3 SEPTEMBER 1881, Page 9

LITIGATION AS IT IS.

THE announcement, made some months ago, that the Lord Chancellor had appointed a Committee to suggest a simpler form of procedure, aroused very little interest outside the legal profession. The public are accustomed to look upon litigation as, at the best, a necessary evil, and have been taught by experience to regard all schemes of reform as predestined to failure. It is a misfortune that it should be so, inasmuch as the only hope of substantial improvement lies in the growth of a demand from outside for cheap and expeditious justice. We believe that the indifference which undoubtedly exists is very largely due to ignorance of the monstrous character of our present system, and that if the almost childish fashion in which litigation is carried on in England were once thoroughly understood, the business-like instincts of the nation would not be long in asserting themselves, and insisting upon a thorough- going change. We propose, therefore, to-day to give, in as few words as possible, what we may call the natural history of an action-at-law.

Let us take, by way of illustration, a very simple case of every-day occurrence. A builder contracts with a gentleman to build him a house for a lump sum, subject to such extras and omissions as may be ordered in the course of the work. The house is built, but the chimneys smoke, or the walls are damp, or, still worse, the sewer-gas obstinately refuses to pursue a downward course. Moreover, when the builder's bill comes in, it is found to exceed the contract price by an unpleas- antly large sum. The parties refuse to come to terms, and, after a good deal of preliminary and not inexpensive skirmishing between the solicitors, the builder commences an action. His first step is to issue a writ, upon which the main items of his claim are indorsed. After this has been served, the plaintiff takes out a summons, calling upon the defendant to show cause why immediate judgment should not be given against. him. Counsel are instructed on both sides, and the summons is then heard in Chambers before a Master who, having satisfied himself that there is a bond fide dispute, gives the defendant leave to defend. The plaintiff, then, almost as a matter of course,. appeals to the Judge in Chambers, who, again, after hearing coun- sel, confirms the Master's decision. Very commonly there is a further appeal to a Divisional Court, and if the plaintiff is still un- successful, he may resort to the Court of Appeal. In these four- applications the best part of a month may be wasted, and eight sets of counsels' and solicitors' costs incurred, with the result that the parties are at the end precisely where they were at the beginning. The next step is for the plaintiff to deliver a written . statement of his claim ; this is called, in technical language, "the beginning of the pleadings," and although, in such a case as we are supposing, a very simple matter, it is tradition- ally regarded as too difficult for the unaided intelligence of a solicitor, and is almost invariably intrusted to counsel. It is now the defendant's turn to take up the game, and- develope his counter-attack. His solicitor or counsel discovers that the plaintiff's statement of claim is either too long or too short, too vague or too rambling,—that, in a word, it possesses some defect, not perhaps easy to define, but suffi, ciently grave to bring it within the comprehensive sweep of the term "embarrassing." A summons is accordingly taken out at his instance, calling upon the plaintiff to amend or give particulars of his pleading. This is argued in the manner already described before a Master in Chambers, from whose decision there are, as before, open to the disappointed party three successive stages of appeal, and it is by no means uncommon for matters of this kind to be carried up to the Court of Appeal.

Whether the defendant succeeds or fails in getting his opponent's pleading amended, it now becomes his duty to deliver a written statement of his own case. In the preparation of this document there is liberal scope for the exercise of a perverse ingenuity. The contract between the plaintiff and defendant is in writing, and each party has a. copy in his possession. Nevertheless, the defendant "refuses to admit" that any such contract was ever made. The extras sued for were ordered by him, yet he denies that they were done "at his request, or at all." He then proceeds to- allege that "if the work was done at all, which he denies," it was done unekilfully, and is not of the value charged • and, not improbably, in order to make himself perfectly safe, he raises a counter claim for damages, founded upon a hypothe- tical admission of the very contract whose existence he has in the earlier part of his pleading declined to acknowlege. In this way the real issue between the parties—which relates solely to the quality of three or four items ia. the work actually done—is embedded in a mass of irre- levant matter, as to which there is no dispute, but which is deliberately added, in order to widen the ground which the plaintiff's technical proof must cover, and so increase the chances of tripping him up. Thus the venerable ars placitandi, in defiance alike of Judicature Acts and the com- mon-sense of mankind, continues to flourish in a green old age ; it is still true, as it was in the days of Lord Coke, that "more jangling and questions grow upon the matter of pleading than upon the matter itself ;" and the "Sons of Zeruiah," who were recognised even by Oliver Crom- well as formidable antagonists, are far more than a match for the feebler law reformers of the present day. But, to proceed, it is obvious that the statement of defence, con- structed, as it is, with the express view of perplexing the plaintiff, is much more likely to be " embarrassing " than the statement of claim. Accordingly, applications on the part of the plaintiff that it may be ordered to be amended are very frequent, and find their way, in considerable numbers, by the circuitous route already indicated to the Court of Appeal.

