s litigation on condition that the funder will deduct a specified percentage from the capital awarded to the litigant in the event of success. In contingency fee agreements, such funding is provided by lawyers. Initially both these agreements were illegal in South Africa and England, but as civil courts became able to counter corruption and abuse – and with the recognition of the need to give more litigants access to justice – both were recognised as legal. Third-party litigation funding agreements by non-lawyers are unregulated in most jurisdictions. As the voluntary self-regulation in England is unsatisfactory, mandatory statutory regulation should be introduced in South Africa. The Contingency Fees Act 66 of 1997 caps the fee to 25% on the capital amount in South Africa. Since no such cap exists in Ontario (Canada), the cap of 25% in South Africa should be revised.Eka Mintwanano yo nyika nseketelo wa mali eka nandzu wa thedi phati, vanyiki va mali va pfumela ku hakela mali ya nandzu wa mumangali hi xipimelo xa leswaku munyiki wa mali u ta susa phesenteji leyi kombisiweke ku suka eka mali leyi nyikiweke mumangali loko a humelela. Eka mintwanano ya tihakelo ta vukorhokeri, nseketelo walowo wa mali wu nyikiwa hi maloyara. Ekusunguleni mintwanano leyi hinkwayo a yi nga ri enawini eAfrika Dzonga na le England, kambe tanihi leswi tikhoto ta mfumo ti koteke ku kokela etlhelo eka timhaka ta vukungundzwana na nxaniso- na ku anakanyiwa ka xilaveko xo nyika vamangali votala mfikelelo wa vululami- hinkwayo yi anakanyiwile tanihi leyi nga enawini. Mintwanano yo nyika nseketelo wa mali eka nandzu wa thedi phati hi vanhu lava nga riki maloyara a yi lawuriwi eka vuavanyisi byotala. Tanihileswi vutilawuri byo tinyiketa eEngland byi nga riki kahle, mafambiselo ya nawu lama lavekaka ya fanele ya tivisiwa eAfrika Dzonga. Nawu wa Tihakelo ta Vukorhokeri wa 66 wa 1997 wu veka mpimo wa hakelo eka 25% eka xiphemu xa tsengo wa mali eAfrika Dzonga. Ku sukela loko ku ri hava mpimo lowu nga kona eOntario (Canada), mpimo wa 25% eAfrika Dzonga wu fanele wu langutisiwa hi vuntshwa.
Kha thendelano dza ndambedzo dza mbilo ine ya itelwa muthu, vhabadeli vho tenda u badela mbilo ya muthu o no khou itelwa mbilo tenda mubadeli a tshi ḓo ṱusa phesenthe yo tiwaho kha tshelede yo avhelwaho muthu ane a khou itelwa mbilo arali a kunda. Kha thendelano dza mbadelo dzine dza badelwa musi ramilayo o no kunda kha mulandu, mbadelo idzo dzi ṋetshedzwa nga vhoramilayo. Mathomoni thendelano idzi vhuvhili hadzo dzo vha dzi siho mulayoni Afurika Tshipembe na England, fhedzi musi khothe dza mbilo dzi tshi vho thoma u hanedzana na tshanḓanguvhoni na u tambudzwa - na u dzhiela nṱha ṱhoḓea ya u ṋea vhathu vhane vha khou itelwa mbilo u swikelela vhulamukanyi –vhuvhili hadzo dzo dzhiwa sa dzi re mulayoni. Thendelano dza ndambedzo dza mbilo ine muthu a itelwa nga vhathu vhane vha sa vhe vhoramilayo a i langulwi kha vhulamukanyi vhunzhi. Samusi u langulwa ha ndaulo nga iwe muṋe hu ha u tou funa ngei England a zwi ṱanganedzwi, ndaulo ya khombekhombe ya mulayo i fanela u ḓivhadzwa Afurika Tshipembe. Mulayo wa Mbadelo dzine dza badelwa Ramilayo musi o kunda wa nomboro 66 wa 1997 mutengo wawo u guma kha 25% mutengo wa tshelede Afurika Tshipembe. Samusi tshikalo itsho tshi sa wanali ngei Ontario (Canada), tshikalo itsho tsha 25% Afurika Tshipembe tshi fanela u sedzuluswa hafhu.
