Abstract
The doctrines
of champerty and maintenance, along with the related concepts of conditional
and contingent fee are still treated as sins in Pakistan and India, because,
those who administer the law and manages the legal system consider themselves
heirs of the ancient British empire. The doctrines are today working against
the interests of the common man. These doctrines stand in the way of lawyers
willing to support those persons who neither have the fee nor the awareness to
stand up for the violation of their rights. The lawyers can help such people
for a share of the damages to be awarded. To facilitate such support, these
doctrines were first abolished in the United States followed by many other
jurisdictions. More recently, the United Kingdom has also abolished these
doctrines and has permitted lawyers to share damages in return for services
rendered. In a country like Pakistan where the poor people silently and
passively suffer injuries, the abolition of these doctrines can bring about a
revolution in the law of torts and the protection of the rights of those
subjected to injuries. Lawyers and judges, however, act like silent spectators
in this case, although they are the ones who stand to gain the most besides the
poor and downtrodden people of Pakistan. This paper argues for the abolition of
these ancient doctrines for removing the shackles from the legal system of
Pakistan.
Keywords
Champerty —
maintenance — conditional fee — contingent fee — financing litigation—British
India—Pakistan— Independence Act — justice — equity — common law — civil wrongs
— codification — torts — crimes —offences — defamation — libel — slander —
damages — public figures — false light
The
law of torts is the most important means for securing the rights of the people
in most common law countries.[2] It
will not be wrong to say that the words “sue” and “be sued” conjure up images
of this branch of the law. This is also true for Europe where a comprehensive
programme for securing rights through tort law is underway since the end of
World War II.[3]
Strange as it may sound, many professionals working in senior positions within
the legal system of Pakistan can be heard saying that the law of torts does not
exist in Pakistan. Is this true? Is Pakistan not a common law country? Does the common law have nothing to do with
Pakistan anymore? Before these questions are answered it may be stated at the
outset that incredibly the law of torts has a very limited role to play in
Pakistan. As a result of this, the rights of many people are trampled upon with
impunity and the legal machinery is unable to secure these rights. The rich may
obtain relief through some mechanism, but it is the poor people who are the
main losers and have nowhere to go. The situation calls for immediate redressal
and rejuvenation of the law of torts. There are many causes of the neglect of
the law of torts in Pakistan, but one of the major reasons for this neglect are
the doctrines of champerty and maintenance, which need to be abolished
forthwith in order to revive interest in this vital field and to secure the
rights of the poor.
This
paper is being written with the purpose of initiating tort law reform in
Pakistan. The underlying idea of the paper is that the legal system cannot
secure the rights of the common man just by criminalizing a few intentional
torts against the person and property.[4] A
comprehensive plan must be made and the serious civil wrongs identified must be
presented in the form of a code so that it can be followed conveniently by the
people. The present paper is, therefore, a small beginning. It argues that one
of the major causes of the neglect of tort law in this country are the common
law doctrines of champerty and maintenance. These doctrines have been abolished
in many jurisdictions all over the common law world. The paper also shows that
the benefits of these doctrines have been minimal as compared to the loss they
have caused in terms of the development of the legal system.
The
paper will begin with a historical overview of the law of torts in Pakistan, to
show how it works in a country where common law and Islamic law reside side by
side. The causes due to which the law of torts has failed to develop in
Pakistan will then be identified. The major jurisdictions in the common law
world that have abolished these doctrines will then be identified and the
reasons for the abolition will be explained. The case for abolishing the doctrines
of champerty and maintenance in Pakistan will be built up and the benefits to
be attained will be identified and explained. The conclusion will build on the
findings of the paper and make concrete proposals in terms of the practical
steps that are to be taken for initiating a comprehensive tort law reform
programme.
2. THE LAW OF TORTS AS
APPLIED IN PAKISTAN
2.1 Justice, Equity and Good Conscience
The
application of English common law in India started in earnest in 1726, through
the Parliamentary Charter of George I. Mayor’s courts were established in
Madras, Bombay and Calcutta. These courts were required to apply the English
common law with “justice and right.” The power and influence of the British
increased gradually till a Supreme Court of Judicature was established in the
Presidency towns, with the authority of King’s Bench in England, applying the
law of torts, among other laws, through “justice, equity and good conscience”
with adjustments according to local conditions. A variety of courts existed
till the Indian High Courts Act, 1861 was passed. The jurisdiction of British
courts and hence the application of the law of torts increased till the
partition of India.
