C.H. van Rhee, ‘English Civil Procedure until the Civil Procedure Rules (1998)’, in: C.H.

van Rhee (ed.), European Traditions in Civil Procedure, Antwerp [etc.], 2005, p. 129-159.

ENGLISH CIVIL PROCEDURE UNTIL THE CIVIL PROCEDURE RULES (1998)1

1. Introduction

The history of both the modern English court organisation and its rules of civil pro-cedure starts in the nineteenth century. More specifically, it starts in the second quarter of that century.2 Before that time, the structure and practice of the courts were completely different to those which we see today; the organisation of the Eng-lish courts – and the civil procedural rules which were applied by such courts – re-flected the division between Common Law3 and Equity, which today is mainly relevant in the area of substantive law. From the second quarter of the nineteenth century until the introduction of the 1873-1875 Judicature Acts, a major overhaul took place which forms the basis of the English developments in this area until the present day.4

1 The author would like to thank Dr. Paul A. Brand, All Souls College, Oxford, and Professor

W. Hamilton Bryson, University of Richmond, School of Law, Richmond (Virginia), for their valuable comments on an earlier version of this chapter.

2 See, e.g., J.I.H. Jacob, ‘Civil Procedure Since 1800,’ in J.I.H Jacob, The Reform of Civil Procedural Law and Other Essays in Civil Procedure, London, Sweet & Maxwell, 1982 (reprinted from Then and Now, 1799-1974. Commemorating 175 Years of Law Bookselling and Publishing, London, Sweet & Maxwell, 1974), p. 204: ‘The present system of the administration of civil justice bears hardly any resemblance to the system prevailing at the beginning of the nineteenth century […]. The changes made during the intervening period have completely transformed the system almost beyond recognition […]. Viewing the entire system across the gulf of 175 years, it is hardly credible that the present system should bear any affinity, still less owe parentage, to the system prevailing in 1800.’

3 In English textbooks the Common Law is also referred to shortly as ‘Law,’ e.g., in the expression ‘Law and Equity’ (meaning ‘Common Law and Equity’). Additionally, remedies of the Common Law are referred to as ‘legal remedies’ in order to distinguish them from ‘equitable remedies.’ Since this book addresses an international audience, this usage is not adopted here.

4 The new Civil Procedure Rules, which came into force in 1999, did in my opinion not change this situation, even though they contain far-reaching reforms. On the new Rules, see p. 161 ff.

In one of the leading textbooks on English legal history, Professor J.H. Baker explains that the Common Law started to develop in the twelfth century.5 It originated in the English Curia Regis, the King’s Court.6 Given that the King was considered as the ‘fountain of justice,’ his Court, like its counterparts on the European Continent, therefore administered justice in addition to what currently would be distinguished as its executive functions. Equity as a body of legal rules emerged later, in the fourteenth century. One of the reasons why it came into being was the Common Law’s failure to provide remedies in all situations where such remedies were deemed to be justified.7 Another reason was to mend apparent defects in the Common Law. A standard example of the latter situation is where a debtor did not have his creditor cancel the sealed bond with which he had provided the creditor when he paid the money owed by him. The debtor could not use his payment of the debt as a defence to the creditor’s claim when he was summoned to court to pay such monies for a second time, because the Common Law considered the bond as incontrovertible evidence of the debt’s continued existence.8 In order to avoid being forced to pay a second time, the debtor would have to petition the King for a remedy out of grace. As a result of these and similar petitions, and the remedies granted upon them, Equity came into being as a body of rules supplementing the Common Law.

5 J.H. Baker, An Introduction to English Legal History, 4th edition, London [etc.],

Butterworths/LexisNexis, 2002, p. 13. 6 For reasons of convenience, the Curia Regis will be referred to as the ‘King’s Court.’ Most

modern legal historians working on the twelfth and thirteenth centuries, however, would not now say that there was only a single ‘King’s Court’ even in the reign of Henry II (1154-1189). Instead, they hold that there were a number of different King’s Courts with different personnel and different jurisdictions though a certain family resemblance between them existed. They are probably best seen as courts which were in effect created as new institutions in the second half of the twelfth and first half of the thirteenth centuries, owing little to the unprofessional and irregular ‘King’s Court’ that had existed before the reign of Henry II. Consequently, most modern legal historians would hold that the Common Law came into existence at different ‘King’s Courts.’ The author would like to thank Dr. P. Brand, Oxford, who kindly provided this information.

7 Ironically, due to the fact that original writs at Common Law were issued by the Chancery (see below), it was in the end the Chancery that determined what remedies could be provided at Common Law. It was also the Chancery (wearing a different hat) that then provided the equitable remedies that it did not allow the Common Law Courts to provide. The author would like to thank Dr. P. Brand, Oxford, who kindly provided this information. See also Radcliffe and Cross, The English Legal System, 6th edition, London, Butterworths, 1977, p. 115 ff.

8 J.H. Baker, supra note 5, p. 102. See also G. Spence, ‘The History of the Court of Chancery,’ in Committee of the Association of American Law Schools (ed.), Select Essays in Anglo-American Legal History, Volume II, Boston, Little, Brown, and Company, 1908, p. 248, footnote 3.

2. Pre-Nineteenth-Century Court Organisation

2.1. Courts of Common Law9

The Common Law came to be administered by three different, superior, royal courts:

1. The Court of King’s Bench, a court that originally only administered justice in cases that were of interest to the Crown;

2. The Common Bench or the Court of Common Pleas, administering justice in cases in which the Crown had no such interest; and

3. The Court of Exchequer, which, originally, was mainly concerned with is-sues relating to the Crown’s revenue.

As was common throughout Europe in the period before the nineteenth century, the jurisdiction of the above courts was not fixed. Although the King’s Bench and the Ex-chequer may originally only have been courts for actions in which the Crown had an interest, these courts also started to adjudicate so-called ‘common pleas,’ i.e., actions in which the Crown had no interest. As a result, at the end of the seventeenth century, the jurisdictions of the three Common Law Courts were (to a large extent) concurrent. This resulted in these courts competing with each other for business. In the eighteenth cen-tury, the situation in the area of jurisdiction had become so confused that one tended to refer to the three Common Law Courts indiscriminately as the ‘twelve judges.’ The fact that these judges sat at three different tribunals had lost much of its importance. Ac-cording to Professor Baker, ‘[t]he prospect of a legal difficulty might have influenced the plaintiff’s choice of court; but probably the choice more often depended on the sphere of practice of the attorney consulted, on subtle differences in costs, and proce-dural advantages.’10

2.2. Court of Chancery11

The administration of Equity was placed in the hands of the King’s Chancellor, who administered justice in the Court of Chancery. This court’s jurisdiction included trusts12 and mortgages.13 Until 1841, the Court of Exchequer, mainly being a court of

9 On the history of the superior Courts of Common Law, see J.H. Baker, The Oxford History of the

Laws of England, Volume VI: 1483-1558, Oxford, Oxford University Press, 2003, p. 125-170. See also W. Holdsworth, A History of English Law, Volume I, 7th revised edition, London, Methuen, Sweet & Maxwell, 1956, p. 194 ff.

10 J.H. Baker, supra note 5, p. 50. 11 On the history of the Court of Chancery, see J.H. Baker, supra note 9, p. 171-190. See also W.

Holdsworth, supra note 9, p. 395 ff. 12 On the history of the trust, see F.W. Maitland, Equity, also the Forms of Action at Common Law.

Two courses of Lectures (edited by A.H. Chaytor and W.J. Whittaker), Cambridge, Cambridge University Press, 1929, p. 23 ff; J.H. Baker, supra note 5, p. 290-293; R. Helmholz and R. Zimmermann, Itinera Fiduciae. Trust and Treuhand in Historical Perspective, Berlin, Duncker &

Common Law, also had a jurisdiction in Equity (Equity Side of the Exchequer).14 Problems arose when the jurisdiction of the Courts of Equity, although theoretically to be distinguished from that of the Courts of Common Law, overlapped with the jurisdiction of the latter courts. As a result, it could, for example, happen that ‘an injunction15 would [...] issue out of the Court of Chancery to restrain the plaintiff from enforcing the judgment that he had obtained’ from a Court of Common Law.16

3. Pre-Nineteenth-Century Court Procedure

3.1. Introduction

Before the nineteenth century, the rules of procedure of the Courts of Common Law and the Court of Chancery were, to a large extent, unwritten. Apart from a limited number of general ‘orders of the courts,’17 various statutes and reports of decided cases, they were based on ‘the silent development of traditional practice and conventions.’18

3.2. Courts of Common Law19

A discussion of ‘the procedure’ of the Courts of Common Law is impossible, since no such single procedure existed. Instead, various recognised types of action before these courts had their own procedure. Therefore, the present chapter should contain a description of the varying procedures which were adopted in the different actions that could be brought before the Courts of Common Law; the so-called ‘forms of

Humblot, 1998; C.H. van Rhee, ‘Trusts, Trust-like Concepts and Ius Commune,’ European Review of Private Law, 2000, p. 453-462.

13 On mortgages, see F.W. Maitland, supra note 12, p. 266-292; J.H. Baker, supra note 5, p. 311-314.

14 W.H. Bryson, The Equity Side of the Exchequer. Its Jurisdiction, Administration, Procedures and Records, London [etc.], Cambridge University Press, 1975.

15 In the period under consideration, an injunction was a writ of the Court of Chancery in the nature of a personal order to a party to litigation to do or not to do something. Currently injunctions can be issued by all divisions of the High Court.

16 J.I.H. Jacob, supra note 2, p. 195. 17 On the ‘orders of the court,’ see W. Holdsworth, A History of English Law, Volume V, 3rd

edition, London, Methuen, Sweet & Maxwell, 1945, p. 265-266. These orders are framed by courts of justice, sometimes by virtue of their inherent jurisdiction or under the express authority of a statute. On ‘inherent jurisdiction,’ see p. 165 (Section 2.5) of the present volume, and M.S. Dockray, ‘The Inherent Jurisdiction to Regulate Civil Proceedings,’ Law Quarterly Review, 1997, p. 120-132.

18 R.C. van Caenegem, ‘History of European Civil Procedure,’ in M. Cappelletti (ed.), Civil Procedure [Volume XVI International Encyclopedia of Comparative Law, Chapter 2], Tübingen [etc.], J.C.B. Mohr [Paul Siebeck], 1971, p. 75. For an elaborate overview of Evidence, Procedure and Pleading, both at Common Law and in Equity, see W. Holdsworth, A History of English Law, Volume IX, 3rd edition, London, Methuen, Sweet & Maxwell, 1944, p. 126 ff.

