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‘General ideas’ and the reform of civil procedure

Published online by Cambridge University Press:  02 January 2018

J. A. Jolowicz
J. A. Jolowicz*
Affiliation:
University of Cambridge and Trinity College, Cambridge
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Extract

It was not within the terms of reference of the Royal Commission on Legal Services to bring under review either procedure or the administration of justice. Nevertheless, the Commission received so much evidence on these subjects that it saw fit to publish a summary of that evidence and to recommend that ‘a full appraisal of procedure and the operation in practice of our system of justice, in particular in all civil courts’ should be carried out. Since then, the Committee on Procedure and Practice in the Chancery Division has reported, its recommendations have been largely implemented, and numerous changes of practice in the High Court and the Court of Appeal have been introduced by rule of court and practice direction.

Type
Research Article
Information
Legal Studies , Volume 3 , Issue 3 , November 1983 , pp. 295 - 314
Copyright
Copyright © Society of Legal Scholars 1983

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References

1. Report of the Royal Commission on Legal Services 1979, Cmnd 7648, iii–iv.

2. Ibid, para 43.3 and Appendix 43.1.

3. 1981, Cmnd 8205. See RSC Amendment No 2 Order 1982 (SI 1982 No 1111 (L 23)) and Practice Direction [1982] 1 WLR 1189.

4. Of particular note: the change in the form of the writ and the replacement of the appearance by the acknowledgment of service (RSC Ord 12, as amended 1979); the new arrangements for the listing of cases in London (Practice Direction [1981] 1 WLR 1296); the changes in the procedure for the application for judicial review (RSC Ord 53, as amended in 1980); the new procedure of the Court of Appeal (RSC Ord 59, as amended in 1982; Practice Direction [1982] 1 WLR 1312). Nor should enactment of the Supreme Court Act 1981 pass unremarked, but see n. 90 infra.

5. See (1982) 132 NLJ 543.

6. ‘The Causes of Popular Dissatisfaction with the Administration of Justice’ (1906) 40 Am LR 729.

7. E.g. the criticism by Snow of the extension of the Originating Summons on the ground that this broke up the unity of the originating process established by the Judicature Acts: (1893) 9 LQR 31, and see Cator's reply, ibid, 238. For further critical observations by Snow and a proposal for a ‘Master Machine’ for law reform, see his ‘The Near Future of Law Reform’ (1900) 16 LQR 129. Comparisons unfavourable to English procedure were drawn with that of France and Belgium in a lecture delivered to the Solicitors Managing Clerks Association under the chairmanship of Scrutton J in 1913: (1913) 134 LT 347.

8. ‘Progress in the Administration of Justice during the Victorian Period’ in I Select Essays in Anglo-American Legal History pp. 516, 541, 543.

9. ‘Changes in Procedure and in the Law of Evidence’ in A Century of Law Reform. Additional quotation marks in original.

10. ‘The Judicature Acts 1873–1875 Vision and Reality’ in Jacob The Reform of Civil Procedural Law and other Essays in Civil Procedure pp. 301, 309. Elsewhere Sir Jack describes the same observation of Lord Bowen as a ‘rather exuberant remark’: ‘Civil Procedure since 1800’op. cit. pp. 193, 214.

11. A list, not complete, of relevant Reports published before that of the Royal Commission on Legal Services would include: The Report of the County Courts Committee 1909 (The Gorrell Committee); the two Reports of the Royal Commission on Delay in the King's Bench Division (1913, Cd 6761; 1914, Cd 7177); the three Reports of the Business of the Courts Committee (1933, Cmd 4265; 1933, Cmd 4471; 1936, Cmd 5066); the Report of the Royal Commission on the Despatch of Business at Common Law (1936, Cmd 5065); the two Reports of the Committee on County Court Procedure (1948, Cmd 7468; 1949, Cmd 7668); the four Reports of the Committee on Supreme Court Practice and Procedure (1949, Cmd 7764; 1951, Cmd 8176; 1952, Cmd 8617; 1953, Cmd 8878); the Report of the Committee on Personal Injuries Litigation (1968, Cmnd 3691); the Report of the Royal Commission on Assizes and Quarter Sessions (1969, Cmnd 4153).

