1911 Encyclopædia Britannica/Judicature Acts

JUDICATURE ACTS, an important series of English statutes having for their object the simplification of the system of judicature in its higher branches. They are the Supreme Court of Judicature Act 1873 (36 & 37 Vict. c. 66) and the Supreme Court of Judicature Act 1875 (38 & 39 Vict. c. 77), with various amending acts, the twelfth of these being in 1899. By the act of 1873 the court of chancery, the court of queen’s (king’s) bench, the court of common pleas, the court of exchequer, the high court of admiralty, the court of probate and the court of divorce and matrimonial causes were consolidated into one Supreme[1] Court of Judicature (sec. 3), divided into two permanent divisions, called “the high court,” with (speaking broadly) original jurisdiction, and “the court of appeal” (sec. 4). The objects of the act were threefold—first, to reduce the historically independent courts of common law and equity into one supreme court; secondly, to establish for all divisions of the court a uniform system of pleading and procedure; and thirdly, to provide for the enforcement of the same rule of law in those cases where chancery and common law recognized different rules. It can be seen at once how bold and revolutionary was this new enactment. By one section the august king’s bench, the common pleas, in which serjeants only had formerly the right of audience, and the exchequer, which had its origin in the reign of Henry I., and all their jurisdiction, criminal, legal and equitable, were vested in the new court. It must be understood, however, that law and equity were not fused in the sense in which that phrase has generally been employed. The chancery division still remains distinct from the common law division, having a certain range of legal questions under its exclusive control, and possessing to a certain extent a peculiar machinery of its own for carrying its decrees into execution. But all actions may now be brought in the high court of justice, and, subject to such special assignments of business as that alluded to, may be tried in any division thereof.

There were originally three common law divisions of the High Court corresponding with the three former courts of common law. But after the death of Lord Chief Baron Kelly on the 17th of September 1880, and of Lord Chief Justice Cockburn on the 20th of November 1880, the common pleas and exchequer divisions were (by order in council, 10th December 1880) consolidated with the king’s bench division into one division under the presidency of the lord chief justice of England, to whom, by the 25th section of the Judicature Act 1881, all the statutory jurisdiction of the chief baron and the chief justice of the common pleas was transferred. The high court, therefore, now consists of the chancery division, the common law division, under the name of the king’s bench division; and the probate, divorce and admiralty division. To the king’s bench division is also attached, by order of the lord chancellor (Jan. 1, 1884), the business of the London court of bankruptcy.

For a more detailed account of the composition of the various courts, see Chancery; King’s Bench; and Probate, Divorce and Admiralty Court.

The keystone of the structure created by the Judicature Acts was a strong court of appeal. The House of Lords remained the last court of appeal, as before the acts, but its judicial functions were virtually transferred to an appeal committee, consisting of the lord chancellor and other peers who have held high judicial office, and certain lords of appeal in ordinary created by the act of 1873 (see Appeal).

The practice and procedure of the Supreme Court are regulated by rules made by a committee of judges, to which have been added the president of the incorporated law society and a practising barrister and one other person nominated by the lord chancellor. The rules now in force are those of 1883, with some subsequent amendments. With the appendices they fill a moderate-sized volume. Complaints are made that they go into too much detail, and place a burden on the time and temper of the busy practitioner which he can ill afford to bear. It is possible that the authors of the rules attempted too much, and it might have been better to provide a simpler and more elastic code of procedure. Rules have sometimes been made to meet individual cases of hardship, and rules of procedure have been piled up from time to time, sometimes embodying a new experiment, and not always consistent with former rules.

The most important matter dealt with by the rules is the mode of pleading. The authors of the Judicature Act had before them two systems of pleading, both of which were open to criticism. The common law pleadings (it was said) did not state the facts on which the pleader relied, but only the legal aspect of the facts or the inferences from them, while the chancery pleadings were lengthy, tedious and to a large extent irrelevant and useless. There was some exaggeration in both statements. In pursuing the fusion of law and equity which was the dominant legal idea of law reformers of that period, the framers of the first set of rules devised a system which they thought would meet the defects of both systems, and be appropriate for both the common-law and the chancery divisions. In a normal case, the plaintiff delivered his statement of claim, in which he was to set forth concisely the facts on which he relied, and the relief which he asked. The defendant then delivered his statement of defence, in which he was to say whether he admitted or denied the plaintiff’s facts (every averment not traversed being taken to be admitted), and any additional facts and legal defences on which he relied. The plaintiff might then reply, and the defendant rejoin, and so on until the pleaders had exhausted themselves. This system of pleading was not a bad one if accompanied by the right of either party to demur to his opponent’s pleading, i.e. to say, “admitting all your averments of fact to be true, you still have no cause of action,” or “defence” (as the case may be). It may be, however, that the authors of the new system were too intent on uniformity when they abolished the common-law pleading, which, shorn of its abuses (as it had been by the Common Law Procedure Acts), was an admirable instrument for defining the issue between the parties though unsuited for the more complicated cases which are tried in chancery, and it might possibly have been better to try the new system in the first instance in the chancery division only. It should be added that the rules contain provisions for actions being tried without pleadings if the defendant does not require a statement of claim, and for the plaintiff in an action of debt obtaining immediate judgment unless the defendant gets leave to defend. In the chancery division there are of course no pleadings in those matters which by the rules can be disposed of by summons in chambers instead of by ordinary suit as formerly.

