The Fabric of English Civil Justice

Introductory 3
is, civil procedure in the narrower sense of the term as the

practice and procedure of the civil legal process.3 These are
not separate and self-contained areas of civil justice, since
they intermesh and interact with each other, and indeed it
is necessary as well as desirable to regard the subject of civil
justice as a single organic whole.
Moreover, civil justice should not be seen as the private
preserve of lawyers only, although of course they have the
technical and specialised knowledge and expertise of the
operation of the civil legal process. Like truth, civil justice
has many facets—cultural, historical, moral, social, econ-
omic, administrative as well as legal and others besides.
The system of civil justice should therefore be the explicit
and enduring concern, not only of lawyers, but also of
experts in other disciplines, especially in the social sciences,
and a meaningful debate should be continually taking place
on all aspects and problems of civil justice between lawyers
and such other experts.
This is all the more necessary and vital since civil justice,
especially its procedural part, is generally, or at any rate
popularly, regarded as being highly technical, rule-ridden,
formalistic, shrouded in mystery and serviced by its own
cloistered priests, some of whom perform their ritual capers
and speak an unfamiliar language in strange surroundings
and in the higher strata dressed in ornamental garb. Thus it
is that for most people English civil justice is a remote,
incomprehensible, mystifying and in some ways terrifying
area of the law. What is needed above all today is a breath
of fresh air to blow through the corridors of civil justice to
3
As to what is comprised in each of these three parts, the institutional,
professional, and procedural, see Jacob, The Reform of Civil Procedural
Law (Sweet & Maxwell, 1982), p. 3, and (1980) 14 The Law Teacheri.
4 Fundamental Features
de-mystify the process, to render it plain, simple and intelli-

gible, to enable not only the experts in other disciplines but
also the man in the High Street to understand and appre-
ciate its operation and in this way to bring justice closer to
the common people.
Having regard to the magnitude and complexity of this
subject and its technical and practical character, the task of
presenting it within the space and in the style of my many
illustrious and all distinguished predecessors as Hamlyn
lecturers is indeed formidable. On the one hand, this is not
the occasion nor would it be really useful to dwell at length
or in detail on a few selected problems, and on the other
hand it would need a massive effort, a text-book no less, to
treat exhaustively the whole subject of English civil justice.
I have chosen the middle way and will deal with the essen-
tial elements which I have called the fabric of English civil
justice. Whatever image the word "fabric" may conjure up
for you, whether it be a building, a hamlet or a mansion, or
whether it be a cloth, an embroidery or a tapestry, I employ
it as the way of presenting the framework, the structure or
texture of English civil justice as a coherent and compre-
hensive integral subject. I propose therefore to depict a
panoramic overview, or, to put it in another way, to carry
out an exploratory survey of the subject, and to act as a
guide to its basic attributes, as if on a tour of all the rooms
in the mansion, or as if savouring the construction, compo-
sition and colours of the tapestry. As a good guide should, I
will endeavour to cover the whole subject without delaying
the tour by dwelling over-long on details.
To this end, I intend to begin by sketching some funda-
mental features of English civil justice, then to proceed to
an exposition or descriptive account of the whole range of
the stages and problems comprised in the system, with a
Introductory 5
comparative, critical and reformist approach, and to con-

clude with a glance at the future.
To begin with, then, I identify, as it were, some ten
markers, each of which may be regarded as a primary prin-
ciple of the system of English civil justice and which taken
together present the basic form and shape of its fabric and
the essential methods of its operation.
B. Fundamental Features
The Adversary System
The fundamental, characteristic feature of English civil jus-

tice is commonly referred to as "the adversary system." 4
This system has been the traditional, cardinal basis for the
conduct of civil procedure in England since about the
middle of the thirteenth century, 5 and it is well settled and
deeply rooted. It was not the creation of statute nor was it
implanted as the result of a doctrinal choice of other
methods of procedure but rather it grew and developed out
of the soil, responding in a practical way to the social, politi-
cal and cultural needs of the people. It was probably the
product which stemmed from the fortuitous conjunction in
4
It is not clear when this term came to be applied to English civil pro-
cedure. Jeremy Bentham used the word "contestational" (see "The
Principles of Judicial Procedure," in The Works ofJeremy Bentham (John
Bowring ed.), (Edinburgh, William Tait, 1843), Vol. II, p. 28 (herein-
after referred to as "Bentham Principles").) Alternative terms are "the
contradictory system," "the confrontational system," or "the accusator-
ial system," though this latter term is more accurately applied to crimi-
nal justice.
5
See Pollock and Maitland, The History of English Law, Vol. 2, p. 671.
1215 of the promise in Magna Carta of the right to "trial by

peers,"6 and of the prohibition by the Lateran Council for-
bidding the clergy to take part in trials by ordeal. It fol-
lowed the adoption on a general basis of the method of trial
by jury by the Superior Common Law Courts,7 which at
about that time replaced other modes of trial, such as trial
by battle, by oath or compurgation and by ordeal. It
enabled the English legal system to escape the new pro-
cedure by "inquisition" introduced by Pope Innocent III.
It affords strong evidence of the historical continuity of the
system of English civil justice, which has been capable of
surviving great political, social and constitutional crises and
of absorbing and adapting radical and fundamental
changes in procedure. It also underscores the extensive and
widespread influence of English civil justice, for almost all
the countries in which English law was introduced have
continued to operate their civil procedure, with appropriate
modifications to meet their separate national and local con-
ditions and social aspirations, on the model of the English
adversary system.
The main alternative method of conducting civil pro-
6
See Magna Carta 1215 or The Great Charter of Kingjohn granted June
15, 1215, Clauses 20, 21, 22, 29, 50, 56 and 57. Clause 20 speaks of the
"oath of good men of the neighbourhood," which of course was how the
jury originally functioned. On August 24, 1215, Pope Innocent III
declared Magna Carta to be null and void but it continued in operation
and has had a profound influence on the whole history of English jus-
tice.
7
The Court of Chancery, administrating its equitable jurisdiction,
employed a somewhat different procedure, based on that of the canon
law and dispensed by the Ecclesiastical Courts, which was in part at
least akin to the civil law system operating in the European countries,
until the fusion of common law and equity under the Judicature Acts
1873 and 1875.
Fundamental Features 7
cedure is that prevailing in the civil law countries of

Europe8 which is called "the inquisitorial system." 9 In both
the adversary and the inquisitorial systems, there is a div-
ision of functions between the Court on the one hand and
the parties on the other. This division of functions, however,
is the very reverse in the adversary system from the way in
which it operates in the inquisitorial system. The funda-
mental divergence between the two systems is that under
the English adversary system the court plays an inactive,
passive, non-interventionist part whereas under the civil
law inquisitorial system, the court plays an active, authori-
tative, interventionist role; and, correspondingly, under the
adversary system, the parties play a major, dominating,
independent role to persuade the court to adjudicate or
otherwise resolve the dispute in their favour whereas under
the inquisitorial system, they play a minor, tentative, sup-
portive role to enable the court to perform its function to
inquire into and determine the dispute.
Both systems assume the contradictory or adversarial
character of the civil proceedings they are called upon to
8
It may be more accurate to exclude the Scandanavian countries, which
stand between the English and other continental systems, but of course
to include other countries, as for example, the socialist countries, the
Franco-phonic states of Africa, and all the states of Latin America.
9
This expression was no doubt derived from the fact that Pope Innocent
introduced the "Inquisition," as a new procedure, under which the
judge proceeded ex officio either of his own motion or on the suggestions
of a promoter and collected testimony against the suspect in secret.
Nevertheless it is today somewhat perjorative and inaccurate, but is
used to sharpen the contrast with "the adversary system." A more
appropriate term is "the investigatory system" which fastens on one of
the more important functions of the civil law courts. Better descriptive
terms would be "the activist system" or "the interventionist system."
deal with, namely, that the opposing parties are in contro-

versy, in conflict, in combat about the dispute between
them, but they employ essentially different ways for their
adjudication, resolution or other disposal. These different
ways derive from fundamentally different conceptual cri-
teria and perhaps also different social, cultural and political
tenets of what civil procedure is about, what courts are for
and how they should operate. Under the adversary system,
the basic assumptions are that civil disputes are a matter of
private concern of the parties involved, and may even be
regarded as their private property, though their determi-
nation by the courts may have wider, more far-reaching,
even public repercussions, and that the parties are them-
selves the best judges of how to pursue and serve their own
interests in the conduct and control of their respective cases,
free from the directions of or intervention by the court. On
the other hand, under the inquisitorial system, the basic
assumptions are that civil procedure is a branch of public
law, so that a right of action is seen as a public law right
over and above the private substantive right of the party
asserting it, and that once the jurisdiction of the court is
invoked in relation to a private dispute, there arises an
immediate public interest, and the court then comes under
a state duty forthwith to take that dispute under its control,
to charter its future content and conduct,to search for the
underlying truth, to bring the dispute to a conclusion by
conciliation if possible or otherwise by adjudication. Each
system is naturally content with its own machinery of civil
justice, subject to improving its methods and techniques. It
may perhaps be permissible to speculate whether on the
merits of a given case, based on substantially similar facts,
the conclusion of the dispute arrived at in the courts of both
systems would be substantially the same.
1. Role of the Court