12. Carroll Alice through the Looking Glass Ch. 1.

13. The most notable of the exceptions is, no doubt, the Report of the Committee on Legal Aid and Legal Advice (1945, Cmd 6641) which led to enactment of the Legal Aid Act 1949.

14. These Rules, introduced, following the recommendations of the Commissioners appointed to consider the practice and procedure of the Courts of Common Law (Second Report 1830), by the judges with the agreement of Parliament, had the objectives of eliminating unnecessary expense in the parties' preparation for trial and of removing some of the occasions on which a new trial might have to be ordered. They sought to achieve these objectives by reducing the scope of the ‘general issue’ in favour of an extension of special pleading. The result was to produce a substantial increase in the number of cases decided on points of pleading: Holdsworth, HEL, IX, 325, citing Whittier ‘Notice Pleading’ (1918) 31 Haw LR 501. See also Holdsworth ‘The New Rules of Pleading of the Hilary Term, 1834’ (1923) I CLJ 261.

15. Parliamentary Papers 1852–53, XI, pp. 34 IT. The germ of the idea may be seen in Lord Mansfield's attempts to give effect to equitable principles in a court of common law: e.g. Weakly v Bucknell (1776) 1 Cowp 473. Cf Doe v Clare (1788) 2 TR 739.

16. Loc. cit. supra, n. 6, p. 736.

17. Ante, p. 296.

18. Judicature Act 1873, s. 24(7).

19. Wicks v Hunt (1859) Johns 372. See Jolowicz, ‘Damages in Equity – a Study of Lord Cairns’ Act’ [1975] CLJ 224, 226–227 Google Scholar.

20. (1854) 9 Ex 361. Cf Ellston v Deacon (1866) LR 2 CP 20 where an amendment was allowed after verdict.

21. Major Legal Systems in the World Today (2nd edn) p. 295. In explaining the position to civilian readers, Professor David observed that, until 1875, the English courts remained, in theory Juridictions d'exception’: Les grands systèmes de droit contemporains (8th edn) p. 323.

22. In Equity also The Forms of Action at Common Law p. 304.

23. Op. cit. p. 19.

24. The expression is, of course, Maine's: Early Law and Custom, p. 389

25. Re Coles and Ravenshear [1907] 1 KB 1 at 4.

26. See post, pp. 306, 313 and n. 5 1.

27. Third Report of the Commissioners on the Courts of Common Law, 1831. Parliamentary Papers 1831, X.

28. This is the original form of the rule; it appears as Ord XIX, r. 4 of the Rules scheduled to the Judicature Act 1875, and incorporates the proposal of the Judicature Commission to combine ‘the comparative brevity of the simpler forms of common law pleading, with the principle of stating, intelligibly and not technically, the substance of the facts relied upon as constituting the plaintiffs or the defendant's case, as distinguished from his evidence’: First Report, 1869, Parliamentary Papers 1868–69 XXV. The equivalent rule now in force (RSC Ord 18, r. 7) is little different. ‘Fact pleading’ made its first appearance in New York in 1848 and spread rapidly in the US: Clarke, Handbook of the Law of Code Pleading (2nd edn) pp. 16, 24Google Scholar. The contemporary Federal rules, however, no longer require the ‘facts’ to be stated, but only a ‘short and plain statement of the claim showing that the pleader is entitled to relief’: FRCP 8(a) (2). James, and Hazard, Civil Procedure (2nd edn) para 2.11Google Scholar; Kaplan, ‘An American Lawyer in the Queen's Courts’ (1971) 69, 2 Mich LR 821Google Scholar.

