What Is the Tort of Barratry?

Historically, Barratry Was Committed By Members of the Bar and Thus the Name Barratry. Disbarment and Criminal Sanctions Were the Common Punishment. Today, Barratry Rarely Occurs But May Arise When Anyone Procures People to Use Legal Proceedings As a Means to Victimize a Defendant Via Stress and Strife, Among Other Things.

A Helpful Guide For Understanding the Conduct That May Constitute the Tort of Barratry

Generic Lawsuit Document Barratry is a tort with a long history; however, over the years, barratry appears to have lost some recognition in law and perhaps so whereas it appears that barratry is now less frequent.  Legal Information about barratry appears to receive little attention from tort law scholars; however, there are some sources that do remain helpful including a 2011 article by Simon Fodden as published by SLAW, which promotes as Canada's Online Legal Magazine.

The Law

Presently, at least in Ontario, whether the tort of barratry still exists remains undecided whereas in 2001, the Court of Appeal stated the following within the case of McIntyre Estate v. Ontario (Attorney General), 2001 CanLII 7972:

[22]  ITCL also invokes the common law tort of 'barratry' to justify its interest in the Attorney General’s appeal.  I include myself among those who had never heard of the tort of barratry until I read the material on this motion.  Nonetheless, this submission requires some comment because of the position ITCL takes with respect to it.  ITCL claims that the tort of barratry permits a defendant who is exposed to costs as a result of a champertous proceeding to sue the lawyer through whose “efficacious intermeddling” or improper motive the champertous action was brought in the first place.

[23]  Barratry is related to, but clearly different from, champerty and maintenance.  Barratry is defined in Black’s Law Dictionary, 7th ed.  (St.  Paul:  West Publishing, 1999) as “[t]he offence of frequently exciting and stirring up quarrels and suits, either at law or otherwise”.  According to Black’s, barratry is also “a crime in most jurisdictions”.

[24]  By contrast, champerty refers to a bargain between a stranger and a party to a lawsuit by which the stranger pursues the party’s claim in consideration of receiving part of any judgment proceeds.  The difference between champerty and barratry appears to be that while champerty is purely self-interested, barratry requires the additional intent to harm the third person:  “… if the design was not to recover his own right, but only to ruin and oppress his neighbour, that is barratry”.  See Words and Phrases Judicially Defined, Vol.  I (London:  Butterworth & Co., 1943).

[25]  Maintenance is further distinguished from barratry and champerty on the basis that it appears to be motivated by altruism.  That is, it requires a person to “lay out money on behalf of another in suits at law to recover a just right, and this may be done in respect of the poverty of the party;  but if he lends money to promote and stir up suits, then he is a barrator”.  Words and Phrases, supra.

[26]  In Canada, the common law criminal offences of champerty, maintenance and barratry (as well as refusing to serve in office and being a “common scold”) were abolished after the 1950 Report of the Royal Commission on the Revision of the Criminal Code.  There is no reference to a tort of barratry in torts texts such as Canadian Tort Law, Lewis Klar, (Toronto:  Butterworths, 1999), Remedies in Tort, Lewis Klar et al., (Toronto:  Carswell, Looseleaf ed.) or The Law of Torts, 9th ed., John Fleming (N.S.W.:  The Law Book Company, 1998).  Nonetheless, for the purpose of this motion I will assume, but not decide, that there is such a thing as the tort of barratry.

Accordingly, it appears that whether the tort of barratry exists or remains within the law of Ontario remains judicially undecided; however, if such does remain it would seem that barratry, while related to the torts of champerty and maintenance, barratry involves a vexatious vindictiveness or as stated in McIntyre, an "officious intermeddling" with intention of inflicting harm rather than what may merely be a desire to receive monies from illicit or genuine intended litigation.

An interesting historic case that references the tort of barratry, doing so while also referencing the tort of maintenance and as such leaving it unclear as to which the court found as the wrongful conduct (if other than being both), is the case of Sturmer v. Town of Beaverton1912 CanLII 588 which involved a vindictive person encouraging another person to pursue litigation for vindictive reasons rather than pursuing the litigation oneself.  In this situation, the purpose of engaging a puppet to pursue the litigation was to avoid the risks of costs arising from the litigation whereas the puppet was a pauper and therefore without concern for the usual litigative costs risks.  Within Sturmer it was specifically said:

In this case it is not said that Hamilton "merely has an interest in the suit." It is said and shewn that it is his suit and that he has been guilty of something in the nature of barratry and maintenance, because, desiring to try his own right, he has procured this man of straw to allow the litigation to be brought in his name.  This, as the cases shew, is an abuse of the process of the Court, and I think a contempt of a most serious character, because the Court, which is called into existence to administer justice, is being used as a tool and instrument by which an injury is inflicted, which, it is said, it can in no way redress.

Summary Comment

The tort of barratry may still exist in law; however, the common law crime of barratry appears as abolished decades ago.  Whether the tort of barratry remains will require a judicial 'final order' decision from a higher level court.  Furthermore, if the tort of barratry exists, it seems that the elements are inconsistent whereas various sources suggest some overlap with the torts of maintenance and champerty including the existence of a financial gain while other sources suggest that merely the 'officious intermeddling' by excessively encouraging quarrels and strife or encouraging others to commence litigation or legal proceedings for the purpose of causing ruin or oppression constitutes as barratry.


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