THE OPPRESSION OF APPEALS.
" yOr will be very sorry you have won this case by the time you get to the House of Lords." Such were the words addressed by the solicitor of the East London Waterworks Company on Wednesday last to an owner of houses who had got the Company fined for having, as the Magistrate held, broken the law in refusing to supply his houses with water. Against the Magistrate's decision the Company at once announced their determination to appeal, and their legal adviser, in the language we have quoted, declared their intention to drag the litigant unfortunate enough to have been successful, through all the Courts in the 'Kingdom. We have no desire, in the case we have quoted as an example, to take one side or the other. It may be that the Company acted illegally. It may be, on the other hand, that the Magistrate's law was clearly bad, and that there were real and strong reasons for taking the opinion of a superior Court. The mere act of appealing is not one which in itself we should in any sense hold it right to describe as oppressive. It is only when a policy of appealing against all decisions, whether right or wrong, is adopted by rich and influential corporations openly, and in order to intimidate persons who may enter into litigation with them, that it is to be condemned as a gross abuse of power and wealth. We do not know whether this is the policy of the East London Waterworks Company, though if it is not, the language of their solicitor should be censured by the Board ; but it is certainly the policy of a great number of the large corporations which serve public needs. They always fight, and they always appeal every case, however hopeless. If we are to be worried,' argue the Companies, by every aggrieved individual with whom we have to deal, we shall never be able to do good business. We must, then, cost us what it may, in the case of an obstinate man, let the public know that if they fight us, we will never allow them to win anything but Pyrrhic victories, and that our invariable rule is to take even the plainest cases to the House of Lords,—a place which the ordinary litigant, though he is successful at every stage, cannot reach without being £400 or £500 out of pocket.' In a word, the Companies say, and take care to say as openly as possible in order that the public shall labour under no mistake,— ' Go to law with us if you like ; but if you do, we will certainly fine you £400 for your rebellion against our authority.' The public, of course, knows this deliberate policy well enough, and knows, besides, that there are very potent forces at work to compel its being carried into effect. Either the Company agrees with a firm of solicitors to do all its work at so much a year, in which case the Directors have, of course, no scruple in ordering an appeal, or else the solicitors are paid by the piece, and there- fore, naturally enough, have a strong temptation towards advising action which will tend towards always " keeping something moving." The individual, in fact, dares not go to law with a Company unless it is a question of personal injury in an accident, when the Law Courts are certainly not pleasant places for the Companies, or unless there is some large amount of property involved, for he has always in his mind the threat of the House of Lords. Cases have been heard of in which Companies from whom satisfac- tion has been demanded by men notoriously unable to pay law-costs—such as squires with depressed estates —have bluntly brought down the sledge-hammer of the House of Lords in the very first negotiations, and their solicitors have let it be known at once that nothing would suit them better than a case which should go first before the Magistrates, then before a Judge of the Queen's Bench Division, next before a Divisional Court, then before the Court of Appeal, and lastly before the House of Lords. Naturally, the poor man, possessed with that dread of law- costs which poor men often feel beyond the reality, throws up his claim at once, and says,—' I had better submit to be done out of £20 by the Company, than have the anxiety of such a law case, coupled with the certainty, even if I win, of being £400 out of pocket at the end.' It is, then, when appeals are warped from their legitimate uses and employed to stamp out litigation, and to make any man rash enough to go to law with a Company a warning to others, that we consider there is no exaggeration and no injustice in speaking of the oppression of appeals.
But though it is easy enough to wax indignant against a system preventing poor litigants from obtaining their rights at law by threats of the House of Lords, it is by no means easy to find a remedy for the wrong. Because our appeal system acts badly in this particular instance, it would be extremely unwise to condemn it altogether. In the case of ordinary litigation, we believe it acts fairly enough, and is, on the whole, what is wanted by the suitors ; though, no doubt, the Divisional Courts might be with advantage abolished, and appeals in the Queen's Bench Division carried straight to the Court of Appeal, as in the Chancery Division. The arguments for appeals are, in truth, exceedingly strong, from whatever side regarded. In the first place, certain questions of law require a very great deal of sifting; and if, as in the Chancery Division, a very complicated case begins before one Judge, and is next heard, if his decision is not accepted as satisfactory, by three Judges, and finally, if either suitor still presses for a further rehearing, by the House of Lords, it cannot really be said that the appealing has been overdone, or that the case has been sifted with greater care than necessary. Then, too, appeals have a most important use in keeping our system of justice uniform. If there were no appeals from the decisions of the twenty-two Judges of first instance, we should in time have something like twenty- two different systems of law administered in our Courts. As it is, however, the prospect of reversal above makes the Judges unconsciously keep in line, and prevents the grave scandals and difficulties which would arise could it be said with any truth that Mr. Justice Blank had got into the habit of always deciding in favour of landlords, and Mr. Justice So-and-So in favour of tenants. The Court of Appeal keeps the Judges out of grooves, and the House of Lords produces homogeneity between the two divisions of the Court of Appeal. Thus the adminis- tration of the law in England is kept as far as possible uniform, and uniformity here is of the greatest importance, for it allows a lawyer to advise his client with something very near certainty as to what he may legally do or abstain from doing under given circumstances. In a word, it makes the law certain. We cannot, then, cut down appeals in order to prevent their misuse by powerful liti- gants oppressively inclined. But is there no other plan ? Might it not be enacted that in cases of litigation arising between a private individual and a public Company or other corporate body, the private person, if successful in any superior Court, might, if he liked, defend an appeal against such decision in his favour in forma pauperis, the rule as to the suitor not being worth £5 beyond his wearing apparel being, of course, abrogated ? Such a course would inflict no hardship on the Company, and the individual, even if he lost through his case being badly conducted, would not, at any rate, be fined for having dared to try and hold a judgment in his own favour. No doubt, suing in forma pauperis, except occasionally in the Divorce Court, is now a mere survival. Still, it seems to us that it might be usefully revived in the way we have indicated. If, however, such a plan should be pronounced unworkable by those who have practical experience of the Courts. would it not be possible to enact that the House of Lords and the Court of Appeal should, in cases where a judgment obtained by a private litigant had been unsuccessfully appealed against by a public Company, order the payment of double costs by such Company? We are aware that the policy of punishing vexatious actions by double or treble costs was done away with by the Statute 5 and 6 Vie., c. 97 ; but we do not feel sure that in cases where Companies deliberately misuse the right of appeal to crush the assertion of their rights by private individuals, some such system would not be useful. The whole matter has, at any rate, become well deserving of attention when Companies openly tell those who beat them in the Courts, that they will repent the victory.
Before leaving the subject, we must say one word in apology for our distinction between Companies and private individuals. No doubt private individuals fighting among themselves occasionally make an oppressive use of the power of appeal. As a rule, however, such action does not take place. All private individuals, however rich, feel the worry of going to law, and exaggerate their loss in costs. A Company, however, has no such salutary sentimental check upon its litigiousness. A thousand pounds in costs more or less makes absolutely no mark on the dividend, and the Directors would far rather lose them than get a name for knuckling under. The consequences are that Companies need restraint in the way of litigation, and in an oppressive use of appeals, which in the individual is provided in other ways. There is a real difference between the way in which the most arbitrary individual acts, and the action of a Company. It is to restrain, if possible, the crushing weight of the Companies' dead hand in liti- gation that we desire a change. It may be we have failed to suggest any outline of the way in which the difficulty can be met, but we do not therefore feel in the least dis- posed to believe that the matter is one for which there is no remedy whatever to be found.
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