IS LAW FOR THE PEOPLE OR FOR

THE LAWYERS?

Difficult to sweep the intricate foul chimneys of law.-CARLYLE. THE imaginary difficulties that are unfairly pictured as arising in the way of a genuine reform of the practice and procedure of our Law Courts are sufficient to embarrass the lay mind. It is not surprising that many of His Majesty's subjects who are not lawyers are led, in desperation, to believe that there would be cheaper justice if we returned to the rule of the Roman Emperors, and our King-Emperor could set in motion the whole legislative power, at any rate for this purpose. Any one who ventures to attack the present system must be prepared to meet with more strenuous opposition of a direct, and particularly of an indirect, nature than in any other branch of life from those who are most conscious of, or are satisfied with, old evils, and from those who will not trouble to consider the matter in any other light than their own. The subject is one that has been discussed by many writers during the past half-century. I do not think that it has been approached by a lawyer solely from the people's point of view. If a man directs his attention to the profession of the law, but consistently keeps the interests of the public at all times in mind, he must be continually driven to entertain the unpleasant sentiment that our system is one that is still too flexible, and too easily put to uses that cause an unnecessary and unfair sacrifice of the savings of the community.

During the Victorian era, some of the useless expenses that were incurred over pure matters of form have been rendered impossible. But the great duty of the State to the people has not been performed, and the crowning work has been left for the present time. The procedure in our Courts and the form of our law have yet to be rendered simple, intelligible, and useful. History has shown a series of steps from time to time, always taken grudgingly and just sufficient to stifle the popular cry, but never providing the true reforms that the community have a right to demand. When we look at the enormous progress in every branch of science, and in the social, commercial, and industrial world, it is an unpleasant thing to be compelled to

confess that lawyers have not conscientiously attempted to keep pace with the times. Many will at once refer to the Judicature Acts and Rules. Although one of the steps in the right direction, they are emphatically a distinct failure in some important points, and particularly as regards the satisfactory reduction of the expense of litigation. Inefficacious in this respect, they are also, from a broad point of view, detrimental to the interests of the lawyers themselves. The weight has not been taken off the more modest litigants' back because the load has been shifted.

It must be admitted by every one that a cheaper form of procedure somehow or other must ex necessitate rei be introduced in order to meet the tendencies of the modern world. Lawyers have experienced the strong pressure of a certain portion of the public that could make its influence felt. The solid mercantile work was slipping away; and then-but mark! not till then-was it attempted to form a Court which, by way of wooing refractory litigants back again, is called the Commercial Court. So also, cases under what is known as Order XIV. are heard specially. But this limited Commercial Court for large and not for small matters is really beginning at the wrong end. The urgent need for reasonable expense is more felt by the great body of litigants, who are persons of moderate means, and who cannot bring the same pressure on the State or the lawyers. Both branches of the legal profession, barristers and solicitors, have been, and are, complaining of the slackness of work and of the character of what there is. They will continue to do so; for litigation will be likely to go on decreasing, particularly taking into consideration the increase in the population, until the public feel that they can settle their contentions without running the risk of incurring an outlay so outrageously out of proportion to the amount or value of the matter in dispute.

It is many years since Lord Chief Justice Willes said: Whatever you do, never go to law; submit rather to almost any imposition, bear any oppression, rather than exhaust your spirits and your pocket in what is called a court of justice. Matters have improved, but the advice is just as useful now. That it should be necessary to impress such words on the public mind is a blemish upon this country's escutcheon of liberty in an age of virtuous emulation in everything good and great. Justice is not ready to be meted out to every one, when it is placed beyond the means of some and rendered unacceptable or vexations to others in consequence of the risk of unreasonable expense. Moreover, there is little real justice done if the party in whose favour the judgment is given finds that he has merely unplumed himself that others may be decorated with his feathers.

It is to this day true that the man who has not the means to support his suit under the present vexatious procedure may be worried

out of his rights by a policy of piling up costs by the rich; and when the impecunious have no conscience besides no means, they may use the same procedure to worry the rich by running up unnecessary costs that they know they can never pay. As a rule, there need be no such unlimited opportunities for taking unfair advantage over another man. The fact will not be disputed that a large number of respectable solicitors under many circumstances giving rise to a just cause of action feel that it is a conscientious duty to advise their clients not to go to law, but rather to submit to an unfair loss. When a patient goes to a doctor, he might just as well be met with the advice that he had better die than undergo the necessary treatment, as the fees are too heavy. What can be said for the system of a civilised country where the costs are often equal to, and at times exceed, the amount or the value of the subject of dispute; where an honest defendant is fined by means of exorbitant costs; where the established rules as to litigation do not pay honest solicitors, and yet offer every facility for abuse by the unscrupulous?

Space will not permit me to refer to all the technical and other matters that are causing the waste and leakage in costs between the writ and the trial, many men of moderate means being crippled before they can get to a hearing. I will merely direct attention very shortly to a few of the most prominent causes.

