23 JANUARY 1892, Page 9


WHEN newspapers like the Times and the Daily Telegraph write as they wrote on Tuesday last a propos of the Council of Judges, it is evident that the dissatisfaction felt with regard to our legal system is deep and widespread. The great dailies are by tradition and

choice very much inclined to represent the views of the

leading members of the legal profession, and would never write in such an uncompromising vein of censure of our whole judicial arrangements, unless they felt that public feeling on the matter was keen. With the complaints that are being made as to the conduct of business in the Law Courts, we are ourselves in general sympathy. The administration of civil business in our Courts is in- tolerably slow, costly, and vexatious. It is, indeed, impossible to doubt that the men who openly de- clare that it is better to submit to any injustice and extortion than to try and get justice in a Court of Law, have reason on their side. But though we look upon our present system as in need of thorough and immediate reform, we cannot but protest against the unfairness of talking as if it were the Judges who were mainly, if not entirely, responsible for the existing evils. We admit that the Judges have not been as vigilant as they might have been in stopping inconveniences before they festered into grave scandals, and that they have not sufficiently made it their duty to expedite the work of justice. They have too much assumed the position that if they do indifferent justice on the particular matter that has struggled into Court, they have nothing more to think about. Some of them, again, have no doubt been unwise in showing too great a tendency to leave off their work punctually, though no tendency to rigid punctuality has been visible in the opening of the Courts. The arrangements for the meeting of the Council of Judges this week, have been typical of this tone of in- difference in regard to the value of judicial time. The sittings of some twenty Courts were altogether sus- pended on Monday, and thus some twenty causes left undecided which might have been decided, merely in order that the Judges might meet in the morning. The Courts do not sit for more than, say, two hundred whole days in the year, and to begin by wasting one of these was, therefore, not a very practical way of getting rid of arrears. To stop work in order to discuss the block in the Courts was, in appearance at any rate, more like the Judges of the Island of Laputa than of England. But though there are many small matters in which the Judges might show their desire to expedite legal business, it is primarily on Parliament that the blame rests. 'Where is -the power, there is the responsi- bility. The Judges are, after all, only executive officers, and if the system of judicial administration of which they form a part is faulty, the blame of not providing a remedy is not theirs. They have no power to amend the law or the procedure of the Courts, and are powerless to deal effectively either with arrears of business or with the con- stitution of the Appeal Courts. It is on the Legislature, and not on the Judges, that the blame of allowing the present state of things to continue must rest. To show that this is so, one has only to turn to the list of matters discussed at the Council of Judges. Whatever the decisions arrived at, they will, except as regards a few minor details, require Parliamentary action before they can be carried out.

