Maintenance and Champerty Under Law of Tort

Author : Akshara Vijayakumar

Maintenance means, without the lawful justification helping a party in civil proceedings by financial assistance.

The main offence or ingredients of this offence is interfering in legal action in which the interfere has no concern. It seems that the maintenance is strictly prohibited by the common law as being a manifest tendency to abuse, by encouraging and assisting persons to persist in suits which, perhaps they would not proceed to go on upon their bottoms. And all the offenders of this kind are not only liable to an action of maintenance at the suit of the party grieved and they shall provide such damages as shall be answerable to the injury done to the plaintiff. Even though, the Defendant is answerable to the injury done to the plaintiff with certain compensation, they may be indicated as offenders against public justice and imprisonment shall be agreeable to the circumstances.   

In Brad laugh v. Newdegate, it has been held that a mere zeal that the law of the land should be observed, without there being any other interest in the matter will not justify the maintenance. In that case, Brad laugh, a member of a parliament, without having taken the oath prescribed by the statute, he has sat and voted as a member of parliament. Newdegate, another member of parliament, maintained one Clarke to sue Brad laugh to recover a statutory penalty for so sitting and voting. The legal action which has been taken by Clarke was unsuccessful. After that, Brad laugh sued against Newdegate for maintenance. And it was held that Newdegate had no common interest with Clarke in the result of the legal action and his act amounted to maintenance, and, therefore, he was liable to compensate Brad laugh for the costs he had incurred in the first action.

Champerty is a species of maintenance in which the persons maintaining is to have, by agreement, a portion of the gain made in the proceedings maintained.

The maintained proceedings shall be without any justification. The maintained proceedings were successful and justified. And there is no Defense for that. For a good defense to an action for maintenance proceedings, “Common interest” of the party is assisted. Common interest is held to be handled when in legal action a master assists his servant or a servant to his master, or giving a help to a relative, or a friend or a poor man to maintain a right which he might otherwise lose.    

The Law also permits protection of common commercial interests. In British Cash and Parcel Conveyers Ltd. v. Lamson Service Ltd., from three persons, defendant acquired certain contracts for rent of his equipment’s. These persons were already under a contract to use the plaintiff’s equipment’s. If any action of breach of contract brought against by the plaintiff, the defendant took it as an opportunity and he also undertook to indemnify the three customers. And later, the plaintiff recovered compensation from breach of contract and the defendant indemnified them in accordance with his plan. Then, the plaintiff sued the defendant for maintenance. It was held that the defendant was not liable. His act have been done in protection of commercial interest.                                                      

The Common interest should not be a sentimental or aesthetic interest, it should be exact to some legal matters. When there is a set of facts sufficient to justify a right to sue to obtain money, property or enforcement of right against another party, professional legal assistance by the counsels and solicitors to poor clients may be permitted. The plaintiff has to prove that whether he has suffered damage by the maintenance of other party for a legal action for maintenance.

In Neville v. London Express Newspaper Ltd.,  Here, in this case, from the members of the public, Neville unlawfully or illegally acquired money and the defendant assisted the cheaters to recover back their money. Neville, having been made to pay back the money, sued the defendants for maintenance. The plaintiff was compelled to perform only his legal obligations because the House of Lords held that they were not liable for maintenance as there was no specific damage.

There are number of exceptions having been recognized. So that, the law relating to maintenance and champerty ceased to have importance. Considering the offence and torts of maintenance and champerty, the Criminal law act 1967, has abolished them.

Section 14 of the Criminal law act 1967, says that, No person shall be liable,(under the law of England’s and Wales) in tort on account of maintenance or Champerty known as Common law except in the case of action resulting before this section has effect.            

Difference between Maintenance and Champerty 

Maintenance is said to be as genus and Champerty is said to be as Species. Every Champerty can be a maintenance. But every maintenance cannot be a Champerty. In law of tort, Maintenance is the term used to sue a third party by encouragement done by an individual to another.

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 improper motive, often described as evil meddling, become involved with litigation of others, even though the maintainer has no interest and where the assistance he/she reduces to one or other parties is without justification or excuse”.

“Champerty is a shocking form of maintenance in which there is the added element that the maintainer shares the profit of litigation”.

A person’s motive is a proper consideration for an arrangement constitutes Maintenance or Champerty. When a person has an improper motive only then we can call/term that person as maintainer. 

Position of Maintenance and Champerty in India

As like specific laws in India, Maintenance and Champerty are not so forcible in English laws. This point was considered in early 1876 by the Privy Council in Ram Coomar v. Chunder Canto.

I hereby conclude that,

The essence of the offence is interfering with litigation in which the interferer has no concern. To make such agreements invalid, there must be something against a good policy and justice, unnecessary legal action etc.