18(3)
of the Indian Independence Act, 1947[5] read
as follows:
(3) Save as otherwise expressly provided in this Act, the law of
British India and of the several parts thereof existing immediately before the
appointed day shall, as far as applicable and with the necessary adaptations,
continue as the law of each of the new Dominions and the several parts thereof
until other provision is made by laws of the Legislature of the Dominion in
question or by any other Legislature or other authority having power in that
behalf.
This section was adopted in the series of constitutions of Pakistan:
1956,[6] 1962,[7] 1972[8] (interim). Article 268 if the 1973 Constitution[9] now reads as follows:
268(1)
Except as provided by this Article, all existing laws shall, subject to the
Constitution, continue in force, so far as applicable and with the necessary adaptations,
until altered, repealed or amended by the appropriate Legislature.
The
English common law thus applies directly in the Islamic Republic of Pakistan
through the law of torts. The broad policy for applying this law is “justice,
equity and good conscience,” which really means “judicial discretion” according
to the Positivists like Austin. The law of torts was not codified, except the
effort by Fredrick Pollock noted below.
In
some areas, the law has been codified. These are either torts or related systems
of compensation. The Defamation Ordinance, 2002 is a good example. Defamation
is a crime too under the Pakistan Penal Code. When codification takes place in
some are, as in the case of defamation, the common law may be said to shrink to
the extent of the provisions of such codified law, but the common law continues
to apply to fill the gaps left in the law. The law of defamation has been
codified in the United Kingdom (Defamation Act, 1996),[10]
Australia (Queensland Defamation Act, 2005)[11] and
New South Wales (Defamation Act, 2005)[12] as
well as in Canada. The Australian codified law, for example, does not attempt
to define defamation. This means that the definition of defamation in the
common law will apply. The same method applies to Pakistan, that is, if the
codified provisions have not altered a common law rule, it will continue to
apply.
2.2 Court-fee and the British
The
British were interested in preserving their revenue that they collected from
India. This required minimum litigation. Accordingly, heavy court-fee was
imposed. This discouraged tort claims, and made the protection of the law of
torts unreachable for the poor masses. It is only in the last decade that this
fee has been reduced to Rs. 25000 and less in Islamabad. The expensive process
of litigation still prevents the poor from seeking relief under the law of
torts.
2.3 No Codification
Sir
Fredrick Pollock prepared a draft and presented it as a proposal to the Indian
government for codification. This proposal was not accepted. The Bill is found
as an appendix to his book: “A Bill to define and amend certain parts of the
Law of Civil Wrongs.” It consists of 9 chapters and 73 sections. Chapter VII
deals with the tort of nuisance, that is, damage arising out of public nuisance
and the tort of private nuisance.[13] It
was an excellent effort and worth reading. Perhaps, it can still be used to
codify the law of tort.
3.
THE MEANING OF CHAMPERTY AND MAINTENANCE
Maintenance, in the context of torts and litigation in general,
means the “stirring up of litigation by giving aid to one party to bring a
claim without just cause or excuse.”[14] The target of this doctrine, inter alia, is the lawyer.
The purpose is to discourage frivolous litigation. It means that lawyers should
not aid and encourage people to file cases where genuine causes of action do
not exist. In Pakistan, there is abundant frivolous litigation despite the
application of this doctrine, but the cause may not be lawyers; it is usually
the litigants who seek personal satisfaction or are motivated by a desire to
seek revenge.
“[C]hamperty is the particular form of maintenance which exists
when the person maintaining the litigation is to be rewarded out of its
proceeds.”[15] This doctrine means that if a lawyer helps a person with the
understanding with his client that the damages awarded to the client will be
shared by them, then this is unlawful.
The Ontario Court of Appeal in McIntyre Estate v. Ontario
(Attorney General),[16] described maintenance and champerty as follows:
Maintenance
is directed against those who, for an improper motive, often described as
wanton or officious intermeddling, become involved with disputes (litigation)
of others in which the maintainer has no interest whatsoever and where the
assistance he or she renders to one or the other parties is without
justification or excuse. Champerty is an egregious form of maintenance in which
there is the added element that the maintainer shares in the profits of the
litigation.[17]
These doctrines arose in medieval England, at a time when there
was a general disregard for litigation and an understanding that lawsuits were
an evil to be avoided whenever possible.[18] At common law, maintenance and champerty were both crimes and
torts, as was barratry.[19] But, since the passing of Criminal Law Act 1967 in the United
Kingdom, these doctrines are no more considered as crimes and torts.[20]