The chief complaints against our present system are that it is slow and costly. That is, that litigants have to wait an indefinite time before their causes are heard, and that, when a final decision is arrived at, the total cost is usually found to be out of all proportion to the pecuniary interests involved. In other words, a man when wronged by his neighbour, and anxious to appeal to the Courts to do him right, is confronted with the facts,—first, that if he gets justice done him, it will be after a delay which will be troublesome and vexatious in a high degree ; and secondly, that it will only be after an expenditure of a sum of money the loss of which will be far greater than the pecuniary redress he seeks. 'Under these circum- stances, what is the remedy ? In the first place, let us deal with the question of delay ? It would be, of course, absurd to expect that the very day after a. dispute has arisen over a contract, the two disputants should be able to go before a Judge and have their quarrel settled off-hand. Such a cadi-under-the-palm-tree form of distributing justice cannot be expected under the com- plicated conditions of modern life. There is, however, no sort of reason why civil actions should not be settled as quickly as criminal causes, which, to the great credit of English law, are invariably decided within two or three months of the beginning of proceedings. It is the first principle of English justice that no person accused of crime shall go untried for practically any longer time than is necessary to get the machinery of justice into operation. But if this can be done in criminal cases, why not in civil ? The answer is, that theoretically it can, and that it is mainly owing to the arrears of business that such enormous delays take place before a. contested suit can be tried. It is the arrears that are often responsible for the law's delay. But what is the meaning of arrears, and of a long- waiting list ? The arrears are due to the effort to get, say, three hundred cases heard a year by a Court which cannot manage at the most to hear more than two hundred. It is the attempt over again to drive six coaches abreast through Temple Bar. But this being so, the first and most important thing to do is to appoint a staff of Judges sufficiently large to cope with the whole of the judicial business, and to keep down the arrears. There ought to be enough Judges to make it possible to institute a custom that no case ready for trial, say, before July 1st, should in any of the Courts be adjourned over the Long Vacation. This is the only possible way of preventing the accumulation of arrears. There must, in fact, be a sort of civil gaol-delivery before the Courts rise for the summer vacation. We are not among those who think that men can do such anxious or responsible work as that involved in trying actions at law without holidays, and we do not for a moment grudge the Judges the Long Vacation. If, however, there were a sufficient number of Judges, it would be easy enough to arrange that the Long Vacation should not be interfered with. If it appeared that the completion of the quasi- gaol-delivery we recommend would in any particular year cause the Courts to sit more than a day or so beyond the proper time for rising, the Lord Chancellor should be able to name Commissioners—as is done on circuit —to assist the Judges in clearing off the arrears. This plan should, of course, be resorted to as little as possible, as it is far better that the staff of Judges should, under normal conditions, be able to deal with the whole work of each year. Under exceptional cir- cumstances, however, a reserve power of this kind might prove most valuable. But though the delays of the law would be enormously decreased by the em- ployment of a sufficient number of Judges to do the work, there is yet another cause of delay, very serious, and very vexatious to suitors, which would not be touched thereby,—that is, the multiplicity of appeals. Actions nowadays bristle with appeals. There are appeals on points of procedure from the Master to the Judge, from the Judge to a Divisional Court, from a Divisional Court to the Court of Appeal, and from the Court of Appeal to the House of Lords. And when these are done, come the appeals on the main issue, which, as we know, still more frequently run to the House of Lords. When the Judicature Act was passed, it will be remembered that it was intended that there should be but one Court of Appeal, and that its decisions should be final. Ultimately, however, a new Court of Appeal was formed out of the Law Lords, and in the Queen's Bench Division the Divisional Courts were still allowed to sit. Thus, in effect, the Judicature Act for many purposes only added one more appeal to those already existing. That these appeals should be diminished, we cannot doubt. We would not do away with the House of Lords as a Court, for it unquestionably is an advantage that there should be one Supreme Court for the whole United Kingdom, and that in that way a certain unity of judicial policy should be maintained. We would, however, abolish at once and for ever Divisional Courts, and would only allow appeals from the Court of Appeal to the House of Lords, either when the Court of Appeal had differed from the Court below, or when the Court of Appeal allowed an appeal on the ground that a specially important point of law was involved. By this means, it would be possible to greatly abate the nuisance of appeals, and in ordinary cases there would be but one appeal. The question of interlocutory appeals is a more difficult one. It has sometimes been proposed to prevent their ever going beyond the Judge in Chambers ; but considering the occa- sional great importance of these apparently minor details in an action, that would perhaps be too drastic a measure. There can be no doubt, however, that many of these appli- cations could very properly be left to the final decision of the Master. Others, perhaps, could hardly be dealt with so summarily. The question of cost to some extent doubtless depends upon the question of delay. If actions were quicker over, they would be far less costly. The main part of the costliness of litigation is due, however, to the desire of suitors to engage particular counsel. This it is as evidently beyond the power of the Judges or Parliament to stop as it is to decrease the amount of doctors' bills. It is not the Court fees, but the sums paid to solicitors and counsel, which make litigation so expensive. If suitors will insist on having Sir Charles Russell or Sir Richard Webster as their counsel, they must pay for their fancy, just as they must pay for having Sir Andrew Clark to visit them when they are ill, or Sir Henry Thompson or Sir Joseph Lister to operate on them when they need surgical aid. If suitors want cheap litigation, let them tell their solicitors that they will only have one counsel, and that he must be a barrister who will not expect a large fee. In all probability their cases will not suffer by the want of silk,—provided, that is, that the counsel engaged is not merely the nephew of the solicitor's wife. With the whining about the high fees paid to leading counsel, we have not, therefore, much sympathy. If people were to refuse to employ counsel whose fees they thought too high, the remedy would be provided. While, however,. they are ready to pay high fees, it would be as foolish of leading counsel not to take them, as of a leading Royal Academician not to ask a hundred pounds for every square foot of canvas he covers. What, then, the Judges have chiefly to consider is, how to get Parliament to create enough Judges to prevent arrears, and how to curtail appeals. The attempts to coax back commercial cases to the Courts do not appear to us of great importance. Pro- bably arbitrators who are experts, and who not only understand but are allowed to act upon the customary codes of each particular trade, form really better tribunals than the Judges. In any case, if the commercial men are content with arbitration, there is no great harm done. There is, however, one other matter of importance which we cannot but believe the Judges will consider,—the ques- tion of cross-examination. If they are able to arrive at a common policy in regard to forensic bullying, they will do a great deal to win back that popular confidence in our Courts of Law which, unhappily, has somewhat declined during the past few years. Unquestionably it is difficult just now to persuade " the plain man " that the Law is not simply and solely a gigantic engine of oppression, the only virtue of which is that it is not corrupt. That is a very untrue as well as a very disastrous mental atti- tude, and the Judges, as far as they may, will do well to show the public that they are anxious for reform.