Professional Malpractice in UK Law

I venture to think that still remains a fundamental principle of our law. But it is today true to say that in English law an assignee who can show that he has a genuine commercial interest in the enforcement of the claim of another and to that extent takes an assignment of that claim to himself, is entitled to enforce that assignment unless by the terms of that assignment he falls foul of our law of champerty, which as has often been said, is a branch of our law of maintenance.

I accept the general thesis in the judgment of Millett L.J. in the Thai Trading case that modern perception of what kinds of lawyers' fee arrangements are acceptable is changing. I accept the general thesis in the judgment of Millett L.J. in the Thai Trading case that modern perception of what kinds of lawyers' fee arrangements are acceptable is changing.

There is, I think, a clear requirement of public policy that officers of the court should be inhibited from putting themselves in a position where their own interests may conflict with their duties to the court by the agreement, for instance, of so-called "contingency fees"; and there may well be valid reasons why personal rights of action for tortious damage should not, in general, be the subject matter of assignment or partition.

The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses.

Except as there provided, therefore, it is unprofessional conduct for a solicitor to enter into any agreement even for his normal fee where this is dependent on achieving a successful result in litigation. But the fact that a professional rule prohibits a particular practice does not of itself make the practice contrary to law: see Picton Jones & Co. v Arcadia Developments Ltd. [1989] 1 EGLR 42.

But "trafficking" is a pejorative term which takes the debate no further: it simply means trading in something (be it drugs or people) in which it is not permissible to trade. In order to decide whether the particular transaction is permissible, it is essential to look at the transaction as a whole and to ask whether there is anything in it which is contrary to public policy. When one looks at this transaction as a whole, it is clear that there was nothing objectionable about it at all.

As to Mr Vineall's submission that Mr Wilson's assignment and the Claim is or is on the brink of trafficking in litigation, I disagree. That phrase, as used in Trendtex, was attributed to a cause of action which was expected to be traded commercially between unconnected third parties as a commodity or, in the language the financial services industry, a product.