“The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if – (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.” (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“[I]t is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial.”
“14. In R (Factortame Limited) v Secretary of State for Transport, Local Government and the Regions (No 8) [[2022]EWCA Civ 932 at [32]], Lord Phillips MR adopted the definitions of champerty and maintenance in Chitty on Contracts. A person is guilty of maintenance if he supports litigation in which he has no legitimate concern without just cause or excuse. Champerty occurs when the person maintaining another stipulates for a share of the proceeds of the action or suit. Champerty can thus be seen as an aggravated form of maintenance.” “15. Champerty and maintenance are rules that apply to all contracts or transactions falling within their scope. The rules are not limited to agreements. Assignments, and particularly assignments of rights to litigate or of causes of action, are no exception. It is perfectly possible for the mere transfer of a cause of action to be voided because it infringes the rules of champerty and maintenance. “16. However, not all assignments of rights to litigate or of causes of action are invalid by these rules. As Lord Roskill noted in Trendtex Trading v. Credit Suisse [[1982] 1 AC 679 at 703] "[t]he court should look at the totality of the transaction. If the assignment is of a property right or interest and the cause of action is ancillary to that right or interest, or if the assignee had a genuine commercial interest in taking the assignment and in enforcing it for his own benefit, I see no reason why the assignment should be struck down as an assignment of a bare cause of action or as savouring of maintenance.”
“35. The tests for maintenance and champerty are set out in the decision of the house of Lords in Giles v Thompson[1994] 1 AC 142 . Maintenance and champerty (where profit is involved) will only be established where there is “wanton and officious intermeddling with the disputes of others in which the [maintainer] has no interest whatsoever and the assistance he renders to the one or the other party is without justification of excuse (per Lord Mustill at 164C-D) … “36. In Sibthorpe v Southwark LBC[2011] EWCA Civ 25 the Court of Appeal explained that, when considering an allegation of champerty in relation to an agreement to which the person conducting the litigation (or providing advocacy services) is not a party, the modern approach was for the court to decide whether the agreement would undermine the purity of justice or would corrupt public justice which is a question to be decided on a case-by-case basis ([35] to [36])… In Davey v Money[2019] EWHC 997 (Ch) Snowden J held that in determining whether an agreement with a non-party as regards the conduct of litigation would tend to undermine or corrupt the process of justice “the crucial issue appears to be whether the non-party can exercise excessive control or influence over the conduct of the proceedings in such a way as, for example, to suppress evidence, influence witnesses, or procure an improper settlement” (at[78]).”
“17. A type of contract which has relatively often given rise to an allegation of champerty or maintenance is one between a claimant in a piece of litigation and the person conducting the litigation (almost always a barrister or solicitor) on the claimant’s behalf. At any rate until the recent past, the law had set its face against those who conduct litigation placing themselves in a position where they could profit from their client’s success. As Lord Denning MR put it in Wallersteiner v Moir (No. 2)[1975] QB 373 , 393 “English law has never sanctioned an agreement by which a lawyer is remunerated on the basis of a “contingency fee”, that is he gets paid the fee if he wins, but not if he loses”, describing that as champerty. He relied at 394 on a dictum of Lord Esher MR in Pittman v Prudential Deposit Bank Ltd(1896) 13 TLR 110 , 11: “In order to preserve the honour and honesty of the profession it was a rule of law which the court had laid down and would always insist upon that a solicitor could not make an arrangement of any kind with his client during the litigation he was conducting so as to give him any advantage in respect of the result of the litigation” “In order to preserve the honour and honesty of the profession it was a rule of law which the court had laid down and would always insist upon that a solicitor could not make an arrangement of any kind with his client during the litigation he was conducting so as to give him any advantage in respect of the result of the litigation”
“I am afraid that, with respect, I cannot agree with Lord Denning M.R. when he said in the instant case that “The old saying that you cannot assign “a bare right to litigate” is gone.”
“best kept in forward motion by looking to its origins as a principle of public policy designed to protect the purity of justice and the interests of vulnerable litigants.”
