Cheaper Justice
By CLAUD MULLINS.
THE " New Procedure Rules " of the High Court, -11- published on May 2nd, will be a great encourage- ment to those who believe that the cost of legal proceedings
in this country is excessive and can be substantially reduced. The Rule Committee has gone beyond expectations and deserves much gratitude and credit for this result of its many months of arduous labour.
As from May 24th either plaintiff or defendant in the King's Bench Division of the High Court will, save in certain classes of actions which are ordinarily tried with a jury, be entitled to ask that the case may be conducted under the new Rules and, if this is conceded, great savings in money and time should result. Whether the new time-table for setting out the Written statements of the parties' cases will prove practicable remains to be seen, and it is perhaps unfortunate that these " pleadings "
will in all eases have to be-as full and detailed as before.' But the fact that within a week of the delivery of the
last pleading a judge will consider the whole of the issues between the parties and give all directions necessary for trial is a great step forward.
The success of the " New Procedure " wilt depend upon the policy adopted by the first judges to .whom the new lists are assigned. If they follow in the footsteps of their great predecessors who in 1895-established the Commercial Court, these valuable reforms will come about, which arc likely to react eventually *upon the whole work of our civil courts of law. But the fact cannot be forgotten that in the past valuable improvements in legal procedure have proved abortive because of the spirit in which they *re administered in the courts. 'Thus, in 1894, Par- liainent itself authorized the making of new rules for modifying the severity of our law of evidence—one of the main causes of expensive legal procedure—and, had this Act of that year been generously worked, the grumblings of the past years might have been considerably
less justified. But the Rule Committee of the- day made only one Rule under that Act and in 1916 that Rule was in effect sterilized by the unfortunate decision in Rainbow v. Kittoc. Happily there is no reason to expect that this precedent will be followed.
To achieve 'valuable results every new power given to the two judges in charge of the new list will need to be exercised to the full. Thus, strong judicial pressure will be needed against the trial of civil eases by jury and in favour of referring technical questions to a single technical expert, and of encouraging the parties to agree to limit their rights of appeal ; also these • judges will have ample opportunities to induce parties to make admissions of fact or of documents or, where this is not possible, to agree to a generous 'use of proof by affidavit (instead of by the costly and lengthy process of examination and cross-examination in court), and of the new power to limit the number of expert witnesses. The fixing of the day of trial will be an invaluable innovation, but will require the constant co-operation of the legal profession if it is to prove practicable.
But good as the " New Procedure " is. it cannot be accepted as putting an end to the criticisms of our machi nery for administering civil justice. The origin of the new rules lies in the report of the London Chamber of Colw merec, published in April, 1930. But in July, 1931 that enterprising body issued a second report, even better than the first, and the recommendations and grievances set out in that second report arc scarcely dealt with in the new rules. It was pointed out that cheaper procedure should be compulsory, not voluntary ; yet the new rules are only to operate if the parties ask for them. The Chamber pleaded also for a modification of the somewhat arbitrary rules by which counsels' fees have at present to be paid, for a system of a single appeal only instead of the two or more appeals now possible, and for a revision of the rules governing the payment of costs on appeals. Apart from these additional problems there are many others which need immediate attention.
First of all there is the condition of our private law, at present a jungle of isolated Acts of Parliament and of judicial decisions. While Attorney-General, Sir William Jowitt Once told a Guildhall audience that the task "'of codifying, or at any rate sitmlifying, some topics of our law . . . will not be overlooked." Are any plans on foot. to do this ? Then there is the problem of the cost of County Court litigation. At present :this falls heavily ou. the poorest classes of our population and only too often results in ruin or a denial of justice. .1n n table printedin my book, In Quest of Justice, I have shown what quite ordinary County Court disputes cost to-day, and only recently a County -Court judge has protested in public against these costs. An investigation into this problem is as urgent as has been the labour of the High Quirt Rnle Committee. Another change, and one particularly suited to a government whose watchword is economy: would affect the Long Vacation. In 1915 Lord Muir Mackenzie. then Permanent Secretary to the Lord Chancellor, told the Royal Commission on the Civil Service " I have never Concealed the opinion that I consider the Long Vacation ridiculous." The late Lord Haldane and Lord Darling and others have also pleaded for this reform, It is difficult to see any justification in these days for letting the ordinary machinery of the High Court sleep for ten weeks every summer. These and many other problems need to be considered.
In 1871 Sir William Harcourt wrote the caustic words : • " You might just as well expect a man to lift himself up in a basket as ask the lawyers by themselves to reform the law. It is the public who must lift up the basket with thi: lawyers in it." Despite the record of lawyers in the past on questions of legal reform, we need never despair of getting substantial reforms by the good will and labour of judges, barristers and solicitors. The New Procedure in the High Court is an example of what can be done in this way. To Lord Sankey, who set the ball rolling when the London Chamber of Commerce approached him, lasting credit is due for this achievement. Those of us who believe that further and even bigger reforms .arc needed have every reason to hope that his energies as a Law Reformer are not yet exhausted.
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