29. Rules of 1875, Ord XIX, rr. 17,22,23. These rules were strictly applied: e.g. Thorp v Holdsworth (1876) 3 Ch D 639; Byrd v Nunn (1877) 7 Ch D 284. Cf Tildesly v Harper (1878) 10 Ch D 393, where leave was granted by the Court of Appeal to amend an evasive denial, reversing Fry J ((1877) 7 Ch D 403), who had refused leave to amend and treated the evasive denial as an admission.

30. See the notes to Ord XIX, r. 4 in the Annual Chancery Practice 1882; Philipps v Philipps (1878) 4 QBD 127.

31. Rules of 1875, Ord XIX, r. 18.

32. Rules of 1875, Ord XXVII, See now RSC Ord 20.

33. Rules of 1875, Ord XXVII, r. I. See now RSC Ord 18, r. 19.

34. What is now RSC Ord 20, r. 8, was introduced into the Rules of 1875 as Ord LIX, r. 2 by RSC April 1880, r. 44, and may originally have been intended to do no more than enable one party to obtain an order that the other party amend his pleading so as to give it greater particularity. In its original form the rule provided that ‘The Court or a Judge may at any time, and on such terms as to costs or otherwise as to the Court or Judge may seem just, amend any defect or error in any proceedings; and all such amendments may be made as may be necessary for the purpose of determining the real question or issue raised by or depending on the proceedings’. For a case where difficulty occurred before the rule was introduced, see Harbord v Monk (1878) 9 Ch D 616, and for a case in which a party was ordered to amend his pleading to give certain particulars, see Spedding v Fitz-patrick (1888) 38 Ch D 410. Although the RSC 1883 included specific provision for the giving of particulars (Ord XIX, r. 6), the rule was retained as Ord XXVIII, r. 12 but attracted no attention in the notes to the Annual Practice until the edition of 1888–9, when it was stated that under this rule the court might act without an application from a party. The following year a query was added to this statement, but in 1901 and in subsequent years it is stated, with the emphasis shown, that ‘every Judge and Master has full power of his own motion to make any amendment which he deems necessary for the purpose of determining the real questions at issue between the parties’. If this had been taken at face value it could have transformed civil litigation in England, but it was not. The contemporary note to RSC Ord 20, r. 8 (Supreme Court Practice 1982, para 20/5–8/3) is much more cautious.

35. Cropper v Smith (1884) 26 Ch D 700 at 715. See also the note by Lord Asquith on Dann v Hamilton [1939] 1 KB 509 in (1953) 69 LQR 317.

36. See Jolowicz, ‘Da mihi factum dato tibi jus: A problem of demarcation in English and French law’ in Multum non Multa: Festschrift für Kurt Lipstein p. 79 Google Scholar.

37. Ord XIX, r. 2.

38. Provision for trial without pleadings was made in 1893 by what was then RSC Ord XVIII A, which survived until 1917, and again in 1954, by what was then RSC Ord XIV B, and this survived until 1962, when it was replaced by what is now RSC Ord 18, r. 21, the note to which explains that where pleadings are to be dispensed with ‘it is of vital importance that … it should be made absolutely clear what is the controversy between the parties’: Supreme Court Practice 1982, para 18/21/1. In 1897, a Summons for Directions was required to be taken out after appearance and before any further steps were taken, and this meant that, until 1934, pleadings were delivered only by leave: RSC Ord XXX, r. 1. See Diamond ‘The Summons for Directions’ (1959) 75 LQR 43 and Jacob ‘The Present Importance of Pleadings’ (1960) 13 CLP 171 and op. cit. supra n. 10, 243.

39. See the note by Blake Odgers QC to Ord XXX, Annual Practice 1913.

40. No equivalent to the Originating Summons appears in the Rules of 1875, but the Annual Chancery Practice 1882 incorporates the earlier practice used in Chancery Chambers. These were absorbed into the Rules of 1883 in Order LV the scope of which was expanded in 1893. See now RSC Ord 5, r. 1; 0.7; 0.28. Note also that procedure under RSC Ord 53 (application for judicial review) is now closely assimilated to that of the Originating Summons: Jolowicz ‘Civil Proceedings in the Public Interest’ (1982) 13 Cambrian LR 32, 36 and n. 26.