When dealing with the expected behaviour of a judge
Pollock and Maitland contrasted the conduct of a man of
science, carrying out research in his laboratory and using
all appropriate methods for the solution of problems and
the discovery of truth, with the role of the umpire in English
games, who does not invent tests for the powers of the two
sides but is there merely to see that the rules of the game are
observed. They concluded that the strong inclination of
English procedure was towards the second of these ideas,
and they added, referring to the cricket match,
"The judges sit in Court, not in order that they may

discover the truth, but in order that they may answer
the question, 'How's that?' The English judge will, if
he can, play the umpire rather than the inquisitor." 10
The inactive, passive and non-interventionist role of the
court in English civil justice operates throughout the whole
range of civil proceedings. This generalised role of the Eng-
lish court is, however, subject to important exceptions in
which the court is under the duty" or is empowered to act
10
See Pollock and Maitland, The History of English Law, Vol. II, p. 671;
Holdsworth, A History of English Law, Vol. I, pp. 299-302 and Vol. IX,
pp. 280-281, 318. It may be of interest to mention that, in cricket, the
umpire gives his decisions only upon an "appeal" or application made
to him by one side, whereas in football (soccer), the referee makes his
decisions on his own initiative, without application made to him by
either side.
1
' The main classes of cases in which the court is under the duty to be active
and investigative include those concerning minors and mental patients,
the administrations of trusts and of the estates of deceased persons and
insolvency proceedings relating to individuals (bankruptcy) and com-
panies (liquidations). In some cases such a duty is imposed by statute,
e.g. under the State Immunity Act 1978 and the Civil Jurisdiction and
Judgments Act 1982. Other instances in which this duty arises include
of its own motion 12 and thus to be active and if necessary to

ascertain "the truth." Apart from these exceptional circum-
stances, the court takes no initiative at any stage of the pro-
ceedings; it has no power or duty to determine what are the
issues or questions in dispute between the parties, save as
the duty to take notice of illegality (see Holman v. Johnson (1775)

Cowp. 341: Snell v. Unit Finance Ltd. [1964] 2 Q.B. 203., C.A. or statu-
tory invalidity Luckett v. Wood (1908) 24 T.L.R. 617 (gaming debt) and
see Phillips v. Copping [1935] 1 K.B., C.A. in which Scrutton L J . said
at p. 21: "It is the duty of the Court when asked to give a judgment
which is contrary to statute to take the point, although the litigants
may not take it.", and the court will of its motion decline jurisdiction
where the proceedings are based on a fiction (Royster v. Cavey [1947] 1
K.B. 204, C.A.) or on hypothetical questions or issues (Sumner v. Wil-
liam Henderson & Sons [1963] 1 W.L.R. 823; [1963] 2 All E.R. 712,
C.A.; Avon County Council v. Howlett [1983] 1 W.L.R. 605; [1983] 1 All
E.R. 1073, C.A.) or on dead or spent issues (Glasgow Navigation Co. v.
Iron Ore Co. [1910] A.C. 293; Sunlife Assurance of Canada v.Jewis [1944]
A.C. 111). The court is also under a duty of its own motion to exclude
any document or evidence which is protected from disclosure on the
ground of Crown privilege (see Duncan v. Cammell Laird & Co. [1942]
A.C. 624, as modified by Conway v. Rimmer [1968] A.C. 910), and pre-
sumably this duty arises in the case of the extended grounds of public
interest privilege.
12
Such powers are conferred by several of the Rules of the Supreme
Court and the County Court Rules but they are rarely exercised. The
most extensive of these rules is C.C.R. 1981, Ord. 13, r. 2(1) which
provides that "in any action or matter the Court may at any time, on
application or of its own motion, give such directions as it thinks
proper with regard to any matter arising in the course of the proceed-
ings." Such a rule should be introduced into the Supreme Court Rules.
A striking example of the power to exercise an active role in civil pro-
ceedings is contained in the Magistrates Courts Act 1952, s.61 which
relates to domestic proceedings in which the court is required to assist
an unrepresented or otherwise an incompetent party to conduct the
examination of witnesses (see Simms v. Moore [1970] 3 All E.R. 2).
There is a strong case for introducing such a provision to assist litigants
in person in County Courts.
may appear from the pleadings or other statements of the

parties. The court has no investigative process of its own13;
it cannot appoint a court expert, nor call for the report of an
expert or require experiments or observations to be made,
save at the request of a party. It does not itself examine, still
less cross-examine, the parties or their witnesses, for to do
so, as Lord Greene pointed out, the judge would be des-
cending "into the arena and is liable to have his vision
clouded by the dust of conflict"14 or as Lord Denning
expressed it, he would, "drop the mantle of a Judge and
assume the role of the advocate." 15 The judge has no power
to call a witness, whom neither party desires to call, though
he may recall a witness for further examination.16 The court
13
Save, possibly, to require the Official Solicitor to carry out specified
investigations, see Supreme Court Act 1981, s.90; Re Harbin and Master-
man [1896] 1 Ch. 351, 368, 371, C.A.; Re A Minor [1982] 1 W.L.R. 438;
[1982] 2 All E.R. 32, C.A.
14
See Yuillv. Yuill [1945] P. 15.
15
See Jones v. National Coal Board [1957] 2 Q.B. 55, C.A. In R. v. Matthews
[1984] 78 Cr.App.R. 23, C.A. there were substantial interventions by
the trial judge during the examination of the accused at the trial, but his
appeal against his conviction was dismissed. If this case was not
wrongly decided, as I think it was, it must be treated as exceptional and
depending on its own facts, and also on the fact, though implicit, that
the Court of Appeal (Criminal Division) has no power to order a new
trial.
16
Fallon v. Calvert [1960] 2 Q.B. 201: "In a civil suit, the function of a
Court in this country (unlike that of Courts in some other countries), is
to decide cases on the evidence that the parties think fit to call before it.
It is not inquisitorial." (ibid., per Pearce L.J.). See, however, the partial
but powerful dissent of Justice Frankfurter in Johnson v. United States
(1948) 333 U.S. 46, 68 391, S.Ct., (in which an available witness was
not called by either party, nor was his deposition introduced at the trial)
where he said, "A Court room is not a laboratory for the scientific pur-
suit of truth. . . . A trial is not a game of blind man's buff and the trial
judge . . . need not blindfold himself by failing to call a vital witness
simply because the parties, for reasons of trial tactics, choose to
has no power or duty to promote a settlement or compromise

between the parties. It relies on the advocates to cite or refer
to the applicable law and it does not normally carry out its
own researches in this respect. In short, the English court
takes no active part in the initiation, conduct, preparation or
presentation of a civil case before or at the trial or on appeal.
Nevertheless, although the English court maintains its
inactive role, it does not remain negative or remote during
the actual hearing or trial of the proceedings. On the con-
trary, at all stages of the proceedings before or at the trial or
on appeal, at the actual trial or hearing, the English court
plays a dominating, positive and interventionist role. The
conduct of the proceedings then comes under the direct,
immediate and overall control of the court which thus plays
a pointed and practical role by the dialectical process of
asking searching questions calling for immediate answers
about any matters arising in the proceedings. This open
intervention for the search for the truth, within the para-
meters of the proceedings as they are constituted, helps
greatly to clarify, amplify or correct any points or questions
raised by the parties or the court.
It should also be emphasised that the passive role of the
English court greatly enhances the standing, influence and
authority of the judiciary at all levels and may well account
for the high respect and esteem in which they are held, as
well as their comparatively small numbers.
2. Role of the Parties

By contrast, under the adversary system, the passive role
of the court becomes the active role of the parties and their
withhold his testimony. Federal judges are not referees at prize-fights but func-
tionaries of justice (italics supplied). . . . A Federal j u d g e has the power to
call and examine witnesses to elicit the t r u t h . "
lawyers. The roles are in fact reversed, and the responsi-

bility for the initiation, conduct, preparation and presen-
tation of civil proceedings is shifted from the court to the
parties, mainly of course the legal practitioners. This has
the effect of greatly increasing the duties and obligations of
the lawyers in the civil judicial process and also the depen-
dence of the litigants themselves as well as the courts on
their skill, competence and integrity.
Under the principle of what is called "party control," but
subject to compliance with the rules, practices and orders of
the court, and so far as the lawyers are concerned subject to
their duties and responsibilities as officers of the court and
their obligations under the disciplinary code of their
respective professional bodies, the parties retain the initiat-
ive at all stages of civil proceedings. They can agree to
extend time limits which they are required to observe under
the rules or orders of the court. They are free by their plead-
ings or other requisite statements to delimit the issues or
questions of fact or law, which they desire the court to
determine and the court is bound to confine itself only to
those issues or questions and no others. They interview the
parties and their witnesses, including experts, take state-
ments from them and they can call at the trial only those
witnesses they choose and in the order they choose,17
though they have the responsibility of ensuring their attend-
ance at the trial. Under the principle of "party prosecu-
tion," the parties may move a case forward rapidly or
slowly, though if there is prolonged and inexcusable delay
extending beyond the applicable limitation period which is
prejudicial to the defendant the action may be dismissed for
want of prosecution. It is up to each of the parties to apply
17
Briscoev. Briscoe [1968] P. 501.
to the court to compel his opponent to comply with the rules

or orders of the court or to apply for the appropriate sanc-
tion either by way of costs or by way of dismissing the
action or striking out the defence, as may be, if there is a
breach or failure to comply with the rules or orders of the
court. At the trial, the parties have the primary responsi-
bility of examining and cross-examining the witnesses.
Under the principle of "party autonomy," parties are
entitled at all stages of the proceedings (save in the case of
claims by or on behalf of minors or mental patients) to settle
their cases on any terms they choose without the approval
of the court.
In short, it is the duty and responsibility of the lawyers of
the parties, both of the solicitor who is employed by the liti-
gant whose main responsibilities are to initiate and prepare
the case and of the barrister who is engaged by the solicitor
and whose main responsibilities are to present and conduct
the case at the stages of pre-trial and trial and on appeal, to
ensure that the case of the client is fully and effectively
begun or defended and framed, prepared and presented.
They are also entitled, within the limits of professional pro-
priety, to take advantage of any weaknesses or mistakes of
the opposite party. As Lord Denning expressed it in martial
terms,18
"In litigation as in war. If one side makes a mistake,
the other can take advantage of it. No holds are
barred."
Under the adversary system there is room for the employ-
18
Burmah Oil Co. v. Governor and Co. of the Bank of England [1977] 1 W.L.R.
473; [1977] 2A11E.R. 461.
ment of surprise and technicalities as weapons in the con-

duct of the litigation. Indeed, throughout the whole litiga-
tion process, the parties and their lawyers are at arms'
length and in general it is contrary to professional usage for
the lawyers of either party to inform or alert the lawyer of
the opposite party that he may be committing a fatal error.
3. Failings and Changes

