Letter of the Law
Hard Cases
By R. A. CLINE ARECENT issue of that handy and under- rated compendium, the All England Law Reports, includes three judgments with the most diverse kind of facts, but having one notable quality in common.
In the first case, a husband who was divorced from his wife in 1954 had been ordered to pay weekly sums by way of maintenance to the Court Collecting Officer on her behalf. In 1957 he went to live in Ecuador, and later in that year the wife re-married without informing either him or the Collecting Officer, who continued to receive pay- ments from the husband which the wife ceased to collect. When, in 1959, the re-marriage was dis- covered by the husband and the maintenance order stopped, it was held by the High Court (reversing the magistrates' decision) that the husband could not recover from the Collecting Officer the remittances which he had inadvertently paid since the re-marriage, but they must all be handed on to the wife.
The second case concerned the 'interim income' which was paid to colliery companies after nation- alisation, pending compensation in full. In this instance the amounts related altogether to four' and a half years, but were actually paid during the last three. The House of Lords held (Lord Radcliffe dissenting) that for tax purposes they could not be spread over the years to which they admittedly related, but must be taxed as they were paid, the result being that a much higher tax liability was incurred to the Treasury, although another Government department (the Ministry of Fuel) had been responsible for the timing of the payments.
In the third case, the Court of Appeal held unanimously that the London Library was not entitled to exemption from rates, among other reasons because 'it was not instituted exclusively for the purposes of literature.'
The connection between these three decisions is that to the ordinary citizen they will all appear to be lamentably unfair. Judges swear on appoint- ment to do justice (first) according to law (second) —as Lord Denning has on occasion reminded their Lordships, not to their pleasure. But it- is unnecessary to be as brash as Lord Denning some- times is. Such are the complications of the law that great judges of the past, like Lord Justice Scrutton, have managed to do good by stealth and the ingenious manipulation of precedent. Others, like Lord Atkin, have spoken boldly out. And there used to be enough juries in civil actions (the lay magistrates, in the first case quoted, had proper jurymen's ideas).
The answer usually given to this kind of corn- plaint is that Hard Cases make Bad Law, but this saying can be, and is being, carried altogether too far. Bad Law, equally, makes Hard Cases.
The law's delays have become a serious prob- lem in the London magistrates' courts. The con- gestion of traffic outside the court is matched only by the congestion within. One of the worst fea- tures of the_ situation is that it is now a common experience for an accused man to attend at the Court with his solicitor and barrister (if there is one), to spend an entire morning awaiting the moment of trial and to leave the court at lunch time, his summons not having been reached in the magistrate's list and the case having been remanded to a later date. This embittering exper- ience may recur on as many as three or four occasions before the case at last conies on for hearing. No one will ever know the cost of these fruitless outings in loss of working time, lawyers' fees—though in most cases the lawyers have to waive their fees—and so on.
The Lord Chancellor has now called upon Lon- don magistrates to put in some overtime. When traffic in divorces became similarly congested, commissioners were appointed to help the judges. Is there any reason, apart from false economy, against resorting to a similar expedient in the courts of summary jurisdiction?
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