Private Law
LL. M.
Books on the topic "Maintenance and champerty"
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New South Wales. Law Reform Commission. Barratry, maintenance and champerty. Sydney: New South Wales Law Reform Commission, 1994.
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New South Wales. Law Reform Commission. Barratry, maintenance and champerty. Sydney: The Commission, 1994.
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Raheja, Devinder. Who is maintaining whom: An analysis of the working of maintenance provisions under section 125 of the Criminal Procedure Code 1973. New Delhi: Centre for Contemporary Studies, Nehru Memorial Museum and Library, 1994.
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Henry, Winfield Percy. The history of conspiracy and abuse of legal procedure. Holmes Beach, Fla: Wm. W. Gaunt & Sons, 1986.
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Vickie, Waye. Trading in legal claims: Law, policy & future directions in Australia, UK & US. Adelaide: Presidian Legal Publications, 2007.
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Modern Law of Champerty and Maintenance. Oxford University Press, 2023.
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Marcus, Smith, and Leslie Nico. Part IV Intangible Property that is Incapable of Transfer, 23 The Assignment of Bare Rights to Litigate: Champerty and Maintenance. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198748434.003.0023.
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This chapter examines the doctrines of champerty and maintenance—the most prominent examples of a public policy limitation on the ability to assign. The doctrines of champerty and maintenance trace their origins back to the earliest days of the common law, and indeed were the basis for the common law's traditional antipathy to all assignments. Champerty is traditionally described as a species of maintenance or ‘an aggravated form of maintenance’ that is said to occur ‘when the person maintaining another stipulates for a share of the proceeds or the action or dispute or other contentious proceedings where property is in dispute’. The chapter then explains the effect of champerty and maintenance on an assignment or other contract.
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Subsidising litigation. Wellington, N.Z: Law Commission, 2001.
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Marcus, Smith, and Leslie Nico. Part VI Special Regimes for Transfer, 30 Insolvency and Assignment. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198748434.003.0030.
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This chapter discusses insolvency. Insolvency is significant in the law of assignment in a number of respects. In the first place, individual bankruptcy—although not the insolvency of companies—causes the bankrupt to be divested of his property, which automatically becomes vested in his trustee in bankruptcy upon the latter's appointment. So far as choses in action are concerned, this involves what can be termed a statutory assignment. The onset of insolvency—both individual and corporate—also causes the rules regarding assignments generally to change in certain respects. Thus, with the onset of insolvency: the rules regarding the assignability of present rights enforceable in the future change; the rules of champerty and maintenance change; and the rules of set-off change.
Book chapters on the topic "Maintenance and champerty"
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Mulheron, Rachael. "The Modern Effects of Champerty and Maintenance on Funded Litigation." In The Modern Doctrines of Champerty and Maintenance, 77—C4N177. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0004.
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Abstract This chapter considers nine potential consequences of champertously funded litigation, by having regard to the tripartite relationship among the champertor, the funded party, and the party being sued in the underlying action. This chapter includes analysis of: the impact of the unenforceability of a champertous agreement; whether champerty is a defence to the underlying action; whether a stay of the underlying action is permitted; the regulatory or disciplinary consequences which may arise for a champertor; the potential for non-party costs orders against the champertor; the impact of champerty upon professional indemnity insurance policies; whether a counter-suit for abuse of process is available; the potential for severance of the champertous clauses of the agreement; and whether recovery on the part of a champertor on a quantum meruit basis is possible, where services and assistance have been rendered to the funded party under a champertous agreement. Some difficult and contrary authorities pervade the consequences of champerty.
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Mulheron, Rachael. "Introducing Champerty and Maintenance." In The Modern Doctrines of Champerty and Maintenance, 3—C1N134. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0001.
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Abstract This chapter introduces the doctrines of champerty and maintenance, and explains the differences between them. Their origins are ancient and mediaeval, and they form part of the subset of wrongs against the sound and proper administration of justice. This book focuses upon their modern application—and just what ‘modern’ means in this context is explained in this introductory chapter. Furthermore, it is posited at the outset that the doctrines are creatures of public policy which changes over time, and that the policies underpinning champerty and maintenance were always, and remain, different to this day. One important ramification of this is that maintenance, as a doctrine, arguably no longer has any practical effect in English law. Whilst it is a ‘dead letter’, the same cannot be said about champerty, which continues to have considerable impact upon the law of funding and assignments.
