Champerty and maintenance
Doctrines in common law jurisdictions that aim to preclude frivolous litigation / From Wikipedia, the free encyclopedia
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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]: 260 It is: "A taking in hand, a bearing up or upholding of quarrels or sides, to the disturbance of the common right."[2]
- Champerty (from Old French champart) is the financial support, by a party not naturally concerned in the suit, of a plaintiff that allows them to prosecute a lawsuit on condition that, if it be brought to a successful issue, the plaintiff will repay them with a share of the proceed from the suit.[3]
In Giles v Thompson[4] Lord Justice Steyn declared: "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."
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[5] 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).[6] 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.