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Medieval terms that still survive

CHAMPERTY and Maintenance are both excellent examples of medieval doctrines that survive to this day and cause headaches for clients and lawyers worldwide, that struggle to understand them and work within (or around) them.

Champerty is the practice of entering into a bargain with another person to share in the spoils of litigation and Maintenance is the process of supporting another’s litigation with an expectation of a share in the gain. Apparently, aristocrats got a bad name for hiring professional litigators to drive their rivals to distraction with claims over land titles and whatever else they could dream up. Trial by combat was a favourite at one point and it just wasn’t on to go around hiring champions to drive home a bloody victory that the aristocrats themselves could not achieve in the field of combat.

Thankfully, modern litigation, or dispute resolution, is not (often) a test of the lawyer’s physical prowess. There remains, however, insurers, third party funders and solicitors (including Wilson Browne) willing to support and fund litigation for a client. The theory is that the client can pay less, often nothing in the Wilson Browne model, if unsuccessful and more if successful. Added to the insurance premium there is indeed a sharing of the spoils going on.

These arrangements cause difficulties worldwide. In Delaware, March 2016, the Court gave a stamp of approval to litigation funding in an on-going David v Goliath scenario involving DuPont. The case has been running since 2007 and the claimant required funding to keep going. The use of a third party funder was challenged by DuPont on the grounds of Champerty and Maintenance. Here the court endorsed this sort of funding, stating the lack of overall control of the funder in the process, as a reason that the arrangement was not Champertous.

In England and Wales, the principles still exist but thankfully those faced with expensive litigation can still save their cash flow and level the playing field with a range of expert funding options to choose from for qualifying cases. For example, Wilson Browne Solicitors hold delegated authority to issue legal expenses insurance from national insurer Temple, who describe the team’s risk assessment as ‘market leading’. Funding for expenses can be arranged and some, all or none of the solicitor’s fees can be postponed. Care needs to be taken to set up these arrangements carefully, if you want to benefit from the cash flow and risk protection benefits that modern litigation can provide, without offending the principles of Champerty and Maintenance. You can still find your champion for hire; just don’t tell the aristocrats?

Partner Kevin Rogers leads the Commercial Litigation Team at Wilson Browne Solicitors and specialises in providing litigation funding options for all manner of business disputes and professional negligence claims. He can be contacted on 01536 410014, by email at or by visiting www.wilsonbrowne.co.uk

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