Let us pause here to inquire what progress has, up to this point, been made in our imaginary action. At least two months' of bard, though underground, fighting have been got through, and the costs incurred cannot well be less than £100 a side. What is there to show for it all? The supposed object of pleading is to define clearly, the issues to be tried. But the parties knew perfectly well from the first moment what they were disputing about, and the effect, and indeed, to some extent, the intention of their pleadings, is simply to raise a cloud of dust. The net result, therefore, is, that after all this time and money has been spent, that which was at first clear and intelligible has become confused and entangled. Now begins the first really helpful proceeding in the action. Each party obtains an order requiring the other to disclose, on oath, all documents which are or have been in his possession bearing upon the matter in controversy. The object of this step is, first to find out, and then to get inspection of, the letters, accounts, reports, and other written matter which were in existence before the dispute arose, and which are often decisive of the merits, in such an action as we have sup- posed. Unfortunately, it is only too often the occasion for another barren and costly contest. One of the parties makes an affidavit of documents which his opponent believes to be nneandid and insufficient. Or he refuses to produce, on the ground that they are confidential communications, and there- fore privileged, documents which there is reason to suspect that he ought to disclose. The law upon these points is full of refined distinctions, and not altogether settled, and in a case of any difficulty the conflict is tenaciously pursued up to the Court of Appeal. The next step, also a very useful one, is to administer written interrogatories, directed to the main matters in dispute. Inasmuch as a written answer can be concocted at leisure, this proceeding is not to be compared with vivd voce examination, as a means of ascertaining the truth. But the answers have to be given upon oath, and they have often, therefore, if the questions are properly framed, the valuable result of causing a whole fabric of imaginary claims and sham defences with which the pleader has buttressed up the case to crumble to the ground. But here, again, the law as to what may be asked and what must be answered is far from clear, and interrogatories not -uncommonly give rise to a fresh crop of summonses and appeals.

After some other proceedings of minor importance, the action is at last ripe for trial. It is put down in the list, and after waiting for a couple of months or more, it comes on before a Judge and Jury at Westminster. The solicitors are there each in charge of a body of witnesses ; a Queen's Counsel, and a junior appear upon both sides ; and the farce of "opening the pleadings" having been duly performed, the plaintiff's leader proceeds to open his case. Before he has advanced beyond the threshold of his statement, he is pulled up by an intimation from the Bench that the action, involving as it does matters of account and questions of good or bad workmanship, cannot pos- sibly be tried by a jury, and must be referred to arbitration. The counsel upon both sides regretfully acknowledge that this is true. The Judge offers them their choice between that last product of misguided legislation, an official referee, and a private arbitrator. If they are wise, they choose the latter. To the uninitiated, this sudden collapse has the air of an unforeseen calamity, and the parties to the action, if it is their first experience of litigation, complain loudly that they should have been put to so much fruitless expense and delay. But to the chief actors in the little comedy, the whole thing is a hackneyed story. From the moment that the action was begun, the solicitors on both sides either knew or ought to have known that this would be the result. The counsel who drew the pleadings foresaw and perhaps predicted it. The experienced leader, who opened the case with such dignified gravity, had not turned over two pages of his brief, before his instinct led him to the same conclusion. There is no reason for imputing sinister motives to any of these learned persons ; they are the victims of a system which they have not themselves created. We need not follow in detail the further history of the case. The costs of the trial, including the expense of counsel, solicitors, and witnesses, are thrown away. An arbitrator is appointed ; fresh briefs are delivered ; the witnesses are resummoned from time to time, according as the arbitrator finds it convenient to sit ; and the parties are extremely lucky if the whole sum in dispute is not more than absorbed in further costs.

We have not drawn a fancy picture, norhave we exaggerated any of its main features. It is true that some of the summonses and appeals which we have enumerated are often omitted, that pleadings are occasionally confined to the real issue, and that the good-sense of the solicitors sometimes brings about a reference at an earlier stage. But on the other hand, there are proceedings, such as demurrers, motions to set aside awards, and applications to apportion costs, which are of frequent occurrence, and which we have not described. The whole thing is eminently illustrative of one side of the English character. Just as our criminal procedure has been fairly enough described as a hunt, in which the victim is allowed a good start and every chance, so our civil procedure may be described as a game of skill, in which each side is expected to resort to every manceuvre, and to avail itself of every advan- tage which is consistent with fair-play and the rules of the game. We have tried to-day to give some idea of litigation . as it is. On a future occasion, we hope to say something of litigation as it ought to be.