4. ABOLITION OF CHAMPERTY AND MAINTENANCE IN THE U.S.A.
In modern times these two doctrines were resisted. The defences
advanced were so numerous and “imposing liability for” these acts “so outdated
that the law ceased to serve any useful purpose.”[21]
The principal practical importance of champerty has been “to
invade contingency fee arrangements.”[22]Contigency fee agreement should not be confused with conditional
fee. Conditional fee means that the client can pay later, on completion of the
court proceedings. There is no problem with this, the main problem is with
“contingent fee,” which is “an arrangement between a solicitor and client for
the payment of fee only if the client wins the case.” This is still considered
against public policy in some jurisdictions including Pakistan.
Maintenance
and champerty[23] were
introduced into American legal system through the common law, but debates about
their continuing validity have existed nearly as long as the U.S. legal system
itself.[24]
Courts began to question the utility and effectiveness of these doctrines as
early as the middle of the nineteenth century.[25]
Scholars like Max Radin, who objected the doctrines of maintenance and
champerty in his study in 1935, argued that these doctrines were almost dead in
practice and absolutely out of step with American thinking regarding litigation
at that time.[26]
In the United States, or in most states, the doctrines of
maintenance and champerty stand abolished and even contingent fee is allowed.
Contingency fees are permitted by all the courts in the USA to facilitate the
plaintiffs without any financial means providing them with an opportunity to
file a lawsuit.[27] Contingency fees have been permitted on the principle that
allowing a plaintiff with a successful claim to pursue justice is more
important than preventing champerty, which can effectively be eliminated
through the supervision of the court.[28] In 1997, the Massachusetts Supreme Court in Saladini v.
Righellis[29] ruled that the doctrines of maintenance and champerty “no longer
shall be recognized in Massachusetts.” The court reasoned that: “The champerty
doctrine is [no longer] needed to protect against the evils once feared:
speculation in lawsuits, the bringing of frivolous lawsuits, or financial
overreaching by a party of superior bargaining position.” The court explained
that new tools such as fee regulations, sanctions rules and the doctrines of
unconscionability, duress and good faith provide sufficient safeguards to
protect against the “evils” the common law doctrines were originally intended
to address.[30] The Supreme Court of South Carolina adopted the Saladini
analysis in Osprey v. Cabana Limited Partnership[31] in 2000.
During
the course of twentieth century, litigation has been viewed as “a noble tool
that can lead to transformative social change.”[32] And
therefore, third party funding has become increasingly available to US
litigants in recent years.[33] At
least three states –Maine, Ohio and Nebraska have enacted legislation to
regulate third party legal funding, and these statutes primarily apply to loans in personal injury suits rather than
commercial suits.[34]
5.
ABOLITION OF CHAMPERTY AND MAINTENANCE IN JURISDICTIONS OTHER THAN THE UK
The
common law principles of champerty and maintenance have been rejected by many
legislatures throughout the world during the 1970’s and 80’s. Efforts were made
in Canada, for example, to follow the United States in this field.[35]
Courts of Ontario,[36]
Alberta[37] and
Nova Scotia[38] have
not considered any such arrangements contrary to public policy and viewed them
as being capable of promoting access to justice.[39] It
has been maintained that today, contingent fees are now allowed in Australia,
Brazil, Canada, the Dominican Republic, France, Greece, Ireland, Japan, New
Zealand, the United Kingdom and the United States.[40]
In Arkin
v. Borchard Lines Ltd,[41] the
trial judge commented that, “[i]t is indeed highly desirable that impecunious
claimants who have reasonably sustainable claims should be enabled to bring
them to trial by means of non-party funding” and further that it is “highly
desirable in the interests of providing access for such claimants to the courts
that non-party funders … should be encouraged to provide funding, subject
always to their being unable to interfere in the due administration of
justice…”.[42] The
court of Appeal while recognising the beneficial role of these arrangements
drew a distiction between the litigation agreements made before court and the
arrangements that give effective control in litigation to the funders, thus
diminishing the purpose of abolishing champerty.[43]
The
High Court of Australia has gone a step further and held in Campbells Cash
and Carry Pty Ltd. v. Fostif Pty Ltd.[44] that
it is not contrary to public policy for a commercial or non-party funder to not
only finance but, also to control the litigation.[45]
Similary, the Supreme Court of Appeal of South Africa decided in Price
Waterhouse Coopers Inc and Others v. National Potato Co-operative Ltd,[46] that
“an agreement in terms of which a person provides a litigant with funds to
prosecute an action in return for a share of the proceeds of the action is not
contrary to public policy or void.”[47]
6.