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Mulheron, Rachael. "Champerty and Maintenance in Other Jurisdictions." In The Modern Doctrines of Champerty and Maintenance, 51—C3P59. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0003.
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Abstract This chapter considers the extent to which the recommendation of the England and Wales Law Commission in 1966 to abolish the torts and crimes of champerty and maintenance in England and Wales, but to enact the Reservation Provision contained in s 14(2) of the Criminal Law Act 1967, has been followed in other jurisdictions since. A wide sample of jurisdictions is canvassed. Some jurisdictions have retained the doctrines as torts; some have followed the English position and retained them as rules of public policy under a reservation provision but nothing further than that; some have retained the doctrines for litigation but not for arbitration; some have banished the doctrines in any form; in some jurisdictions, they have never existed; and in some, law reform bodies have recently considered their status. The subject of funding and of its governance is an inter-jurisdictional problem, given the increasing shortage in state funding.
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Mulheron, Rachael. "General Concepts: Assessing Champertous Assignments." In The Modern Doctrines of Champerty and Maintenance, 165—C7N101. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0007.
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Abstract The visible manifestations of champerty and maintenance have survived in only two respects (according to Lord Mustill in Giles v Thompson)—in respect of funding and in respect of assignments of causes of action. A cause of action is a legal chose in action, and the circumstances in which it can, or cannot, be assigned has long bedevilled the law of champerty. Whether or not an assignment is champertous is an oft-litigated issue, notwithstanding that the law is undoubtedly showing more tolerance to assignments than it once did. This chapter contrasts the law of assignments with the other field of legal conduct to which champerty attaches, that of funded litigation. The chapter also explains the typical arrangement of assignments, involving the original claimant (the assignor), the substituted claimant (the assignee), and the defendant. The chapter then sets out the framework which governs the validity of assignments, by reference to post-Trendtex law, and which will form the basis for the analysis which follows in later chapters.
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Mulheron, Rachael. "Key Reform Issue for Funded Litigation." In The Modern Doctrines of Champerty and Maintenance, 249—C11N65. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0011.
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Abstract The Reservation Provision in s 14(2) of the Criminal Law Act 1967 should be retained, in order to secure the application of public policy and the due administration of justice as part of the landscape of funding and of assignments. However, this chapter considers this more controversial question: more than five decades after its statutory abolition, should the doctrine of champerty be reintroduced as a tort in English law, that is, as a cause of action capable of giving rise to damages? Apart from some misgivings regarding the reasoning for abolition expressed by the England and Wales Law Commission in 1966, the principal reason for considering this reform is the recent recognition in English law of the tort of malicious prosecution of civil proceedings, by bare majority, in Willers v Joyce in 2016. Both champerty and the tort of malicious prosecution of civil proceedings belong to that group of ‘abuse of litigation’ torts, and both share the same nuanced (and policy) concerns as to whether they viably serve any purpose as torts. Much can be learnt from Willers v Joyce, especially given that some of the policy arguments which were the subject of such disagreement in that judgment are also highly relevant to any reinstatement of the tort of champerty, and are quite finely balanced. Those parallels—and other relevant arguments for and against—are analysed in this chapter.
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Mulheron, Rachael. "The Abolition and Reservation of Champerty and Maintenance in England." In The Modern Doctrines of Champerty and Maintenance, 21—C2N241. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0002.
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Abstract The statutory abolition of champerty and maintenance as crimes and as torts in English law, over five decades ago, ushered in a new era, in which the ‘reservation provision’ in s 14(2) of the Criminal Law Act 1967 ensures that the doctrines survive as rules of public policy which are capable of rendering any contract tainted by champerty and maintenance unenforceable. This chapter revisits the trio of reasons for abolishing the doctrines as torts which were put forward by the Law Commission of England and Wales in 1966, and critiques whether those reasons stand up to scrutiny, or still hold sway, more than five decades later. The chapter also considers the vast array of funding options, developed post-1966, about which the Commission could have had no inkling, but which now proliferate litigation as a business from which to make profit.
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Mulheron, Rachael. "Public Policy and the Administration of Justice." In The Modern Doctrines of Champerty and Maintenance, 225—C10N141. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0010.
