COURTS AND THE WAR
By AMBROSE HOOPINGTON
SOME twenty years ago men who had just been called to the bar were apt to say cynically that nothing but another war would ever get them a practice. The remark was prompted by seeing most of the work in the hands of youngish men who had conspicuously not served in the Forces and had flourished accord- ingly. It is fair to barristers to say that the present war, when it came, was not hailed by them with enthusiasm, and anyone who looked forward to it as a means of enriching himself must have been disappointed. The war has brought a slump rather than a boom in litigation. Though the number of barristers available is greatly reduced, not many of them are flourishing, and the few who are busy are mostly engaged in cases of no great magnitude. It is true that some branches of the law are still fairly active. It is generally said that there it plenty of work on circuit, though not in London. It may be that the evacuation of London early in the war—in which the Judges creditably refused to take part—had some effect in moving work out, but for the most part the work which keeps the Judges of Assize busy is not high-grade litigation. It is the kind of business which is bound to arise when numbers of young soldiers are encamped in a strange locality with time on their hands—crime, both sexual and otherwise, and divorces. There are also criminal cases arising out of the home front—particularly black market prosecutions and other breaches of the Defence Regulations. Similar work is to be had in London also, but as legal work there is more specialised, it does not affect the ordinary common law barrister or fill the ordinary law courts. But no one could complain that the London criminal courts are slack and the amount of divorce is terrific. In all factory areas there is a dis- tressingly large number of cases arising out of factory accidents, for in war-time conditions machinery is old and the operators are new to it.
It is easy to account for the absence of many types of work. The Prize Court which was a feature of the last war is non-existent, partly from chanps in policy, partly because there are no neutral countries between England and Germany. Running down cases, which provided a large portion of pre-war litigation, have decreased with the number of cars on the roads. Breach of promise and libel actions are also at a discount ; they flourished largely on newspaper publicity, so there is less reason now for bringing them, and the absence of a jury has also a damping effect. It may also be hoped that those who took part in this racket have something more useful to do. Cases between landlord and tenant, at any rate so far as the County Court is concerned, have almost come to an end, for the landlord knows it is hopeless. And, of course, all cases are impeded by the difficulty of securing witnesses, who may be fighting in Italy or prisoners of war in the Far East.
But something beyond these partial causes is required to explain the present slump. The main fact is that this war, unlike the last, is being fought on deflationary lines. So far as the direct effect on the law is concerned, the military service tribunals which provided so much legal work in the last war never came into being ; enemy aliens also were not allowed to be legally represented at their tribunals ; and the whole r8B procedure is designed to cut out lawyers. The same applies to Government action under other Defence Regulations. It is all part of a process by which the State—one hopes, only temporarily—has gone totalitarian. The cases in which an attempt has been made to question State control have been comparatively few and ineffective. The same process is at work higher up, to nip litigation in the bud. It is irrelevant that actions may still be brought on contracts, if contracts arc so strictly controlled by the State that there is nothing to litigate about. In other words, for the lawyers, as for many other classes who flourished twenty-five years ago, State control was in this war imposed too soon. There has not been the same rapid rise in prices encouraging everyone to break his contract and trust that the war provides him with an excuse for doing so. Those who try to make a real profit out of it become not mere profiteers but black marketers, and find themselves in the dock if they are caught.
Solicitors are extremely busy. This is not inconsistent with an absence of litigation. To some extent it is even a cause of it. The average respectable solicitor only lets his client go to law when it is inevitable. A case in Court is a casual interlude in a business which consists of conveying property and drafting deeds, winding-up estates and managing trusts. This kind of work is not lessened by the war, and it has to be carried on with a greatly reduced staff. Many solicitors now carrying on fairly good practices, with no one but girl typists to help them, find themselves compelled to refuse to undertake work, particularly if it means conducting litigation. In some cases their client may go elsewhere, but more probably the action is dropped or is settled on any terms to avoid the trouble.
And that brings one to what is perhaps, after all, the principal reason for the dearth of litigation—the psychological one. In the last war the majority of solicitors and most of their important clients had been brought up in the Victorian tradition to think of war as something utterly alien to them. Moreover, the fighting was at some distance from their doors. Their natural instinct was to carry on much as they ha3 done in peace-time and treat the war-time boom, just like any other boom, as an opportunity for making money. Nowadays the average solicitor is a man who served in the first German war or, even it he was exempted from the actual fighting, has grown up with the idea that a war is an event which interferes with normal life and is more important even than legal business. He may quite well have given up practice altogether and taken some Government job. But even if he has not done this, he accepts the fact that conditions are not normal ; he makes no great effort to stop his empl_oyees going to this war, as he himself went to the last war ; and he is prepared to advise his clients that in war conditions they must expect to put up with some injustice, and, indeed, he will feel some patriotic hesitation in starting litigation with the war going on.
It may be added that there is probably less litigation now thin there was a year ago. This is easily intelligible. A year ago people had got used to the war, and were beginning to carry on their affairs on an accepted war basis. Now victory seems at last to be within sight, and everyone is letting his cases wait till after it is all over.
Previous page
