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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> De Crittenden v Bayliss [2001] EWCA Civ 916 (21 May 2001)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/916.html
Cite as: [2001] EWCA Civ 916
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IN THE COURT OF APPEAL CIVIL DIVISION
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(His Honour Judge Nicholl)
London WC2 Monday, 21st May 2001 |
||
B e f o r e :
____________________
| ROBIN DE CRITTENDEN | ||
| Claimant/Respondent | ||
| -v- | ||
| CHARLES ALBERT BAYLISS | ||
| Defendant/Applicant |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Official Shorthand Writers to the Court)
North Somerset BS23 1NR) appeared on behalf of the Applicant.
The Respondent did not appear and was not represented.
____________________
Crown Copyright ©
- LORD JUSTICE BUXTON: This is a renewed application for permission to appeal in proceedings between the claimant, Mr De Crittenden, and Mr Bayliss, the defendant, in which Mr Crittenden was successful, the only defence being that the agreement on which Mr Crittenden sued was champertous. When the matter came before me on paper it seemed to me that the judge had, in a full and detailed judgment, made findings of fact generally speaking unfavourable to Mr Bayliss, which very properly had not been sought to be gone behind; he had directed himself as to the broad principle of law laid down by the House of Lords in the case of Giles v Thompson [1994] 1 AC at page 161 B; and had applied that to the facts of the case. It therefore seemed to me that there was no prospect of this appeal succeeding.
- In clear and forceful submissions made to me this morning, Mr Mason has succeeded in persuading me, I have to say by not a very large margin, that this matter should be further considered. Since the matter will go before the full court it would not be appropriate for me to say more than is necessary to explain why I have changed my mind on the subject, it being appreciated that anything that I say today, not having had the benefit of adversary argument, will not in any way inhibit the Court of Appeal itself.
- The short point in the case is this. If we turn to paragraph 63 of the learned judge's judgment, he acknowledges that the nature of the inquiry altered after Mr Crittenden and Mr Bayliss had, in effect, fallen out over the arrangements that they had previously had between themselves jointly to conduct and have an interest in litigation arising out of previous business contacts. The judge said, and I would respectfully agree, that had the agreement that continued thereafter been entered into at that point, it would undoubtedly have been champertous. He was however persuaded that, because of the previous relationship between the parties, Mr Crittenden continued to have a legitimate interest in pursuing and enforcing the agreement in order effectively to recover and to guard himself against expenditure that he had incurred at the previous stage of the proceedings, when it was the case that the arrangement was legitimate so far as the law of champerty is concerned. It seemed to me originally that that was a finding open to the judge and one which was within his area of judgement to make. However, I have doubts on two points which Mr Mason has succeeded in reinforcing.
- First, looked at in the circumstances of the continuing agreement, it is arguable, as it seems to me, that this was simply an arrangement between Mr Crittenden and Mr Bayliss after 1995 for Mr Crittenden to be remunerated (for whatever good reason there may have been) out of the profits of litigation. It is now unclear to me that such an arrangement, whatever its bona fides or reason, and however in terms of general propriety it may be acceptable, can be accommodated within the law of champerty. There needs to be further consideration of whether the very broad guidance given in cases like Giles v Thompson can extend to that situation.
- Secondly, as Mr Mason has pointed out, the work that Mr Crittenden did and undertook to do was undoubtedly in the nature of work of a kind that is normally performed by a solicitor. Mr Mason says that it is, to put at its lowest, anomalous that a solicitor would not be permitted to charge and recover on the basis that Mr Crittenden did, whereas apparently a layman can so act. His argument is not, as I had originally thought it to be, that the agreement entered into by Mr Crittenden was for that reason necessarily open to objection, but rather (an argument that he tells me he put to the judge but which the judge does not directly deal with in his judgment) that when assessing the nature of the agreement against the general law of champerty the court ought to have acutely in mind the restrictions that it has seen fit to impose on professionals and officers of the court in respect of agreements of this type that they are entitled to enter into, and ought therefore to have been more critical than the judge was of the dangers inherent in such an arrangement when it is entered into by a layman.
- As I have said, I have not found this decision easy, but I am persuaded by Mr Mason that it would not be right for this matter to be discharged at this stage. I therefore grant permission to appeal.
- I would further say this. The grounds of appeal as at present drawn are stated in somewhat general terms and do not guide the court, in the clear way that Mr Mason's oral submissions have done this morning, as to the particular aspects of the case that need scrutiny. He will, I am sure, forgive my saying that. I will grant leave for the grounds of appeal to be reconsidered and permission for them to be re-served, if so advised, within 28 days, in a form that narrows the issue in the way that Mr Mason has put it to me today and which I have endeavoured to reflect in the judgment that I have just delivered.
Monday, 21st May 2001