By exalting the role of the parties and their lawyers, the
English adversary system has the effect of setting the parties
against each other as opponents or antagonists, or even as
foes or enemies, who must be vanquished in the forensic
combat. 19 The lawyers on both sides engage in what is
called "a battle of wits"; they take each other on as "legal
gladiators" in the litigation arena. Yet in spite of, or per-
haps because of this feature, the adversary system is much
admired, particularly by practitioners who operate it and
the judiciary who apply it; and indeed, there is much to
commend it, especially as it should be regarded and eva-
luated, not in isolation as a separate system, but as the
framework for the functioning of the other fundamental
principles of English civil justice. My own belief is that it
reflects and responds to English cultural values, and con-
forms more closely with the English character of indepen-
dence and "fair play," and that therefore the common
people of England would prefer to retain it rather than to
adopt the inquisitorial system, its counterpart on the Euro-
pean continent. They would, I believe, prefer that the con-
duct of their civil disputes should be under the control of the
19
A caricature of the adversary system suggests that a civil action should
be regarded "as a cock fight wherein he wins whose advocates have the
gamest bird with the longest spurs," see Wigram on Evidence (3rd ed.
1845), Vol. VI.
lawyers of their own choice rather than be managed by

judges, however eminent and independent, who are in no
way answerable to them.
Nevertheless, the English adversary system has many
inherent failings, which are manifested in practice more
often than is generally realised. Since it is the lawyers who
choose when and what procedural steps should be taken or
resisted, which they think would best serve their respective
interests, it is a hit and miss system, sometimes producing
the right result and sometimes not. The adversary system
inevitably creates avoidable delays and increases both the
labour and the costs. It introduces an element of sports-
manship or gamesmanship into the conduct of civil pro-
ceedings, and it develops the propensity on the part of the
lawyers to indulge in procedural technical manoeuvres.20
For the proper functioning of the adversary system, a basic
assumption is that the opposite parties command equal
resources and can engage lawyers having equal skill, exper-
tise and competence, but in practice this assumption is not
fulfilled in a much larger volume and variety of cases than is
generally imagined; and indeed, the adversary system
accentuates the inequality in terms of resources and legal
advice and representation between the parties. Under the
adversary system, some lawyers at any rate fall below, a few
very much below, the standard of skill, competence and
integrity expected of them by their respective professions,
with the result that many claims and defences are defeated,
often without a decision on the merits, and are thrown on
the dust-heap of lost causes. The true casualties of the
adversary system are the litigants themselves, who are frus-
trated in their search for justice, and the notion that a liti-
20
See n. 16, above.
gant who is defeated by the negligence of his own lawyer

will seek redress against him by going to another lawyer is
more fanciful than real. Lastly, it may be said that, in the
interplay between the court and the parties and their law-
yers, the adversary system envelops the machinery of civil
justice with a kind of mystique, even mysticism, which
alienates people and inhibits them from resorting to the
courts for the resolution or determination of their disputes.
In view of these and other failings and defects of the
adversary system, it is clearly necessary that urgent steps be
taken to improve its machinery. The obvious solution which
springs to mind, that the English adversary system should
be replaced by the Continental inquisitorial system,21 is
wholly misconceived both in principle and in practice. As a
matter of principle, the proposal to reverse the roles of the
court and the parties does not take into account some
imponderable intangibles, such as the cultural texture of
society, the habits and practices of the legal profession, the
needs, values and aspirations of the people, their inarticu-
lated concept of how civil justice should be administered,
especially the overriding social need for public justice, so
that justice can be seen to be done. As a matter of practice,
such a proposal does not take into account the overwhelm-
ing difficulties which would be experienced by the prac-
titioners and the judiciary if they were required to change
their methods, practices and habits to conform with the
inquisitorial system. Moreover, such a proposal would be
impracticable since the fundamental difference between the
common law system and the continental system in the
21
See Report by Justice, Going to Law, A critique of English Civil Procedure,
(London, Stevens and Sons, 1974).
administration of civil justice lies much deeper, for it lies in

the way in which the judiciary is chosen, appointed and
promoted. In the continental systems of law, the judiciary
at all levels is largely, though of course not entirely, com-
prised of career judges, that is, lawyers trained, after passing
their educational qualifications, to be judges, and they fol-
low a judicial career and are promoted to higher judicial
office according to the career structure of the judiciary with-
out ever having been engaged in the actual day-to-day prac-
tice of the law. On the other hand, in the common law
systems, the judiciary is largely, but of course not entirely,
chosen from among practising lawyers and there are no
career judges. This difference in the composition of the
judiciary between the continental and common law sys-
tems, is, I suggest, a decisive reason for dismissing
altogether the idea that we can or should replace the adver-
sary system by the inquisitorial system of civil justice.
On the other hand, in remodelling and refashioning the
adversary system, I suggest it would be useful to look for
guidance to the principle underlying the inquisitorial sys-
tem, namely, that once the jurisdiction of the court has been
invoked, the court should become invested with the public
duty and interest to ensure the proper conduct, content and
progress of the proceedings. Such increased power of the
court, to be more active and responsible, would also help to
promote equality in procedure, especially where one party
is not legally or even competently represented. The active
role of the court would enable it to monitor the progress of
the proceedings, to control their future conduct, to formu-
late the real issues or questions between the parties, to
determine that there has been full disclosure of documents
between them, to ensure the exchange of experts' reports
and if and when this power is introduced the exchange of
the statements of the witnesses of the parties, to increase the

powers of the court to act of its own motion as, for example,
to appoint a court expert and to enable the trial court to call
a witness not called by the parties. Above all, the court
should be under a duty at all stages to endeavour by concili-
ation to promote the settlement or compromise of the pro-
ceedings. In these and other ways, the adversary systems
would be able to cast-off its present failings and defects and
respond more positively to producing a more effective and
efficient machinery of civil justice.
Principle of Orality
Another fundamental feature of English civil justice is
embodied in the "principle of orality." This principle domi-
nates the conduct of civil proceedings at all stages both at
first instance, before and at the trial, and on appeal, and in
all courts both superior and inferior as well as in tribunals.
Its origins stretch back to the earliest days of the common
law system of trial by jury, as this is the obvious manner of
the conduct of such a trial. It is a deeply ingrained habit of
the English legal process. It affords the medium for a liti-
gant in person to take part in the proceedings and to present
his own case. It runs in parallel with the principle of pub-
licity, and both orality and publicity are crucial to the
proper functioning of the adversary system. Even in
instances where written material is produced to the court,
as where written pleadings or other documents such as affi-
davit evidence or the correspondence between the parties,
are referred to or reports of cases are cited to the court, the
actual hearing of the proceedings in court is conducted
orally: there is the oral reading of the relevant written
material, the oral arguments, the oral exchanges between
the court and the lawyers or the parties if acting in person,
the oral evidence at the trial, the oral judgment of the

court.22
The advantage of orality is that it fosters the "principle of
immediacy," and together orality and immediacy have the
effect of enabling the Court to conduct the kind of direct,
immediate and dialectical investigation into the relevant
facts and the applicable law and by this process of "cross-
fertilisation," they promote the ascertainment of the truth
and the production of the correct decision.
The disadvantage of orality is its inevitable tendency to
prolong the hearings and trials and thus to add consider-
ably to increasing delays and costs. There is therefore a
growing movement in England towards introducing "writ-
ten procedures," especially at the appellate stage, for
example, by the production of "skeleton arguments" and
the chronology of events, so as to enable the court to read
and use such material before and at the hearing and avoid
the need for reading them orally. To some extent, this
developing practice bears a close similarity to the practice
prevailing in other common law jurisdictions, such as the
use of "Briefs" in the United States and the use of "Fac-
tums" in Canada, in which the relevant facts and legal sub-
missions are extensively developed and presented.
In this connection, it is perhaps worth remembering that
even in England, in the Court of Chancery, the dominant
method for the conduct of equity proceedings was in the
form of written documents. The Bill in Chancery with its
nine parts, the narrative, charging and interrogating parts
22
"One of the most striking features of proceedings in an English Court,
whether original or appellate, is its comprehensive orality. The whole of
the case, from beginning to end, is conducted by word of mouth. From
beginning to end, the intelligent listener can follow everything," per Sir
Robert Megarry (formerly the Vice-Chancellor) in Lawyer and Litigant in
England (1962 Hamlyn Lectures), p. 167.
and so forth was followed by extensive written interrogator-