“supports the proposition that, in any individual case, it is necessary to look at the agreement under attack in order to see whether it tends to conflict with existing public policy that is directed to protecting the due administration of justice with particular regard to the interests of the defendant.”
“Mr Freedman submits in effect that it follows from this passage and from the judgments in Roban Jig and Tool Co. that leave to amend cannot or should not be given unless the party seeking leave to add a fresh cause of action had some cause of action at the date of the writ (or counterclaim). This would amount to a significant restriction on the apparently general discretion given by Ord. 20, r. 5(1) and Ord. 19, r. 9. I would reject this submission.…. the court has a general discretion which should not be restricted by hard-and-fast rules of practice, if not of law, such as that which is suggested here. The judge therefore was wrong to consider that the court had no power to give leave to make the re-amendment. In my view, he was wrong also to consider that the discretion was somehow restricted by what he called “the principle set out in Eshelby and in Roban”
“We are in my view bound by Hendry v. Chartsearch Ltd., which appears to me also to reflect the appropriate modern approach. Further, if and so far as it may be material, I do not regard the present case as one where, as at the date when Moore-Bick J. made his order allowing an amendment, the original claim could be said to be "incurably bad". The validity or otherwise of the first demand was a properly arguable point, which was only decided after a preliminary issue (issue (i)) leading to full argument first before HHJ Hallgarten and now before this court. “I therefore consider that, if the appellants had prior to20th August 2000 [i.e. the contractual limitation period], sought permission to amend their particulars of claim to rely on the second demand, the court would have had power to grant and could properly have granted such permission. Although this is a matter which is probably anyway concluded in the appellants' favour by Moore-Bick J's order, I also consider that the court would have done so. It would not have been sensible to insist on separate proceedings being begun.”
“There is no absolute rule of law or practice which precludes an amendment to rely on a cause of action which has arisen after the commencement of the proceedings in circumstances where (but for the amendment) the claim would fail. The court has a discretion whether or not to allow the amendment in such a case; a discretion which is to be exercised as justice requires. In the present case I have no doubt that, had the claimants sought to amend their particulars of claim (so as to rely on the demand of13 March 2000 ) within the period from 12 April to30 August 2000 [i.e. the contractual limitation period], they should have been permitted to do so. There was no reason why they should have been required to commence new proceedings.”
“The need for an amendment was the consequence of my finding that Mr Finlan was not able to rely on the assignment that he had pleaded, namely an oral assignment effected before issue of the claim form. He needed instead to plead the assignment by which he had in fact acquired the right to bring his claims against the defendants, namely the deed executed at about 4.45 pm on 28 June [which was some 3 and a half hours after the claim form was issued]… “46. The modern practice is to allow an amendment, the effect of which is to make good a defect in the claimant’s title to sue, even though the event relied on did not arise until after the proceedings were issued so that, in strict law, the claimant did not have a cause of action at the time he issued his process.” (iv) In Munday v Hilburn and Fields[2014] EWHC 4496 (Ch) Nugee J was concerned with a claim issued by a bankrupt at a time when the cause of action vested in his trustee, but had then obtained an annulment of the bankruptcy with the result that the estate reverted to him. The Judge said at [47] “it is not I think suggested that the fact the cause of action was not vested in both claimants at the outset makes the proceedings incurably bad. There was some ancient authority to that effect but the modern law is that even if there is a defect in the proceedings when issued in that either the claimant's cause of action is not then complete, or that the claimant's cause of action is not then vested in the claimant, it is open to the Court to cure the defect.”
“The doctrine of relation back will only be a relevant consideration if the other party’s position will be prejudiced if the new claim takes effect earlier than the date on which leave to make it was granted. This is only likely to be so where the effect of relation back would deprive the other party of a limitation defence.”
“It does not follow that simply because the court has power to permit an amendment adding a new claim, it will necessarily exercise its discretion to do so. As with all such decisions, the provisions of the overriding objective are paramount.”