Sanders v Templer ; Giles v Thompson ; Devlin v Baslington
| Jurisdiction | UK Non-devolved |
| Judge | Lord Keith of Kinkel,Lord Ackner,Lord Jauncey of Tullichettle,Lord Lowry,Lord Mustill |
| Judgment Date | 26 May 1993 |
| Judgment citation (vLex) | [1993] UKHL J0526-2 |
| Date | 26 May 1993 |
| Court | House of Lords |
[1993] UKHL J0526-2
Lord Keith of Kinkel
Lord Ackner
Lord Jauncey of Tullichettle
Lord Lowry
Lord Mustill
House of Lords
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend Lord Mustill, which I have read in draft and with which I agree, I would dismiss these appeals.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Mustill. I agree with it and for the reasons he gives I too would dismiss these appeals.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Mustill. I agree with it and for the reasons he gives I too would dismiss these appeals.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Mustill. I agree with it and for the reasons he gives I too would dismiss these appeals and make the order which he proposes.
My Lords,
The crimes of maintenance and champerty are so old that their origins can no longer be traced, but their importance in medieval times is quite clear. The mechanisms of justice lacked the internal strength to resist the oppression of private individuals through suits fomented and sustained by unscrupulous men of power. Champerty was particularly vicious, since the purchase of a share in litigation presented an obvious temptation to the suborning of justices and witnesses and the exploitation of worthless claims which the defendant lacked the resources and influence to withstand. The fact that such conduct was treated as both criminal and tortious provided an invaluable external discipline to which, as the records show, recourse was often required.
As the centuries passed the courts became stronger, their mechanisms more consistent and their participants more self-reliant. Abuses could be more easily detected and forestalled, and litigation more easily determined in accordance with the demands of justice, without recourse to separate proceedings against those who trafficked in litigation. In the most recent decades of the present century maintenance and champerty have become almost invisible in both their criminal and tortious manifestations. In practice, they have maintained a living presence in only two respects. First, as the source of the rule, now in the course of attenuation, which forbids a solicitor from accepting payment for professional services on behalf of a plaintiff calculated as a proportion of the sum recovered from the defendant. Secondly, as the ground for denying recognition to the assignment of a "bare right of action." The former survives nowadays, so far as it survives at all, largely as a rule of professional conduct, and the latter is in my opinion best treated as having achieved an independent life of its own.
It therefore came as no surprise when Parliament, acting on the recommendation of the Law Commission, abolished the crimes and torts of maintenance and champerty: section 14 of the Criminal Law Act 1967. After this, it might be supposed that the ancient crimes and torts would have disappeared from general view, of interest only to any legal historian who might aspire to build on the foundations laid by Sir Percy Winfield and Sir William Holdsworth. Remarkably, this has proved not to be the case, and we find that twenty five years after the Act of 1967 they are being ascribed a vigorous new life, in a context as far away from the local oppressions practised by overweening magnates in the Fifteenth Century as one could imagine: namely, the temporary provision of substitute private cars to motorists whose own vehicles have been put out of commission by road accidents. The possibility of contending that a recovery of a particular head of damage in the most everyday running down case is barred by this ancient doctrine has been opened up by the qualifying words in section 14(2) of the Act of 1967 which stipulated that the abolition of civil and criminal liability "shall not affect any rule of "[the law of England and Wales]" as to the cases in which a contract is to be treated as contrary to public policy or otherwise illegal".
The question has arisen in this way. A substantial proportion of motor accidents take place in circumstances where there is little room for doubt that one party is exclusively to blame: typically, where the car of one driver (hereafter "the motorist") is stationary, for example at a traffic light, and where a car driven by another person ("the defendant") is carelessly driven into the back of it. There are two types of damages which may be awarded to the motorist in any resulting litigation. First, there are damages for any personal injury which the motorist may have suffered. These will usually comprise general damages for pain, suffering and loss of amenity, and special damages for past and future loss of earnings. Secondly, there are damages related to the loss of or damage to the motorists's vehicle. These will or may have two elements: a figure representing the diminution in value of the motorist's vehicle, and another figure representing the financial loss suffered by the motorist because he or she cannot use the vehicle whilst it is either being replaced (if written-off) or undergoing repairs. In practice these various elements are dealt with in various ways. The damage to the car itself is settled between insurers, apart from the excess on the motorist's policy, which he may not trouble to pursue except as an appendage to a larger claim. The motorist's claims for personal injuries may be substantial in amount, and will be made the subject of an action, if the motorist can finance the action either from his own resources, or from some form of insurance, or (if he is of very limited means) by legal aid.
There remains the claim for loss of use of the car. In principle, if such a claim is made it will often be quantified by reference to the cost of hiring a substitute vehicle, and will be recoverable upon proof that the motorist needed a replacement car whilst his own was off the road. I say "if such a claim is made" for two reasons. First, because the loss of use is not recoverable under a comprehensive policy, so that there are no subrogated insurers to stand behind the claim, and in situations where there is no personal injury claim and where the damage to the motorist's vehicle is dealt with as between insurers there are few motorists who will have the time, energy and resources to go to law solely to recover the cost of a substitute vehicle. Secondly, because there are many motorists who lack the inclination or the ready cash to hire a substitute on the chance of recovering reimbursement from the defendant's insurers. Thus, there exists in practical terms a gap in the remedies available to the motorist, from which the errant driver, and hence his insurers, frequently profit.
In recent years a number of commercial concerns (hereafter "the companies") have identified this gap and have sought to fill it in a manner advantageous alike to motorists and to themselves, by offering to motorists with apparently solid claims against the other parties to collisions the opportunity to make use of the company's cars whilst their own are off the road. The terms on which this opportunity is given are said to be, in broad outline, as follows-
1. The company makes a car available to the motorist whilst the damaged car is under repair.
2. The company pursues a claim against the defendant, at its own expense and employing solicitors of its choice, in the name of the motorist for loss of use of the motorist's car.
3. The company makes a charge for the loan of the replacement car, which is reimbursed from that part of the damages recovered by the motorist from the defendant or his insurers which reflects the loss of use of the motorist's car.
4. Until this happens the motorist is under no obligation to pay for the use of the replacement car.
5. These arrangements are conditional on the co-operation of the motorist in pursuing the claim and any resulting legal proceedings.
6. The companies aim to confine the scheme to cases where the motorist is very likely to succeed in establishing the defendant's liability, without any contributory negligence on the part of the motorist.
Transactions on these general lines have been entered into in large numbers, to the discomfort of the defendants' insurers, who have been faced with claims of which an element reflects the cost of a replacement vehicle which would not have been hired but for the existence of the scheme. The insurers have counter-attacked by alleging that the hiring agreements are champertous and accordingly unlawful, or otherwise contrary to public policy. Whilst no longer contending that actions which include an element of damages referable to the charges made, or said to be made, by the companies are an abuse of the process of the court, and should be therefore be struck out in their entirety, the insurers say that damages cannot be awarded for the hiring charges, since to do so would enable the motorist to rely on an unlawful contract.
The consequence has been a large number of contests in the county court which have understandably led to differing outcomes in the various jurisdictions. A substantial body of unreported and inconsistent precedent has been built up, creating a degree of uncertainty which all concerned have been anxious to avoid. The very sensible decision has been taken to obtain guidance on the topic which it is hoped will eliminate the uncertainties; and the size of the problem is shown by the fact that two...
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