19 On civil procedure and pleading in the Courts of Common Law at the start of the early-modern period, see J.H. Baker, supra note 9, p. 321-407.

action.’20 However, this would go far beyond what is intended with the present book, i.e., providing a comparative introduction to the traditions in civil litigation in some major European legal systems. Consequently, this chapter will only focus on some general features of civil procedure at Common Law, concentrating on those actions that were classified as ‘personal.’21

In accordance with the practice of the Continental superior courts of the period before the French Revolution, proceedings at the superior Courts of Common Law could not be commenced (‘originated’ in the terminology of the Common Law) with-out formal permission granted in the King’s name. Permission was given by way of an ‘original writ’ (perhaps, in better words, an ‘originating writ’). This was a document that resembled (to some extent) similar documents on the European Continent includ-ing, for example, the letters patent containing a ‘provision de justice’ in the Low Coun-tries.22 Just like these letters patent, ‘original writs’ served as the Sovereign’s permit for the judges to decide the particular case.23

Upon the request of the plaintiff, and after the plaintiff had paid the prescribed fees, an original writ was issued out of the Chancery24 on parchment running in the King’s name and sealed by the King’s seal. Just like its Continental counterparts, this writ ordered an official (in England the sheriff and on the Continent the huissier de jus-tice or a comparable officer) to give the defendant the option to do what was demand-ed by the plaintiff. In cases where the defendant would not do so, the writ commanded him to make an appearance before the Sovereign’s justices.25 In England, such ‘optional

20 F.W. Maitland, supra note 12, p. 295 ff. 21 Due to the complexity of the rules of pleading and procedure in real actions, these were all

but disused by the time of Blackstone. Because of their minor significance for the later development of procedure at Common Law, I will not discuss these actions here. By 1860, most real actions had been abolished (W. Holdsworth, A History of the Laws of England, Volume XV, London, Methuen, Sweet & Maxwell, 1965, p. 104). A Continental reader should note that a ‘real action’ cannot be regarded as the equivalent of the ‘actio in rem’ of the Civil Law. In Common Law, a real action only relates to ‘real property’ (land and generally whatever is erected or growing upon or affixed to land). At the time of Blackstone, using personal actions instead of real actions was not problematic, since even though personal actions lay only for damages, ‘it was not beyond the ingenuity of the legal mind to escape even that difficulty’ (J.H. Baker, supra note 5, p. 236). See also Radcliffe and Cross, supra note 7, p. 81 ff.

22 C.H. van Rhee, Litigation and Legislation. Civil Procedure at First Instance in the Great Council for the Netherlands in Malines (1522-1559), Brussels, Archives générales du Royaume, 1997, p. 57 ff. It should be noted, however, that the letters patent containing a ‘provision de justice’ in the Low Countries and similar documents from other parts of the European Continent were drafted in less stereotyped form than the original writs.

23 W. Blackstone, Commentaries on the Laws of England, Volume III, 15th edition, London, Strahan, 1809, p. 273.

24 As a result, proceedings in the Courts of Common Law could not be commenced without recourse to the Chancery. Obtaining an original writ from the Chancery was known as ‘suing out the original.’ See W. Blackstone, supra note 23, p. 279.

25 Cf. W. Blackstone, supra note 23, p. 273: ‘[An original writ is] a mandatory letter from the king in parchment, sealed with his great seal, and directed to the sheriff of the county wherein the injury is committed or supposed to be, requiring him to command the wrongdoer or party accused, either to do justice to the complainant, or else to appear in court, and answer the accusation against him.’

writs’ were known as ‘praecipe writs,’26 whereas in the Low Countries similar docu-ments were denoted as ‘lettres patentes en forme de commandements.’27 According to Professor Baker, the option of performance became fictional in England at the end of the medieval period.28

Not all types of original writ were optional or praecipe writs. Praecipe writs were issued if the plaintiff sought to restore a right claimed by him29 or, in the words of Blackstone, if ‘something certain […] [was] demanded by the plaintiff, which it [...] [was] incumbent on the defendant himself to perform.’30 Writs also existed that or-dered the sheriff to command directly the defendant to make an appearance in court. These were issued when ‘nothing […] [was] specifically demanded, but only a satisfac-tion in general; to obtain which, and minister complete redress, the intervention of some judicature […] [was] necessary.’31 The latter writs were, according to Blackstone, known as ‘si fecerit te securum’ writs32 (by legal historians these writs are mostly called ‘ostensurus quare’ writs, since the phrase ‘si fecerit te securum’ was also a feature of ‘praecipe writs’). Documents resembling these writs, at least to some extent, can also be found on the European Continent, for example in the Low Countries.33

At an early stage – and this is why the original writs have been so fundamental for the development of the Common Law – the writ formulae became fixed. Because the available writs were considered to define the rights and remedies that were recog-nised by the Common Law, these rights and remedies also became more or less fixed.34 This development stood in sharp contrast to the situation on the European Continent, where rights and remedies have never been fixed by the Continental equivalents of the original writ and where no stereotyped forms of writ developed for different types of action. In England, however, a plaintiff who could not find an appropriate writ in the register of writs could not bring an action at a superior Court of Common Law. As we have seen, Equity provided a solution in some of these cases.

The available original writs in the register of writs not only governed the plain-tiff’s access to the superior Common Law Courts, but also determined the course of litigation. Again, this situation is particular to England. The procedure and methods of litigation used in an action commenced by one kind of original writ were not necessari-ly the same as in an action commenced by another type of original writ. Therefore, the available types of original writs could be used to classify the available types of proce-dure or ‘forms of action.’

An original writ that had been executed by the sheriff or his deputy had, just like its Continental counterparts, to be submitted to the court, together with a certification

26 W. Blackstone, supra note 23, p. 274; J.H. Baker, supra note 5, p. 54-55, p. 57-59. 27 C.H. van Rhee, supra note 22, p. 57 ff. 28 J.H. Baker, supra note 5, p. 57. See also T.F.T. Plucknett, A Concise History of the Common Law,

5th edition, Boston, Little, Brown, 1956, p. 384. 29 J.H. Baker, supra note 5, p. 58. 30 W. Blackstone, supra note 23, p. 274. 31 W. Blackstone, supra note 23, p. 274. 32 W. Blackstone, supra note 23, p. 274. Blackstone calls these writs also ‘peremptory writs.’ 33 C.H. van Rhee, supra note 22, p. 73 ff. See, however, supra note 22 (text). 34 J.H. Baker, supra note 5, p. 56.

of what had been done in pursuance of the writ. This certification was called the ‘re-turn.’ Specific periods of about a week were scheduled for submitting writs and the accompanying certifications to the court, the so-called ‘return-days.’35 If the defendant appeared the case might be heard on any day within the period of about a week.36

When the writ was submitted to the court, it was taken to an officer (called a ‘fi-lazer’ at the Court of Common Pleas and the King’s Bench), 37 who issued the necessary subsequent writs during what was called ‘mesne process,’ i.e., the proceedings which took place between the delivery of the original writ and handing down of the court’s judgment.38 The latter writs were known as ‘judicial writs’ and they were, inter alia, necessary if the defendant did not make an appearance upon the original writ.

A whole series of judicial writs could follow the original writ. By way of a judicial writ of attachment, designated as a writ of ‘pone’ by Blackstone39 (not to be confused with the original writ of the same name), the defendant could be forced to make an appearance in court by ordering a seizure of certain of his goods or by taking personal sureties.40 If this was of no avail, a writ of ‘distringas’ or ‘distress infinite’ could be ob-tained, ‘commanding the sheriff to distrein the defendant [i.e., to procure satisfaction from the defendant] from time to time, and continually afterwards, by taking his goods and the profits of his lands [out of his possession and into the custody of the Crown].’41 Another possibility was the writ of ‘capias ad respondendum,’ a writ that, at the time of Blackstone, was available ‘upon almost every species of complaint.’42 By virtue of the latter writ, the defendant was imprisoned in order that he could be produced in court on a return-day (it was, however, normal to allow bail to the defendant). The defend-ant’s appearance at court was highly important, because originally (and with a few exceptions)43 the Common Law did not allow a judgment in default of appearance.44

The above system changed during the seventeenth century, not officially but as a result of a series of ‘fictions.’ According to T.F.T. Plucknett, who categorises the change as a ‘revolution,’ the reform had as its object ‘nothing less than the abandonment of the

35 The writs were supposed to be in court on the first day within the period of about a week but

no judgment would be given against the defendant until the fourth day of the period. 36 J.H. Baker, supra note 5, p. 66; W. Blackstone, supra note 23, p. 273-275. 37 J.H. Baker, supra note 5, p. 38, p. 64. 38 J.H. Baker, supra note 5, p. 64. As indicated above, the original writ was issued out of

Chancery, i.e., not out of the court where the action was brought. 39 W. Blackstone, supra note 23, p. 280. 40 See also J.H. Baker, supra note 5, p. 64. The designation ‘pone’ for this type of judicial writ is

not used by Professor Baker. This author designates the writ as a ‘writ or precept of attachment.’

41 W. Blackstone, supra note 23, p. 280. 42 W. Blackstone, supra note 23, p. 282. Although Blackstone presents the writ of capias as being

obtained after the writ of distringas, in earlier times ‘capias’ was generally available only where there was nothing to distrain. ‘Capias,’ therefore, was an alternative to distraint. The author would like to thank Dr. P. Brand, Oxford, who kindly provided this information. See also Radcliffe and Cross, supra note 7, p. 165-166.

43 P. Brand, ‘Delay in the English Common Law Courts,’ in C.H. van Rhee (ed.), The Law’s Delay. Essays on Undue Delay in Civil Litigation, Antwerp [etc.], Intersentia, 2004, p. 31-32.

44 R.W. Millar, Civil Procedure of the Trial Court in Historical Perspective, New York, Law Center of New York University for the National Conference of Judicial Councils, 1952, p. 361 ff.

old system of original writs.’45 The new system is described by Blackstone. According to this author, at the Court of Common Pleas, the judicial writ of ‘capias’ was, in most cases,46 the first step in the proceedings; the antecedent writs were just supposed to have been sent back to the court by the sheriff (a fiction, because no such thing had happened in actual practice).47 At the King’s Bench, even the fiction that an original writ had to be issued was superfluous in many cases. There, due to another fiction in-volving fictional trespass in Middlesex,48 most cases were started with a ‘bill of com-plaint,’ i.e., a petition submitted to the King’s Bench, known as the Bill of Middlesex (Middlesex being the name, at the time, of the county in which Westminster, where the royal courts came to reside, was situated).49 On this bill, there was issued a precept commanding the sheriff of Middlesex to arrest the defendant in order to produce him in court on a return-day. Once the defendant was in custody (or on bail) on the Bill of Middlesex, another separate bill of custody was drafted giving the real cause of com-plaint against the defendant instead of the fictitious one in the Bill of Middlesex.

If the defendant could not be found in Middlesex, a judicial writ was issued, known as the writ of ‘latitat,’ ordering the sheriff of another county to imprison the defendant. In actual practice, the Bill of Middlesex was omitted if it was known before-hand that the defendant did not reside in Middlesex. In that case, the writ of ‘latitat’ was immediately issued on the supposition (another fiction) that the sheriff had exe-cuted the precept that had been issued as a result of the Bill of Middlesex on an earlier occasion and that he had reported to the court on a return-day.

In the Court of Exchequer, similar fictions existed. According to Blackstone, there the proceedings were started with a writ of ‘quominus’ (a kind of capias)50 on the fic-tion that the plaintiff was a Crown debtor and the defendant’s action or inaction on his claim was diminishing his ability to pay what he owed the Crown. The writ of ‘quomi-nus’ was also based on the supposition of antecedent process51 and also directed the sheriff to arrest the defendant and produce him in court.52 Professor Baker, however, states that, at the time of Blackstone, the writ of quominus had already been superseded by another instrument for starting proceedings in the Exchequer, i.e., the Exchequer subpoena.53 This was a writ which originally threatened a monetary sanction (although the actual sanction imposed pursuant to the subpoena was, in fact, contempt of court54 and possible imprisonment pending satisfaction).55

45 T.F.T. Plucknett, supra note 28, p. 386. 46 But not in the older real actions. See T.F.T. Plucknett, supra note 28, p. 387. 47 R.W. Millar, supra note 44, p. 74-75. 48 See W. Blackstone, supra note 23, p. 284-285; J.H. Baker, supra note 5, p. 41-43. 49 On the bill procedure, see J.H. Baker, supra note 5, p. 41-43. 50 R.W. Millar, supra note 44, p. 76. 51 R.W. Millar, supra note 44, p. 76. 52 W. Blackstone, supra note 23, p. 285; R.W. Millar, supra note 44, p. 75-76. 53 J.H. Baker, supra note 5, p. 49 and footnote 62. 54 Contempt of court can be defined as any act which is calculated to embarrass, hinder, or

obstruct the court in the administration of justice, or which is calculated to lessen the court’s authority or its dignity.

