maintenance and champerty

maintenance and champerty

two former torts and crimes striking at a third party's support of another's litigation. Maintenance is the stirring up of litigation by supporting a party without having a just cause or excuse for so doing. Champerty is where the person maintaining is to be paid out of the supported proceedings. Both were abolished as torts or crimes by the Criminal Law Act 1967.
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The requirements of standing have safeguarded the court system from being subjected to unwarranted claims and unworthy parties, yet exceptions to standing have created the need to further expand these protections; while the doctrine of maintenance and champerty pre-dates the standing requirements, it was adopted to prevent the courtroom from becoming a trading floor for claims and frivolous litigation by disinterested third parties.
The modern common law doctrine of maintenance and champerty finds its origins in medieval times and was structured to protect ethics in the legal profession.
The common law principles of maintenance and champerty have been held by the Hong Kong courts to continue to apply in Hong Kong and to prohibit third party funding of litigation, both as a tort and as a criminal offence, save in three exceptional areas: (1) where a third party has a legitimate interest in the outcome of the litigation; (2) where a party should be permitted to obtain third party funding, so as to enable him/her to have access to justice; and (3) in a miscellaneous recognised category of proceedings including insolvency proceedings.
The report further recommends that consideration should be given as to whether such non-application of the common law principles of maintenance and champerty should be extended to mediation within the scope of the Mediation Ordinance (Cap 620).
(33.) Id.; see, e.g., William John Tapp, An Inquiry into the Present State of the Law of Maintenance and Champerty Principally as Affecting Contracts 20-24 (1861).
The court declared the practice of advancing funds secured only by an interest in a pending lawsuit--and in this case, at a rate exceeding 180 percent per year--to be maintenance and champerty, both of which are prohibited by state statutes.
Surprisingly, none of the lower courts considered the issue of maintenance and champerty, instead agreeing with Rancman that the transactions were illegal under state usury laws.
Magoon: In 1910, the Hawaii Supreme Court enforced a contract which "appears to be of a champertous nature" because "[t]he conditions of society under which the law of maintenance and champerty originated no longer exist." 20 Haw.
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