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Abstract As a second and final test of validity, the law of assignments requires consideration as to whether the administration of justice would be enhanced, or at least not impugned, by the assignment, and whether any questions of infringement of public policy arise from the particular assignment. These tests apply to both property-based assignments and to the assignment of causes of action (or bare rights to litigate). This chapter identifies from the case law the various public policy factors and administration of justice factors that have been pertinent in assignment jurisprudence. The public policy test covers, for example, assignments which demonstrate excessive profiteering, which inhibit access to justice, which are not the product of freely negotiated terms, or which impose overreaching limitations upon the assignor or take advantage of the assignor’s vulnerability. The administration of justice test covers, for example, whether the defendant has adequate costs protection, the motives that underpinned the assignment, whether the underlying action can be facilitated at all, and the importance of accounting to the assignee for any benefits obtained from the defendant prior to the assignment occurring. The chapter also considers the special category of assignment from client to solicitor and the public policy issues arising therefrom, and concludes with discussion of whether the English law’s attitude to assignment is compatible with the ECHR.
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Mulheron, Rachael. "Assigning Causes of Action Ancillary to Property Interests." In The Modern Doctrines of Champerty and Maintenance, 181–96. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0008.
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Abstract This chapter considers those scenarios in which the cause of action being assigned has been held to be capable of assignment as being incidental to, or aligned with, a property interest, and, hence, is distinguishable from a bare right to litigate. Given that these are categories of cases to which the courts have traditionally been more accommodating, a claimant will typically seek to prove that the assignment under challenge falls within one of these categories, or is sufficiently analogous to one of them to warrant validity. There are six such categories: claims which are incidental to the purchase of property, claims for statutory compensation associated with property damage, assignments of the ‘fruits of the litigation’, assignment of debts (even disputed debts), assignments of claims associated with intellectual property, and assignment of liquidated sums (even where in dispute).
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Mulheron, Rachael. "Non-Lawyers’ Funding." In The Modern Doctrines of Champerty and Maintenance, 101—C5N202. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0005.
Full textAbstract:
Abstract Where non-lawyers are providing a litigant (the funded client) with money, other assistance, or both, much more latitude has been afforded by the English judiciary towards what constitutes champertous conduct. The courts typically undertake a case-by-case assessment in order to ascertain whether the funding agreement is likely to jeopardize the proper administration of justice or infringe public policy. This chapter considers the law of champerty as it has applied to third party funding (aka professional funding) in English law to date, and analyses the factors to which courts have had regard in respect of champertous motive and champertous conduct. The chapter also analyses a myriad of other parties who fall within the nomenclature of the ‘non-lawyer’—insurers, unions, banks, credit hire companies, and ‘conscience funders’—and whose financial assistance has given rise to the question as to whether or not such assistance was champertous. Finally, the chapter examines the lesser-known but oft-litigated arena of those who provide litigation services (rather than financial assistance) in return for a share of the spoils of any financial recovery obtained (the so-called ‘supporters’ of litigation).
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Mulheron, Rachael. "Key Reform Issues for Assignments." In The Modern Doctrines of Champerty and Maintenance, 259—C12N44. Oxford University PressOxford, 2023. http://dx.doi.org/10.1093/oso/9780192898739.003.0012.
Full textAbstract:
Abstract Litigation needs to be funded, and assignment of causes of action from assignor to assignee is one way of achieving that. Criticisms have been made of the requirement to show a genuine commercial interest on the assignee’s part, despite the increasing liberalization pervading champertous assignments in modern law. This chapter considers two suggestions for law reform of this area: that the requirement for a genuine commercial interest should be jettisoned; or that the point has been reached where the law should dispense with the notion of champertous assignments altogether. Having considered both suggestions, the conclusion is reached that under the detailed analytical framework which has developed post-Trendtex, in which it must be proved either that a cause of action being assigned is ancillary to a property interest, or that it is a bare cause of action for which the assignee has a genuine commercial interest in receiving it; and that for either category, the assignment must pass the public policy and due administration of justice tests, the law is working as it should. The existing legal framework is putting a brake upon the untrammelled sale of causes of action, while allowing those who have a sufficient interest to take the assignment, stand in the shoes of the original claimant, and treat the action as his own. An appropriate balance has been struck in the law of assignments, whilst acknowledging that the categories of ‘genuine commercial interest’ and appropriate ‘identity of interest’ are always evolving.