Champerty and maintenance

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In common law jurisdictions, maintenance is the intermeddling of an uninterested 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]

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