This article is written by Komal Kumari, a 4th-year student of B.A. LL.B. in Lloyd Law College, Greater Noida. The article focuses on the aspects of Maintenance and Champerty under the law of torts and the various other aspects related to the same.
What is the Law of Tort?
The word ‘tort’ has its origin from the Latin term ‘tortum’ which implies to twist or the conduct which is twisted or tortious. The basic principle underlying tort law is that there is a duty of care towards everybody, which is implied under the law, and no one should be harmed by the actions of others.
Definition of tort by Salmond & Heuston: A tort is a civil wrong for which the remedy is a common-law action for unliquidated damages, and which is not exclusively the breach of contract, breach of trust or any other merely equitable obligation.
Sir Frederick Pollock summed up the idea of tort as: A Tort is any act or omission (not only the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to one of the following ways to harm (including interference with an absolute right, whether there be actual measurable damage or not), suffered by a specific person:
- An act that without any lawful justification or excuse, is intended by the agent to cause harm, and does cause the harm complained of.
- An act that is contrary to law, or omission of specific legal duty, which causes harm even though the person so acting or omitting did not intended to do so.
(c) An act violating an absolute right (especially the rights of possession or property), and treated as wrongful without regard to the actor’s intention or knowledge. This is an artificial extension of the general conceptions which are common to English and Roman Law.
(d)An act or omission which might with due diligence have been foreseen and prevented but caused harm even though the person so acting or omitting to act did not intend to cause.
(e)It may, in special cases, be referring to where the party was bound, absolutely or within limits, to avoid or prevent harm.
As per the common law jurisdictions, a tort is a civil wrong that unjustifiably causes someone else to suffer loss, harm or injuries resulting in the legal liability for the individual who committed the tortious act, known as the tortfeasor. Though crimes can be torts, the reason for legal action is not inevitably a crime, as the reason of harm may be due to negligence which does not lead to criminal negligence.
The individual that is victimized can recover the loss in the form of damages from a lawsuit. But for this, the individual who is the plaintiff in the lawsuit has to show that the particular act or omission was the legally recognizable cause of the harm. The legal injuries under the law of Torts are not limited to the physical injuries but also includes economic, emotional, reputational injuries as well as violations of privacy, property or constitutional rights.
Maintenance and Champerty
Maintenance is the officious assistance by money or otherwise proffered by a third person to either party to a suit, in which he himself has no legal interest to enable them to prosecute or defend it.
“The essence of the offence is intermeddling with litigation in which the intermeddler has no concern.” It is against public policy that litigation should be promoted and supported by those who have no concern in it.
If a person agrees to maintain a suit in which he has no interest, the proceeding is known as Maintenance; if he bargains for a share of the result to be ultimately decreed in a suit in consideration of assisting in its Maintenance, it is styled Champerty.
Origin of Maintenance and Champerty
Champerty and Maintenance are doctrines of common law jurisdictions which aim to prevent insignificant litigation. “Maintenance” is used for referring the intermeddling or interference of a disinterested party to propel a lawsuit. Lord Chief Justice Coke described the origin of Maintenance in the early seventeenth century as “taking up to on one’s hand, upholding quarrels by bearing up or taking sides, by disturbing or hindering the common rights”. The origin of the word Champerty if from the old french charm part implying feudal lord’s share of the produce.
Thus, Champerty can be referred to as the Maintenance of the person in a lawsuit on the foremost condition that the subject matter of the action is to be shared with the maintainer, i.e., buying into someone’s lawsuit as can be defined by a layman. In the present time, Maintenance is when a stranger supports the litigation without a legally sufficient reason. Champerty is referred to as an aggravated form of Maintenance. Another term related to Maintenance and Champerty is barratry, the bringing of vexatious litigations.
Under the common law, Maintenance and Champerty, were both crime and tort, as was barratry. Which is no longer the same as during the nineteenth century, the development of legal ethics tended to preclude the risks to the public, specifically after the scandal of the Swynfen will case (1856–1864). Even though the principles are relevant to modern contingent fee agreements between the lawyer and client and to the assignment by a plaintiff of his rights in a lawsuit to someone with no connection to the case, however, a champertous contracts can still be void for public policy or attract liability for costs, depending on the jurisdiction.
Law of Maintenance
The Law of Maintenance is limited to the cases where a man improperly and for the purpose of stirring up litigation and strife encourages others to bring actions or to make defence which they have no right to make. No encouragement or stimulation should be given to litigation by the introduction of parties to enforce those rights which others are not willing to enforce.