The judges seem to have been dissatisfied with the effect of their former rules, for in 1883 they issued a fresh set of consolidated rules, which, with subsequent amendments, are those now in force. By these rules a further attempt was made to prune the exuberance of pleading. Concise forms of statement of claim and defence were given in the appendix for adoption by the pleader. It is true that these forms do not display a high standard of excellence in draftsmanship, and it was said that many of them were undoubtedly demurrable, but that was not of much importance. Demurrers were abolished, and instead thereof it was provided that any point of law raised by the pleadings should be disposed of at or after the trial, provided that by consent or order of the court the same might be set down and disposed of before the trial (Order xxv. rules 1, 2). This, in the opinion of Lord Davey in 1902 (Ency. Brit., 10th ed., xxx. 146), was a disastrous change. The right of either party to challenge his opponent in limine, either where the question between them was purely one of law, or where even the view of the facts taken and alleged by his opponent did not constitute a cause of action or defence, was a most valuable one, and tended to the curtailment of both the delay and the expense of litigation. Any possibility of abuse by frivolous or technical demurrers (as undoubtedly was formerly the case) had been met by powers of amendment and the infliction of costs. Many of the most important questions of law had been decided on demurrer both in common law and chancery. Lord Davey considered that demurrer was a useful and satisfactory mode of trying questions in chancery (on bill and demurrer), and it was frequently adopted in preference to a special case, which requires the statement of facts to be agreed to by both parties and was consequently more difficult and expensive. It is obvious that a rule which makes the normal time for decision of questions at law the trial or subsequently, and a preliminary decision the exception, and such exception dependent on the consent of both parties or an order of the court, is a poor substitute for a demurrer as of right, and it has proved so in practice. The editors of the Yearly Practice for 1901 (Muir Mackenzie, Lushington and Fox) said (p. 272): “Points of law raised by the pleadings are usually disposed of at the trial or on further consideration after the trial of the issues of fact,” that is to say, after the delay, worry and expense of a trial of disputed questions of fact which after all may turn out to be unnecessary. The abolition of demurrers has also (it is believed) had a prejudicial effect on the standard of legal accuracy and knowledge required in practitioners. Formerly the pleader had the fear of a demurrer before him. Nowadays he need not stop to think whether his cause of action or defence will hold water or not, and anything which is not obviously frivolous or vexatious will do by way of pleading for the purpose of the trial and for getting the opposite party into the box.

Another change was made by the rules of 1883, which was regarded by some common law lawyers as revolutionary. Formerly every issue of fact in a common law action, including the amount of damage, had to be decided by the verdict of a jury. “The effect of the rules of 1883,” said Lord Lindley, who was a member of the rule committee, “was to make trial without a jury the normal mode of trial, except where trial with a jury is ordered under rules 6 or 7a, or may be had without an order under rule 2” (Timson v. Wilson, 38 Ch. D. 72, at p. 76). The effect of the rules may be thus summarized: (1) In the chancery division no trial by jury unless ordered by the judge. (2) Generally the judge may order trial without a jury of any cause or issue, which before the Judicature Act might have been so tried without consent of parties, or which involves prolonged investigation of documents or accounts, or scientific or local investigation. (3) Either party has a right to a jury in actions of slander, libel, false imprisonment, malicious prosecution, seduction or breach of promise of marriage, upon notice without order; (4) or in any other action, by order. (5) Subject as above, actions are to be tried without a jury unless the judge, of his own motion, otherwise orders.

Further steps have been taken with a view to simplification of procedure. By Order xxx. rule 1 (as amended in 1897), a summons, called a summons for directions, has to be taken out by a plaintiff immediately after the appearance of the defendant, and upon such summons an order is to be made respecting pleadings, and a number of interlocutory proceedings. To make such an order at that early stage would seem to demand a prescience and intelligent anticipation of future events which can hardly be expected of a master, or even a judge in chambers, except in simple cases, involving a single issue of law or fact which the parties are agreed in presenting to the court. The effect of the rule is that the plaintiff cannot deliver his statement of claim, or take any step in the action without the leave of the judge. In chancery cases the order usually made is that the plaintiff deliver his statement of claim, and the rest of the summons stand over, and the practical effect is merely to add a few pounds to the costs. It may be doubted whether, as applied to the majority of actions, the rule does not proceed on wrong lines, and whether it would not be better to leave the parties, who know the exigencies of their case better even than a judge in chambers, to proceed in their own way, subject to stringent provisions for immediate payment of the costs occasioned by unnecessary, vexatious, or dilatory proceedings. The order does not apply to admiralty cases or to proceedings under the order next mentioned.

The Supreme Court of Judicature Act (Ireland) 1877 follows the same lines as the English acts. The pre-existing courts were consolidated into a supreme court of judicature, consisting of a high court of justice and a court of appeal. The judicature acts did not affect Scottish judicature, but the Appellate Jurisdiction Act included the court of session among the courts from which an appeal lies to the House of Lords.

  1. The comte de Franqueville in his interesting work, Le Système judiciaire de la Grande Bretagne, criticizes the use of the word “supreme” as a designation of this court, inasmuch as its judgments are subject to appeal to the House of Lords, but in the act of 1873 the appeal to the House of Lords was abolished. He is also severe on the illogical use of the words “division” and “court” in many different senses (i. 180–181).