The Canberra rape libel action grinds on. 

The lawyers for the defeated plaintiff were no-win, no-fee – which tells you about the advice they gave the loser.  The winner  will be millions of dollars out of pocket.  You or I could be bankrupt.

We need to think about this.  Is it right that people can ‘maintain’ a law suit?  I am not talking about classes of people suing other people behind a corporation.   ‘Class actions’ involve their own well identified policy issues – about which I know nothing.

It is not easy to find statements of the modern law of maintenance.  In The Queen’s Peace , 1953, Sir Carlon Allen said that  ‘maintenance is the officious intermeddling in other people’s legal disputes by ‘maintaining’ a cause in which one has no legitimate interest or charitable motive, and champerty is the baser form of it which aims at a share of the spoils’. 

Coke, in character, referred to ‘vexatious relators, informers and promoters’ – and ‘viperous vermin.’

Allen said:

It is however still the law that anybody, who, without any of the various excuses which are now well recognised, maintains another in his suit, whether as a mere busybody, or for financial gain, is liable to criminal penalties ; and …it does not matter whether the suit….is successful or unsuccessful.

Should such maintenance be unlawful unless the promoter is liable for the costs of the other side – and is good for them?

The court was scathing about the case of the plaintiff. That leaves questions.  Why did it cost tens of millions of dollars and a judgement of more than 300 pages to get that answer?

The system has run amok.