Speeding-up the Law
THERE are few Englishmen," says Macaulay in his essay on Warren Hastings, " who will not admit that the English law, in spite of modern improve- ments, is neither so cheap nor so speedy as might be desired." This was in 1841. Since Macaulay wrote, the whole machinery of the law has been drastically- overhauled, but ninety years later, despite an endless series of modern improvements, the same painful admission must still be made. That all is not well has been recognized by no one more frankly than by the present Lord Chancellor. In his speech at the Lord Mayor's Banquet a few weeks ago, Lord Sankey referred to the present discontents and made it clear that they were causing him serious concern. Far from suggesting that they were exaggerated, he declared that a remedy must be sought—not so much (he suggested) by pruning the Statute Law, as by reforming the practice and procedure of the courts " with a view to greater economy and greater expedition."
Lord Sankey was plainly foreshadowing the important announcement which has now been made, of the appoint- ment of a strong committee presided over by the Master of the Rolls to investigate the whole machinery of the Supreme Court, with a special view to the saving of time and money. The terms of reference are wide, though they do not give the committee a roving com- mission, but invite it to direct its attention to certain points. It will be noticed that practice and procedure, in the narrower and more technical sense, do not appear to be among them. The explanation may be that as much as can at present be accomplished in this particular field is felt to have been accomplished already by the New Rules of Procedure (under which interlocutory proceedings can be shortened and juries dispensed with) introduced a few months ago. The New Procedure was intended to simplify and speed up the machinery for dealing with actions not too complex and unwieldy to be more or less summarily tried. Large and important classes of actions, such as those relating to libel and fraud, were of necessity excluded, but within its own limits, which are tolerably wide, the New Procedure is a valuable innovation.
Curiously enough, in view of the widespread complaint which it was designed to meet, not much advantage has as yet been taken of it ; of 1,188 actions* awaiting trial in the King's Bench Division at the beginning of the present term, only fifty were in the New Procedure List. This may have been regarded as an additional reason for not emphasizing this particular line - of advance in the Hanworth Committee's terms of reference. Of the matters to which Lord Sankey drew direct attention there is hardly one which has not recently been the subject of judicial comment. Lord Sankey himself, in his Guildhall speech, said that it was hoped to do something towards Shortening the Long Vacation. Nothing has been said about any lengthening of the judicial day. The early rising of the Courts is a frequent cause of complaint ; but it is apt to be forgotten that neither judges nor counsel do the whole of their work in Court, and that even if the Bench could endure a longer day in Court, the Bar could not.
As for appeals, an eminent Law Lord, Lord Tomlin, made a speech only a few weeks ago in which he urged that the right of appeal should be cut down. This is a
* Arrears in the King's Bench Division, while tending to decrease in the course of the last decade, are now tending to rise. Case.; awaiting trial, for example, at the beginning of the Michaelmas Term in 1922 were 1082, in 1928, 836, and in 1932, 1,188.
matter which has exercised the minds of lawyers ever since Lord Selborne's unsuccessful attempt to substitute a two-tier for a three-tier structure in the Judicature Act of 1873. In recent years the right of appeal has been more sparingly exercised than it used to be. A comparison between the periods 1907-11 and 1927-1981 show that, while the annual average number of proceedings com- menced in the King's Bench Division has increased from 66,699 to 95,020, the corresponding figures for the Court of Appeal have fallen from 838 to 467, and for the House of Lords from 98 to 64. Nevertheless, the existing facilities for appeal still impose a heavy burden on the weaker party, pile up costs against the eventual loser, and add both to the delays of the law and its uncertainties. In some cases there is not a three-tier, but a four-tier structure. Before a taxpayer, for example, knows his fate on an income-tax appeal, he may have had to fight his case, first before the Commissioners, and then in succession before the Revenue Judge, the Court of Appeal, and the House of Lords.
Apart from appeals on the main issue, in a normal High Court action endless delay and expense may be caused by appeals from one tribunal to another in all manner of interlocutory proceedings. There must be finality some- where. If there were superimposed upon the House of Lords a still more exalted body of Judges, some appeals would probably succeed ; the House of Lords itself has often enough been divided. There may well be excep- tional cases for which the three-tier system should be retained ; but it may be doubted Ahether, on balance, the interests of justice would suffer if, in many classes of proceedings, finality were reached at an earlier stage.
Another question raised by the Hanworth Committee's terms of reference is the reorganization of the Assizes. The Committee is also to reopen the eternal contro- versy as to the practical value of Grand Juries. On both points an eminent judge has recently expressed himself in emphatic terms. At last month's Hereford Assizes Mr. Justice MacKinnon sympathized with the Grand Jury on having been called upon to waste their time. He boldly went on to suggest reforms in the Circuit system generally, observing that if Gloucester, Worcester and Hereford were willing to join forces in the Three Choirs Festival, they should he equally willing to save time and money by amalgamating their Assizes. It is not only local time that would be saved. The more travelling the Assize Judge has to do, the longer he has to Spend over the formalities connected with the opening of the Assizes in each town he visits, the more the High Court Bench is depleted in London and the more the arrears pile up.
The Hanworth Committee's terms of reference outline a practical programme of reforms, nearly all of which have been recently and authoritatively advocated. There is, however, one important aspect of the problem with which the Committee is not invited to deal. If there is congestion in. the Courts, it is not solely because the machinery of justice is in some respects out of date ; it is due, at least in part, to the obscurity and complexity of the law itself. Take, for example, such tangled masses of legislation as embody the Rent Restric- tion code or the law of income tax. Act is piled upon Act and—because the Acts are ambiguous—decision is piled upon decision, until no one can say with certainty how the law stands. Sonic recent examples of law- making suggest that Parliament has lost the power of • saying plainly what it means, Where serious ambiguities have been shown to exist there is much to be said for a periodical and systematic revision of the Statute Law, with a view to the final clearing up of doubtful points of construction. But this side of the problem is naturally outside the scope of the Hanworth Committee's terms of reference. If the Committee succeeds, within its own field of inquiry, in working out practical reforms, it will have rendered a notable public service. It is as true to-day that " English justice is neither so cheap nor so speedy as might be desired," as it was when Macaulay wrote his Essay ninety years ago. It is time for that reproach to be removed.
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