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Re: Urgent Advice needed - Application to set aside a CCJ
Joanna, feel free to mention it as MIL will need to counter that but I am just saying as reference, I do not believe that arguing the debt is champertous on the basis of the above cases. Rightly, the purchasing of a right to litigate on its own is champertous however if there is a contract and a breach of contract occurs resulting in a debt, this cannot be considered champertous. Equally, setting up a company as a special purpose vehicle (SPV) to pursue someone for a debt does not amount champerty (JEB Recoveries LLP v Binstock 2015). County Court decisions are not binding and will take decisions on the evidence and authorities before them.
Exemption rules to champerty and maintenance apply for example, where there is a right of action for property (debt is considered property) then the assignment is not champertous. Because the assignment taking place is not just the right to litigate but also the right to receive the debt, that is where the exemption applies. Here;s a quote from Camdex v Bank of Zambia as a point:
So its quite clear that an assignment must be absolute i.e. that all benefits are transferred and not just some of them. Obviously if no assignment took place then they would have no right to bring a claim in their own name and thereby an argument exists for malicious prosecution as they had no reasonable grounds to bring a claim in the first place.
But feel free to argue the champerty and maintenance claim if you like. The judge will either accept it or will not. I think your other grounds are good enough to set the claim aside anyway and ensure that the claim will probably be dropped.
Joanna, feel free to mention it as MIL will need to counter that but I am just saying as reference, I do not believe that arguing the debt is champertous on the basis of the above cases. Rightly, the purchasing of a right to litigate on its own is champertous however if there is a contract and a breach of contract occurs resulting in a debt, this cannot be considered champertous. Equally, setting up a company as a special purpose vehicle (SPV) to pursue someone for a debt does not amount champerty (JEB Recoveries LLP v Binstock 2015). County Court decisions are not binding and will take decisions on the evidence and authorities before them.
Exemption rules to champerty and maintenance apply for example, where there is a right of action for property (debt is considered property) then the assignment is not champertous. Because the assignment taking place is not just the right to litigate but also the right to receive the debt, that is where the exemption applies. Here;s a quote from Camdex v Bank of Zambia as a point:
From these authorities which are binding upon this court and subsequent to which the provisions of the Act of 1873 have been re-enacted in the Act of 1925, it is clearly established that debts are assignable in law as well as in equity and the fact that the assignee will have to sue for the debt raises no question of maintenance or other infringement of any principle of public policy ... Similarly, the owner of a debt is entitled to assign that debt to another who may be in a whole range of relationships to him from that of mere trustee through to one who owes no contractual or other obligation to him. The only qualification is that the statutory formalities must have been complied with and the assignment must be an absolute one. There has to be a debt, otherwise there is nothing to assign. However, the fact that the debt may have to be sued for, or that it is expressly contemplated that the debt will have to be sued for, does not alter the position. Suing for an assigned debt raises no question of maintenance.
But feel free to argue the champerty and maintenance claim if you like. The judge will either accept it or will not. I think your other grounds are good enough to set the claim aside anyway and ensure that the claim will probably be dropped.
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