ABOLITION OF CHAMPERTY AND MAINTENANCE IN THE UNITED KINGDOM
Abolition
of maintenance and champerty in the United Kingdom has already been discussed
in the previous paragraphs, in different contexts. Here we may mention some of
the important provisions once again to recall what has been said above. Both as
crimes and torts “maintenance and champerty” have been abolished in the United
Kingdom.[48]
Conditional fee is also allowed in the United Kingdom and § 58 of the UK
Courts and Legal Services Act 1990 recognizes such an arrangement. However,
contigency fee agreements were considered against public policy. But, since
April 2013, under the Damages-Based Agreements Regulation of 2013,[49]
contigency fee agreements are now permitted in the United Kingdom. This implies
that lawyers can legally conduct litigation as well as arbitration in return of
a share of any damages. Previously it was only allowed for employment and other
tribunal work. The U.K. relaxed its laws regarding champerty in recent decades
to increase access to justice for less priviledged and to lessen taxpayer’s
expenditures on the state’s legal aid system.[50] The
abolition of the champerty and the introduction of the conditional fee
agreements resulted in the expansion of litigation financing in the UK.[51] In
this regard, Arkin v. Borchard Lines, Ltd.,[52] has
worked as a vehicle for the development and growth of this industry in the UK.[53] In
addition to Arkin, the Civil Justice Council, through its report on
improving the access to justice in the UK, has supported litigation financing.[54] It
has noted that courts in the UK recognise litigation financing as permissible
means of funding lawsuits and, that plaintiff’s right of access to justice
should be given preference over the doctrines of champerty and maintenance.[55] The
Civil Justice Council concluded that, subject to the rules in Arkin,
legal funding should be encouraged.[56] And
recommended the implementation of regulation to protect the claimants and
attorney-client relationship.[57]
All
this has been adopted to provide an adequate solution to access to justice
problems for poor indiviuals and similar steps need to be taken in Pakistan as
well.
7.
THE DISCUSSIONS IN INDIA
As
recorded in an Indian case (Dr. V.A. Babu v. State of Kerala),[58] the
law of maintenance and champerty was applied in a different way in India:
Following
the judgment of the Supreme Court in AIR 1954 S.C. 557 their Lordships held
that if no Advocates are involved in the agreement, the agreement does not
become illegal or enforceable in India for the only reason that the same is
Champerty. The agreement which was considered by the Supreme Court in AIR 1954
S.C. 557 was an agreement between an Advocate and a litigating claimant under
which it was agreed that the entire litigation will be financed and conducted
by the Advocate without claiming any charges in advance but once the fruits of
the litigation are realized, the Advocate will be given 50% of the same. The
Supreme Court did not enforce the agreement noticing that an advocate was
involved. ….
But
the distinction between the law in England and the Indian law regarding
Champerty agreements is that while in England Champerty agreements, whoever the
parties to the same are, are per se illegal. [while] in India such agreements
become per se illegal only if advocates are involved.
Contigency
fee agreements are not permitted in India as well. The Indian Bar council
prohibits lawyers from charging fees to their clients contigent on the results
of the litigation or claim a percentage or share in the damages awarded by the
court.[59] In
the landmark case of Ganga Ram v. Devi Das,[60] the
court held such an agreement to be void and against public policy and also
against professional ethics.
The
law in Pakistan appears to be the same. Whatever the position in Pakistan, it
is suggested that contingent fee for a lawyer should be allowed in tort
cases. Failing this, the rights of the poor people, who do not have the
resources to go to courts with their tort claims, will go waste. The law of
torts will remain “the rich man’s game.” The power of the law must be unleashed
for the sake of the poor and their rights. This will open the door for the
development of tort law in Pakistan. So far, growth in this very important
branch of the law stands arrested.
8.
