10 2 DIAGRAM II 186) 1864 1867 1670 7673 1876 1879 1687 1885 1888 1891 1834 85 There is an aspect of this growth of the business of the County Courts, and of its bearing upon the business of the High Court of Justice, on which I may be permitted before closing this article to say a few words. Approaching the subject with some misgiving, and even with apprehension, lest my intention should be misconstrued, I would beg, nevertheless, a patient attention to what with all deference I venture to submit on this difficult and delicate question. A bitter cry has recently gone up from the representatives of the Common Law Bar who watch the ebbing tide of business in the Queen's Bench Division of the High Court with natural and just alarm, and various explanations have been given of the unwelcome phenomenon. In a Report 19 published as recently as the month of August in the present year the General Council of the Bar, a distinguished body elected by the Profession and composed of Queen's Counsel and Juniors of large practice and matured experience, whose opinion on the subject must carry great weight, formulate allegations'-to use their own expression- of a grave character. No fault is found with the Chancery Division, the Probate and Divorce Division, or the Commercial Court, but the present arrangements for the transaction of business in the Queen's Bench Division are trenchantly criticised, and the present Assize circuit system is declared to be 'defective in every respect.' Into the justice of those censures I do not presume to inquire. I shall only refer to one paragraph of the Report which brings the views of the writers into touch with the subject of this article: In the opinion of the Council, this state of things cannot go on without seriously impairing the popular belief in the efficacy of trial in the Queen's Bench Courts. Such delays and uncertainty deter suitors from seeking redress for their grievances in the tribunals of the country, and drive them to arbitration and other methods of settlement.' There can be little doubt, in face of the figures I have given above, that other methods' must, in the minds of the General Council of the Bar, mean, or at least include, the County Courts; and I will assume that the words are used as a handy periphrasis, just as the expression another place' is sometimes used and quite well understood in the conventional code of Parliamentary etiquette. That the Common Law Bar should be in danger of serious detriment in consequence of any system of procedure is, however, a grave matter. The Common Law Bar is an ancient and honourable institution, whose members as a body have always been loyally true to its unique prerogatives and high obligations. Great advocates, great jurists, and great judges have been trained under its discipline, and every tyro in its ranks is rightly zealous to preserve its privileges and to hand down. its traditions as a solemn trust. The efficiency and integrity of its members constitute something more than the equipment of a craft; they are essential factors in the economy of our English Courts of Law, because the members of the Bar frequent those Courts, not 19 Report of the General Council of the Bar on the subject of the Common Law Business of the High Court of Justice,' dated Aug. 5, 1897, and published in the Times of the 11th of August. only as advocates but as critics, and-to use the epigrammatic words of Lord Halsbury-'Criticism is the salt of the administration of justice.' 20 Two suggestions are offered by the Council in their Report-first, that at least six Courts sitting continuously in London throughout the legal year for the trial of actions in the Queen's Bench Division' are 'imperatively necessary'; and secondly, that an addition to the number of Judges of the Queen's Bench Division' is 'imperatively required.' But will more sails bring more wind to fill them? Will it do merely to crowd on more canvas and then whistle for a breeze? The necessity for more Judge-power suggested by the Report of the Bar Council is hardly borne out by the published statistics, which show that the business of the Queen's Bench Division was less in volume in the year 1895 than the average of the preceding five years. Here are the figures: Number of writs &c., Queen's Bench Division Number of actions for trial in the Queen's Bench Division . 67,900 72,167 5,098 It is said that there are, nevertheless, heavy arrears in the Queen's Bench Division, caused, in the opinion of the Bar Council, by the absence of thirteen of Her Majesty's Judges on circuit, an absence averaging annually some seventy days per Judge, part of that time. being spent in Assize towns at which there is generally-almost invariably no business either civil or criminal.' The assize towns will, however, if threatened, have a voice in the question of what they would probably deem their own degradation. In addition to being assize towns, they are Parliamentary constituencies; they have been accustomed to their assizes ever since the reign of Henry the Second, or thereabouts. They look forward with something more than pride to the periodical appearance in their midst of the ermined Judge with his retinue, the High Sheriff with his chaplain and his trumpeters, the Grand Jury, the petty jurors, and, now and then, the public executioner, as well as the crowd of thirsty yokels who on these occasions flock into their streets. If the Bar looks to the abandonment of the present assize system as a remedy, it may have long to wait. The assize towns will die a natural death if it must be so, but they will not willingly perform the happy despatch. A Correspondent' of the Times,"1 criticising in a Special Article the Report of the Bar Council, writes: 'Popular feeling on the subject in the opinion of experienced persons of sound judgment'-a delightful synonym for the party whips- makes the maintenance of the system inevitable. "They've 20 Speech of the Lord Chancellor at Derby on the 9th of April, 1897, on the occasion of the opening of the new County Court buildings for that town, reported in the Times of the 10th of April. 