41. This was clear from the beginning; e.g. Re Giles (1890) 43 Ch D 391: Nutter v Holland [1894] 3 Ch 408 at 410, per Lopes LJ. Under modern procedure, an action begun by Originating Summons may be ordered to be continued as if begun by writ, which will normally involve pleadings: RSC Ord 28, r. 8.

42. E.g. the proposals for a more ‘robust’ Summons for Directions made by the Committee on Supreme Court Practice and Procedure (Final Report, 1953, Cmd 8878, paras 225–233); see what is now RSC Ord 25 and Diamond loc. cit. supra, n. 38. The modern rules governing the use of hearsay evidence under the Civil Evidence Act 1968 (RSC Ord 38, Part 111) and those dealing with expert evidence under the Civil Evidence Act 1972 (RSC Ord 38, Part IV) have a similar tendency.

43. Justice Going to Law paras 165–170.

44. Ibid para 171.

45. Ibid para 57.

46. See Wallingford v Mutal Society (1880) 5 App Cas 685.

47. Cf Fiss, ‘The Supreme Court, 1978 Term; Foreword: The Forms of Justice’ (1979) 93 Haw LR 1, 30Google Scholar.

48. Interest on damages, including damages for non-pecuniary loss in a personal injury case, is awarded to cover ‘the loss which is suffered by being kept out of money to which one is entitled’: Pickett v British Rail Engineering Ltd [1980] AC 136 at 173, per Lord Scarman.

49. See Jolowicz supra, n. 36.

50. New code of civil procedure, art 12 para 5. This is restricted to rights of which the parties may dispose freely.

51. See the disagreement between Lord Denning MR and Bridge LJ in Goldsmith v Sper-rings Ltd [1977] 1 WLR 478. In France the matter became one of high controversy which culminated in a decision of the Conseil d'Etat quashing, as contrary to ‘general principles of law’, provisions in the code which allowed the judge to take a point of law of his own motion without giving the parties an opportunity to discuss it: Conseil d'Etat, 12 October 1979, D. 1979.606. It was specifically stated that while the objective of accelerating and simplifying litigation by increasing the powers of the judge is lawful even though it may impinge upon the ‘dispositive’ principle, procedural reforms aimed at improving efficiency are lawful only to the extent that they are compatible with the principle of ‘contradiction’.

52. Jolowicz, supra, n. 36 at p. 84 Google Scholar. Cf Mann, ‘Fusion of the Legal Professions’ (1977) 93 LQR 367, 369 Google Scholar.

53. New code of civil procedure, art 12 para 1.

54. Supra, n. 34.

55. The corollary to this is strengthened by the Arbitration Act 1979. See Pioneer Shipping Ltd v BTP Tioxide Ltd [1982] AC 724.

56. E.g. Rondel v Worsley [1969] 1 AC 191.

57. See Galanter, ‘Justice in Many Rooms’ in Cappelletti (ed), Access to Justice and the Wel fare State p. 147 Google Scholar and authorities there cited.

58. ‘Accelerating the Process of Law’ op. cit. supra, n. 10, pp. 91, 117.

59. The very idea of a ‘fair’ settlement involves a relationship between the terms of the settlement and what would have transpired if the case had proceeded to judgment. See Report of the Committee on Personal Injuries Litigation 1968, Section V.

60. Galanter loc. cit. supra, n. 57, p. 153.

61. It is unclear whether a public authority possessed of a power of civil suit, as is a local authority under the Local Government Act 1972, s. 222, is under a duty to exercise its power in proper cases, but it is clear that the Attorney-General's discretion to decide whether his power of suit should be exercised is unfettered: Gouriet v Union of Post Office Workers [1978] AC 435. The position as regards police discretion in relation to the commencement of criminal proceedings is different: R v Commissioner of Police of the Metropolis, ex p Blackburn [1968] 2 QB 118.

