Strand, London, WC2A 2LL
B e f o r e :
|JEB RECOVERIES LLP||Claimant / Respondent|
|- and -|
|JUDAH ELEAZAR BINSTOCK||Defendant / Applicant|
Mr Mark Hardy, a limited partner in the Claimant, with the permission of the Court for the Claimant / Respondent
Mr Nicholas Vineall QC and Mr Caley Wright instructed by Harcus Sinclair for the Defendant / Applicant
Hearing Date : 25 March 2015
Crown Copyright ©
HHJ SIMON BARKER QC :
" any and all causes of action, whether previously asserted or not, debts claimed or unclaimed, and any and all other rights which the Assignor may have
(a) generally against [Mr Binstock] and any company, trust or other separate legal personae with which [Mr Binstock] has at any time represented to the Assignor, his agents and assigns, that he is and/or was connected to, in relation to any and all matters that involved or may have involved dealings directly or indirectly.
(b) generally against Josianne Rinaldo Binstock and any company, trust or other separate legal personae with which [Mr Binstock] has at any time represented to the Assignor, his agents and assigns, that she is and/or was connected to, in relation to any and all matters that involved or may have involved dealings directly or indirectly, with the Assignor".
As is apparent, the Assignment includes debts of Mr Binstock and his wife to Mr Wilson.
" to report at reasonable intervals to [Mr Wilson] as to the progress of [JEB's] attempts to claim in respect of the Rights in such reasonable form as may be agreed between [Mr Wilson and JEB]".
"the only way that we could see to protect ourselves against [Mr Binstock's] further threats against us and members of our families if any one of us tried to 'go it alone'.
Agreement was reached that we should form a UK llp and assign to it the unpaid debts that had been invoiced to [Mr Binstock], and all other claims for damage he had caused us ".
"Where the law expressly restricts the circumstances in which agreements in support of litigation are lawful, this provides a powerful indication of the limits of public policy in analogous situations. Where this is not the case, then we believe one must today look at the facts of the particular case and consider whether those facts suggest that the agreement in question might tempt the allegedly champertous maintainer for his personal gain to inflame the damages, to suppress the evidence, to suborn the witnesses, or otherwise undermine the ends of justice".
Thus, the vice or concern underlying the prohibition of champerty is that the allegedly champertous maintainer might be tempted to corrupt or undermine the legal process.
The Applicant's submissions
"There are two circumstances in which the rule against champerty and maintenance continues to be of relevance :(a) The rule may still invalidate agreements whereby a stranger to litigation provides funding to enable a party to bring or continue a claim(b) The rule may invalidate some assignments of causes of action".
Mr Vineall submits that both circumstances are relevant to this case with the result that the Claim falls foul of the policy against champerty.
" protect the purity of justice and the interests of vulnerable litigants".
Moore-Bick LJ summarised Lord Mustill's view of the correct approach to be taken in relation to an assignment of tortious claims as :
" first consider whether the transaction bears the marks of unlawful champerty and then inquire whether it is validated by the existence of a legitimate interest in the person supporting the action distinct from the benefit which he seeks to derive from it".
The Repondent's submissions
"In my view, we should accede to the argument that it would be inappropriate in the 21st century to extend the law of champerty. There is some force in the argument that economic logic supports the case for condemning the indemnity as champertous. However, the rule against champerty is not entirely logical in its extent or limits, judicial observations strongly suggest that champerty should be curtailed not expanded, and, given that champerty is based on public policy, it is hard to see how arrangements such as the indemnity, at the very least in connection with litigation such as that in these cases, are against the public interest or undermine justice".
"The scope of the rule against champerty and maintenance, in so far as it affects both funding and assignments of causes of action, has been progressively narrowed. The current position can be summarised as follows:
(a) Liquidated claims in contract, such as the right to sue for the price of goods sold and delivered for which the defendant has failed to pay, can be assigned
(b) The fruits of litigation can be validly assigned ".
Mr Hardy submits that the Assignment was of a debt and a liquidated claim in contract and / or is of the fruits of litigation.
" In order for a state to remain inclusive it must not just express a commitment to the rule of law: it must provide effective mechanisms through which citizens have genuine access to the courts. Only then can they begin to have equality before the law; ".
and submits that a fundamental element of the rule of law is genuine access to the courts.