LITIGATION FINANCING OR THIRD-PARTY FUNDING
In
addition to conditional fee agreements and contigent fee arrangements,
litigation financing industry also emerged during 1990s, first in the USA, then
the UK followed by Australia.[61]
These companies, through contractual arangements, provide money for different
expenses including lawyer fees, court costs, expert witness fees, and
plaintiff’s living expenses while the litigation is pending.[62] In
return, third party receives a percentage from the proceeds, if the litigant is
successful. Litigation financing companies in the USA at present deal with all
kinds of lawsuits including personal injury, patent litigation, copyright
infringement, and employment discrimination.[63] In
the UK, the abolition of champerty and maintenance and introduction of
conditional fee agreements opened a way for third-party funding.[64]
Consequently, contingent fee arrangements have also been allowed under the UK
law.[65]
The
litigation financing industry is still developing in the U.K.[66]
However, in Australia, the funding industry has become widely accepted and more
successful than the U.S. and the U.K. in incorporating financing agreements
into the state’s legal system.[67]
Australia has been more receptive to litigation financing agreements than the
U.S. or the U.K.[68] The
Supreme Court of New South Wales in Domson Pty. Ltd. v. Zhu,[69] refused
to terminate a financing agreement on the grounds that the financing firm had
controlled too much of the litigation. The court argued that third-party
funding agreements are not against publuc policy.[70] And
even went so far as to point out the irony of suing a financing firm that has
been hired to finance litigation, on the terms of the original agreement.[71]
The
development of litigation finance industry in the U.S., the U.K. and Australia
has provided access to justice to needy and poor plaintiffs. Pakistani legal
system can also ensure better access to justice to impoverished by making rules
and intiating legal financing industry in the country.
9.
ABOLISHING THE DOCTRINES IN PAKISTAN
The
purpose for which these doctrines were introduced has almost no practical
importance and utility in the present times. The problems meant to be addressed
by the doctrines can be more efficiently and effectively remedied by various
modern rules of procedure.[72]
Instead these doctrines have blocked the way of justice for the
underprivileged. The doctrines of maintenance and champerty have long been
given away by the United Kingdom, and by many other common law jurisdictions
including the United States. And now contigency fee agreements have also been
allowed in the United Kingdom. Pakistan is a common law country but
still these doctrines have not been abolished from its legal system. This issue
has not gained prominence in Pakistan and very rare case law is available on
this point. The debate of litigation financing in the courts has revovled
around section 23 of the Contract Act, 1872 which states that, “any
consideration or object of an agreement is unlawful if it is opposed to public
policy.” The courts, relying upon the common law principles of champerty and maintenece,
have declared third party funding agreements void under section 23 and thus
considering them opposed to public policy.
Whereas now in many states, litigation funding agreements are not per
se considered to be contrary to public policy. And the courts of all such
jurisdictions have held that legal funding arrangements, though champertous,
may still be enforceable if these are not unconscionable and exorbitant. Such
arrangements, however, need to be carefully scrutinised by the courts and if
they are found to be for improper purpose, unconscionable, inequitable,
oppressive or one leading to vexatious litigation, the courts would refuse to
enforce them.
Contigent
fee agreements are also not allowed in Pakistan. Under Rule 149 of the Canons
of Professional Conduct and Etiquettes of Advocates,[73]
approved and adopted by the Pakistan Bar Council, an advocate cannot “accept
the whole or part of the property in respect of which he has been engaged to
conduct the case, in lieu of his remuneration, or as a reward or bounty.”[74]
These Canons need a thorough reexamination in any case, so that archaic and
ancient cumbersome requirements are removed.
The
issue of third-party funding can also be examined under Order 1, Rule 10 of
Code of Civil Procedure, 1908 where court may strike out or add parties. Order
1 Rule 10(2) states that,
The
Court may at any stage of the proceedings either upon or without the
application of either party and on such terms as may appear to the Court to be
just, order that the name of any person who ought to have been joined, whether
as plaintiff or defendant, or whose presence before the Court may be necessary
in order to enable the Court effectually and completely, to adjudicate upon and
settle all the questions involved in the suit, be added.
The
courts have decided in several cases that only necessary or proper parties can
be added and not any other parties.[75]
Elaborating necessary or proper party, courts argued that persons indirectly or
remotely interested are not necessary or proper parties[76] and
the persons who have no interest should not be added.[77]
Further, a person who has a champertous interest in litigation should not be
added.[78]
Courts have heavily relied upon these precedents to apply the ancient and
obsolete common law principles of maintenance and champerty. It is now time for
the legislature, courts and advocates to take a new course for promoting access
to justice for a common man. Australian legislation for abolishing maintenance,
champerty and barratry is one of the simplest legislation, consisiting of only
6 sections.[79]
Pakistani legislature may follow this Australian model for making a draft and
introducing it in the parliament.