21 Aug. 26, 1897. taken away our gaol, my Lord, and if they take away our assizes, the Government that does it will never get another vote out of Presteign, said a leading solicitor of that pleasant village to a reforming Judge anxious to study local opinion; and though most Governments might not feel that particular threat contain any serious terror, the feeling which prompted it is too widespread to be neglected.' 22 Whatever the true explanation may be, the fact remains that at least two-thirds of the minor business of the Queen's Bench Division has drifted to the County Courts, whither the Bar, as a body, have not followed it. Apart from the ordinary business which the County Courts were established to deal with, over and above the claims not exceeding 50l. which form the bulk of the normal business of the County Courts, there were, in 1895: Actions entered in the County Courts, by agreement between Actions under the Employers' Liability Act Total 1,262 1,510 550 3,822 to say nothing of the work under the Bankruptcy and other supplemental jurisdictions. Is it really probable that the public who have enjoyed the experience of having cases of this kind tried swiftly and cheaply on the spot will, under any practicable reform of the centralised procedure of the Queen's Bench Division, consent to be led back to its fold? Nay, is it in the public interest expedient that they should do so? And, if not, is there not another remedy for the evils complained of in the interest of the Bar? If the mountain will not come to Mahomet, why should not Mahomet go to the mountain?' If it be said that this litigation is carried on in remote localities, where it would be impracticable, if not impossible, for the central Bar to follow it, surely that difficulty might easily be met. The very machinery is at hand. In the year 1876 District Registries of the High Court of Justice were established in 86 populous centres throughout England and Wales, and were annexed to the County Courts in those places by the appointment of the County Court Registrar to the office of District Registrar of the High Court, ex 22 It is only fair to add the following remark of the same acute observer, which puts the argument upon somewhat higher ground: 'It is a commonplace observation that the administration of justice must not only be sound, but ought to be popular, and, letting alone the visits of Judges to such centres as Manchester, Birmingham, and Cardiff, there can be no doubt that the general confidence which Her Majesty's Judges happily enjoy is largely increased by their occasional presence at such places as Aylesbury, Oakham, and Beaumaris.' The Return of Civil Actions entered for trial at these three assize towns during the four assizes of 1895 is interesting. It is as follows: Spring Assizes Summer Assizes 0 0 0 1 1 Autumn Assizes 0 officio. Does not this point to a solution? Let the 500 County Courts, with their original jurisdiction, their original and ancient designation, their officers and their Judges, remain exactly as they are. Let the litigation in respect of all claims not exceeding, say, 30l. be carried on locally and swiftly in those Courts, as at present. Give to them such increase of jurisdiction as may be deemed expedient—if, indeed, it is not large enough in all conscience as it is-but let the trial and disposal of all the heavier claims, of all the more important remitted actions, and of all matters under, say, the Employers' Liability Act, 1880, the Workmen's Compensation Act, 1897, and the like, take place before the County Court Judge (unless the Judge shall otherwise direct) at Special Sessions to be held periodically at one or other of the larger and more accessible Court towns of each County Court Circuit, say at the Central Courts to which District Registries of the High Court are at present annexed. If the Common Law Bar should still scruple to attend such Courts as its members attend the Quarter Sessions of the Peace, that reluctance might possibly be overcome by changing the designation of the special courts from County Courts to County Civil Courts,' and by connecting them with the institution of County Criminal Courts' on the lines suggested by Sir Harry Poland, a measure already approved and recommended as desirable' by the General Council of the Bar. Such an arrangement, especially if it were accompanied by the right of exclusive audience enjoyed by the Bar at Quarter Sessions, would not only put an end to many anomalies, but would secure for the Judges of the local Courts the benefit of that continuous professional criticism which is sometimes so sorely needed. As the Lord Chancellor truly and wisely remarked in his recent address at Derby: The smaller the Courts, the less open they are to the light of public criticism, the more important it is they should be kept closely in touch with those persons who can take care that right is done, and the more important that the Judge, no less than the Judge of the High Court and the Lord Chancellor, should be constantly under the pressure of public criticism.' 23 I have endeavoured in these few pages to show how for half a century the English County Courts have grown and prospered. As an institution absolutely demanded by the requirements of the people, and justified to the full by the test of time; as an instrument for extending civil justice throughout the land and placing millions under the protection of the law, from which they would otherwise be excluded, the modern County Court system must be deemed a legis 23 Speech of Lord Halsbury at Derby, ubi supra. See also the Times leading article of the 19th of February, 1879: 'It is found that a good Judge is much improved by a good Bar. He profits by sharp critics and learned counsellors, and this whetstone many a County Court Judge lacks. If he is left to himself, or if his equals do not practise before him, he too often is apt to become arbitrary or slovenly.' |