Maintenance and champerty

Those are the marvellous names for the old common law offences/torts involved in persuading others to engage in a lawsuit for your own benefit (feel free to state more precisely, IANAL).  They’ve mostly been abolished now, which is probably a good thing in terms of alllowing class actions and similar, and they’ve never applied (AFAIK) in international law.

Nevertheless, a reminder of the reason such laws existed has come with the announcement of a WTO complaint by Ukraine against Australia’s plain packaging laws for cigarettes.

These laws have just been upheld by the High Court, against claims that they represented a “taking” of “intellectual property”, in the form of cigarette brands. Not only is this a great result in substantive terms, but (although reasons have yet to be released) it clearly represents a rejection of extreme claims about property rights in general and IP in particular.

Coming back to the Ukraine case, tobacco trade between Ukraine and Oz is zero, and, AFAICT, the main involvement of the Ukraine in the tobacco industry is that the number of smoking-related deaths is particularly high there.

As no one even bothers to deny, this action has been ginned up by Big Tobacco in a shameless piece of champerty. Actually, it’s a good thing – the WTO is a political court, and it would be suicidal to uphold such a blatant attack on public health. In the process, it may set some precedents that will make future interference with public health laws more difficult.

Still, this is a direct attack by the tobacco companies on Australia’s national sovereignty, and deserves a response. Perhaps we should be looking at a special profits tax on tobacco companies.

31 thoughts on “Maintenance and champerty

  1. Champerty is interesting because someone with a good basis for a suit ought not to lose simply due to insufficient funds but during someone without a good cause is a great way for the wealthy to harass someone, if there were no sanctions against it. In international law seems might is right in the end because the mighty can ignore those courts. The international criminal court is a joke as you will never see any of the mighty in the dock, and those in the dock, although guilty, are only there as a result of some political offense rather than what they’re charged with.

  2. @jrkrideau
    Did economics rather than law, but did Law 101 out of interest while at university. It included English legal history which was fascinating. From memory, the real reason a judicial system was supplied to the peasantry was not any real concern for the peasants but because small disputes could become major unrest as friends and relatives joined in on both sides. This would “disturb the kings peace” and McKenzie revenue raising and the raising of troops a problem, or even become a worse threat to the crown and aristocracy. Hence,justice was provided for the kings benefit really. Better the kingprovide justice than have the country riven. Murder then was really a crime against the king as were other crimes because they disturbed his peace.

    Hence, I’m certainly no expert don’t know Australian law but do find the history interesting. Legal history is a history of people arguing, solving problems and coming to conclusions with the social context, religious and philosophical beliefs of the times having a bearing, and in addition, the ever present self-interest.

  3. Freelander: George Orwell said: “The most powerful lie is the omission.” Legal academics’ version of legal history, if they bother with it at all, has to omit some ugly bits, otherwise lawyers and judges would know that Professor Fred Rodell, of Yale law school, was right when he said our system is “nothing but a high-class racket”.

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