10.
CONCLUSION
In
conclusion we may say that legislation be made to cure this chronic illness in
our legal system. The law to be passed may appear something like the following:
Maintenance
and Champerty Abolition Act, 2015
Preamble: Whereas it is expedient to abolish the ancient and
now obsolete doctrines of maintenance and champerty, and to streamline and facilitate
the charging of contingency fee and provision of third-party funding of
litigation;
And Whereas it is crucial for supporting the
deprived and underprivileged through litigation funding to protect themselves
against injuries caused and to secure their rights;
Now, Therefore, it is enacted as follows:
1. Name
of Act.--This Act may be called the Maintenance
and Champerty Abolition Act, 2015.
2. Commencement.--It shall come into force at once.
3. Champerty
and Maintenance no longer civil wrongs or offences.--Notwithstanding anything in the law for the time
being in force, champerty and maintenance are neither offences nor civil
wrongs, and no contract will be declared void or unenforceable merely on
grounds that it is champertous or involves an element of maintenance.
4. Advocates,
Lawyers and Third-Parties permitted to support and fund litigation.--Any person may seek support from a lawyer, advocate,
attorney or a third-person, private individual or company/corporation, to fund
and finance his litigation and legal actions, whether this is in lieu of some
kind of fee arrangement or the sharing of damages or cost awarded as a result
of such litigation or legal action.
5. Contracts
based on funding and financing for litigation to be valid.--All contracts concluded under section 4 shall be
valid and enforceable.
The
above law will go a long way in securing the rights of those underprivileged
and deprived classes who do not have resources to protect themselves through
litigation or legal action. It will also help develop the law or torts and
civil wrongs, which in its present state is highly in adequate. Finally, the
law will provide countless opportunities to attorneys and advocates, especially
the younger lawyers, to have a decent income.
REFERENCES:
Dietsch, Nicolas. “Litigation
Financing in the U.S., the U.K., and Australia: How the Industry has Evolved in
Three Countries.” Northern Kentucky Law Review 38 ( 2011): 687-711.
Kritzer,
Herbert M. Risks, Reputations, and Rewards: Contingency Fee Legal Practice in
the United States. Stanford: Stanford University Press, 2004, 258-259.
Lyon,
Jason. “Revolution in Progress: Third Party Funding of American Litigation,”
UCLA L. Rev. 58 (2010): 571-609.
Martin,
Susan Lorde. “The Litigation Financing Industry: The Wild West of Finance
Should Be Tamed, Not Outlawed,” FORDHAM J. CORP. & FIN. L. 10
(2004): 55-77.
Pollock,
Frederick Sir. The Law of Torts: A Treatise on the Principles of Obligations
arising from Civil Wrongs in the Common Law, 4th ed., London: Stevens and
Sons, 1895.
Radin,
Max. “Maintenance by Champerty,” CALIF. L. REV. 24 (1935): 68-74.
Rogers,
W.V.H. Winfield and Jolowicz: Tort. London: Sweet & Maxwell, 2006.
Rubin,
Paul H. “Third Party Financing of Litigation,” Northern Kentucky Law Review 38
(2011): 673-685.
[2]. The United Kingdom, the United States of
America, Canada, Australia and New Zealand are the most important among the
common law countries.
[3]. “The European Group on Tort Law (formerly
also called ‘Tilburg Group’) is a group of scholars in the area of tort law
established in 1992. The group meets regularly to discuss fundamental issues of
tort law liability as well as recent developments and the future directions of
the law of tort. The Group has drafted a collection of Principles of European
Tort Law (PETL) similar to the Principles of European Contract Law drafted by
the European Contract Law Commission ("Lando Commission").”
http://www.egtl.org/ (accessed 15.12.2014). The Group and its various centres
have produced yearbooks on tort and insurance law. See, e.g., Tort and
Insurance Law Yearbook—European Tort Law 2007, Helmut Koziol and Barbara C.
Steininger eds. (Vienna: Springer-Verlag/Wien, 2008).
[4]. See, in particular, the sections dealing
with assault, trespass, and defamation in the Pakistan Penal Code, 1860.
[5]. Indian
Independence Act, 1947. 10 & 11 Geo. 6. CH. 30.
[6]. The
Constitution of the Islamic Republic of Pakistan, 1956.