62. Unfair Contract Terms Act 1977, s. 2(2).

63. Aliter in the case of a clause purporting to exclude liability for personal injury or death resulting from negligence, for such a clause is rendered ineffective as a matter of law by s. 2(1) of the Act.

64. Engelmann Der Civilprozess: Allgemeiner Theil, cited Millar ‘The Formative Principles of Civil Procedure’ in Engelmann and others History Of Continental Civil Procedure pp. 3, 13. Tur ‘Litigation and the Consumer Interest: the Class Action and Beyond’ (1982) 2 LS 135, 143, has usefully drawn the attention of the present generation of English lawyers to Ihering's view (Der Kampf ums Recht) that ‘the assertion of a right is a duty owed to the commonwealth’.

65. Stalev, ‘El proceso en los estados socialistas’ in LXXV Años de euolución jurídica en el mundo III, 167, 186Google Scholar.

66. Local Government Act 1972, s. 222. See e.g. also Companies Act 1967, s. 35. See generally Jacob ‘Safeguarding the Public Interest in English Civil Proceedings’ (1982) 1 Civil Justice Quarterly, 312.

67. [1976] QB 629.

68. As in Halsey v Esso Petroleum Ltd [1961] 1 WLR 683.

69. Was Dyson v A-G [1911] 1 KB 410, [1912] Ch 158 selfish or unselfish? Only the court can unmask an unselfish action in disguise. For this reason the House of Lords' attempt, in Gouriet v Union of Post Office Workers [1978] AC 435, to secure for the Attorney-General a monopoly control over unselfish actions not specifically authorized by statute, cannot succeed: Jolowicz loc. cit. supra, n. 40, at pp. 39–42.

70. E.g. British Transport Commission v Gourley [1956] AC 185; Puny u Cleaver [1970] AC 1.

71. Rookes v Barnard [1964] AC 1129 at 1221–1231, per Lord Devlin; Cassell & Co Ltd v Broomc [1972] AC 1027.

72. See e.g. Report of the Royal Commission on Civil Liability and Compensation for Personal Injury 1978, Cmnd 7054, I, para 262.

73. This is not to say that the principles of law governing liability in damages are not of general interest rather than of interest only to those individuals who suffer damage and to those who have to pay them. On the contrary, it is increasingly recognised even by judges that they may have far-reaching consequences in society. See e.g. Wise v Kaye [1962] 1 QB 638 at 670, where Diplock LJ, in discussing the level of damages in cases of personal injury which are paid by insurers, so that the burden is spread over the general body of premium paying policy holders, observed that the scale of damages should not be fixed ‘at a level which would materially affect the cost of living or disturb the current social pattern’.

74. Under RSC Ord 15, r. 12, a representative action is possible only where there are numerous persons ‘having the same interest in any proceedings’, which rules out, for example, a representative action on behalf of all those injured after taking a particular drug produced by a pharmaceutical manufacturer. A ‘test’ action brought by one of them may have a similar effect, but is capable of creating a judgment debt in favour of the nominal plaintiff alone.

75. FRCP Rule 23, as revised in 1966, allows a class action, inter aha, where the class is so numerous that joinder of all members is impracticable and the claims or defences of the representative parties are typical of the claims or defences of the class. This makes possible actions for damages on behalf of very large numbers of people, a development which, it seems, may not be wholly to the liking of the Supreme Court. See e.g. Eisen v Curlisle and Jacquelin 417 US 156 (1974); Zahn v International Paper Co 414 US 291 (1973). The American literature on the class action is voluminous. See James and Hazard op. cit. supra, n. 28 para 10.18; Johnson et al ‘Access to Justice in the United States’ in Cappelletti (ed) Access to Justice 1 914,993–1003 and, for a very brief account, Jolowicz ‘Some Twentieth Century Developments in Anglo-American Civil Procedure’ in Studi in Onorc di Enrico Tullio Liebman 1, 217, 287–293.