55 The author would like to thank Professor W. Hamilton Bryson, Virginia, for kindly providing him with this information.

From 1725, the various judicial writs described above no longer resulted in the ac-tual arrest of the defendant. Since, as we have seen, antecedent process was a fiction, the defendant’s refusal to make an appearance in court on antecedent process was also a fiction. It was therefore deemed unjustified to imprison defendants based upon a fic-titious refusal. Accordingly, the various judicial writs were, basically speaking, trans-formed into a summons to appear in court.56

When the defendant made his appearance in court, the particular question or ‘is-sue’ (‘exitus’ in Latin) that was to be decided in the proceedings had to be determined. An exact definition of the issue was highly important because cases where the facts were in dispute had to be decided by a jury.57 Since a jury was composed of laymen, they could not be expected to be able to define the issue themselves. ‘Pleading’ was therefore the vehicle used for defining the issue. The goal of pleading was to produce either a single issue in law or in fact.58 It was a highly technical art which, from the fif-teenth century,59 took place by way of the exchange of written statements of case.60

The plaintiff’s opening pleading was known as the ‘count,’ ‘declaration,’ ‘narra-tion’ or ‘tale.’61 In this opening pleading, he formulated his demand or complaint and elaborated on the information that was to be found in the original writ. In doing so, he revealed the details of his cause of action, i.e., the ground upon which his action could be maintained.62 The plaintiff had to limit his action to one ground of claim or cause of action, because it was generally forbidden to join two or more causes of action in a sin-gle case.

The defendant could react in different ways to the plaintiff’s opening pleading. He could either (1) specifically deny one of the material facts introduced by the plain-tiff, in which case he was said to introduce a ‘special traverse’ or ‘special plea,’ (2) gen-

56 R.W. Millar, supra note 44, p. 85. 57 On the history of trial by jury, see J.W. Cairns and G. Macleod, ‘The Dearest Birth Right of the

People of England:’ The Jury in the History of the Common Law, Oxford [etc.], Hart, 2002. See also W. Holdsworth, supra note 9, p. 312 ff.

58 On pleading also W. Holdsworth, supra note 18, p. 262 ff. As regards the differences between pleading at Common Law and pleading on the Continent, see W.S. Holdsworth, ‘The Development of Written and Oral Pleading,’ in Committee of the Association of American Law Schools (ed.), Select Essays in Anglo-American Legal History, Volume II, Boston, Little, Brown, and Company, 1908, p. 619-620; C.C. Langdell, ‘The Development of Equity Pleading from Canon Law Procedure,’ in Committee of the Association of American Law Schools (ed.), Select Essays in Anglo-American Legal History, Volume II, Boston, Little, Brown, and Company, 1908, p. 772: ‘The object of pleading at common law is not, as in the civil law, to give notice to the parties respectively and to the court of the facts intended to be proved, but to separate the law from the facts, and to narrow the latter down to a single issue, with a view to a trial by jury.’

59 J.H. Baker, supra note 5, p. 81-82. See also W.S. Holdsworth, supra note 58, p. 634. 60 T.F.T. Plucknett, supra note 28, p. 406. In medieval times, pleading was oral. The Continental

equivalents of the written pleadings in England, or, to use the more modern description, ‘statements of case,’ are known as ‘conclusions’ in French, Belgian and Dutch procedural law.

61 W. Blackstone, supra note 23, p. 293. 62 See also W. Blackstone, supra note 23, p. 293: ‘[….] in which [i.e., the count] the plaintiff sets

forth his cause of complaint at length: being indeed only an amplification or exposition of the original writ […] with the additional circumstances of time and place, when and where the injury was committed.’

erally deny all of the material facts introduced by the plaintiff, in which case he was said to introduce a ‘general traverse’ or ‘general plea,’ or (3) admit the facts and show that, on the basis of these facts, the plaintiff was not entitled to what he claimed. If the defendant opted for the latter approach, he could then either (3a) state that, on the basis of the facts that had been alleged by the plaintiff, there was no legal case against him, or (3b) decide to introduce additional facts that explained the plaintiff’s facts away. If he elected option (3a), the defendant was said to have introduced a ‘demurrer.’63 If he instead chose option (3b), the defendant was said to have opted for a ‘confession and avoidance.’

The reaction of the defendant determined if any question or ‘issue’ would be pro-duced for trial and, if so, what question or ‘issue’ would be so produced. A special trav-erse (option (1) above) resulted in the particular fact being put at issue, i.e., resulted in a question concerning a specific fact. A general traverse (option (2) above) produced ‘the general issue,’ i.e., a question concerning all material facts.64 Meanwhile, a demurrer (option (3a) above) meant that a question of law was raised. Finally, a ‘confession and avoidance’ (option (3b) above) did not result in an ‘issue’ but meant that it was the plaintiff’s turn to answer by way of reply in one of the ways which were originally open to the defendant (i.e., a special traverse, a general traverse, a demurrer or confes-sion and avoidance). Such an answer would either produce one of the issues indicated above or, in case the plaintiff opted for ‘confession and avoidance,’ no issue. In the lat-ter case, the defendant could react by way of a rejoinder in one of the four manners indicated above.65 When he again opted for ‘confession and avoidance,’ the rejoinder was followed by a surrejoinder and so on (rebutter, surrebutter). According to Black-stone, the various pleadings that could be exchanged ‘answer to the exceptio, replicatio, duplicatio, triplicatio, and quadruplicatio of the Roman laws’ (the author refers to Inst. 4,14).66

63 The demurrer disappeared from English civil procedure in 1883, as a result of the Rules of

Supreme Court 1883, Order 25. On the demurrer, see T.F.T. Plucknett, supra note 28, p. 413: ‘If it is an issue of law, the parties will have admitted the relevant facts, leaving it to the court to decide whether the law applicable to them is as the plaintiff or as the defendant maintained. This is called a “demurrer” because one of the parties has pleaded that he is entitled to succeed on the facts admitted by the other, and is willing to rest (demourer) at that point;’ R.W. Millar, supra note 44, p. 33: ‘From Germanic rudiments has come the demurrer – an institution with no precise Continental counterpart – by which, on a point of law, the proceeding might often be brought to an abrupt and sometimes untimely end;’ W. Blackstone, supra note 23, p. 314: ‘An issue upon matter of law is called a demurrer: and it confesses the facts to be true, as stated by the opposite party; but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse.’

64 On the ‘general issue,’ see W. Blackstone, supra note 23, p. 304: ‘The general issue, or general plea, is what traverses, thwarts, and denies at once the whole declaration; without offering any special matter whereby to evade it.’

65 J.H. Baker, supra note 5, p. 77-78; R.W. Millar, supra note 44, p. 172. For an example of pleadings, see J.H. Baker, supra note 5, p. 78. See also J.I.H. Jacob, supra note 2, p. 199, footnote 29.

66 W. Blackstone, supra note 23, p. 310.

It was at this time that the pre-trial stage ended. The manner of proceeding after the pleadings, i.e., the mode of trial of the case, then depended on the issue that was produced as a result of the pleading. When a question of law was raised as a result of a demurrer, the case was to be determined by the judges of the court ‘upon solemn ar-gument by counsel on both sides.’67 An issue of fact, resulting from a special or general traverse, made proof of facts necessary. According to Blackstone, seven modes of trial of facts were available in civil cases: trial by record, by inspection or examination, by certificate, by witnesses without the intervention of a jury, by wager of battle, by wager of law and by jury.68 Since jury-trial was the principal mode of trial (the other modes of trial being very rare or virtually extinct), I shall not discuss the other forms here.

Jury-trial was also referred to as a trial ‘by the country,’ ‘per patriam,’ or, in Law French (the French ‘dialect’ used until the seventeenth century in the Courts of Com-mon Law), ‘per pais.’ Originally, this required the presence of twelve or more men from the vicinity where the matter in question occurred. This was due to the fact that, at that time, the jury was not conceived as a body that independently evaluated the facts, but as a body having knowledge of these facts. This caused problems, since the Courts of Common Law, from an early time in their history, had been established at Westminster. This was often a long distance from where the jurors resided. Therefore, use was being made of the fact that the King’s justices, apart from hearing cases at Westminster, also visited different parts of the country69 for judicial and other business (the so-called ‘Assizes’70 that functioned from the thirteenth century – however, on a regular basis only from the fourteenth century, ca. 1340 – until they were abolished in 1971).

Juries were summoned by way of the judicial writ of ‘venire facias.’71 In order to avoid the jurors being obliged to travel to Westminster, the clause ‘nisi prius’ was in-serted in this writ. Although the jurors were always summoned to make an appearance at Westminster on a certain day, the ‘nisi prius’ clause stated that this was necessary unless before then (‘nisi prius’) the King’s justices had come into the country. As a rule, the justices would have come into the country ‘before then.’ Consequently, jury trial could take place in the country before these justices, who acted as commissioners. They could receive jury verdicts for transmission to the court on their return to Westminster. This practice continued after the jury had taken its present shape in the 1500s and 1600s,72 i.e., after it had changed from a body of men having knowledge of the facts into a body designated to evaluate these facts.

According to Blackstone, oral argument before the jury was opened ‘by counsel on that side which holds the affirmative of the question in issue.’73 The witnesses of the parties were called before the jury one by one. They were orally examined by the party by whom they were produced (examination in chief), cross-examined by the opposing

67 W. Blackstone, supra note 23, p. 314. 68 W. Blackstone, supra note 23, p. 330. 69 The country was divided in 6 circuits (districts in which the justices followed a set itinerary). 70 On the original meaning of ‘assize,’ see Radcliffe and Cross, supra note 7, p. 9, footnote 2. 71 W. Blackstone, supra note 23, p. 351; J.H. Baker, supra note 5, p. 66. 72 R.W. Millar, supra note 44, p. 23. 73 W. Blackstone, supra note 23, p. 365.

party and re-examined by the party by whom they were originally called.74 After the parties had gone through the case and produced all of the evidence, the judge had to sum up the case to the jury in the presence of the parties, their counsel and the public (‘all others’). In doing so, he had to omit ‘all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been giv-en to support it, with such remarks as he thinks necessary for their [i.e., the jury’s] di-rection, and giving them his opinion in matters of law arising upon that evidence.’75

The verdict of the jury would follow immediately after the speeches of counsel and the summing-up of the trial judge.76 The proceedings at ‘nisi prius’ were added to the record or ‘roll,’ and this roll was returned to the court.77 On the basis of the roll, judgment was then pronounced at Westminster.

The remedies that could be granted by the Courts of Common Law were limited. In the event that the plaintiff successfully established his claim, judgment could be giv-en for the recovery of money, goods or land or, not so often, for an account and the costs of the action.78

Appeals were not available in the period under consideration. Some relief was offered by proceedings ‘in error,’79 in which case judges of the lower courts were ordered to send the record of the proceedings complained of to a superior court. This court would then inspect the record in order to ascertain whether a ‘manifest error,’ evident from the record itself, had occurred. Additionally, this court was allowed to take into consideration new facts which were not inconsistent with the record of the lower court proceedings. Such facts had to be proved by the party who had brought the proceedings in error. From the Court of Common Pleas, applications relating to proceedings in error lay to the King’s Bench, from the Exchequer to the Council Chamber (subsequently also known as the Exchequer Chamber) and from the King’s Bench to the Exchequer Chamber.80 In 1830, these different courts of error were fused into a new Court of Exchequer Chamber. From this court of error a writ of error could be brought before the House of Lords.81

3.3. Court of Chancery

The procedure of the Court of Chancery (and of the Equity Side of the Court of Ex-chequer, supra) resembled, at least to some extent, the Romano-canonical model adopted by the superior Continental courts and by the English ecclesiastical and civilian courts (notably the Court of Admiralty). It differed radically from the ‘forms of action’ of the three Common Law Courts.

