THE

LAW QUARTERLY

REVIEW.

No. V. January, 1886.

THE LAW COURTS UNDER THE JUDICATURE ACTS.

RTS

ISING generations of lawyers will before long cease to be fully conscious of the alteration that has been effected in the legal scene during the last twenty years. The old order has changed, and has been succeeded by the new. The historic courts of the Queen's Bench, the Common Pleas, and the Exchequer, together with the composite appellate tribunal of the Exchequer Chamber, all have disappeared; and their place is taken by a Supreme Court of Judicature, divided into the High Court of Justice and the Court of Appeal. It would be a mistake to undervalue the merits of the machinery that we have abandoned, or to suppose that the superior machinery which has been substituted is free from its own special elements of weakness. The former system had defects, many of which it is to be hoped have been remedied by the reforms of later years-but these reforms have themselves produced or intensified, in their turn, evils which require either to be rectified or to be watched. The object of the following observations, which are not intended to be controversial, is to call attention to points peculiar to the development of our new system which seem to deserve serious consideration.

The business of the Queen's Bench and of the Chancery Division of the High Court is a subject that is forced into importance by the list of arrears in both. The amalgamation of the ancient Queen's Bench, Exchequer and Common Pleas, into a single Queen's Bench Division, under a single Lord Chief Justice, was a measure adopted in the hopes of increasing the efficiency and rapidity of the despatch of legal business. During a substantial portion of the year a large number of the Queen's Bench Judges are withdrawn from London by the civil and criminal circuits of the country; and the provincial demand for their presence increases rather than declines. After a

general election still further interruption to the ordinary course of the High Court is occasioned by the election petitions; and the state of the cause list in November 1885 is such as to require either an addition to the number of Common Law Judges, or such an alteration in the machinery as will enable the present number of judges to get through the business in less time than now. The former remedy is obviously one to which resort should only be had if all other measures are destined to be ineffectual. Before adopting it, it will be necessary to decide whether any internal measures of arrangement can be devised by which the administration of justice can be made more rapid without diminishing its efficiency. With the view of concentrating our attention upon the right points it may be useful to consider what, speaking roughly, the business of the Queen's Bench is, and how the labour at present is distributed. The Queen's Bench Division discharges double functions. It is, in the first place, a tribunal of first instance where, with or without the assistance of juries, the great bulk of the Common Law litigation of the Superior Courts is brought to a final hearing. In the second place, it exercises functions of an appellate kind, being the Statutory Court of Appeal from the inferior courts of the kingdom generally, as well as the court which sets right miscarriages of justice after civil trials before a judge and jury. It is also a Court of Appeal from a judge at Chambers in interlocutory and other proceedings. Finally, it has original jurisdiction to deal with Habeas Corpus, prohibition, quo warranto, criminal information, and certain other matters that need not be enumerated. In order to discharge these duties it divides itself, when its numbers are complete, and when circuits or election petitions are not pending, nor the Old Bailey sitting, in the following manner:-Six judges devote themselves to the trial of causes with or without juries. One judge undertakes Judges' Chambers. The remainder constitute, when it is possible, three courts in Banc to dispose of the new trial paper, the appellate business of the Crown paper from Inferior Courts, the special cases and motions, including the appeals from the judge at Chambers.

The first question which naturally presents itself is the enquiry whether it would not be possible that the number of single Judge Courts which at present try Nisi Prius causes, might not be substantially increased from six to eight, or even-if need be-beyond this latter number. The only objection which has hitherto been raised to this obvious change is the absence of an adequate staff of officers to attend on more than six Nisi Prius Courts at once. If this is the real obstacle, it would scarcely appear to be one that should be allowed by a great country to stand in the way of

justice; and one may hope that the obstacle is destined in one way or another to disappear. But it is further plain that the additional judges required to preside over an increased number of Nisi Prius Courts must be drawn from the present Courts in Banc. This in course of time will necessarily involve the discussion of the subject of the present constitution of the Courts in Banc, with a view of considering whether any and what judges can be permanently spared from Banc to discharge the duties of Nisi Prius.

First and foremost comes a trenchant question, which sooner or later will have to be answered by the experienced in such matters. Need Courts in Banc ever be composed of a larger number than two judges; and if so, what is the description of business that calls for the presence of a third judge? It cannot be too clearly realised that every time a court of three sits in Banc, a judge is used for Banc purposes who, if a proper court and a proper staff of officers were furnished him, might be trying causes at Nisi Prius without juries.

In the second place it will be naturally asked whether there is any class of work that might be sent to the Court of Appeal direct, so as to relieve pro tanto the Queen's Bench lists. It has from time to time been suggested that motions for a new trial might be taken immediately by the Appeal Court.

