Crittenden v Bayliss

Whether an agreement is champertous depends on the nature of the claimant’s interest in the litigation, assessed by considering all the circumstances together. The method of remuneration is relevant only if it shows that the claimant had no legitimate interest in the dispute. Rules restricting solicitors’ remuneration cannot automatically be applied to a lay person assisting a litigant. The distinction reflects solicitors’ special status as officers of the court and their control of litigation. Extensive lay assistance remains permissible where the litigation is conducted under a solicitor’s control and the assistance does not amount to taking over the conduct of the case.

The claimant and defendant had entered into informal commercial joint ventures. The claimant assisted the defendant with litigation concerning Lloyd’s claims, in return for an agreement to share the proceeds equally. After the parties’ wider business relationship deteriorated, the claimant continued assisting with the litigation under the same arrangement.

The Birmingham County Court found that the later arrangement varied the original agreement and was not champertous, because the claimant retained a legitimate interest arising from his earlier work and the parties’ relationship. The defendant appealed, arguing that the claimant’s assistance was solicitor’s work and that the agreement was contrary to public policy.

1. Appeal dismissed. The county court judge was entitled to assess the whole transaction and the parties’ relationship when deciding whether the agreement involved champerty. Applying the guidance in Giles v Thompson [1994] 1 AC 162, the relevant question was whether the claimant had wantonly and officiously intervened in a dispute in which he had no interest and without justification or excuse.
2. The claimant had a legitimate interest in the litigation. His interest included recovering remuneration for substantial earlier work undertaken in the parties’ joint ventures. The fact that payment was calculated by reference to a share of the litigation proceeds did not itself make the agreement champertous.
3. The argument based on solicitor’s remuneration rules failed. Although some of the claimant’s assistance could be described as work commonly performed by solicitors or their clerks, it was not work peculiar to solicitors. A client could undertake such work with the advice and instruction of a solicitor.
4. The special rules applicable to solicitors reflected their position as officers of the court, their control of litigation, and the client’s dependence upon them. Those rules could not automatically be transferred to a lay person assisting the client. The litigation here remained under the control of a solicitor, protecting the opposing party’s interests in accordance with the rationale explained by Steyn LJ in Giles v Thompson [1993] 3 All ER 321.
5. The court noted obiter that more serious questions might arise if a lay person effectively took over litigation for a litigant in person as a Mackenzie friend. The absence of findings concerning legal aid did not affect the champerty issue. The appellant was ordered to pay the respondent’s appeal costs.

• Court of Appeal (Civil Division): Appeal from the decision of His Honour Judge Nicholl in the Birmingham County Court. Appeal dismissed; the appellant was ordered to pay the respondent’s costs.