The chief object, of course, in all litigation being to ascertain as soon as possible the question to be tried, it is irritating to the lay mind to be compelled to see what was a simple matter at first, rendered obscure by formal rules, which should be within, but are beyond, the common understanding. To speak plain truths, pleadings are sometimes a kind of legal decoy duck, and most frequently serve the sole purpose of affording agreeable material for the exercise of the scientific skill and ingenuity of the lawyers. It is not only the pleadings that swell the expenses in such a fruitless manner, but the grievance is further aggravated by disputes as to particulars, and minor matters in respect to them. Moreover, they frequently raise false issues, with the result that further expenses are incurred in getting up useless evidence, and in other ways. Opponents of reform cannot raise the old cry about the dangers of new and untried measures. For in arbitration proceedings, in important bankruptcy and company winding-up matters, and in county courts, notwithstanding their extended jurisdiction, there are no pleadings. Actions are now tried in the county courts where the issues are just as important as those in the High Court--for instance, actions as to illegal distress, false imprisonment, personal injuries, employers' liability, all kinds of fraud, negligence, and the like. To any one who has had the opportunity of studying the practice in the High Court, both in the Common Law and Chancery Divisions, and

also in the county court, it is clear beyond doubt that no good reason can be advanced in support of pleadings in the large majority of High Court actions, particularly in common law, so far as the interests of the public are concerned. Defamation, perhaps, is the principal exception. No difficulty has arisen where there are none. Nor is there any waste of time. On the contrary, there is a saving, for evidence is at once directed to the true issue, clear, unobscured, and unadorned.

Many unfortunate litigants have discovered too late that the pleadings were the attractive bait that drew them on to a senseless trial. Looking at their case in the fascinating frame supplied by the lawyers, they are surprised that they should be ignorant of all the good points in their favour. Greater surprise, indeed, awaits them after the trial, when they find how deceptive was the colouring, and how expensive is the cost. Pleadings are frequently nothing but a legalised form of telling untruths. Should a man insert statements there that he would never venture to put into an ordinary document under similar circumstances in private life?

It can astonish no one except the lawyers to find some persons anxious to get their disputes settled in a business-like manner by way of arbitration proceedings that they can understand, and others to whom this course is not open preferring to settle on any terms rather than submit to the useless expenditure that the English practice encourages before they can even get to trial. It is these expenses particularly that cause ordinary business men to look askance at the law, and lead them to wonder that lawyers should be so far behind the times. The days of ignorance are gone, and the public can see through what is real and what is superfluous. There should be no interlocutory matters at all, with some rare exceptions. In the exceptional cases where they are allowed, there should be but one hearing and no adjournments, whether before Master or Judge, and no appeal.

Other fruitful sources of expense between writ and trial still arise out of 'discovery,' delaying many actions that could be heard at once, and out of questions as to time, all kinds of adjournments (often merely pleasant instances of judicial courtesy at the expense of litigants), and many other similar matters. Again, in the Chancery Division we have useless hearings before the Master when nothing is done but to adjourn to the Judge; and there is yet too much liberality by the living in paying costs out of the assets of those who are perhaps fortunate in being no longer here to witness the sacrifice of their thrifty savings. A good deal of waste as to adjournments and the like will be prevented, by the by, when the work between the Court offices in both divisions and solicitors is carried out on more business-like lines. If the Judicature Acts were intended to do anything, they ought to have rendered it impossible to obtain more

costs, merely by commencing an action in the Chancery Division instead of the Common Law. So, also, the nature of the applications made in chambers in these two divisions often varies, not so much on account of the subject matter of the action, as by reason of the different education of the counsel employed. On the Common Law side, an injunction can usually be obtained at moderate cost; the same application in Chancery generally necessitates much greater expense. Heavy costs have reduced the number of actions where motions are necessary; because many motions, such as those for injunctions as to ancient lights and the like, ought to have been made the hearing of the dispute once for all. I have known instances of prosperous men in the business classes who have been almost broken down in consequence of the costs they have been dragged into by some Chancery actions of this kind. In fact, the Chancery Division particularly, and Common Law Division generally, are beyond the pockets of the middle classes.

But I must pass from this cursory glance at matters of interlocutory practice which are eating away the vitals of the law. They cannot be of interest to the general public, who are only concerned with the actual and practical result to themselves.

After all, what advantage can be attained by further reference to many other legalised imperfections? The great defects that permit all this wasted expenditure between the writ and the hearing are well known to those who are willing to sink selfish ends and to follow a sense of duty, and to those who ought to provide the remedy. The introduction of a summons for directions after the appearance to the writ was a half-hearted step towards stopping the flagrant leakage--a mere attempt to gloss over the evil instead of striking at the root of it. It was an ill-judged and inexpedient piece of tinkering, mainly at the expense of the solicitor, the Revenue securing about the same amount of fees. There is absolutely no uniformity in the practice. The public are obliged to trust in the dark to what may happen under such a summons, whereas they have a right to a clear and definite system exercised in the light of day.

The fact is that pleadings, and all matters and proceedings between writ and trial, should be the exception instead of the rule.. A writ endorsed with clear particulars of demand, stating concisely the relief which plaintiff claims, without anything else, is quite sufficient in the great majority of Common Law cases, and in such actions as are brought in the Chancery Division, as mentioned above, merely for costs. In nearly every case the relief required, and the real defence, are well known to the parties until the lawyers make the issue less intelligible. There must be one thing or the other, either a simple and business-like system of practice, or an artificial one which must then be complete with all the mathematical and elastic details so dear to the lawyer, but so ruinous to the people. In the interest of