Champerty and maintenance

"Champarty" redirects here. For the medieval levy, see Champart.

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.

  1. ^ Curzon, L. B. (2002). Dictionary of Law (6th ed.). London: Longman. ISBN 0-582-43809-8.
  2. ^ Coke (1641) Institutes
  3. ^ "Oxford English Dictionary". oed.com. Oxford University Press. Retrieved 14 January 2021.
  4. ^ Giles v Thompson [1993] UKHL 2, [1993] 3 All ER 321 (26 May 1993)
  5. ^ Abolished by Part II of the Criminal Law Act 1967, except as regards embracery, abolished by section 17 of the Bribery Act 2010.
  6. ^ 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. S2CID 145788677.