[7]. The
Constitution of the Islamic Republic of Pakistan, 1962.
[8]. The
Interim Constitution of the Islamic Republic of Pakistan, 1972.
[9]. The
Constitution of the Islamic Republic of Pakistan, 1973.
[10]. Defamation
Act, 1996.
[11]. Defamation
Act No. 55 of 2005.
[12]. Defamation
Act, 2005 No. 77.
[13]. Sir Frederick Pollock, The Law of
Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in
the Common Law, 4th ed. (London: Stevens and Sons, 1895), 527–83.
[14]. W.V.H. Rogers, Winfield and Jolowicz:
Tort (London: Sweet & Maxwell, 2006), 876.
[15]. Ibid.
[16]. [2002] 61 O.R. (3d) 257 (C.A.).
[17]. Ibid.
265-266.
[18]. Max Radin, “Maintenance by Champerty,” CALIF.
L. REV. 24 (1935): 48-78, 68 as cited in Jason Lyon, “Revolution in
Progress: Third Party Funding of American Litigation,” UCLA L. Rev. 58
(2010): 571-609, 575.
[19]. Barratry is bringing of vexatious
litigation or litigation for the purpose of harassment or profit.
[20]. Sections 13(1)(a) and 14(1) of the
Criminal Law Act, 1967 as cited in W.V.H. Rogers, Winfield and Jolowicz:
Tort (London: Sweet & Maxwell, 2006), 876.
[21]. W.V.H. Rogers, Winfield and Jolowicz:
Tort (London: Sweet & Maxwell, 2006), 876.
[22]. Also
called as ‘Damages-based agreements’ (DBAs). DBAs are a
type of ‘no win, no fee’ agreement under which a lawyer can recover an agreed
percentage of a client’s damages if the case is won, but will receive nothing
if the case is lost.
[23]. It
includes legal financing, also known as litigation financing, third party
funding, legal or litigation funding.
[24]. Jason Lyon, “Revolution in Progress,” 581.
[25]. Ibid.
[26]. Max Radin, “Maintenance by Champerty,” 48.
[27]. Susan Lorde Martin, “The Litigation
Financing Industry: The Wild West of Finance Should Be Tamed, Not Outlawed,” FORDHAM
J. CORP. & FIN. L.10 (2004): 55-77, 55- 57 ; See also Paul H. Rubin,
“Third Party Financing of Litigation,” Northern Kentucky Law Review 38
(2011): 673-685, as cited in Nicolas
Dietsch, “Litigation Financing in the U.S., the U.K., and Australia: How the
Industry has Evolved in Three Countries.” Northern Kentucky Law Review 38
(2011): 687-711, 689.
[28]. Susan Lorde Martin, “The Litigation
Financing Industry,” 55 as cited in Nicolas
Dietsch, “Litigation Financing in the U.S., the U.K., and Australia,” 689.
[29]. 687 N.E.2d 1224 (Mass. 1997).
[30]. See, also Bates v. State Bar of Ariz.,
433 U.S. 350, 376 n.32 (1977). The Supreme court abandoned the notion that
litigation should be “viewed as an evil in itself.”
[31]. 532 S.E.2d 269 (S.C. 2000).
[32]. Jason Lyon, “Revolution in Progress,” 588.
[33]. UK, Review of Civil Litigation Costs:
Preliminary Report, Volume 2 by Lord Justice Rupert Jackson (London: Her
Majesty’s Stationery Office, 2010).
[34]. Jason Lyon, “Revolution in Progress,” 575.
The statutes are: Maine Consumer Credit Code Legal Funding Practice, Me. Rev.
Stat. tit. 9-A, §12 (2009); Nebraska Nonrecourse Civil Litigation Act, Neb.
Stat. Ann., § 25-3303 (West 2010); and Non-Recourse Civil Litigation Advances,
Ohio Rev. Code Ann. Tit. 13, § 1349.55 (West 2008).
[35]. See, for example, Walter C. Williston, Contingent
Fee in Canada, 6 Alta. L. Rev. 184 (1968).
[36]. Metzler Investment GMBH v. Gildan
Activewear Inc., [2009] O.J. No. 3315.
[37]. Hobsbawn v. Atco
Gas and Pipelines Ltd., (May 14, 2009) Calgary 0101-04999 (QB).
[38]. MacQueen v. Sydney
Steel Corporation, (October 19, 2010), Halifax 218010 (SC).