74 J.I.H. Jacob, supra note 2, p. 200. 75 W. Blackstone, supra note 23, p. 374. 76 J.I.H. Jacob, supra note 2, p. 200. 77 W. Blackstone, supra note 23, p. 386. 78 J.I.H. Jacob, supra note 2, p. 200. 79 See also Radcliffe and Cross, supra note 7, p. 210 ff. 80 See J.H. Baker, supra note 5, p. 136-138. 81 Radcliffe and Cross, supra note 7, p. 213.

Proceedings before the Court of Chancery were in writing. They were com-menced by a ‘bill of complaint.’ This bill was a petition,82 addressed to the Lord Chan-cellor.83 After a bill had been filed with the court, a subpoena was issued.84 By virtue of this document, which was served by a private person85 (i.e., not the sheriff), the de-fendant was summoned to appear in Chancery, originally under a money penalty.86 A defendant who did not enter an appearance at court not only forfeited a money penal-ty, but was also held in contempt of court. If the defendant was held to be in contempt, he could be forced to make an appearance by way of attachment of his assets and by arrest of his person.87 It should be noted that very early in history the money penalty mentioned in the subpoena was not levied anymore. All that remained were the measures that could be taken as a result of the defendant’s contempt of court.

The proceedings in the Court of Chancery were based on the bill of complaint. The bill consisted of three parts.88 The last or ‘interrogating part’ formed the basis of discovery.89 Discovery is a procedure whereby a party may compel his opponent to disclose information which is in his possession or control and which is relevant to the action. The allegations of the plaintiff were framed as inquiries to the defendant in the third and final part of the bill, and each of these inquiries or (interrogatories) had to be answered on oath.90 In this manner, the actual case that had to be decided by the court came to light; there was no need for a single issue. It is obvious that this procedure is very similar to the Romano-canonical procedure of ‘positions,’ of which it is, according to R.W. Millar, a descendant.91

An inquiry into the facts of the case was conducted either by officials of the Court of Chancery (known as ‘Masters’),92 or it was referred to laymen in the country. Wit-nesses were heard in private, and they gave evidence on questions that had been framed in advance and were also called ‘interrogatories.’ The witnesses’ depositions were written down as the evidence was given.93 The parties, who were not allowed to be present when the witnesses were heard, were only informed of the depositions of the witnesses after the evidence had been taken. This was known as ‘publication’ of the

82 G. Spence, supra note 8, p. 243. 83 W. Blackstone, supra note 23, p. 441. 84 J.H. Baker, supra note 5, p. 40. R.W. Millar, supra note 44, p. 78. An original writ was not

required. After all, the purpose of an original writ was to give the judge jurisdiction. Since a general delegation was assumed to have been made from the King to the Chancellor, it was unnecessary to accord him jurisdiction in each individual case and therefore there was no specification of the nature of the complaint.

85 R.W. Millar, supra note 44, p. 85. 86 R.W. Millar, supra note 44, p. 26. 87 W. Blackstone, supra note 23, p. 443. 88 See also Radcliffe and Cross, supra note 7, p. 145. 89 Currently, discovery is known as ‘disclosure’ in England. 90 R.W. Millar, supra note 44, p. 36. At Common Law, the examination of parties on oath was

not possible. See G. Spence, supra note 8, p. 238. 91 R.W. Millar, supra note 44, p. 36. See also C.H. van Rhee, supra note 22, p. 151 ff. 92 On the Masters of the Court of Chancery, see M. Lobban, ‘Preparing for Fusion: Reforming

the Nineteenth-Century Court of Chancery,’ Law and History Review, 2004, p. 574 ff. Also J.I.H. Jacob, supra note 2, p. 202, footnote 39; Radcliffe and Cross, supra note 7, p. 277, p. 301.

93 W. Blackstone, supra note 23, p. 438.

depositions, a term derived from the Romano-canonical procedure.94 From the mo-ment of publication, no further evidence was admissible in order to prevent fabricated evidence and perjury.95

When the evidence had been made known to the parties, they made an appear-ance in court via their counsel. First, the plaintiff’s bill was summarised by his junior counsel, and subsequently, the floor was given to junior counsel of the defendant for the defendant’s answer. Next came the senior or ‘leading’ counsel of the parties, who, according to Blackstone, stated ‘the case and the matters in issue, and the points of eq-uity arising therefrom.’96 In the early nineteenth century on average two hearings per case took place in court, the hearings being separated from each other with an interval of, on average, two years.97 After the parties had been heard, the court would pro-nounce its judgment, called a ‘decree.’ By way of this decree and with some limitations (the Court of Chancery could, for example, not specifically adjudge title over property to a claimant), specific relief could be given. This situation contrasted sharply to the situation at the Courts of Common Law, where the available relief was more limited in nature, often consisting in damages only.98

In 1675, it was decided that the House of Lords had jurisdiction to review the judgments of the Court of Chancery. The House of Lords could rehear the action on the merits. Therefore, this review can, at least to some extent, be compared to an appeal in the modern sense. The House of Lords acted as a direct appellate body of judgments of the Court of Chancery well into the nineteenth century.99 The situation then changed, as set out further below.

4. Nineteenth-Century Reforms before the Judicature Acts (1873-1875)

4.1. Introduction100

The system of court organisation and civil procedure discussed above continued in its existence until the nineteenth century. From the 1820s, however, it came under serious attack. The campaign against the existing system was initiated in 1828 by Henry Brougham (1778-1868), a member of the House of Commons, who became Lord Chancellor in 1830. After Brougham’s exposure of various defects in the existing system, a parliamentary commission was appointed to inquire into the

94 W. Blackstone, supra note 23, p. 450. 95 Lord Bowen, ‘Progress in the Administration of Justice during the Victorian Period,’ in T.H.

Ward (ed.), The Reign of Queen Victoria: A Survey of Fifty Years of Progress, Volume I, London, Smith, Elder, & Co., 1887, p. 292. On the law of proof in the Court of Chancery, see M.R.T. Macnair, The Law of Proof in Early-Modern Equity, Berlin, Duncker & Humblot, 1999.

96 W. Blackstone, supra note 23, p. 451. 97 Lord Bowen, supra note 95, p. 295. 98 R.W. Millar, supra note 44, p. 356. 99 J.H. Baker, supra note 5, p. 141. 100 See for a discussion of the various Acts mentioned in this section (in addition to the other

publications mentioned in the footnotes): E. Jenks, A Short History of English Law. From the Earliest Times to the End of the Year 1938, 6th edition, London, Methuen, 1949, p. 354 ff; R.C. van Caenegem, supra note 18, p. 106-107.

practice and procedure of the courts of law.101 This resulted in various reports and, ultimately, in a major legal reform.

4.2. Courts of Common Law

The first landmark as regards the procedure of the Courts of Common Law was the 1832 Uniformity of Process Act.102 This Act abolished the different modes by which (personal) civil actions had to be commenced at Common Law, i.e., by way of a spe-cific original writ or otherwise. It was laid down that there would be only one type of original writ of summons, now issued out of the court where the action was started. It was not addressed to the sheriff anymore, but to the defendant himself.103 The only reminder of the variety of original writs that had been used in the past to start an action was that the nature of the action (i.e., the form of action) had to be inserted in the space provided.104

The pleadings were the focus of attention of the 1834 Hilary Rules.105 These Rules, which were made by the judges of the Common Law Courts pursuant to delegated powers from Parliament,106 abolished the possibility of pleading the general issue. From then onwards, only special pleading was allowed.107 This was an important change compared with the time of William Blackstone, who stated that special plead-ing did not occur in practice.108 However, the Hilary Rules were not successful because they resulted in insurmountable complications in pleading.109

Further reforms were introduced by various Acts of Parliament passed in the 1840s and 1850s. The categories of people who were allowed to give evidence in civil proceedings was extended to parties who had an interest in the case, including the liti-gants themselves, who could now also be called to give evidence on their own be-half.110 Consequently, the rule that the parties themselves and anyone remotely

101 In fact, two commissions were appointed, one of which was to inquire into the practice and

procedure of the Courts of Common Law and another into the work of the Court of Chancery. See J.I.H. Jacob, supra note 2, p. 209. For a summary of Lord Brougham’s speech, see W. Holdsworth, A History of English Law, Volume XIII, London, Methuen, Sweet & Maxwell, 1952, p. 296 ff.

102 2 Will. IV, c. 39. 103 Radcliffe and Cross, supra note 7, p. 264. 104 J.H. Baker, supra note 5, p. 57. 105 On these Rules, see H.J. Stephen, A Treatise on the Principles of Pleading in Civil Actions, 5th

edition, London, Saunders and Benning, 1843. See also W.S. Holdsworth, ‘The New Rules of Pleading of the Hilary Term, 1834,’ The Cambridge Law Journal, 1923, p. 261-278.

106 These powers were delegated by the Civil Procedure Act 1833 (3 & 4 Will. IV, c. 42). 107 J.H. Baker, supra note 5, p. 89; R.W. Millar, supra note 44, p. 45. 108 W. Blackstone, supra note 23, p. 305. 109 R.W. Millar, supra note 44, p. 45-46. 110 Law of Evidence Act 1843, 6 & 7 Vict., c. 85; Civil Evidence Act 1851, 14 & 15 Vict., c. 99,

Sections 2 ff; Evidence Amendment Act 1853, 16 & 17 Vict., c. 83. See also C. Allen, The Law of Evidence in Victorian England, Cambridge, Cambridge University Press, 1997, p. 95 ff.; W.F. Finlason, An Exposition of Our Judicial System and Civil Procedure as Reconstructed under the Judicature Acts including the Act of 1876, with Comments on their Effect and Operation, London, Longmans, Green, and Co., 1877, p. 308: ‘The effect of this change was that whereas before

interested in the result of the action, including members of their family, were excluded from giving testimony before the court, was abolished.111

Various other changes were introduced as a result of the Common Law Proce-dure Acts of 1852,112 1854113 and 1860.114 For example, the significance of the forms of action (which, as stated above, had been reduced by the introduction of the single orig-inal writ in 1832), was further reduced. It was no longer necessary to name the form of action in the original writ.115 Additionally, the requirement that the sheriff and his sub-ordinates had to serve the writ and other documents was discarded; it was laid down that the parties had to serve their own writs and pleadings.116 The return-days were abolished too, as was the compulsory special pleading (as introduced by the 1834 Hila-ry Rules). A further novelty as regards the pleadings was that the parties were allowed to decide that the pleadings would be dispensed with altogether; they could decide to immediately proceed to trial. However, this did not mean that an ‘issue’ (i.e., the usual result of the pleading stage) was not needed. If the parties decided to omit the plead-ings, they were nevertheless obliged to put before the court a question of fact in the form of an issue or a question of law in a ‘special case.’117

The Common Law Procedure Acts also tried to bridge the gap between the Courts of Common Law and the Court of Chancery. Discovery, which until this time had only been available at the Courts of Equity,118 was now – at least to a certain extent – also introduced in the Courts of Common Law:119 limited discovery of documents was made available and the parties were allowed to question each other by way of in-terrogatories.120 Additionally, it was determined that some of the equitable defences could be pleaded before the Common Law Courts. Furthermore, the parties were al-lowed to dispense with a jury by consent. The procedure for obtaining judgment in default of appearance was also improved. Further, it was determined that injunctions

the parties were not at Common Law examinable at all, even adversely, by their opponents […], an ill-considered change was made by legislation allowing either of the parties to be called on his own behalf, the result of which was that the party could come into the witness-box with a carefully-prepared statement to support his case, which was too often shaped accordingly.’ In a footnote Finlason remarks: ‘Such, at least, was the construction put on the Act, the terms of which, however, were that the party should be “competent and compellable to give evidence,” which implied that he was to be called and examined adversely by his opponent […]. But it was inconsiderately construed to admit the party as a witness on his own behalf.’

