The overlapping doctrines of maintenance and champerty have long been regarded as cornerstones of the common law, particularly in Ireland. While these doctrines overlap to some degree Matthew Dutton, a justice of the peace in Dublin writing in 1721, stated the difference between these two doctrines as follows:
“My Lord Coke tells us, that Champerty is Maintenance, but not é converso;1 so that the Difference between these Offences seems to be thus: Champerty, is where the Party prosecuting is to have part of the Land or Goods, Maintenance, is where the Prosecutor is to have no part of the thing in variance.2
Another distinction between these doctrines is that a third party can breach the doctrine of maintenance without breaching the doctrine …show more content…
asserted that it was on the basis they had no genuine commercial interest in the matter. In Costello J.'s opinion, SPV Ltd. had a majority of shareholders who were unaffected by the original grievance committed by Bernie Madoff's company and so these could only be seen to be trafficking in litigation for profit. They had no right to litigate for the outstanding claim of $2.2 billion as that interest was still vested in the defendants and shareholders of Optimal Strategic.18 Therefore, Costello J. concluded that the plaintiffs were in breach of her fourth principle stating “it seems very clear to me that these proceedings have been brought, not in order to secure damages for the injured party, but rather are the very type of wanton or officious intermeddling in the litigation of another which has been condemnened by the courts for centuries.”19 Thus, Costello J. had no issue in dismissing the plaintiff's …show more content…
The only substantial change since 1721 is that parties found guilty of engaging in these practices no longer face a prison sentence.20 Some commentators have criticised the stance that the Irish courts have take on these doctrines as being archaic. For instance, Clarke argues that “At least in a formal sense, Irish law looks seriously antiquated on these issues.”21 Candy does not criticise the Irish position as openly as Clarke does. Nonetheless he shares a similiar view that a certain amount of liberalisation is required in Irish law on these doctrines.22 What these commentators are advocating for would be the more liberal position that the English and Welsh courts have taken on these matters. The question then is, should the Irish courts follow their English and Welsh counterparts and relax these doctrines so that more cases involving maintenance and/or champerty can be heard by
“My Lord Coke tells us, that Champerty is Maintenance, but not é converso;1 so that the Difference between these Offences seems to be thus: Champerty, is where the Party prosecuting is to have part of the Land or Goods, Maintenance, is where the Prosecutor is to have no part of the thing in variance.2
Another distinction between these doctrines is that a third party can breach the doctrine of maintenance without breaching the doctrine …show more content…
asserted that it was on the basis they had no genuine commercial interest in the matter. In Costello J.'s opinion, SPV Ltd. had a majority of shareholders who were unaffected by the original grievance committed by Bernie Madoff's company and so these could only be seen to be trafficking in litigation for profit. They had no right to litigate for the outstanding claim of $2.2 billion as that interest was still vested in the defendants and shareholders of Optimal Strategic.18 Therefore, Costello J. concluded that the plaintiffs were in breach of her fourth principle stating “it seems very clear to me that these proceedings have been brought, not in order to secure damages for the injured party, but rather are the very type of wanton or officious intermeddling in the litigation of another which has been condemnened by the courts for centuries.”19 Thus, Costello J. had no issue in dismissing the plaintiff's …show more content…
The only substantial change since 1721 is that parties found guilty of engaging in these practices no longer face a prison sentence.20 Some commentators have criticised the stance that the Irish courts have take on these doctrines as being archaic. For instance, Clarke argues that “At least in a formal sense, Irish law looks seriously antiquated on these issues.”21 Candy does not criticise the Irish position as openly as Clarke does. Nonetheless he shares a similiar view that a certain amount of liberalisation is required in Irish law on these doctrines.22 What these commentators are advocating for would be the more liberal position that the English and Welsh courts have taken on these matters. The question then is, should the Irish courts follow their English and Welsh counterparts and relax these doctrines so that more cases involving maintenance and/or champerty can be heard by