76. Tur loc. cit. supra, n. 64; Jacob, loc. cit. supra, n. 66, at pp. 345–346 Google Scholar.

77. Weinstein ‘Some Reflections on the “Abusiveness” of Class Actions’ 58 FRD 299 (1973).

78. See also Tur loc. cit. supra, n. 64 at p. 159.

79. [1981] AC 1001. Jolowicz, ‘Should Courts answer Questions?’ [1981] CLJ 226Google Scholar.

80. [1981] AC at 1011.

81. The concept of the ‘ripeness’ of a question for judicial determination has acquired importance in the Supreme Court of the United States. See e.g. Duke Power Co v Carolina Environmental Study Group 438 US 59 (1978).

82. See n. 83, infra.

83. Strictly speaking the concept of ‘standing’, though important in proceedings by application for judicial review, has no place in proceedings by way of action: Jolowicz loc. cit. supra, n. 40, at p. 40. An action can, however, be struck out for failure to disclose a ‘reasonable cause of action’: RSC Ord 18, r. 19. A comparison of Gouriet v Union of Post Office Workers with R v IRC ex p Fed of Self-Employed [1982] AC 617 indicates that the House of Lords is more willing to consider the substance of an ‘unselfish’ challenge to the legality of the action of a public authority, subject to the application for judicial review, than it is to do the same in an undisguisedly ‘unselfish’ action. As a practical matter, however, both forms of procedure are capable of ‘unselfish’ use. Though the importance of such use is much greater in the United States we, like the Americans, should follow Holmes' admonition to look at what courts do and draw the necessary conclusions. Of the substantial American literature, see, in particular, Chayes ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harv LR 1281, where Holmes' admonition is obeyed.

84. Report of the Committee on Administrative Tribunals and Enquiries 1957, Cmnd 281, 9.

85. To explain the existence of rights of appeal on the ground that judges are fallible (e.g. Final Report of the Committee on Supreme Court Practice and Procedure 1953, Cmd 8878, para 473) is to assume that a ‘correct’ solution exists. Cf Esmein Cours élémentaive d'histoire du droit français (4th edn), p. 257. If the proposed ‘full appraisal’ is to include procedure on appeal, the purposes served by the appellate courts and particularly the House of Lords call for careful scrutiny – obviously, even in ‘selfish litigation’, those purposes go beyond the resolution of private disputes. Though not directly applicable to the manner in which the House of Lords announces its decisions, there is much to be learned from the discussion in Touffait et Tunc ‘Pour une motivation plus explicite des décisions de justice, notamment de celles de la Cour de cassation’ Rev trim dr civ 1974, 487. See also Bellet et Tunc (ed) La cour judiciaire suprěme. Une Enquěte comparative and Jolowicz ‘Appellate Proceedings’ in Storme and Casman (ed) Towards a justice with a Human Face.

86. Taken at face value, RSC Ord 20, r. 8 (supra, n. 34) enables the court to restructure the litigation by ex officio orders for the amendment of the pleadings. The rule that the judge may not call a witness himself without the agreement of the parties rests on a decision of the Court of Appeal of 1910, the reasoning of which is unconvincing: Re Enoch & Zaretzky Bock [1910] 1 KB 327. The court has power under RSC Ord 40, to appoint a court expert although, save in patent cases (RSC Ord 103, r. 27) only on application of a party. See Re Saxton [1962] 1 WLR 968 at 973, per Lord Denning MR. Cf Law Reform Committee's Report on Evidence of Opinion and Expert Evidence, 1970, Cmnd 4489.

87. Loc. cit. supra, n. 6, at pp. 738–739. See also Pound ‘A Generation of Improvement in the Administration of Justice’ (1947) 27 NYULR 369.

88. Supra, n. 51.

89. Loc. cit. supra, n. 10, at p. 302.

90. Ibid, p. vii. The Supreme Court Act 1981 he regarded as ‘a staging point in the development and reform of procedural law.’