111 R.W. Millar, supra note 44, p. 207; J.I.H. Jacob, supra note 2, p. 218. 112 15 & 16 Vict., c. 76. 113 17 & 18 Vict., c. 125. 114 23 & 24 Vict., c. 126. 115 Common Law Procedure Act 1852, 15 & 16 Vict., c. 76, Sections 3 ff; R.W. Millar, supra note

44, p. 47 and p. 78. 116 Common Law Procedure Act 1852, 15 & 16 Vict., c. 76, Sections 14 ff. 117 Common Law Procedure Act 1852, 15 & 16 Vict., c. 76, Section 42. 118 R.W. Millar, supra note 44, p. 204. 119 R.W. Millar, supra note 44, p. 221. See also Evidence Act 1851, 14 & 15 Vict., c. 99, Section 6. 120 Common Law Procedure Act 1854, 17 & 18 Vict., c. 125, Sections 50 and 51.

(for example, to prevent a threatened injury or to attach property to ensure its preser-vation during the litigation)121 were now available at Common Law.122

The above reforms were not, however, a complete success. The Judicature Com-mission, instituted in the 1860s to suggest reforms in the procedure and organisation of the English courts, remarked in its first report in 1869: ‘but the jurisdiction conferred on those Courts [of Common Law] to grant injunctions and to allow equitable defences to be pleaded has been so limited and restricted [....] that these remedies have not been of much practical use at Common Law, and Suitors have consequently been obliged to resort to the Court of Chancery, as before, for the purpose of obtaining a complete remedy.’123

Appeals, in the sense of a rehearing, made their debut in the Common Law system in 1854.124 Appeals could be lodged with the Exchequer Chamber,125 formally a court of error (see above), which had developed itself into a court of appeal.126 Final appeal lay with the House of Lords.

4.3. Court of Chancery127

Important reforms in the procedure of the Court of Chancery were introduced in the 1850s by the Chancery Amendment Acts. The Act of 1852128 abolished the sub-poena, by which the defendant had, until then, been summoned to make an appear-ance in the Court of Chancery.129 From then on, the defendant was summoned to court by the service of a printed copy of the bill of complaint, endorsed on the back with a memorandum notifying the defendant when he had to enter an appearance at court.130 The bill itself only had to contain a narrative of the facts relied upon, with prayers for relief. The complicated three-section structure of the bill was also abolished. As a result, discovery, which was originally based on the third part of the bill, was now to be facilitated by a separate document containing the interrogato-ries.131

121 Cf. the French saisie conservatoire. 122 See also R.K. Wilson, History of Modern English Law, London [etc.], Rivingtons, 1875, p. 249. 123 Judicature Commission, First Report, Parliamentary Papers 1868-1869, Volume XXV, p. 6-7. 124 Common Law Procedure Act 1854, 17 & 18 Vict., c. 125, Sections 36 ff. J.H. Baker, supra note 5,

p. 141-142. 125 Van Vechten Veeder, ‘A Century of English Judicature 1800-1900,’ in Committee of the

Association of American Law Schools (ed.), Select Essays in Anglo-American Legal History, Volume I, Boston, Little, Brown, and Company, 1908, p. 754.

126 See also Judicature Commission, supra note 123, p. 22. 127 For an extensive discussion of reforms in the nineteenth-century Court of Chancery, see M.

Lobban, ‘Preparing for Fusion: Reforming the Nineteenth-Century Court of Chancery,’ Law and History Review, 2004, p. 389-428, p. 565-599. See also W. Holdsworth, supra note 9, p. 423 ff.

128 15 & 16 Vict., c. 86. 129 Section 2. 130 Section 3. R.W. Millar, supra note 44, p. 79. 131 Sections 10 and 12. R.W. Millar, supra note 44, p. 48.

The practice of taking evidence from witnesses in secret was abolished as well. Oral examination by or before examiners at the instance of either party became the rule.132 The court could require examination in open court.133

The Court of Chancery was given some of the procedural instruments that, until that time, had belonged solely to the domain of the Common Law Courts. The Court of Chancery was empowered, inter alia, to decide questions of Common Law, to try issues of fact by jury and to award damages.134 As a result, this court was, at least in theory, no longer dependent upon the Courts of Common Law. Nevertheless, it should be not-ed that trial by jury in cases pending before the Court of Chancery was not a success. In 1869, the Judicature Commission remarked: ‘[...] Trial by Jury, – whether from the re-luctance of the Judge or of the Counsel to adopt such an innovation, or from the com-plexity of the issues generally involved in the suit, or because the proceedings in Chancery do not give rise to so many conflicts of evidence as proceedings in other Courts, – has been attempted in comparatively few cases.’135

In 1851, a Court of Appeal in Chancery was established.136 The jurisdiction of the House of Lords as regards first appeals from the Court of Chancery was accordingly abolished. A final appeal to the House of Lords, however, remained possible.137

5. The Judicature Acts (1873-1875)138

Even though the changes introduced as a result of the Acts discussed above were far-reaching, they were not, as we have seen, a complete success. As regards the Courts of Common Law, the Judicature Commission in its first report remarked: ‘A large number of important cases frequently occur in the practice of the Common Law Courts which cannot be conveniently adapted to that mode of trial [by jury]; and ultimately those cases either find their way into the Court of Chancery, or the Suitors in the Courts of Common Law are obliged to have recourse to private arbi-tration in order to supply the defects of their inadequate procedure.’139 Additionally, the Acts promulgated before 1873-1875 did not solve various problems that existed as a consequence of the two separate court systems; one administering justice on the basis of the Common Law, the other on the basis of Equity. The Judicature Commis-sion remarked:140 ‘Much […] of the old mischief remains, notwithstanding the changes which have been introduced; and the Court of Chancery necessarily con-tinues to exercise the jurisdiction of restraining actions at [common] law on equita-ble grounds, and even claims to exercise that jurisdiction in cases where an

132 R.W. Millar, supra note 44, p. 270. 133 R.W. Millar, supra note 44, p. 48. 134 R.W. Millar, supra note 44, p. 48 and p. 270. See also R.K. Wilson, supra note 122, p. 250. 135 Judicature Commission, supra note 123, p. 6. 136 Court of Chancery Administration of Justice Act 1851, 14 & 15 Vict., c. 83. 137 T.F.T. Plucknett, supra note 28, p. 210; J.H. Baker, supra note 5, p. 141. 138 36 & 37 Vict., c. 66, and 38 & 39 Vict., c. 77. See W.F. Finlason, supra note 110. See also W.

Holdsworth, supra note 9, p. 638 ff; idem, supra note 21, p. 128 ff. 139 Judicature Commission, supra note 123, p. 5-6. 140 Judicature Commission, supra note 123, p. 7.

equitable defence might be properly pleaded at Common Law.’ The Commission continued: ‘It may be further observed, in illustration of the evils of the double pro-cedure, that whenever a new class of business arises, such as the litigation arising out of railway and other joint stock companies, proceedings, frequently of an exper-imental character, are commenced both at [Common] Law and in Equity by differ-ent suitors, leading to the inconvenience of protracted litigation, and the danger of conflicting judgements.’

The reforms introduced by the Judicature Act 1873, as amended by the Judicature Act 1875,141 sought to mend the defects that had been pointed out. The Acts came about as a result of the labours of the Judicature Commission. It is likely that the Commission was influenced by reforms in procedural law promulgated in New York in 1848 which gave rise to the so-called Field Code (named after its main drafter, David Dudley Field). The Field Code of New York had introduced a uniform civil procedure for Common Law and Equity. The procedural law of the State of Louisiana had played a significant role in the design of the Field Code.142 Louisiana procedure must be situated in the tradition of procedural law of the Continent of Western Europe. As a result, this procedure exhibits external features of Roman-canon law. Therefore, one cannot ex-clude the possibility that elements of Roman-canon law found their way into the Eng-lish procedure by way of the Field Code, which had been influenced by Louisiana law. Also, the results of successful codification attempts in British India in the 1850s, which seem to have been influenced by the Field Code, may have played a role,143 as did civil procedure in Scotland.144

The English Judicature Commission was established in 1867, following a speech in the House of Commons in the same year by Sir Roundell Palmer (subsequently Lord Selborn).145 As a result of the Commission’s first report, a Bill seeking the reform of cer-tain aspects of the legal system was introduced into Parliament. However, the Bill was

141 The Supreme Court of Judicature Act 1875 was to be construed as one with the Supreme

Court of Judicature Act 1873. Some amendments to the 1873-1875 Acts were introduced in 1877, 1879, 1881, 1884, 1890, 1891, 1894, 1899, 1902, 1909 and 1910. In 1925, a Consolidating Judicature Act was enacted (the Supreme Court of Judicature (Consolidation) Act 1925, 15 & 16 Geo. 5, c. 49).

142 D.S. Clark, ‘The Civil Law Influence on David Dudley Field's Code of Civil Procedure,’ in M. Reimann (ed.), The Reception of Continental Ideas in the Common Law World (1820-1920), Berlin, Duncker & Humblot, 1993, p. 63-87. See also C.H. van Rhee, ‘English and Continental Civil Procedure: Similarities Today and in the Past,’ in J. Sondel et al. (eds), Roman Law as Formative of Modern Legal Systems. Studies in Honour of Wieslaw Litewski, Krakow, Wydawnictwo Uniwersytetu Jagiellońskiego, 2003, p. 201-216.

143 Judicature Commission, supra note 123, p. 11. 144 Judicature Commission, supra note 123, p. 11. See also W.F. Finlason, supra note 110, p. 296:

‘But it was not until the Judicature Act of last year that power was given to a judge to direct and settle an issue, as the Scotch judges did […].’

145 R.W. Millar, supra note 44, p. 49. Lord Selborn summarised the defects of the existing system under four headings. See Van Vechten Veeder, supra note 125, p. 805: ‘(1) The artificial separation of legal and equitable jurisdictions; (2) divided courts and divided jurisdictions; (3) lack of cheapness, simplicity and uniformity of procedure; (4) necessity of improving the constitution of the court of appeals.’

subsequently withdrawn because, amongst other things,146 it was found that it did not regulate procedure in a satisfactory manner.147 Only in November 1875 did the Judica-ture Acts 1873 and 1875 come into force as a result of the Supreme Court of Judicature (Commencement) Act 1874.148

The most important reform introduced by the Judicature Acts was the creation, next to the local County Courts (whose modern history starts in 1846),149 of a ‘Supreme Court of Judicature,’ consisting at the first instance level of the High Court, and on the appellate level of the Court of Appeal. The administration of Common Law and Equity was not to be separated anymore.150 They were to be administered by a single court in accordance with a more or less uniform procedure. For civil cases to be tried locally before the High Court, the Judicature Acts provided the Assizes, civil side, with travel-ling High Court judges.151 Furthermore, the Judicature Acts allowed the establishment of so-called District Registries in the country ‘from which writs of summons for the commencement of actions in the High Court of Justice may be issued,’ and in which particular types of proceedings as mentioned in the Acts (for example, the administra-tion of oaths, the production of books, etc.), could be commenced.152

In accordance with an ancient rule of English jurisprudence, it was determined that Equity should prevail over Common Law whenever the systems could not be brought into line with each other.153 According to H.G. Hanbury and D.C.M. Yardley, this provision looks more momentous than it actually was: as late as 1979, there were few cases in which any reference had been made to it in the courts, ‘for the simple rea-son that cases of genuine conflict are of exiguous dimensions.’154

The new High Court was to have five chambers or divisions, three of which cor-responded to the former Courts of King’s Bench, Common Pleas and Exchequer. In addition, a Chancery Division and a Probate, Divorce and Admiralty Division were established. In December 1880, the Common Pleas and the Exchequer Divisions were abolished. As a result, ‘[t]he Queen’s Bench Division thereupon became the sole repre-sentative of the old courts of common law.’155

146 See also P. Polden, A History of the County Court, 1846-1971, Cambridge, Cambridge University

Press, 1999, p. 75 ff. 147 In their Second Report, Parliamentary Papers 1872, Volume XX, p. 240, the Judicature

Commissioners remarked: ‘The scheme proposed in the first Report, humbly presented for Her Majesty’s consideration early in 1869, does not appear to have found such favour and support as might warrant the expectation that its recommendations will speedily become the law of the land [...].’