ies and if necessary by cross-interrogatories which were
administered to the witnesses in private before an examiner
or commissioner sworn to secrecy, with none of the parties
or their agents being allowed to be present. When these
depositions were completed, the parties would be furnished
with copies at their own expense and they would be pre-
sented to the court without any further evidence being
admissible; and they formed the basis on which the oral
arguments of the parties would be presented to the court.
This system was modified during the nineteenth century
and finally abolished by the Judicature Acts of 1873 and
1875. Nevertheless, a considerable volume and variety of
proceedings in the Chancery Division are still conducted in
written form, mainly by affidavit evidence, though they are
finally concluded by oral argument in open court.
By contrast with the prevalence of orality and immediacy
in English civil justice, many of the European continental
systems and their offshoots in Latin America employ the
presentation of written material to the court as the predomi-
nating method for the conduct of civil proceedings. This
basic procedure has been and is under severe criticism by
European and Latin American proceduralists, who are
championing the introduction of oral procedures in their
respective countries and this movement is gradually gaining
ground. It is perhaps a strange circumstance that while in
England we are seeking to move towards written pro-
cedures, in civil law countries they are seeking to move
towards oral procedures.
Principle of Publicity
A further fundamental and characteristic feature of English
civil justice is its administration in public. This has a long
and ancient history, since it is the manifest method of trial

by jury. The imperative need for public justice was empha-
tically stressed by Jeremy Bentham when he said, for
example,
"The grand security of securities is publicity—
exposure—the completes t exposure of the whole sys-
tem of procedure—whatever is done by anybody, being
done before the eyes of the universal public." 23
The need for public justice, which has now been statutor-
ily recognised,24 is that it removes the possibility of arbitrar-
iness in the administration of justice, so that in effect the
public would have the opportunity of "judging the judges":
by sitting in public, the judges are themselves accountable
and on trial. This was powerfully expressed in the great
aphorism that,
"It is not merely of some importance but is of funda-
mental importance that justice should not only be done
but should manifestly and undoubtedly be seen to be
done." 25
The opposite of public justice is of course the administra-
tion of justice in private and in secret, behind closed doors,
hidden from the view of the public and the press and shel-
23
B e n t h a m , Principles, p . 8.
2
* See Supreme C o u r t Act 1981, s.67. " O u r constitution has been found to
be the best guaranteed by the open administration of j u s t i c e " (per Lord
Shaw in Scott v. Scott (1913) A . C . 417. "Justice is not a cloistered virtue."
(per Lord Atkin in Aubardv. Att.-Gen.for Trinidad and Tobago, [1936] A.C.
322, 335. See also R.S.C. Ord. 38, r. 1, which gives effect to the dictum of
Earl Loreburn in Scott v. Scott, supra that "the inveterate rule is that
jutice shall be administered in open Court."
25
S e e * , v. Sussex Justices, ex p. McCarthy [1924] 1 K..B. 256, 259 per Lord
Hewart, L.C J .
tered from public accountability. There are, indeed, two

prevailing exceptions to the open public system of conduct-
ing civil proceedings, namely, (1) the hearing of pre-trial
proceedings "in Chambers," at which only the parties and
their advisers are entitled to be present and from which the
public and the press are excluded, and (2) the hearing of
proceedings or the trial or part thereof "in Camera," where
the court or the trial judge orders that the court should be
closed or cleared and the public and press excluded.26 Both
these exceptions may be necessary in matters which require
protection from publicity, such as matters concerning
national security, those relating to persons under disability,
i.e. minors and mental patients, or those relating to secret
processes and other special matters, such as hearings before
the Commissioners of Inland Revenue relating to tax affairs
and such like matters.
Subject to these exceptions, the principle of publicity
should prevail throughout the whole range of civil proceed-
ings. For this reason, the practice of hearing pre-trial appli-
cations in Chambers should be abrogated. The strange and
perhaps indefensible contrast between the hearing of inter-
locutory applications for an injunction, in open court in the
Chancery Division, and in private in Chambers in the
Queen's Bench Division, should be the first and immediate
practice to be scrapped.
Principle of Finality
A basic feature of English civil justice may be called "the

principle of finality." This may itself have been derived
26
See R. v. Chief Registrar of Building Societies, ex p. New Cross Building Society,
[1984] Q.B. 229, C.A.
from the practice ofjury trials in the former Superior Com-

mon Law Courts, in which the general verdict of the jury
was regarded as "final" unless it was, on proper grounds,
set aside and a different judgment given or order made. By
virtue of this principle, the order or judgment of every court
and tribunal, both inferior and superior, and at all stages
both before or at the trial or hearing is treated as final and
operative or enforceable, however wrong or irregular it may
be, unless and until it is reversed or set aside or varied by a
superior court or tribunal or unless its operational enforce-
ment has been stayed or suspended.
The principle of finality is itself based on a fundamental
maxim of the law which is generally expressed by a Latin
maxim "interest republiciae ut sit finis litis," which can be
translated that, it is in the interest of society that there
should be an end to litigation. The underlying idea is that
the judicial process should itself operate to still dissension
and to promote harmony in society. This principle also has
the object and the effect of enhancing public respect for the
law and reinforcing the authority of the judiciary, as well as
precluding the protraction of the legal process and the
increase of costs. In the English system of civil justice, this
principle has the decisive effect of reducing the number of
appeals, for the principle which the appellate court adopts
is that the decision appealed against is right unless the con-
trary is shown. This accounts for the fact that the volume of
appeals in England is considerably less than the volume in
continental European countries, where the principle of
finality does not operate in the same way or to the same
extent and in those countries the appellate court can and
often does remit a case back to the court of first instance in
order that it should consider fresh oral or documentary evi-
dence which had not been presented or considered earlier.
Principle of Specialisation
This principle, which reflects the general tendency in

society in all disciplines and every field of endeavour, has
exerted a fundamental influence on English civil justice in
two crucial respects, namely, the structure of the civil courts
and tribunals and the organisation of the legal profession.
Specialisation accounts for the vast variety of specialist
courts and tribunals administering civil justice in specia-
lised areas of the law. Indeed, in England, there have
always been specialist courts of one kind or another. The
most striking instance of such specialist courts, which of
course has its counterpart in continental countries, is pro-
vided by the great divide between criminal and civil justice
administered under different modes of procedure and prac-
tice in criminal and civil courts respectively. On the other
hand, an equally fundamental feature of English civil jus-
tice which gave rise to specialist courts but which has no
counterpart whatever in continental countries is the other
great divide between common law and equity administered
until the Judicature Acts 1873 and 1875 under entirely dif-
ferent methods of procedure and practice and awarding
quite different remedies by the common law courts on the
one side and by the Court of Chancery on the other; and
although since 1875, the common law courts and the Court
of Chancery have been integrated into a single High Court
ofJustice, their separate specialist characters still predomi-
nantly prevail under the guise of separate Divisions of the
High Court. Other notable examples of specialist courts,
some of which have retained their early specialist attributes,
include the High Court of Admiralty, the ecclesiastical
courts, the courts dealing with insolvency proceedings, the
Court of Probate, the Family Division of the High Court
derived at one removed from the Divorce Court, and more

recently the Patents Court and the Commercial Court.
It is, however, in the area of tribunals other than the
ordinary courts of law that the principle of specialisation
has manifested its enormous and extensive dominance. This
has been especially so since the war and under the influence
of the classic Report of the (Franks) Committee on Admin-
istrative Tribunals and Inquiries.27 In the last 40 years or
so there has literally been a proliferation of such separate
tribunals. At present, there are innumerable different
groups of such tribunals each dealing with a specialised
area of the law or of legal control or administration or of
professional codes of conduct, and this number is likely to
increase. They reflect the greater complexities of modern
society and the growing specialisation of legal rules which
require judicial control and decision, though in rather a less
formal manner than the ordinary courts of law.
The underlying justification for a specialist court or tri-
bunal is that it provides a kind of built-in unit of expert
knowledge, skill and experience, presided over by an expert
judge or other judicial officer or body before whom an
expert advocate will appear generally instructed by an
expert attorney. Such a court or tribunal will thus be able to
administer justice more in conformity with the needs and
requirements of its own specialist field and with much less
delay and expense. It will need no fresh instruction in the
matters with which it has to deal and is better placed to
make a more realistic appraisal of the evidence and of the
opinions of expert witnesses, as well as the contentions of
27
Cmnd. 218(1957).
specialist practitioners. It develops its own expertise and

exercises its jurisdiction within its own specialist field with
greater understanding and authority.
On the other hand, it needs to be realised that a specialist
court or tribunal may become somewhat inward looking,
too wrapped up, as it were, in its own specialist subject, and
not sufficiently aware or alive to its own social setting or the
needs of society. Over-specialisation may perhaps be an
even greater danger than non-specialisation in the field of
the administration of civil justice. The specialist court or
tribunal may be likely to develop its own peculiar pro-
cedures and practices and grow still more specialist and
esoteric. It may indulge itself in the notion that it knows its
own business best and that any inquiry into its machinery
and methods of administering justice is mere meddling by
ignorant outsiders. There may therefore be a need for a per-
iodic review by an authoritative body of the work of specia-
list courts and tribunals, much like the functions fulfilled by
the Council of Tribunals over the tribunals under its super-
vision.
Specialisation also accounts for the division of the Eng-
lish legal profession into two quite separate and indepen-
dent branches, namely, barristers and solicitors. The basis
for this division lies in the right of audience before the
Supreme Court at the oral, public trial or hearing or on
appeal. Barristers have this right, but solicitors do not,
although they and their clerks are entitled to appear in pre-
trial proceedings in Chambers in the High Court and also
in the County Courts and other inferior courts and tri-
bunals. The importance of the right of audience is that it
provides the opportunity for advocacy, which calls for the
exercise of specialised skills and expertise in the presen-
tation of a party's case before the court. In this sense, advo-
cacy is the art of persuasion, the talent and technique of