In theory the plan appears excellent. It would substitute a single appeal for two appeals, and so far diminish the expenses of litigation. But the serious difficulty in the way of such a change arises from the grave doubt whether the Court of Appeal, though relieved of late from the necessity of going circuit, could possibly despatch the additional amount of business thus thrown upon its hands. As it is, the Court of Appeal sits every day in the legal year; and seldom or never rises, except on Saturdays, before four. Even with this incessant labour, the fatigue of which few who have not tried it can appreciate, it is all that the Appeal Court can do to stem the current of work that flows in upon it. During the last year 213 motions for a new trial were decided in the Queen's Bench Division, 39 only found their way upon appeal to the Appeal Court. It would appear to follow that if motions for new trials had gone directly to the Appeal Court in the first instance, that tribunal would have 200 additional causes, many of them of a very heavy kind, added to its list in a single year. I have no hesitation in saying that, constituted as it is at present, the Appeal Court is absolutely unable to cope with anything like such an influx of fresh business. The objection to severing the New Trial motions into those which involve, and those which do not involve, misdirection on a point of law,—and of relegating the former to the Appeal Court, while reserving the latter for the

Divisional Court in Banc, is that it is exceedingly difficult to separate law from fact, and that it often would be necessary to hear the whole case out, before deciding whether the question turned on a point of pure law or not. If any change is to be made by the Queen's Bench in the organisation of its affairs, it must be sought I fear in some other direction.

We turn next to the Crown Paper and Appeals from Inferior Courts, and find ourselves face to face with the obvious enquiry whether (with certain exceptions) the bulk of this appellate business requires a Court of two judges, or might not be satisfactorily disposed of by a single judge. The matter is one which appears to be eminently worth discussion. A similar enquiry presents itself as to the special paper. Appeals from Chambers, on the other hand, necessitate a Court composed of two judges, for a single judge cannot properly sit alone in review upon the decision of one of his own colleagues. Reasons similar to those I have mentioned with reference to new trials render it practically impossible that appeals from Chambers should pass immediately to the Court of Appeal. The proposal that a judge should sit in open Court, instead of at Chambers upon appeals from the Master-whatever its advantages or disadvantages in other respects-would entail a substantial increase in costs of litigation, unless solicitors' clerks who at present have audience in Chambers were accorded a similar privilege in open Court. All that can be perhaps usefully asserted in this paper is the belief that any steps that can be taken to increase substantially the number of Nisi Prius Courts, and to man them with judges drawn from Banc would effectually reduce and probably destroy the arrears of the Queen's Bench Division.

Some portion of the arrears in the metropolitan lists is naturally due to the compulsory absence upon circuit and upon election petitions of the Queen's Bench judges. With regard to election petitions, a needless susceptibility of the legislature demands that two judges should in each case be told off to perform labours that could with equal ease and efficiency be unquestionably performed by one. The circuit system can only be regarded as at present in a state of transition, and as destined to undergo still further change. A passion for permanent local centres of justice, with judges of the High Court to preside over them, seems to have taken hold of a part of the legal profession that is resident in Lancashire and perhaps elsewhere. What may happen in the remoter future cannot be predicted. But although too much attention cannot be bestowed upon the necessity of providing amply for the circuit wants of great provincial centres, in respect not only of the local trial of Common Law, but of Equity and Admiralty witness causes, it is not perhaps presumptuous to

doubt whether counties even like Lancashire do not wholly and absolutely overrate their own wants and their annual supply of business proper to be transacted in the superior courts. It would be barely possible perhaps to occupy a permanent High Court judge throughout the legal year in Lancashire; but it could only be done by directing upon the superior courts a mass of business that could equally well be litigated in the County Court-an expense to the suitors, and a waste of judicial power that means waste of public money. The truth is that there is an obvious reform in the circuit system, equally for the advantage of the suitors and of the bar, that never yet has been tried; the abolition, namely, of civil circuits at towns of faded importance, and the concentration of civil circuit business at a limited number of important provincial centres. Whenever a government is strong enough in the House of Commons; and whenever the state of business in the House of Commons permits of a measure to be passed that must encounter much local opposition, such a reform ought to be attempted. The recent changes in the administration of business upon circuit that have provoked criticism and displeasure, represent in no proper sense of the term the real opinion of the judges under whose auspices they have been tried. The only problem on which the judges have been permitted to exercise their ingenuity is how, without consolidating the civil business on circuit, or interfering with the vested rights of the smaller towns, to perform in the same place the same amount of work with a limited number of judges. They have had to make bricks without straw. A fewer number of circuit centres for civil business, each with a substantial list of causes, would be a benefit to the bar, and a great economy of judicial time. A change in the Long Vacation is sometimes spoken of as if it would diminish our arrears. While on the one hand the proposition that the Courts of Justice, unlike the temple of Janus, ought never to be closed, is in theory attractive; there is no subject about which there is more illusion prevalent. The judges of the land are not made of cast-iron; the judicial business of the country is performed by men who are no longer young; and having regard to the fact that it requires freshness and mental strength adequately to do justice to a difficult or complicated cause, the present writer is not prepared lightly to admit that lessening the present periods of vacation would operate beneficially to the suitors. But even if this is a partial view of the situation, and if it be true that the judges can work still harder than at present, the Long Vacation question is really outside this point. A fixed number of judges working at their utmost strength and speed can only perform a constant amount of work in the legal year. They must have some repose.