148 37 & 38 Vict., c. 83. 149 P. Polden, supra note 146. Also Radcliffe and Cross, supra note 7, p. 280-288. 150 A similar fusion of Common Law and Equity had taken place at the County Courts in 1865.

P. Polden, supra note 146, p. 59. 151 R.C. van Caenegem, supra note 18, p. 104. 152 Judicature Act 1873, Section 60 ff. W.F. Finlason, supra note 110, p. 200 ff. 153 Judicature Act 1873, Section 25(11). 154 H.G. Hanbury and D.C.M. Yardley, English Courts of Law, 5th edition, Oxford [etc.], Oxford

University Press, 1979, p. 117. See also W.F. Finlason, supra note 110, p. 118 and p. 122; Radcliffe and Cross, supra note 7, P. 307.

155 J.H. Baker, supra note 5, p. 51.

Although they were each part of one court, the three remaining divisions of the High Court developed sectarian tendencies. They dealt with cases on the basis of the nature of the cause, the extent of the remedy sought or in the light of which court they considered might ensure the most efficient and convenient despatch of business. J. Ja-cob stated in the 1970s that each of the divisions proceeded in its own way, ‘so that ul-timately now a century later we are almost back to square one.’156 Apparently, the comparatively uniform procedure157 introduced by the Judicature Acts was not able to prevent this. A similar observation as regards the administration of Common Law and Equity was made at the start of the twentieth century by Van Vechten Veeder, who stated: ‘Hence the dividing line between the two ancient jurisdictions is still ob-served.’158 This author was of the opinion that the same was true at the appellate lev-el.159

The new procedure was laid down in Rules that were part of a Schedule attached to the Judicature Act 1875 (the Schedule attached to the 1873 Act was less elaborate and replaced by the 1875 Schedule). A special feature of the Judicature Acts was that, for the future and subject to annulment by Parliament, the making of Rules was commit-ted to the judges of the Supreme Court or a majority of them which should include the Lord Chancellor. A year later, this power was granted to a Rule Committee headed by the Lord Chancellor.160 Unlike many Continental countries, therefore, in England the rules of procedure were (and still are) made by a body exercising legislative powers within the bounds laid down by statute, subject to annulment by Parliament.161 They are not made by Parliament. This practice of making Rules of Court guarantees the necessary flexibility.162

156 J.I.H. Jacob, ‘The Judicature Acts 1873-1875: Vision and Reality,’ in J.I.H Jacob, The Reform of

Civil Procedural Law and Other Essays in Civil Procedure, London, Sweet & Maxwell, 1982, p. 304. 157 As regards the uniformity of procedure, however, W.F. Finlason, supra note 110, p. 80,

remarks: ‘[…] it would be a great error to imagine that the object of the Act is to produce an iron uniformity of proceeding […].’

158 Van Vechten Veeder, supra note 125, p. 807. See also P. Colquhoun, The Supreme Court of Judicature Acts 1873 and 1875 [etc.], London, Clayton & Co., 1875, xix: ‘The suitor is left to choose his Court and Judge, subject to the discretion in the Court in which he has elected to sue; at the same time certain jurisdictions, which have been heretofore the exclusive province of particular Courts is reserved to them, thus practically little change is introduced.’ Similar observations can be found in Final Report of the Committee on Supreme Court Practice and Procedure, Parliamentary Papers 1952-1953 [Cmd. 8878], Volume XIV, p. 634; H.G. Hanbury and D.C.M. Yardley, supra note 154, p. 118.

159 Van Vechten Veeder, supra note 125, p. 810. 160 For a related practice before the introduction of the Judicature Acts, see J.I.H. Jacob, supra

note 2, p. 213: ‘At common law, the courts assumed jurisdiction to make general rules for the regulation of the practice before them […]. But by the Civil Procedure Act 1833 [3 & 4 Will. 4, c. 42], s. 3, power was conferred on the common law judges to make rules which had statutory form, for the reform of pleading. Such power was extended in its scope and also to the Court of Chancery […].’

161 Final Report of the Committee on Supreme Court Practice and Procedure, supra note 158, p. 606. 162 J.I.H. Jacob, ‘The Administration of Civil Justice,’ in J.I.H Jacob, The Reform of Civil Procedural

Law and Other Essays in Civil Procedure, London, Sweet & Maxwell, 1982, p. 66. See also C.M. Hepburn, ‘The Historical Development of Code Pleading in America and England,’ in

The new Rules were to be interpreted in the light of the practice and procedure existing in 1875. It was specifically stated that where the Act and the Rules did not make another provision, the existing procedure and practice remained in force. Never-theless, the 1875 Rules meant a break with the past, for example because they propa-gated a certain degree of flexibility. In Order LIX.1, it was determined that ‘[n]on-compliance with any of these Rules shall not render the proceedings void in any action unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.’ Furthermore, they increased the court management powers of the judge in order to further economy and expedition.163 They ‘gave the court the ultimate control over the proceedings by ensuring that how-ever great the initiative the parties may have enjoyed in the initiation of the proceed-ings, the ultimate control relating to the conduct of the proceedings would remain in the hands of the court.’164 At the same time, their object was ‘to elicit as early as possi-ble what the suit is about, and what is its nature, and especially whether it is contested or not.’165

Let us now have a closer look at some specific features of civil procedure under the Judicature Acts. Firstly, these Acts introduced a new original writ for all actions commenced in the High Court. This writ was modelled on the Chancery subpoena. It was laid down that the substance of the claim had to be written on the back of the new writ, avoiding the use of technical phrases.166 Secondly, the Acts determined that the

Committee of the Association of American Law Schools (ed.), Select Essays in Anglo-American Legal History, Volume II, Boston, Little, Brown, and Company, 1908, p. 682 ff.

163 R.W. Millar, supra note 44, p. 50. According to Holdsworth, these changes were not very radical. See W. Holdsworth, supra note 21, p. 132.

164 J.I.H. Jacob, supra note 156, p. 314. W.F. Finlason, supra note 110, p. 68: ‘All that is really new in the Act as to procedure […] is in the increase of directive power in the judicature;’ ibidem, p. 88: ‘The principle is the constant application of direct personal attention by the judges to the cases before them, and, as far as possible, the attention of the same judge to the same case, at all events from its hearing, or trial, until its final determination in the first instance;’ ibidem, p. 89: ‘The great feature of the Judicature Act, and indeed all that is new in its enactments as to procedure, is in the extension of the directive power in the judicature;’ ibidem, p. 295: ‘Nothing is so important in procedure as the exercise of directive power in the judicature; that is, a power to direct the proper course of procedure. It is in this that Common Law procedure has been so defective, and it is singular what slow progress it has made.’ See also ibidem, p. 298-299.

165 W.F. Finlason, supra note 110, p. 274. 166 W.B. Odgers, ‘Changes in Procedure and in the Law of Evidence,’ in Council of Legal

Education (ed.), A Century of Law Reform: Twelve Lectures on the Changes in the Law of England During the Nineteenth Century, London, Macmillan & Co., 1901, p. 213, footnote 1: ‘Now all “forms of action” are abolished; it is no longer necessary for the plaintiff to state either on the writ or on the pleadings whether the plaintiff is suing in trespass or on the case, in detinue or in trover. Each party now states the facts on which he relies; and the court will declare the law arising upon the facts pleaded. If on those facts the plaintiff would have been entitled to recover in any form of action, he will now recover in the action which he has brought.’ See also Final Report of the Committee on Supreme Court Practice and Procedure, supra note 158, p. 639: ‘“[i]t shall not be essential to set forth [in the indorsement] the precise ground of complaint or

parties could ask each other interrogatories freely without the permission of the court. Again, the Court of Chancery served as the example. From 1893, however, interrogato-ries were only allowed with the leave of the court.

Reforms were also introduced as regards pleadings, which, according to W.F. Finlason, could ‘better [be] described by the foreign term instruction’ under the Judica-ture Acts.167 This was necessary because, according to the Judicature Commission, the system of pleading at Common Law and in Equity was inadequate. At Common Law, pleadings were often ‘mixed averments of law and fact, varied and multiplied in form, and leading to a great number of useless issues […].’168 The result was that Common Law pleadings concealed from the parties what the real case was and, therefore, what they were having to prove at the trial.169 According to the Commission, Equity plead-ings, contrary to the position under the Common Law, often took the guise of a ‘prolix narrative of the facts relied upon’ by the party by whom they were introduced, ‘with copies or extracts of deeds, correspondence, and other documents, and other particu-lars of evidence, set forth at needless length.’170

In order to mend these defects, the Judicature Acts stipulated that only the mate-rial facts on which the party by whom they were introduced wished to rely should be pleaded. Evidence should not be part of the pleadings.171 It was thought that this sys-tem of ‘fact pleading’ (or ‘code-pleading,’ as it was known in the United States) would result in a clear definition of the issues between the parties and would give the oppos-ing party fair notice of the case he had to meet.172 In this manner, surprise when the case came on to trial could be prevented.173

At trial, witnesses were to be examined orally and in open court. However, the at-tendance of a witness could be dispensed with where the court directed ‘for sufficient reason’ that evidence should be taken in the form of a sworn, written statement of the witness (i.e., an affidavit), and that this statement should be read at the trial. The at-tendance of a witness could also be dispensed with where the court ordered that he be examined by interrogatories or otherwise before a commissioner or examiner. Alt-hough these rules could have shortened the length of the trial considerably, they were not used to a great extent in actual practice.174

As regards appeal, the Judicature Acts brought about the following changes. One Court of Appeal was established. Every appeal before this Court was to be a re-hearing;175 proceedings in error ceased to exist. However, on appeal, the parties’ wit-

the precise remedy or relief to which the plaintiff considers himself entitled.” Thus, a writ may claim nothing more than “damages for breach of contract”.’

167 W.F. Finlason, supra note 110, p. 275. On the changes in the system of pleading as a result of the Judicature Acts, see W. Holdsworth, supra note 18, p. 329 ff.

168 Judicature Commission, supra note 123, p. 11. 169 J.I.H. Jacob, supra note 156, p. 315. 170 Judicature Commission, supra note 123, p. 11. 171 C.M. Hepburn, supra note 162, p. 681. 172 J.I.H. Jacob, supra note 162, p. 73. 173 J.I.H. Jacob, supra note 2, p. 216. 174 J.I.H. Jacob, supra note 156, p. 318. 175 On the meaning of ‘re-hearing,’ see W.F. Finlason (quoting Lord Langdale), supra note 110, p.