capturing the mind of the court. Barristers are the specialist
advocates, whereas solicitors are mainly specialist office
lawyers, assisted by legal executives who are themselves
organised in a separate Institute and are specialist in par-
ticular branches of practice, including civil litigation. A
barrister may not be engaged to advise or appear in court
except through a solicitor, who must first be retained
directly by the litigant. Among barristers, there is a further
specialist division between those who are "junior" and
those who are "senior" (called "Queen's Counsel"), who
do not ordinarily appear in court except with or "to lead" a
junior.
Each branch of the legal profession has a separate auton-
omous organisation with its own professional examinations,
code of conduct and career prospects. Even within the two
branches of the profession, there is considerable specialisa-
tion both by barristers and solicitors in particular areas of
civil matters, such as commercial law, shipping, industrial
relations, family proceedings relating to children and prop-
erty, claims for personal injuries, patents and other intellec-
tual property, taxation law, administrative law and so forth.
It is mainly from these specialist legal practitioners that the
appointment of judges is made to the High Court from
among barristers only, and to the inferior courts largely
from barristers but with an occasional sprinkling from
among solicitors.
The division of the English legal profession into two
branches of barristers and solicitors is beginning to show
signs of strain. These will be likely to increase as the style of
advocacy changes. It is no longer florid or flowery or even
eloquent; it is becoming more and more pedestrian, prosaic
and persuasive. Indeed, the whole thrust of advocacy is
likely to undergo a fundamental change as written pro-

cedures take the place of oral procedures, since orality is the
life-blood of advocacy as it is practised today. Solicitors
may be led to claim that they are as good and as effective
advocates on written procedures as barristers could be.
Nevertheless, it may well be that there will always be a need
for specialist oral advocates and therefore for a special order
of barristers within the legal profession.
The division of the English legal profession into two sep-
arate branches does not of course have its counterpart in
continental Europe at all, where even in France the separ-
ate professions of advocat and avoue have been amalgamated,
though there, notaries have a specialist area of practice. But
the principle of specialisation exerts its influence on the
organisation of the lawyers in most European countries in
its own peculiar ways. Thus students from law schools in
those countries have to make one of three choices as to their
career in the law, whether to become legal practitioners, or
judges, or law teachers. On the whole, these are quite separ-
ate and distinct groups of lawyers, so that, for example, a
practitioner cannot be made a judge, nor can a law teacher
act as a practitioner, though he may be called upon to serve
as a member of a court, especially at the appellate stage. It
may be said indeed that in Europe the legal profession is
divided not into two, but into three branches, practitioners,
judges and teachers.
Demarcation between Pre-Trial and Trial
A pre-eminent feature of the system of English civil justice

is the sharp demarcation between the stages of pre-trial and
trial. This marked division arises from two related factors,
namely,
(a) the method of trial, which consists of a continuous

uninterrupted, concentrated oral hearing before the
court sitting in public, at which both parties must
present the whole of their respective cases, the evi-
dence of their witnesses, including experts, all rel-
evant documents and their legal arguments, and
(b) the inevitable interval between the commencement
of the proceedings and the trial.
These factors obviously require that the parties should
have the fullest opportunity to prepare their respective
cases for the trial, and they further require that the parties
should have the fullest protection of their rights and inter-
ests pending the trial. For this reason, the procedures and
remedies at the pre-trial stage assume enormous, even
decisive, importance and have a considerable effect on the
outcome of the proceedings, as will appear more fully
later. 28 Under the adversary system these pre-trial pro-
cesses, which comprise all the procedural steps which may
or must be taken before the trial, remain under the control
of the parties and are taken at their initiative, so that if they
are employed properly, diligently and skilfully they can be
used to accelerate the progress of an action and bring it to
trial or to a settlement or to some other disposal without a
trial as effectively and speedily as possible, but equally, they
can be made to operate in a very complex, technical and
elaborate way, as the means of obstruction or to delay the
progress of an action towards the trial or settlement or other
disposal.
By contrast, the European continental systems do not in
general make any division between the stages of pre-trial
28
See Chap. 2, p. 68.
and trial, simply because they do not have the method or

stage of "trial" as it exists under English civil justice. 29 In
those systems all the procedural processes that are taken
before the final hearing or disposal of the civil suit form part
of the "trial" itself. They are not preliminary, provisional or
interlocutory in character or purpose, as they are in Eng-
land, but they constitute integral elements of the continuing
process of trial. Under the inquisitorial system, they are
largely under the control of the court itself rather than the
parties, so that the progress of the proceedings is deter-
mined by the court though it may be influenced by or at the
request of the parties; and of course the evidence that
emerges during the stages before the final hearing may per-
suade the parties, perhaps even at the suggestion or pro-
posal of the court, to reach a settlement or otherwise to
dispose of the proceedings before the final hearing.
Structure of Courts and Tribunals
In the system of English civil justice, there are several fac-

tors which have made a decisive contribution towards the
shaping of the organisation of the civil courts, and they con-
tinue to exert their influence to this day. In general terms,
though subject to some qualifications and some dilution
today, these factors include the following characteristic
English features: that England is a unitary state; that it has
no written constitution; that it has developed and still
enjoys its own indigenous system or systems of law; and
that it has always experienced and still does a centripetal
29
I rather believe that there is no single word in any of the continental
languages which conveys the equivalent meaning of the English word
"trial."
force in the system of its administration of civil justice.

These factors have avoided the need for England to have
federal courts on the one side and state or provincial courts
on the other, with competing and complex claims to juris-
diction, or to have a separate constitutional court, since
constitutional law forms part and parcel of the ordinary
body of law and the ordinary courts thus have jurisdiction
over constitutional questions. They also avoid the compli-
cation that exists in some unitary states, as in France, of
having separate regional courts, particularly at the appel-
late level. They have had and still have a powerful centralis-
ing effect on the machinery of civil justice, so that the higher
echelons of judicial authority and administration are con-
centrated in London, from where they radiate their rule and
sway to all parts of the country.
The present organisation of the civil courts and tribunals
in England appears to be a somewhat complex, diffuse and
heterogeneous structure, but it is, in essence, or at any rate
compared with the past and also compared with the legal
systems in some European countries and elsewhere, fairly
simple, comprehensive and highly functional. These quali-
ties may be attributed to the main fundamental features
which underlie this structure which may be said to be based
on the following principles, namely,
(1) Division between superior courts and inferior courts;

(2) Decentralisation of both the superior and inferior
courts;
(3) Distribution of business between courts of general
jurisdiction and specialist courts;
(4) Separation between courts and tribunals other than
the ordinary courts of law;
(5) Basic common appeal system.
1. Superior Courts
Before the Judicature Acts 1873 and 1875, the structure
of the superior civil courts in England was well-nigh chao-
tic. There were numerous separate independent courts,
such as the Three Superior Common Law Courts, the
Court of Chancery, the Courts of Admiralty, Probate, Div-
orce and many others. Some of these courts were not the
creation of statute but of the common law, deriving their
jurisdiction from the royal prerogative over judicial mat-
ters. Each of these courts exercised its own autonomous jur-
isdiction operating its own sectarian practices and
procedures, with no rational or common appeal system.
Against this background, it is difficult to magnify the
overwhelming importance of the Judicature Acts of 1873
and 1875 in unifying the structure of the superior courts
into a single Supreme Court ofJudicature. This was divided
into two parts, consisting of the Court of Appeal and the
High Court. For historical reasons, as well as for the better
despatch of business, the High Court was originally divided
into five,30 reduced in 1881 to three, Divisions which since
1971 have been re-organised on a more rational basis which
has been continued by the Supreme Court Act 1981.31
These consist of the following,
(a) The Chancery Division, which traces its lineage to the
former Court of Chancery. It deals basically with
30
T h e r e w a s then a n u n d e r s t a n d a b l e sensitivity to retain in office the
heads of the these Common Law Superior Courts, the ChiefJustices of
the Queen's Bench and the Common Pleas and the Chief Baron of the
Exchequer, until a more propitious time, which arose by natural causes
in 1881, when they were amalgamated into the Queen's Bench Division.
31
For the Divisions of the High Court, see Supreme Court Act 1981, ss.5
and 6. For the distribution of business between them, see Supreme
Court Act 1981, s.61. For Divisional Courts, see ibid. s.66.
property matters and it has as part of it a specialist

