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Endnotes

^[1] Trendtex Trading Corporation v Credit Suisse [1980] QB 629, 654.

^[2] See the observations of Schiemann LJ in Awwad v Geraghty & Co [2000] 1 All ER 608, 610.

There are three categories of reward for success: (1) where the lawyer will recover some of the client's winnings; (2) where the lawyer will recover his normal fees plus a success uplift; (3) where the lawyer will only recover his normal fees. They used all to be described as contingent fees but, in what Judge Cook in his book on Costs (3rd edn, 1998) refers to as a triumph of semantics, situations (2) and (3) have in recent years been given the name of conditional fees whereas situation (1) is still described as a contingent fee. I shall keep that nomenclature for situation (1). The present case is concerned with situation (3), which I shall call a conditional normal fee case to distinguish it from situation (2), which I shall call the conditional uplift case.

^[3] Giles v Thompson [1994] AC 142, 153.

^[4] PH Winfield "The History of Maintenance and Champerty" (1919) 35 LQR 50; and see note (1919) 35 LQR 233.

^[5] Giles v Thompson [1993] 3 All ER 321, 346 per Sir Thomas Bingham MR.

^[6] Giles v Thompson [1994] AC 142, 153.

^[7] British Cash & Parcel Conveyors v Lamson Store Service Co Ltd [1908] 1 KB 1006, 1014 per Fletcher Moulton LJ.

^[8] Trendtex Trading Corp v Credit Suisse [1982] AC 679, 702 per Lord Roskill.

^[9] JG Fleming The Law of Torts (9th edn, 1998) (LBC Information Services, North Ryde, New South Wales, Australia) 692.

^[10] X Insurance Co v A and B 1936 SC 239.

^[11] [1935] NZLR 43, 48.

^[12] Clyne v New South Wales Bar Association (1960) 104 C LR 186.

^[13] Awwad v Geraghty & Co [2000] 1 All ER 608 not following Thai Trading Co (a firm) v Taylor [1998] QB 781.

^[14] The Law Commission for England and Wales Proposals for Reform of the Law Relating to Maintenance and Champerty Law Com No 7 (London HMSO 1966) para 7.

^[15] [1919] 368.

^[16] Per Lord Finlay LC, 380; see the note by Winfield, above n 4, (1919) 35 LQR 233.

^[17] Paragraph 11.

^[18] Above n 17.

^[19] Sections 13(1) and 14(1).

^[20] Section 14(2).

^[21] Green Paper Contingency Fees (HMSO 1988) paras 1.5, 3.12.

^[22] So giving statutory support to the effect of the decision in Bevan Ashford (a firm) v Geoff Yeandle Contractors Ltd (in liq) [1999] Ch 239 which while holding that the section in its original form did not apply to arbitration, nevertheless held that an agreement relating to arbitration which if it had related to an action in court would have been permitted by the section, would not be classified as champertous because public policy did not so require.

^[23] The Conditional Fee Agreements Order 2000 (SI 2000 No 823).

^[24] White Paper Legal Services: A Framework for the Future (HMSO 1989) para 14.2.

^[25] The Conditional Fee Agreements Regulations 2000 (SI 2000 No 692).

^[26] See the account in Roux v Australian Broadcasting Commission [1992] 2 VR 577, 605. Section 14(2) is set out in para 4.

^[27] Legal Profession Act 1987 s 187(4).

^[28] Criminal Law Consolidation Act 1935 Schedule 11 para 3(2)(c).

^[29] The relevant provision in the current statute, the Crimes Act 1961 s 9, provides that "No one shall be convicted of any offence at common law or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom ...".

^[30] Discussed in para 3.

^[31] S Todd et al The Law of Torts in New Zealand (2nd edn, 1997) (Brooker's Limited, Wellington) 1004. The fact that a plaintiff is maintained does not of itself warrant proceedings being stayed under the inherent power as an abuse of process (Abraham v Thompson [1997] 4 All ER 362; Roux v Australian Broadcasting Commission above n 26, 608).

^[32] Although there have been reported cases where the issue of illegality (discussed in para 13) has arisen in disputes between maintainer and maintained (Mills v Rogers (1899) 18 NZLR 291) and where a tort claim has been unsuccessful (Sievewright v Ward & Others [1935] NZLR 43; Rawlinson v Purnell Jenkison & Roscoe (1997) 15 FRNZ 678).