377-378: ‘In cases of appeal both parties are confined to the same case and evidence which

nesses were not to be heard for a second time.176 The clear-cut rules as regards appeals were, nevertheless, somewhat complicated by the retention of the so-called Divisional Courts.177 Until 1934, this meant, for example, that appeals from the County Courts went to a divisional court composed of two or more judges of the High Court and only reached the Court of Appeal if there was a further appeal from the Divisional Court. From 1934, however, an appeal from the County Court, with a few exceptions, was to be lodged directly with the Court of Appeal.178

Under the original scheme of the Judicature Acts, the appellate jurisdiction of the House of Lords would have been removed. This explains why the ‘Supreme Court of Judicature’ does not encompass the House of Lords. Ultimately, however, the appellate jurisdiction of the House was saved by the Appellate Jurisdiction Act 1876.179

The Judicature Acts may be considered as a landmark in the history of English court organisation and procedure. Nevertheless, not all of the innovations introduced by these Acts were successful. In 1949, Lord Chorley was rather negative when he remarked: ‘[I]t was found that when the glue of old methods was applied the foundations did not in fact shake. Pleadings soon became as prolix as ever, and many loopholes were discovered in the distinctly detailed and complicated orders and rules through which unwary opponents could be as successfully sniped with the new breach loading rifle as with the old muzzle loading musket.’180 This is, however, in my opinion too negative an opinion. The Judicature Acts were the final part of a reform movement that completely changed the face of English civil justice. Comparing closely the state of English civil justice at the start of (or even halfway through) the nineteenth century with the situation in the first half of the twentieth century, must result in a more positive opinion.

6. The 1883 Rules of Court until 1949

Changes to the Judicature Acts were introduced as early as 1877. A reform of the Schedule containing the Rules of Court also appeared to be necessary within a short period of time. As a result, the 1875 Rules were revised by the Rule Committee. This

were submitted to the judge appealed from. In cases of re-hearing the parties are at liberty to enforce the case and the evidence which they have prepared at the time of the original hearing and might have produced […].’

176 R. Evershed, The Court of Appeal in England, London, University of London, 1950, p. 18, p. 20. 177 P. Polden, supra note 146, p. 74. See also Radcliffe and Cross, supra note 7, p. 298-300. 178 R. Evershed, supra note 176, p. 13; Lord Justice Cohen, ‘Jurisdiction, Practice and Procedure of

the Court of Appeal,’ The Cambridge Law Journal, 1951, p. 5. 179 39 & 40 Vict., c. 59. On the House of Lords as a judicial body, see R. Stevens, Law and Politics.

The House of Lords as a Judicial Body, 1800-1976, Chapel Hill, University of North Carolina Press, 1978. See also P. Polden, supra note 146, p. 74; J.I.H. Jacob, supra note 156, p. 320. At the moment, more than a century later, it has been decided that the Appellate Committee of the House of Lords will be abolished and that its powers will be transferred to a Supreme Court of the United Kingdom. These changes are the result of the Constitutional Reform Act 2005 (c. 4).

180 Lord Chorley, ‘Procedural Reform in England,’ in A. Reppy (ed.), David Dudley Field Centenary Essays, New York, New York University School of Law, 1949, p. 100.

resulted in the 1883 Rules of Supreme Court that would govern English civil proce-dure for the largest part of the twentieth century.

The 1883 Rules brought about some important innovations. Among them was the ‘summons for directions’ (Order 30), issued by the plaintiff upon the closure of the pleadings. It gave rise to a pre-trial hearing under the guidance of a junior judge (a Master or District Registrar), who could make certain interlocutory orders concerning the preparation of the case for trial (for example, orders relating to both where and how the case was to be tried and orders concerning disclosure).181 These orders aimed at securing the just, expeditious and economical disposal of the case.182

Although trial by jury was still the ordinary method of trial under the 1883 Rules of Supreme Court, the civil jury was on the wane.183 Until 1918, and also in the period 1925-1932, the parties were entitled to a jury trial in all pure Common Law actions.184 Since the introduction of the Administration of Justice (Miscellaneous Provisions) Act 1933,185 however, the parties had to ask for the permission of the court for trial by jury in all cases, with the exception of cases of libel and some other matters.186 The Court of Appeal in 1965 completed the rout of civil jury trial. In Ward v. James it held that the statutory power to order jury trial in ordinary contract and tort cases should be very tightly controlled.187 Since then, it has been clear that this statutory discretion should hardly ever (and in practice this has meant ‘never’) be exercised in favour of jury trial, except in respect of a few specific categories of claim, notably actions for defamation.188 Lord Denning in Ward v. James emphasised that judges sitting alone are better, in particular, at fixing uniform and predictable levels of compensation in personal in-jury cases. Furthermore, judges’ decisions can be adjusted on appeal. By contrast, jury verdicts on questions of fact tend to be treated on appeal as almost sacrosanct. There is a narrow exception when the verdict is so ‘perverse’ that no rational jury could have reached that decision. But appellate courts are often reluctant to con-clude that the verdict is ‘perverse.’189

The disappearance of the jury made some authors ask whether the strict English rules as regards the admissibility of evidence should be upheld, since, according to the

181 Final Report of the Committee on Supreme Court Practice and Procedure, supra note 158, p. 606. 182 J.I.H. Jacob, supra note 156, p. 218. See also R.W. Millar, supra note 44, p. 229. 183 J.W. Cairns and G. Macleod, supra note 57. 184 R.W. Millar, supra note 44, p. 68. 185 Section 69 of the Supreme Court Act 1981 (c. 54) replaced the original rule, established in

Section 6 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (23 & 24 Geo. 5, c. 36).

186 R.W. Millar, supra note 44, p. 279. Zie ook Lord Chorley, supra note 180, p. 108. 187 Section 69, Supreme Court Act 1981 (c. 54); Section 66, County Courts Act 1984 (c. 28). 188 [1966] 1 QB 272, CA; applied H v. Ministry of Defence [1991] 2 QB 103, CA. The author would like

to thank Neil Andrews for this information. See also J.I.H. Jacob, supra note 2, p. 218. 189 N. Andrews, English Civil Procedure, Oxford, Oxford University Press, 2003, p. 38, p. 46, noting

Grobbelaar v. News Group Newspapers Ltd [2002] 1 WLR 3024, HL.

traditional view,190 these had mainly been introduced in order to protect the jury, being a body of laymen, from going astray.191

The 1883 Rules gave rise to various complaints, one of them being the fact that the pre-trial stage of legal proceedings was costly and burdensome. Therefore, in 1932 an experiment was started in the King’s Bench Division in London and in the District Registries of Liverpool and Manchester, that became known as the ‘New Procedure.’192 This was an abbreviated procedure, applicable for a large group of actions,193 which aimed at expediency.194 According to this procedure, the pre-trial hearing would not take place before a Master, as was usually the case, but before the judge who would also sit at the trial. As a result of this, the judge would have the opportunity to become acquainted with the case before the trial. Additionally, the New Procedure Rules al-lowed the judge to fix a day for the trial, a possibility that did not exist in ordinary cas-es; such ordinary cases were called for a substantive hearing when they reached the top of the list of cases waiting for trial. Apparently, the experiment was not successful and the New Procedure was abolished in 1937.195

More successful were the attempts to regulate the case-load of the House of Lords. In 1934, it was decided that an appeal to the House of Lords would only be allowed with the permission of the Court of Appeal or the House of Lords itself.196

7. The Evershed Committee (1949) and Beyond

After the Second World War, the discussion about the future of English civil justice was given a new impetus by a Committee chaired by Sir Francis Raymond Ever-shed (1899-1966), then Master of the Rolls, i.e., president of the civil division of the Court of Appeal. In their reports, that were issued from 1949 until 1953, the Com-mittee made a large number of proposals for the reform of the English civil justice system. Many of these proposals were not immediately implemented, but in hind-sight various of them would serve as beacons for the development of the English legal system until this very day. I will discuss the proposals of the Committee in some detail.

190 See, however, M.R.T. Macnair, supra note 95, p. 13. 191 Cf. J.I.H. Jacob, supra note 156, p. 318. See also J.I.H. Jacob, supra note 162, p. 82: ‘The

predominating principle that seems to be gaining acceptance is that there should be fewer, if any restrictive rules on the admissibility of evidence, but that the court should retain the responsibility and duty of giving such weight to the evidence as it thinks fit, having regard to all the circumstances of the case.’

192 Rules of Supreme Court, Order XXXVIIIA. See also W.V. Ball, The New Procedure Rules 1932 Annotated and Explained, London, Sweet & Maxwell, Stevens and Sons, 1932, and D.J. Llewelyn Davies, ‘The English New Procedure,’ Yale Law Journal, 1933, p. 377-386.

193 See Order XXXVIIIA, Section 1, for cases in which the procedure was not applicable, e.g., actions for libel, slander, malicious prosecution, false imprisonment, seduction, or a breach of promise of marriage.

194 Interim Report of the Committee on Supreme Court Practice and Procedure, Parliamentary Papers 1948-1949 [Cmd. 7764], Volume XIV, p. 20 ff.

195 R.W. Millar, supra note 44, p. 235. See also Lord Chorley, supra note 180, p. 108. 196 Administration of Justice (Appeals) Act 1934 (24 & 25 Geo. 5, c. 40), Section 1(1).

The Committee addressed the various shortcomings of the civil justice system in the late 1940s and early 1950s. In their first report, a remark was made that is familiar to anyone interested in the history of civil procedure. They stated: ‘It is remarkable to ob-serve once again, in reading the Reports of earlier Committees, that notwithstanding the many changes which have occurred in the intervening years, the difficulties en-countered in arranging for the efficient despatch of business and the remedies suggest-ed have varied little.’197 One of these remedies was the appointment of additional judges at the High Court, a remedy that needs no further discussion here.198

A focal point of the first report was the date for trial. It was felt to be a serious problem by the Evershed Committee that the date of trial was not fixed,199 but that cas-es were instead put on a list and heard in the order in which they appeared in that list after the proceedings in the preceding case had come to an end. As has been stated above, experiments with fixed dates under the New Procedure had been brought to an end in 1937. The absence of fixed dates saved court time since the court would be con-tinually dealing with cases, but, as a result the parties, their legal advisers and their witnesses could never be sure when they would actually have their day in court and, consequently, had to make themselves available for a prolonged period of time. The Committee remarked that this situation forced the litigants and their witnesses not to make any certain engagement on any day within the period when it was known that the case might appear in the list for trial on some day about a month ahead. In their view, this situation was special for England. They held: ‘England is the only civilised country in the world where litigants are not told, as a matter of course, the date on which their actions will be heard.’200 Nowadays, fixing a date for trial (or at least a spe-cific ‘window’ within which the trial is to begin) is prescribed by the Civil Procedure Rules 1998 (‘the CPR’), which came into force on 26 April 1999 (CPR Parts 27.4, 28.2 and 29.8).

The Assize system according to which judges of the High Court went on ‘circuit’ in order to try cases away from London was, in the view of the Evershed Committee, another problematic area of the English civil justice system. The towns where they held their hearings had been established long ago and, as a result, towns that had developed into important industrial centres were not visited by the Assize judges. The Evershed Committee addressed the question whether the Assize system should be abolished and whether decentralised trial centres should be instituted in the country, with their own staff and their own resident judges. For various reasons, including the organisation of the English bar (which was concentrated in London), it was concluded that the Assize system should not be abolished.201 This would only occur circa twenty years later, in 1971.

In their second report, the Evershed Committee discussed the Rules of Supreme Court. As has been noted, the original Rules were part of a Schedule attached to the

197 Interim Report of the Committee on Supreme Court Practice and Procedure, supra note 194, p. 19. 198 Interim Report of the Committee on Supreme Court Practice and Procedure, supra note 194, p. 6. 199 Interim Report of the Committee on Supreme Court Practice and Procedure, supra note 194, p. 19. 200 Interim Report of the Committee on Supreme Court Practice and Procedure, supra note 194, p. 24. 201 Interim Report of the Committee on Supreme Court Practice and Procedure, supra note 194, p. 39, p.