Patents Court32;
(b) The Queen's Bench Division, which traces its lineage to
the Curia Regis, from which there emerged in turn the
Superior Common Law Courts, the Court of Exche-
quer, the Court of Common Pleas and the Court of
King's (Queen's) Bench. It deals primarily with per-
sonal actions in common law matters arising out of
contract and tort, and it has as part of it two specia-
list courts, the Admiralty Court33 and the Commercial
Court3* Moreover, by way of judicial review, this
Division ordinarily exercises the vitally important
supervisory jurisdiction of the High Court over the
proceedings and decisions of inferior courts, tri-
bunals and other persons or bodies who make
judicial decisions or perform public duties and
acts 35 ;
(c) The Family Division, which deals with matters con-
cerning matrimonial and family relations and prop-
erty, including of course all matters relating to
children.36
Although formally divided into "Divisions," the High
Court is a single integral Court, and except where expressly
provided otherwise, all its judges have in all respects equal
power, authority and jurisdiction. 37 The jurisdiction of the
32
See ibid. s.6(l)(a) and s.62(l); and see Patents Acts 1949 to 1961 and
1977; R.S.C. O r d . 104.
33
See ibid. s.6(l)(4), ss.20-24 and s.62(3); and see R.S.C. Ord. 75.
34
See ibid. s.6(l)(4) and s.62(3); and see R.S.C. O r d . 72.
35
See ibid, s.31; and see R.S.C. O r d . 53.
36
See ibid. s.5(l)(a), and Matrimonial Causes Act 1973 and other statutes
and rules, Supreme Court Practice, Vol. 2, Pt. 7.
37
SeeiAtrf.s.4(3).
High Court is general and unlimited and extends over the

whole of England and Wales. 38 For administrative pur-
poses, however, the country is divided into six circuits, each
with a Circuit Administrator working under the authority
of Presiding High Court Judges and operating a unified
court service under the control of the Lord Chancellor.39
The High Court is based in the Royal Courts ofJustice in
London, but it is nevertheless decentralised throughout the
country in two ways. First, by the provision of District Regis-
tries, of which there are about 140 and which may be des-
cribed as country branches of the High Court, though each
is closely attached to the local County Court. 40 Each district
registry is, as it were, self-sufficient with its own District
Registrar, its own offices and staff. Secondly, by the pro-
vision of Trial Centres of which there are about 26 based in
the main provincial towns.41 These have replaced the
ancient Assize System under which itinerant judges trav-
elled to all the counties of England and Wales to bring jus-
tice to the door of the litigants. The judges, however, still
"go on circuit" from London to these permanent civil trial
centres, thereby retaining the advantages of a centralised
system, such as the uniformity and certainty of the law and
the development of a coherent and authoritative body of
law throughout the country as well as enjoying a collegiate
climate based on the Inns of Court.
^ See ibid. s.16.

39
See C o u r t s Act 1971, ss.27-29, a n d see Supreme Court Practice, Vol. 2,
p a r a s . 4802 et seq.
40
See S u p r e m e C o u r t Act 1981, ss.99-103, a n d Civil Courts Orders
1983,as a m e n d e d in 1984; a n d see Supreme Court Practice, Vol. 2,
p a r a . 4809.
41
See ibid, s.71; R.S.C. O r d . 33, r. 1, a n d see Supreme Court Practice, Vol. 1,
para. 33/1/3.
2. Inferior Courts
Until the creation of the County Courts in 1846, there
was no single inferior court exercising general jurisdiction
within specified monetary limits. On the contrary, until
fairly recently, England had a multitude of inferior local
courts exercising jurisdiction by amount or subject matter
or geographical boundaries or a combination of these and
other criteria. Some of these courts were ancient; some were
based in several flourishing ports; some were to be found in
the more prosperous cities and boroughs. They all basked
in the atmosphere of civic pride and reflected the advan-
tages of a decentralised system providing local justice,
accessible, convenient, speedy and flexible.42 Since the last
century, however, the thrust in the system of inferior courts
has been to reduce their number, influence and jurisdiction
until the whole range of inferior local courts has been swept
away, 43 leaving the County Courts, with the limited civil
jurisdiction of Magistrates' Courts, to be the sole surviving
civil inferior courts.
After many earnest efforts to create a' single system of
local courts, 44 the County Courts were established in 1846
as courts primarily intended for the recovery of "small
debts" with their jurisdiction limited to £2045; they were
meant to be the "poor man's" court. From the beginning,
however, the work-load of the County Courts has increased
enormously by the continual raising of the monetary limits
42
As, for example, t h e C o u r t s of Requests.
43
See C o u r t s Act 1971, ss.42, 43; Administration ofJustice Act 1977, s.23,
Sched. 4.
44
See Speech on Local C o u r t s delivered in the H o u s e of C o m m o n s on
April 29, 1830 in Speeches of Henry Brougham, with Historical Introduction
(Edinburgh, 1838) Vol. 11, p. 489.
45
Its preamble read "An Act for the recovery of small debts and
demands."
of their jurisdiction, not merely to match inflation but in

absolute terms, and by ever-widening the scope of the mat-
ters within their jurisdiction. The County Court Judge
came to be called "the judicial beast of burden."46 The
County Courts have nevertheless continued to flourish and
they have come to deal with the largest volume of civil pro-
ceedings covering almost their whole range and variety. It
may therefore be claimed that today County Courts provide
the foundation or the basic texture of the system of courts in
the fabric of English civil justice.
Fortunately, there are extensive powers, which them-
selves have been increased, for the transfer of proceedings to
and from the County Courts and the High Court47 and from
one County Court to another,48 both for the purposes of
dealing with such proceedings and the enforcement ofjudg-
ments.49 With these powers of transfer and the increase in
the monetary and subject matter jurisdiction of the County
Courts, we are fast reaching the stage, if we are not already
there, when apart from any other consideration, it may be
difficult to draw the dividing line, certainly so far as the
monetary limits are concerned, between the High Court
and the County Courts, and we may therefore need, not so
much to make a leap, as simply to take another obvious step
forward and integrate the County Courts with the High
Court into a single Supreme Court of Judicature, as was
recommended by the Judicature Commissioners in 1872.50
46
See H o l d s w o r t h , A History of English Law, Vol. 1, p . 192.
47
See C o u n t y C o u r t s Act 1984, ss.4O-45 a n d County Courts Rules 1981,
Pts. II and III.
48
See County Court Rules 1981, O r d . 16, Pt. I.
49
See County Courts Act 1984, ss.105 and 106.
50
See Second Report of Judicature Commissioners (1872) C. 631, pp. 10,
13, Hand 19.
In the County Courts, an area of proceedings which is of

exceptional importance is that relating to "small claims."51
At present, such proceedings are those in which the sum
claimed or the amount involved does not exceed £500 or a
party duly requests a reference to arbitration. A special pro-
cedure is provided for dealing with such "small claims," in
which the hearing is required to be informal and the strict
rules of evidence will not apply; and although the parties
are entitled to be represented by lawyers, this is discour-
aged because solicitors' costs would ordinarily not be
allowed, save in specified circumstances. These provisions
may be regarded as heralding the beginnings of a small
claims court or tribunal for small and even modest civil
claims, whether as part of the County Court system or not.
In this way, we may perhaps come full circle to establish a
"poor man's" court.
Magistrates' Courts are primarily criminal courts but
nevertheless they exercise civil jurisdiction in two important
areas of proceedings, namely, those relating to matrimonial
and family affairs and those relating to the recovery of local
rates. These anomalies are traceable to historical accidents
and they can no longer be justified, especially when it
appears that it is precisely in relation to maintenance orders
and orders for the payment of local rates that imprisonment
for civil debt still subsists in England. 52 The fabric of civil
justice is seriously disfigured by continuing the civil juris-
diction of Magistrates' Courts in matters relating to matri-
monial and family affairs, from which they ought to be
removed as a matter of urgency; and the recovery of local
51
See County Courts Act 1984, s.64 ("Reference to Arbitration"), and
County Court Rules 1981, Ord. 19, Pt. I.
52
See Administration ofJ u s t i c e Act 1970, s. 11 a n d Sched. 4.
rates, like the recovery of national taxes, would seem to be

more rationally the function of the civil courts than the
criminal courts.
3. Tribunals
Within the fabric of civil justice, there are to be found tri-
bunals other than the ordinary courts of law which exercise
considerable judicial powers and an extensive jurisdiction,
covering a vast range of disparate matters. These tribunals
serve as an alternative mode of dispute-resolution to that
provided by the ordinary courts of law; they constitute a
separate but parallel system to that of the ordinary courts of
law for the administration of civil justice, except that their
decisions may ultimately be challenged before a court of
law. They are not merely an adjunct to but form part and
parcel of the process of making judicial decisions and
resolving civil disputes. They are to be regarded as a dis-
tinct but essential branch of the judicial process, for they
fulfil the function of adjudication and not merely of admin-
istration. They have grown in importance and influence
and may now be said to have become deeply rooted in the
English legal system.
Although there are a great number and variety of tri-
bunals other than the ordinary courts of law, there is no
single or systematic structure or organisation which
embraces them all. They are, as it were, individualised by
the particular specialist subject matter with which they
deal, or by the method of their creation or the limited juris-
diction and appropriate procedure within which they func-
tion. The system of tribunals therefore defies logical or
realistic classification, but nevertheless it may be con-
venient to identify three main groups, namely, statutory,
domestic and arbitral tribunals.
4. Statutory Tribunals
Before, 1958, there were the glimmerings of tribunals
other than the ordinary courts of law, established or recog-
nised by statute, as for example, compensation tribunals for
the compulsory enclosures of agricultural land or the com-
pulsory acquisition of land for the canal and railway sys-
tems and Courts of Referees to deal with unemployment
insurance. The influence of Dicey's doctrine of the rule of
law was almost decisive against the development or spread
of administrative law and justice in England. After the war,
however, with the increasing complexity of modern indus-
trial society and the considerable expansion of the so-called
Welfare State and its many social services, it became appar-
ent that the system of the ordinary courts of law was not
capable of coping with the enormous escalation in the
volume and variety of claims and disputes, not only
between subject and subject but more especially between
subject and the State both at central and local government
levels. The general rule of the common law that thejurisdic-
tion of the ordinary courts could not be ousted had to yield
to the pragmatic demand that there was urgent need for
alternative modes of informal judicial disposition of claims
and demands in many areas, which the ordinary courts of
law could not, or would not wish to, entertain.
Since 1958, there has been a prolific increase of tribunals
and inquiries other than the ordinary courts of law. This
may be largely attributed to the Franks Report, published
in 1957,53 which acted as the catalyst in producing the
modern system of statutory tribunals and inquiries. These
tribunals are not ordinary courts but neither are they
53
Report of the Committee on Administrative Tribunals and Enquiries,
(1957), Cmnd. 218.
appendages of the executive. Their basic characteristics