^[33] As to full costs, High Court Rules R 48C(4)(f); as to costs against a non-party Carborundum Abrasives Ltd v Bank of New Zealand [1992] 3 NZLR 757 and Brooklands Motor Co Ltd (in receivership) v Bridge Wholesale Acceptance Corp (Australia) Ltd (1994) 8 PRNZ 197. The District Court has a corresponding jurisdiction (Tracey International NZ Ltd v Mark Winter Waikato Ltd (unreported) Judgment 24.3.1999 Hammond J High Court, Hamilton A166/98). The best discussion of costs against a non-party in both jurisdictions is in Brooker's District Court Procedures (Brooker's Limited, Wellington) para DR 54.08. The historical position is discussed at length in Knight v FP Special Assets (1992) 174 CLR 178.

^[34] [1984] 2 QdR 413.

^[35] It is because of these fundamental differences (as well as the obvious practical difficulties impeding comprehensive research; each of the 50 states has its own rules) that the present paper does not offer any comparative material from the United States of America. There are references to relevant American academic writing in Kate Tokeley "Taking a chance: a proposal for contingency fees" (1998) 28 VUWLR 13.

^[36] If expenditure on Waitangi Tribunal claims is treated as part of total civil legal aid expenditure the Family Court proportion reduces to 78 per cent.

^[37] The New Zealand Law Society's Conveyancing Practice Guidelines define the "Principles of Charging" (which apply to litigation as well as conveyancing) as including as a relevant factor to be taken into account "the importance of the matter to the client and the results achieved".

^[38] X Insurance Co v A and B 1935 SC 225, 251 per Lord Fleming.

^[39] Wallersteiner v Moir (No 2) [1975] QB 373, 402.

^[40] As to this see Awwad v Geraghty & Co, above n 2, 623 per Schiemann LJ.

^[41] Thai Trading Co (a firm) v Taylor [1998] QB 775, 790 (CA) per Millett LJ.

^[42] In re Trepca Mines Ltd (No 2) [1963] Ch 199, 220 per Lord Denning.

^[43] Green Paper Contingency Fees (HMSO 1989) para 3.

^[44] Above n 43, para 3.15.

^[45] Trendtex Trading Corporation v Credit Suisse above n 8, 703.

^[46] Monk v ANZ Banking Group (1994) 34 NSWLR 148, 153.

^[47] Glegg v Bromley [1912] 3 KB 474, 484.

^[48] Insolvency Act 1967 s 42(2)(b).

^[49] (1880) 15 Ch D 426 (CA).

^[50] (1881) 17 Ch D 234 (CA).

^[51] The current relevant New Zealand statutory provisions are the Insolvency Act 1967 s 72 and the Companies Act 1993 6th Schedule.

^[52] Re Oasis Merchandising Services Ltd [1995] 2 BCLC 493, 504_505 (HC).

^[53] Re William Felton & Co Ltd (1998) 16 ACLC 1294, 1297_1298 per Bryson J. The line of cases was followed in New Zealand in Stone v Angus [1994] 2 NZLR 2025 and treated as correct by the House of Lords in Stein v Blake [1996] AC 243, 257.

^[54] Guy v Churchill (1888) 40 Ch D 481; Ramsey v Hartley [1977] 1 WLR 686; In Re Oasis Merchandising Services Ltd [1998] Ch 170, 179; Norglen Ltd v Reeds Rains Prudential Ltd [1999] 2 AC 1, 11.

^[55]In Re Oasis Merchandising Services [1998] CH 170 (CA).

^[56] Above n 55, 182.

^[57] [1996] 1 BCLC 467, 483, approved in the Oasis judgment, above n 55, 183.

^[58] In Re Nautilus Developments Ltd [2000] 2 NZLR 505 (HC) it was held that an application brought under the Companies Act 1993 section 301 because it was in respect of causes of action vested in the company at the time of liquidation was therefore in the category of cases dealing with rights to sue extant before liquidation, section 301 being no more than procedural. It is not clear that this case correctly applied the Oasis test because while it is correct that s 301 simply provides a procedure (Arataki Properties Ltd v Craig [1986] 2 NZLR 294 (CA)) and that that procedure is not available to the liquidator alone and that an ordinary suit might have been brought by the company itself, nevertheless the liquidator's application under s 301 sought a discretionary remedy and was one that can be brought by a liquidator only in exercise of rights conferred on a liquidator by statute.

^[59] Movitor Pty Ltd v Simms (1996) 136 ALR 643; Re Tosich Construction Pty Ltd, ex parte Wily (1997) 143 ALR 18.