[39]. Steve Tenai, Nicholas Saint-Martin, “Third
Party Funding Of Class Actions,” This paper was prepared for the 8th National
Symposium on Class Actions, (Osgoode Hall: April 28-29, 2011), 10.
[40]. Herbert M. Kritzer, Risks, Reputations,
and Rewards: Contingency Fee Legal Practice in the United States (Stanford:
Stanford University Press, 2004), 258-259.
[41]. [2005] EWCA Civ 655.
[42]. Ibid. at para. 16.
[43]. Ibid. at
paras 38-40.
[44]. [2006] HCA 41.
[45]. Steve Tenai, Nicholas Saint-Martin, “Third
Party Funding Of Class Actions,” This paper was prepared for the 8th National
Symposium on Class Actions, (Osgoode Hall: April 28-29, 2011), 7.
[46]. [2004] ZASCA 64.
[47]. Ibid., at
para. 52.
[48]. Sections 13(1)(a) and 14(1) of the
Criminal Law Act, 1967 as cited in W.V.H. Rogers, Winfield and Jolowicz:
Tort (London: Sweet & Maxwell, 2006), 876.
[49]. This regulation came into force on 1st
April 2013. Section 45 of the Legal Aid,
Sentencing and Punishment of Offenders Act 2012 (LASPO) amends section 58AA of
the Courts and Legal Services Act 1990 to permit damages-based agreements
(DBAs). Certain requirements that DBAs must meet in order to be enforceable are
set out in the Damages-Based Agreements Regulation 2013.
[50]. Susan Lorde Martin, “The Litigation
Financing Industry,” 73.
[51]. Ibid.
[52]. [2005] EWCA Civ 655.
[53]. Susan Lorde Martin, “The Litigation
Financing Industry,” 73.
[54]. Nicolas
Dietsch, “Litigation Financing in the U.S., the U.K., and Australia,” 700.
[55]. Ibid.
[56]. Ibid.
[57]. Ibid.
[58]. 2010 (9) SCR 1039.
[59]. Bar Council of India Rules, Part VI,
Chapter II, Section II, Rule 20:
“An advocate shall not stipulate for a fee contingent on the
results of litigation or agree to share the proceeds thereof.”
[60]. 61 P.R. (1907).
[61]. Nicolas
Dietsch, “Litigation Financing in the U.S., the U.K., and Australia,” 705.
[62]. Ibid.,
688.
[63]. Ibid.,
693.
[64]. Ibid.,
699. See also Arkin v. Borchard Lines Lt. [2005] EWCA Civ 655.
[65]. Damages-Based Agreements Regulation of
2013.
[66]. Nicolas
Dietsch, “Litigation Financing in the U.S., the U.K., and Australia,” 702.
[67]. See Standing
Committee of Attorneys-General, Discussion Paper on Litigation Funding in
Australia, 4 (May 2006) as cited in ibid.
[68]. Nicolas
Dietsch, “Litigation Financing in the U.S., the U.K., and Australia,” 703.
See also, Campbells Cash and Carry Pty Ltd. v. Fostif Pty Ltd. [2006]
HCA 41.
[69]. [2005] N.S.W.S.C. 1070, 1070.
[70]. Ibid.,
1071.
[71]. [2005] N.S.W.S.C. 1070, 1071. See also, QPSX
Commc’ns Pty. Ltd. v. Ericsson Austl. Pty. Ltd., [2005] 219 A.L.R. 1.
[72]. Saladini v. Righellis, 687 N.E.2d
1224, 1226–27 (Mass. 1997).
[73]. Canons of Professional Conduct and
Etiquettes of Advocates, B- Conduct with regard to Clients, Rule 149, Chapter
XII, Pakistan Legal Practitioners & Bar Council Rules, 1976.
[74]. Ibid.
[75]. A 1951 M 665, A 1934 N 228.
[76]. 1996 SCMR 781, 1996 CLC 678, P 1972 L 169,
A 1941 FC 16, A 1943 A 289, 20 IC 658, 1996 CLC 456, P 1996 K 467, A 1918 PC
49.
[77]. PLJ 1975 SC 345, 2004 CLC 1567, 1994 MLD
1489, A 1937 M 200, A 1929 B 353.
[78]. 2004 MLD 1395, 1996 CLC 678, 1996 SCMR
781.
[79]. Maintenance,
Champerty and Barratry Abolition Act, 1993.