have been identified as openness, fairness and impartiality54
and they have certain advantages over courts, such as
cheapness, expedition, freedom from technicality, accessi-
bility, and expert knowledge of their particular subjects.55
They exhibit great flexibility in their procedures; the hear-
ings are conducted in an orderly but in an informal atmos-
phere; the rules of evidence are relaxed, and the costs are
minimal. In the public eye, the image of the tribunal is less
forbidding than the daunting setting of the court. Tribunals
vary widely in their constitution, such as the appointment,
qualifications and terms of service of their members and in
their functions. They also differ greatly in their procedures,
as for example, some of them having an in-built hierarchy of
appeals. All in all, it may be said that the creation of the
system of statutory tribunals and inquiries, some of them
under the control of the Council of Tribunals, has been
greatly to enhance and improve the fabric of English civil
justice.
In European countries, there is no comparable general
system of tribunals and inquiries other than and separate
from the ordinary courts of law. Most of the purposes for
which our tribunals have been established are in fact fully
and effectively carried out within their system of the ordin-
ary courts of law, exercising specialist jurisdiction in par-
ticular areas. In England, the line dividing the matters
which are to be channelled to the ordinary courts of law and
those to tribunals is based on political or administrative
M
Ibid, p. 10, para. 41 and 42.
55
Ibid. p. 9, para. 38. They adopted what was said by the Donoughmore
Committee on Ministers' Powers, (1932) Cmnd. 4060.
considerations and not on legal or juridical principles. Per-

haps, in passing, one form of lay, i.e. non-legal, tribunal
which exists in France which may give us some cause for
envy is their important and influential Tribunaux de Com-
merce, of which each of the main towns and cities can boast
of one.
5. Domestic Tribunals
Domestic tribunals are those which private or pro-
fessional bodies or associations or groups of people set up or
for whom they are otherwise set up to resolve disputes
between their own members, or to apply their own code of
conduct and exercise control or discipline over them. In the
great majority of these instances, the jurisdiction of such
domestic tribunals is derived from the contractual relation-
ship between the members and the body, association or
group which they have agreed to join. In many other
instances, particularly some professional bodies, such dom-
estic tribunals are established by statute, as for example in
the case of solicitors, the Solicitors Disciplinary Tribunal.
In other instances, the jurisdiction of such domestic tri-
bunals is partly derived from contract and partly from a
Charter establishing the body in question, as for example,
in the case of a Visitor of a University, or from some other
source of law.
There are a great variety and number of such domestic
tribunals and between them they exercise their powers over
a great volume of civil proceedings. Such proceedings can
be of crucial importance to the people concerned, affecting
their livelihood, employment, reputation and position in
society. For this reason, domestic tribunals form an import-
ant and integral part of the fabric of English civil justice.
The overriding requirement for the exercise by such dom-
estic tribunals of their jurisdiction and powers is that they

must comply with their own applicable rules of procedure
and with the principles of natural justice. In the case of all
such tribunals, their decisions may be challenged either
under the applicable statute or by way of appeal or by way
of Judicial Review,56 under the supervisory jurisdiction of
the High Court over tribunals or under their domestic pro-
cedures as in the case of a University Visitor.
6. Arbitration Tribunals
Arbitration provides the classic method of an alternative
informal process of dispute-resolution to the formal machin-
ery of the ordinary courts of law. It has come to form an
increasingly important and vital part in the fabric of Eng-
lish civil justice. There are, of course, no firm statistics to go
on, but the received anecdotal evidence is that arbitration
accounts for a great volume of references, a wide variety of
subjects referred, substantial, even enormous, amounts of
money involved and a thriving international forum in Lon-
don. From many quarters come cries urging more people to
submit their differences and disputes to arbitration. Some of
these cries may be based, not so much on the attraction of
arbitration but rather the rejection of litigation, and when
they come from high judicial voices, they may perhaps be
prompted by the need to reduce the work-load of the courts
rather than to induce the increase of the business of arbitra-
tors.
The jurisdiction of an arbital tribunal, whether it consists
of one or more arbitrators, is of course basically consensual
in character, 57 and the agreement to submit differences and
disputes to arbitration may be made before or after they
See Supreme Court Act 1981, s.31, and R.S.C. Ord. 53.
See Arbitration Act 1950, s.32.
have arisen or may be contained in the rules of trade associ-

ations of which the parties are members. The general
assumption is that arbitrations enable cases to be dealt with
speedily, cheaply and in some instances without lawyers
and with the parties presenting their own cases, free from
legal technicalities, with decisions made by experts who
know the practices, usages and customs of the relevant
trade or business. There are no doubt a vast number of
arbitrations which are so concluded, but it is also fairly
clear that there are a substantial number of arbitrations in
which delay, expense, costs and complexity occur. On
which side of this divide a particular arbitration will fall
depends upon the parties themselves and the arbitral tri-
bunal they have chosen. It is the parties who are entitled to
choose how the tribunal should be constituted and what
their procedural rules should be, which they do very fre-
quently by reference to the rules of particular arbitration
institutions, though of course they may also provide in their
agreement for particular procedures to be followed in the
conduct of the proceedings.
In England, in recent years, there has been a significant
movement towards improving the machinery of arbi-
tration.58 This is particularly to be found in the endeavour
to clothe an arbitration award with the principle of finality,
to reduce delays in the conduct of arbitration proceedings,
to restrict appeals against arbitration awards, save in
exceptional circumstances, and to increase the basis for the
recognition and enforcement of arbitration awards across
national frontiers. The services rendered by English arbi-
trators has attracted a vast volume of international com-
58
See Arbitration Acts 1975 and 1979.
mercial arbitrations to London, and this move may increase

considerably if arbitrators respond to the encouragement to
play a more active, interventionist role in the conduct of the
proceedings both before and at the final hearing. Arbitra-
tors are being encouraged to induce the parties to exchange
the statements of witnesses, including experts, to empower
the arbitrators to call for independent experts' reports, to
make full disclosure of all relevant documents, to reduce the
extent of orality and to increase the range of written pro-
cedures. In international commercial arbitration proceed-
ings, we may have to discard some of the attributes of the
adversary system of civil litigation.
System of Costs
There are three separate but related facets of the systems

of costs in civil proceedings which may be said to be fun-
damental features of English civil justice, namely, the
incidence of costs, the provision of legal aid and the tax-
ation of costs. Each of these will be briefly dealt with
here.
1. Incidence of Costs 59
The most baneful feature of English civil justice is the
incidence of costs. This is because of the operation of the
broad, general rule that "costs follow the event," which put
bluntly in the terms of a game means that the loser pays the
costs of the winner, including his lawyer's fees, costs and
1
See Supreme Court Act 1981, s.51, and R.S.C. Ord. 62.
charges. 60 It is a stark, simple rule, which has a pervading

influence throughout the whole process of civil litigation,
since it applies to all stages of the proceedings, at first
instance and on appeal, except for a few interlocutory steps.
Justification for the rule lies in the concept of "fault" since
the loser is considered to be in the wrong in pursuing or
contesting the proceedings and must therefore compensate
his victim for the costs incurred by him. Inevitably, the
application of the rule has far-reaching consequences. It
greatly magnifies the factor of costs, which itself becomes a
stake in the litigation, over and above the merits of the case,
since if the loser has to pay in the end, there is an added
incentive to the natural instinct to win. It makes winning
more victorious and losing more disastrous. The parties
must needs become cost-conscious, especially as, at any rate
in the High Court, the costs are calculated not by the
amount at stake, though this will be taken into account, but
by each step taken in the proceedings, so that it is not poss-
ible to state at the beginning of an action what the costs will
be at its end. Sometimes this makes parties settle or com-
promise cases which they would or should otherwise fight,
and such settlements motivated by the desire to avoid or the
fear to incur further costs might well not be fair or proper;
sometimes it makes parties fight cases which they would or
should otherwise settle, because the matter of costs stands
in the way. In many cases, the costs exceed the amount of
the claim or the value of what is at stake and thus the uncer-
tainty as to the incidence and the amount of the costs
becomes the powerful disincentive to pursuing or defending
claims, however meritorious such claims or defences may
be. The bane and burden of costs have existed for gener-
60
R.S.C. Ord. 62, r. 3(3).
ations in the English system of civil justice and the problem

of costs remains as intractable today as it ever has been.
2. Provision for Legal Aid 61