43.

Judicature Act 1875, but since 1875/1883 they had been amended and expanded to a considerable extent. Due to this, the systematic structure of the Rules had been blurred. In addition to the Rules themselves, a great number of Practice Directions and Practice Notes had come into existence. In these Directions and Notes the view for the time be-ing of the Court of Appeal, or of the judges of the appropriate Division of the High Court, was expressed as regards the proper or preferred way in which particular pro-visions of the Rules should, in practice, be interpreted. In addition, there were Practice Rules, which, for example, from time to time prescribed the number of days allowed for appearance by a defendant served out of the jurisdiction (for example, according to the availability of air mail service).202

The Rules of Supreme Court and additional notes (including references to the re-ported judicial decisions upon the Rules and upon matters of practice), were – and are – published in the so-called ‘Annual Practice.’ Due to the colour of its binding the An-nual Practice was (and is) referred to as the ‘White Book.’ Its counterpart, the ‘Green Book,’ contained the County Court Rules. That volume ceased to be published as a re-sult of the reforms in civil procedure which came into force in 1999, when the separate County Court Rules were abolished. The separate County Court Rule Committee was abolished in 1997, as set out further below.

At the start of the 1950s, the Annual Practice covered 3,800 pages. 300 pages were devoted to the Rules themselves, and the rest was (for the largest part) made up of notes. The sheer volume of the White Book caused concern. Writers of letters to The Times were of the opinion that the complexity and costs of litigation were, to a large extent, due to the volume of the Rules and Notes. Some of these writers were of the opinion that a ceremonial burning of all extant copies would be a solution to the prob-lem.203

These and similar problems, including the problem that not all Rules were fol-lowed in practice,204 prompted the Evershed Committee to suggest a complete revision of the Rules of Supreme Court. A clear and consistent code was needed, according to the Committee. However, even though the Committee stated that they had the full support of the legal profession,205 a complete reform would have to wait until the 1960s.

An issue that was addressed by the Evershed Committee in their final report was the manner in which civil cases were commenced (‘originated’) in the High Court. The existing system resulted, according to the Committee, in the parties ‘marshalling’ their forces for the day of trial behind a screen which the other party could not penetrate, whereas the trial took place before a judge ‘who not only knows nothing whatever of the case, but whose duty it is to display a passive impartiality throughout the hearing.’

202 Second Interim Report of the Committee on Supreme Court Practice and Procedure, Parliamentary

Papers 1950-1951 [Cmd. 8176], Volume XVI, p. 706-707. 203 Second Interim Report of the Committee on Supreme Court Practice and Procedure, supra note 202, p.

705. 204 See, e.g., Final Report of the Committee on Supreme Court Practice and Procedure, supra note 158, p.

671. 205 Second Interim Report of the Committee on Supreme Court Practice and Procedure, supra note 202, p.

705.

It was suggested that proceedings in the High Court should not, as a rule, be started by a writ containing a command of the Sovereign but rather in a less formal manner. This could, in the opinion of the Committee, be done by making generally available a pro-cedure known as ‘originating summons’ or an equivalent new procedure. This new approach would require the plaintiff to specify the precise question which he asked the court to determine, would remove the atmosphere of secrecy and would create a ‘stocktaking’ process before trial with extended powers for the Master, would allow sworn written witness evidence (‘affidavit evidence’) as the normal manner of proof and would eliminate many of the steps taken in the pre-trial phase.206 Additionally, it was recommended that the trial judge should read the pleadings (including the affida-vit evidence) in advance of trial, before he came into court.207 This approach was differ-ent from the traditional one, where the judge came to the trial without previous knowledge of the case, the pre-trial phase having been conducted before a Master.

Measures to clarify the specific point that kept the parties’ respective positions apart should also, according to the Evershed Committee, be taken into account on ap-peal. It was proposed that a change should be effected to the existing situation, where the notice of appeal did not have to contain the grounds for the appeal. It was recom-mended that an appellant, in his notice of appeal, should have to state the grounds of his appeal, and that his opponent should have to give notice to the appellant of any new point he wished to introduce at the hearing in support of the judgment.208 Under the CPR 1998 these recommendations have been met.

As indicated above, little came of the proposals of the Evershed Committee in the 1950s. Only in the 1960s were the Rules of Supreme Court 1883 revised to a considera-ble extent. This revision gave rise, inter alia, to the Rules of Supreme Court 1965 that were published and came into force on October 1, 1966.209 They were, according to J. Jacob, ‘the culmination of 14 years of strenuous and concentrated endeavour […] to implement the recommendation of the Evershed Committee in their Second Interim Report in 1951, which they made “in the strongest terms that a complete revision of the Rules be immediately put in hand”.’210 An important change introduced by the Rules of Supreme Court 1965 was to be found in Order 2, Rule 1, which established that eve-ry kind of non-compliance with the Rules must be treated as being an irregularity and must not be treated as being a nullity. This meant that every irregularity in proceedings resulting from non-compliance with the Rules was to be dealt with on the merits and could not by itself render the proceedings a nullity.211

206 Final Report of the Committee on Supreme Court Practice and Procedure, supra note 158, p. 609 ff

and p. 628 ff. On the originating summons, also Radcliffe and Cross, supra note 7, p. 324. 207 Final Report of the Committee on Supreme Court Practice and Procedure, supra note 158, p. 609 ff

and p. 701. 208 Final Report of the Committee on Supreme Court Practice and Procedure, supra note 158, p. 623-624

and p. 789. 209 J.I.H. Jacob, supra note 2, p. 213-214. 210 J.I.H. Jacob, ‘The Rules of the Supreme Court (Revision) 1965. Queen’s Bench Practice,’ The

Legal Executive, 1966, p. 167. 211 J.I.H. Jacob, supra note 210, p. 169-170. For further details on the 1965 and also the earlier 1962

changes in the Rules of Supreme Court, see The Legal Executive, 1963, p. 263-278, and ibidem, 1966, p. 167-186.

After 1966, but before the introduction of the CPR, various other important de-velopments took place. I will present a selection.

First, a direct appeal from the High Court to the House of Lords, bypassing the Court of Appeal, was permitted in certain circumstances from 1969.212 This ‘leapfrog appeal,’ as it is called, had been discussed by various commissions (such as the nine-teenth-century Judicature Commission and the Evershed Committee)213 but such dis-cussions had no impact until the reforms which were finally introduced in 1969.214

Secondly, the High Court was reconstituted in the early 1970s, partly following the implementation of the Administration of Justice Act 1970215 and partly following the Courts Act 1971.216 As a result, the business of the court was redistributed.217 In 1970, the Probate, Divorce and Admiralty Division of the High Court was abolished, a Family Division was created, and the former Division’s admiralty business was trans-ferred to the Queen’s Bench Division.218

Thirdly, the Assizes were abolished in 1971. Instead of them, and as far as civil ac-tions were concerned, trial centres were established in the main provincial towns.219 It was laid down in the 1971 Act that the High Court was competent to hear civil actions throughout England and Wales.220

Fourthly, the writ formula, running in the name of the Sovereign, was abolished in 1980. Such abolition gave rise to a writ that can best be described as a mere notice to appear. The word ‘writ’ itself disappeared in 1999, when the CPR came into force and laid down that proceedings must be commenced by a ‘claim form.’221

The conditional fee system was introduced into English law by the Courts and Legal Services Act 1990, almost a decade before the CPR took effect.222 However, condi-tional fees only became available in 1995 for specified categories of civil dispute.223 In 1998, this system was expanded to embrace most forms of civil litigation. Now, the

212 J.I.H. Jacob, supra note 156, p. 320; J.I.H. Jacob, supra note 162, p. 86; G. Borrie and J. Pyke,

‘Administration of Justice Act 1969,’ The New Law Journal, 1969, p. 1013. 213 Judicature Commission, supra note 123, p. 24; Final Report of the Committee on Supreme Court

Practice and Procedure, supra note 158, p. 756 ff. 214 Administration of Justice Act 1969 (c. 58), Part II. 215 c. 31. See G. Borrie and J. Pyke, ‘Administration of Justice Act 1970,’ The New Law Journal, 1970,

p. 540-542. 216 c. 23. See M.D. Huebner, ‘The Courts Act 1971. An Outline of the New System,’ The New Law

Journal, 1972, p. 4-5. 217 J.I.H. Jacob, supra note 2, p. 211. 218 H.G. Hanbury and D.C.M. Yardley, supra 154, p. 118. 219 J.I.H. Jacob, supra note 2, p. 211. 220 H.G. Hanbury and D.C.M. Yardley, supra 154, p. 122. 221 J.H. Baker, supra note 5, p. 68, p. 94. 222 Sections 58, 58A, Courts and Legal Services Act 1990 (c. 41) (substituted by Section 27, Access

to Justice Act 1999 (c. 22)); Section 51(2) Supreme Court Act 1981 (c. 54); for preliminary discussion of this system, see the consultation paper, ‘Contingency Fees,’ Parliamentary Papers 1989 [Cmnd. 571].

223 Conditional Fee Agreements Order 1995, which has now been superseded by the Conditional Fee Agreements Order 1998 (SI 1998, No. 1860).

only exceptions are domestic violence matters and issues relating to the welfare of children.224 Complex regulations govern this topic.225

A crucial moment in the development of English civil procedure was the introduction of the revolutionary new Civil Procedure Rules 1998 (supra) in 1999. The CPR was the culmination of a process initially set in motion in 1988 by the Review Body on Civil Justice. In their report,226 they suggested a change in the adversarial system which had dominated English civil procedure throughout its history and which had resulted in litigation being perceived as a (regulated) battle and in the parties hiding as much information as possible from each other. According to the Commission, a ‘cards on the table’ approach was needed. In this manner, the actual points that kept the parties divided would become clear in an early stage of the proceedings.227 As a result of this report, the compulsory exchange of witness statements before trial was introduced in 1992. In 1995, a Practice Direction aimed at a more active judge in civil litigation.228 These and similar changes were carried forward as a result of the investigation and report of Lord Woolf which resulted in the introduction of the CPR in 1999. These new Rules will be discussed in the next chapter by Neil Andrews. The CPR was drafted by a single committee, the new Civil Procedure Rule Committee, established under the Civil Procedure Act 1997. This Committee replaced the two previous committees, the Supreme Court Rule Committee and the County Court Rule Committee.

224 Conditional Fee Agreement Order 1998 (SI 1998 No. 1860; Section 58A(1)), Courts and Legal

Services Act 1990 (c. 41); for a review of these legislative steps, see Callery v. Gray [2001] 1 WLR 2112, CA, paragraphs 8-13, 24-40 per Lord Woolf CJ and see Callery v. Gray (Nos. 1 and 2) [2002] 1 WLR 2000, HL.

225 Conditional Fee Agreements Order 1998 (SI 1998, No. 1860); Conditional Fee Agreements Regulations 2000 (SI 2000, No. 692 (revoking the 1995 regulations, SI 1995, No. 1675)); Conditional Fee Agreements (Miscellaneous Amendments) Regulations 2003 (SI 2003, No. 1240); Civil Procedure (Amendment No. 2) Rules 2003 (SI 2003 No. 1242); CPR 43.2(1)(a), (l), (m), (o), 44.3A, 44.3B, 44.5, 44.15, 44.16, 48.9; PD (48) 55. The author would like to thank Neil Andrews for providing this information.

226 Parliamentary Papers 1988 [Cm 394]. 227 The Committee was instituted in 1988. 228 Practice Direction [1995] 1 All E.R. 385. See also J.H. Baker, supra note 5, p. 94.