Maintenance and Champerty in Tort

Maintenance means aiding a party in civil proceedings by pecuniary assistance or otherwise, without lawful justification. Maintenance is both a tort and crime. The essence of the offence is intermeddling with litigation in which the intermeddler has no concern.1 “It seemeth that….. maintenance and champerty is strictly prohibited by the Common Law as being a manifest tendency to oppression, by encouraging and assisting persons to persist in suits which, perhaps they would not venture to go on upon their own bottoms; and, therefore, it is said that all offenders of this kind are not only liable to an action of maintenance at the suit of the party grieved, wherein they shall render such damages as shall be answerable to the injury done to the plaintiff, but also they may be indicated as offenders against public justice, and adjudged thereupon to such fine and imprisonment as shall be agreeable to the circumstances of the offence.”

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

The maintained proceedings should be without any justification. It is, however, no defence to say that the maintained proceedings were successful and thus justifiable.

‘Common interest’ of the defendant with the party assisted is a good defence to an action for maintenance proceedings. “A common interest, speaking generally, may make justifiable that which would otherwise be maintenance. But the common interest must be one of a character which is such that the law recognizes it. Such an interest is held to be processed when in litigation a master assists his servant, or a servant his master, or help is given to a heir, or a near relative, or to a poor man out of charity, to maintain a right which he might otherwise lose,” Similarly, a landlord and a tenant or the joint owners of the property also have such an interest.

The Law also permits protection of common commercial interests. In British Cash and Parcel Conveyers Ltd. v. Lamson Service Ltd., the defendant obtained certain contracts of hire of his apparatus from three persons. These persons were already under a contract to use the plaintiff’s apparatus and the defendant also undertook to indemnify the three customers, if any action for breach of contract was brought against them by the plaintiff. The plaintiff recovered compensation from the three persons for the breach of contract and the defendant indemnified them in accordance with his undertaking. The plaintiff then sued the defendant for maintenance. It was held that the defendant was not liable, his act having been done in protection of his legitimate commercial interest.

In Bradlaugh 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 maintenance. In that case, Bradlaugh, a member of Parliament, sat and voted as a member of Parliament, without having taken the oath prescribed by the Statute. Newdegate, another member of Parliament, maintained one Clarke to sue Bradlaugh to recover a statutory penalty for so sitting and voting. The action by Clarke was unsuccessful. Bradlaugh then sued Newdegate for maintenance. Held, Newdegate had no common interest with Clarke in the result of the action and his act amounted to maintenance, and, therefore, he was liable to reimburse Bradlaugh for the costs he had incurred in the first action.

The common interest should be some legal matter of the suit, rather than a merely sentimental or aesthetic interest.

Professional legal assistance by the counsel and solicitors to poor clients may be permitted when there is a proper cause of action.

In an action for maintenance, the plaintiff has also got to prove that he has suffered damage by the maintenance of the other party.

In Neville V. London Express Newspapers Ltd. Neville fraudulently obtained money from the members of the public, and the defendants assisted the defrauded persons to recover back their money. Neville, having been made to pay back the money, sued the defendants for maintenance. The House of Lords held that they were not liable for maintenance as there was no special damage because the plaintiff was compelled to perform only his legal obligations.

Because of numerous exceptions having been recognized, the law relating to maintenance and champerty ceased to have any significance. Considering the offences and torts of maintenance and champerty as obsolete, the Criminal Law Act, 1967 has abolished them. Section 14 of the Act makes the following provision in this regard :

  1. “No person shall, under the law of England and Wales, be liable in tort for any conduct on account of its being maintenance or champerty as known to Common Law, except in the case of a cause of action accruing before this section has effect.”
  2. “The abolition of criminal and civil liability under the laws of England and Wales for maintenance and champerty shall not affect any rule of that law as to the case in which a contract is to be treated as contrary to public policy or otherwise illegal.”

Position in India

English Laws of Maintenance and Champerty are not in force as specific laws in India.’ The Privy Council expressed that a fair agreement to supply funds to carry on a suit in consideration of having a share of the property, if recovered, ought not to be regarded as being per se, opposed to public policy, and in some cases, it would be in furtherance of right and justice, and necessary to resist oppression, that a suitor who-had just title to property, and no means except the property itself, should be assisted in this manner. However, the courts will consider whether the transaction is merely the acquisition of an
interest in the subject of litigation bona fide entered into, or whether it is an unfair or illegitimate transaction set up for the purpose merely of spoil, or of litigation, or of disturbing the peace of families, and carried on from a corrupt or other improper motive. Therefore, when such agreements :

  1. are found to be extortionate or unconscionable, so as to be inequitable against the party; or
  2. have been made, not with the bona fide object of assisting a claim believed to be just and of obtaining a reasonable recompense therefor, but for improper object as for the purpose of gambling in litigation, or of injuring or oppressing others by abetting and encouraging unrighteous suits, so as to be contrary to public policy, effect ought not be given to such agreements.

Damages for malicious prosecution

Law is settled in a case of damage for malicious prosecution, onus of proof of absence of reasonable and probable cause rests on the plaintiff. But this is qualified to the extent that in cases where the accusation against the plaintiff purports to be in respect of an offence which the complainant/defendant claims to have seen him commit and the trial in the criminal case ends in acquittal on merits, the presumption would be that not only the plaintiff was innocent but also there was no reasonable and probable cause for such accusation. This ratio has also been noted in the case of Lambodar Sahu v. Laxmidhar Panigrahi. Now the question arises as to whether this presumption can be extended to the witnesses who claim to have seen the complainant accused committing the alleged offence. Although no specific precedent is available, logically it can be concluded that such presumption should also be extended to a witness who deposes in the court that he saw the complainant/accused committing the alleged offence, but the court ultimately finds that allegation as untrue and malice can be inferred from his conduct or surrounding compensation.

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Santhakumar Raja

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