An action for damages for Maintenance will not lie in the absence of proof of special damage. The success of maintained litigation, whether an action or a defence, is not a bar to the right of action for Maintenance.
In two cases the Maintenance of a suit is lawful:
- Where the person maintaining has an interest in the subject matter of the action, e.g. master for a servant or a servant for a master, and heir, a brother, a son-in-law, a brother-in-law, a landlord defending his tenant in a suit for the title. But in all these cases the interest spoken of is an actual valuable interest in the result of the suit itself, either present, or contingent, or future, or the interest which consanguinity or affinity to the suitor gives to the man who aids him, or the interest arising from the connection of the parties.
- Where the maintainer assisted the third person from charitable motives, believing that he was a poor man oppressed by a rich man; or from religious sympathy.
The doctrine as to the Maintenance of civil suits is not applicable to criminal proceedings. Every member of the public may set the criminal law in motion, and he is not liable unless the prosecution is malicious.
The plaintiff having sat and voted as a member of Parliament, without having made and subscribed the oath appointed by a statute, the defendant, also a member of Parliament, procured C to sue the plaintiff for the penalty imposed by that statute for contravention thereof. C was a person of insufficient means to pay the costs in the event of the action being unsuccessful.
After the commencement of the action, the defendant gave C a bond of indemnity against all costs and expenses he might incur in consequence of the action. It was held that the defendant and C had no common interest in the result of the action for the penalty, that the conduct of the defendant in respect of such action amounted to Maintenance, and that the action for Maintenance was maintainable.
By the Criminal Law Act, 1967, Maintenance and Champerty have been abolished as crimes and torts in England. But a champertous agreement is still void for illegality so far as the law of contracts is concerned.
Difference between Maintenance and Champerty
“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, All E.R. 1993
Maintenance is genus whereas, Champerty is a species as every Champerty can be a Maintenance, but every Maintenance cannot be Champerty. Maintenance is the term used in tort for referring to the encouraging done by an individual to another to sue a third-party.
In the Book Russell on Crimes, 1826, Maintenance is defined as: “An unlawful taking in hand or upholding of quarrels or sides, to the disturbance or hindrance of common rights… interfering in a suit depending in a court of justice”. This states that it differs from Champerty, as it is used when the interferer has a stake in the litigation interfered with.
The Ontario Court of Appeal defined Maintenance in relation to the included tort of Champerty through the case of McIntyre Estate v. Ontario, 218 D.L.R. (4th) 193 (2002), as:
“Maintenance is used for referring to those who, for an indecorous motive, often described as wanton/malicious or officious meddling, become involved with litigation (disputes) of others, even though the maintainer has no interest whatsoever and where the assistance he/she renders to one or the other parties is without justification or excuse.”
“Champerty is an egregious form of Maintenance in which there is the added element that the maintainer shares in the profits of the litigation. Importantly, without Maintenance, there can be no Champerty.”
The question of whether conduct or an arrangement constitutes Maintenance or Champerty is cleared by the court as – a person’s motive is a proper consideration and, indeed, determinative of this particular question. A person can only be termed as a maintainer if the person has an improper motive that may include but is not limited to officious intermeddling or stirring up strife.
It is well settled that the English laws of Maintenance and Champerty are not applicable to India. This point was considered in early 1876 by the Privy Council in Ram Coomar v. Chunder Canto, and since then it has never been doubted that the validity of agreements under the Indian law of contract cannot be challenged on the technical grounds of Maintenance and Champerty as they are understood under the English law.
It may, however, be added that even though the English laws of Maintenance and Champerty are not of force as specific laws in India, the judgment of the Privy Council in Ram Coomar Coondoo’s case itself emphasizes the fact that agreements of such a kind ought to be carefully watched, and when extortionate, unconscionable, or made for improper objects, ought to be held invalid.
A fair agreement to supply funds to carry on a suit, in consideration of the lender having a share of the property sued for, if recovered, is not to be regarded as necessarily opposed to public policy, or merely, on this ground, void. But in agreements of this kind, the questions are:
- Whether the agreement is extortionate and unconscionable, so as to be inequitable against the borrower; or
- Whether the agreement has been made, not with the bona fide object of assisting a claim, believed to be just, and of obtaining reasonable compensation therefor, but for improper objects, as for the purpose of gambling in litigation, or injuring others, so as to be, for these reasons, contrary to public policy.
In either of these cases, the effect is not to be given to the agreement.
The essence of the offence is intermeddling with litigation in which the intermeddler has no concern. To make such agreements void, “there must be something against a good policy, and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral, and to the constitution of which a bad motive in the same sense is necessary.”
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