The most serious blemish in the system of costs was and
still is the excessive and prohibitive amount of the costs of
resorting to the Courts for the determination or resolution
of civil disputes or questions. The effect is to put justice out
of the reach of people who may be classed as poor or even
those with moderate means. Grave injustices may thereby
be occasioned and many meritorious claims go unredressed.
Justice would seem to be rationed by the purse and the
costs-factor gives credence to the taunt "there is one law for
the rich and another for the poor."
In England, the history of legal aid for the poor stretches
back to the Middle Ages, first to those classed as "paupers"
and later to those classed as "poor persons." The Beveridge
Report of 1942, which designed a comprehensive system of
social insurance, did not include provision for legal services,
which perhaps reflects the low value then attached to the
serious personal and social ailments that may be caused by
legal disputes and conflicts. This omission was fortunately
soon rectified in 1945 by the Rushlifie Report on Legal Aid
and Advice, which laid the foundation for the introduction
of the Legal Aid Scheme in England and Wales. The imple-
mentation of the recommendations of this Report was per-
haps accelerated by two factors, namely, the increasing
volume of petitions for divorce and other litigation relating
to children and matrimonial property, and the enormous
increase in actions for damages for personal injuries and
61
Legal Aid Acts 1974-1979, and the Regulations made thereunder; see
Supreme Court Practice, Vol. 2, Pt. 12, "Legal Aid."
death due to the abolition of the rule of contributory negli-

gence and of the doctrine of common employment.
At any rate, in 1949, the Legal Aid and Advice Act made
the great leap forward of bringing the Legal Aid Scheme
into effect. It mitigates the harshness of the costs-factor in
civil litigation, and brings justice within the reach of a con-
siderable number of people who are classed as "legally
assisted persons" though the number was much greater at
the time the Act was passed than it is today. The underlying
purpose of the Legal Aid Scheme is to enable those who are
eligible for Legal Aid to undertake permissible litigation
without having to pay costs beyond their means either to
finance the litigation or to meet the liability for costs if they
should lose under the rule that costs follow the event. There
is a State subsidy, payable out of the Legal Aid Fund,
towards the cost of employment of solicitors and barristers
and any necessary disbursements. Eligibility for Legal Aid
is tested in two ways, first there is a "means test" as to both
income and capital by Social Security Officers,62 and
secondly there is a "merits test" investigated by a local
committee of lawyers.63 The contribution of a legally
assisted person may be assessed at "nil" or he may be
required to pay a fixed periodic contribution. If he should
lose, his liability is limited to what the Court considers he
can reasonably afford. He is free to choose his own solicitor
who is himself free to choose his own barrister. They are
both remunerated for their services out of the Legal Aid
Fund though a percentage is deducted to assist in financing
the Scheme. The administration of the Scheme is entrusted
62
See Legal Aid Act 1974, s.6. 63 See ibid. s.7(5) and (5A). This test has
two prongs, for the applicant must show that his application is based on
reasonable grounds (s.7(5)), and also that it is reasonable that he should
receive legal aid (s. 7(5A)).
to the Law Society, answerable to the Lord Chancellor, who

is advised on matters of general policy by an Advisory Com-
mittee.
Many changes have been introduced into the Legal Aid
Scheme since it was first enacted. It is enough to say here
that this Scheme represents a fundamental and beneficent
feature of English civil justice.
3. Taxation of Costs64
A most useful and fundamental feature of English justice,
both civil and criminal, is that the costs which a solicitor
may claim by way of remuneration for his services, includ-
ing all his disbursements and the fees paid or payable to
Counsel may be examined, or as it is called "taxed," by an
Officer of the Court, who may be a Master or other Officer
of the Supreme Court Taxing Office or other Court office.
Taxation involves the inquiry and scrutiny by the Court
Officer of the entitlement to each item for which remuner-
ation is claimed and its amount as well as of each item of
disbursement and its amount and thus taxation constitutes
an exceptional but important instance in which the court
plays an active role and carries out its own investigation.
The burden is on the solicitor whose bill is being taxed to
justify each item and the amount he claims for his remuner-
ation or his disbursements.
The taxation of a solicitor's "bill of costs" extends to both
contentious and non-contentious business. In the case of
contentious business, the losing party who is liable to pay
the costs of the litigation, can of course tax the bill of costs of
the winning party. In both contentious and non-contentious
6
* See Solicitor (Amendment) Act 1974, Pt. Ill, Remuneration of Solici-
tors, and R.S.C. Ord. 62.
business, the client himself can require that his solicitor's

bill of costs should be taxed. The total amount found to be
due to the solicitor after the conclusion of the taxation may
then be enforced as a judgment of the court. If that amount
is below a specified proportion of the total of the bill before
it was taxed, the solicitor will be liable for the costs of the
taxation but he will recover such costs if it exceeds that per-
centage.
From the findings of the Taxing Master or Officer an
appeal lies to the Judge in Chambers sitting with assessors
including another Taxing Master and an experienced legal
practitioner.
It will be seen that the result of the system of taxation is
that the legal profession is the only profession which has its
own court machinery for regulating or re-valuing the
remuneration of its members and so avoiding the unhappy
spectacle of an action to recover legal professional fees.
Sources of Civil Procedural Law
In England, we do not have a Code of Civil Procedure, as

they do in all European countries. In 1825, Jeremy
Bentham began an "Initial Sketch of the Procedure Code,"
but as with so many other of his works, he did not get
beyond this tentative stage.65 No one has since ventured to
undertake this task. Whether we need, or could even frame,
a Code ofJudicial Procedure is perhaps too large a question
to raise here. It must be confessed there is not today a popu-
lar, still less a pressing, demand, nor can it be said that we
are ready intellectually or doctrinally or in any other way,
for such a code. Nonetheless, I venture to think that the
65
See Bentham, Principles. The Sketch is at Appendix A to the Principles,
p. 178.
time will surely come, sooner than perhaps we imagine,

when we shall have seriously to consider the concept and
the creation of a Code of Civil Procedure.66 This will be a
formidable undertaking, but it will be a task of enormous
social and cultural value, which will require an innovative
and imaginative spirit and a courageous and constructive
approach. Its underlying justification would be, not the
mere re-ordering of the machinery of the civil judicial pro-
cess, but the actual, palpable and widespread improvement
of the quality of justice, bringing justice within the reach
and the understanding of all and providing a simple,
speedy, inexpensive, accessible and effective system for its
dispensation, free from formalism and technicalities.
In the absence of a Code of Civil Procedure, it is necess-
ary to gather the law of English civil justice from several
and disparate sources. Some of these are the ordinary
sources of law, such as statutes enacted by Parliament, or
delegated legislation authorised by statute or judicial
decisions, which constitute sources of both substantive and
procedural law. On the other hand, in England there are
distinctive sources of procedural law which are out of the
ordinary and are not to be found in Europe, nor even else-
where, in the manner in which they are made or in which
they operate in England. Such sources of law include Rules
of Court, Practice Directions, Prescribed and Practice
Forms and above all, the inherent jurisdiction of the court.
These sources represent fundamental and characteristic
features of English civil justice, since they govern, affect and
apply only to procedural law and practice and not to sub-
stantive rules of law.
66
See Jacob, "Justice Between Man and Man," in Current Legal Problems
(1985) Vol. 38, p. 211.
1. Statute Law
The primary source of civil procedural law, is, of course,
statute law. The range of the statutes which deal, whether
directly or indirectly, with the civil procedural system is too
vast and extensive to be listed here. Although all statutes
have equal legal force and effect, it may perhaps be helpful
and convenient to regard the statutes that relate to civil jus-
tice as being divided into two groups, namely, those that are
of paramount and essential importance and those that are
incidental or ancillary to the operation of the civil proce-
dural process. Among the first group of such statutes, which
have a more direct operation, influence and effect on the
system of civil justice are those that provide for the struc-
ture, organisation, jurisdiction, hierarchy, distribution of
business and the personnel of the courts and tribunals.
Included in this first group, of course, are such statutes as
the Supreme Court Act 1981, the Appellate Jurisdiction Act
1876, the County Courts Act 1984, the Magistrates Courts
Act 1980, and the Tribunals and Inquiries Act 1971.
Among the second group of such statutes, whose operation,
influence and effect on the system of civil justice may be
regarded as being incidental or ancillary are those that deal
with separate areas of the civil process, such as the limi-
tation of actions, civil evidence, enforcement procedures,
proceedings by and against the Crown and foreign states,
arbitration and such like statutes. This division is of course
not a hard and fast one and many would place a particular
statute in one group rather than the other.
An important feature of English civil justice concerns the
operation of statutes, for once a statute is held to affect only
the practice and procedure of the courts, the presumption
against retrospective interpretation has no application, so
that, unless the statute otherwise provides, expressly or by
necessary implication, any changes effected by it will apply

to pending proceedings and will thus be given retrospective
effect.67
2. Rules of Court 68
A distinctive feature of English civil justice are the
powers conferred by Act of Parliament on appropriate rule-
making authorities to make "Rules of Court" for the pur-
poses of regulating and prescribing the practice and pro-
cedure to be followed in the respective courts for which each
of them is constituted. These rule-making powers were first
conferred in 1833 on the Judges of the Superior Common
Law Courts in relation to pleadings only,69 but of course,
since then, the powers have been considerably extended to
the whole of practice and procedure and other specified pro-
ceedings and branches of the law70 and to all courts and tri-
bunals. Such extension began with the Supreme Court
when it was created by the Judicature Acts 1873 and 1875.
The Rules of Court so made relating to all courts and tri-
bunals thus comprise an authoritative, extensive and wide-
ranging corpus or body of civil procedural law, which to
some extent may be regarded as the English equivalent of
much of what is contained in the European Codes of Civil
Procedure. They constitute a dominating feature of the
entire civil judicial process, since they provide the frame-
work for the practical, workaday operation of this process,
and they form an essential, even indispensable, part of the
67
See Barber v. Pigden [1937] 1 K . B . 664; Blyth v. Blyth, [1966] A.C. 643.
68
See J a c o b , " T h e M a c h i n e r y of the Rule C o m m i t t e e " in The Reform of
Civil Procedural Law (Sweet & Maxwell, 1982), p . 323.
69
Civil Procedure Act 1833, s.3. See J a c o b , "Civil Procedure since 1800"
in ibid. p . 2 1 3 .
70
See S u p r e m e C o u r t Act 1981, ss.84 and 87.
machinery of civil justice. They can be made, amended or

annulled, speedily and informally, as occasion demands, in
response to changing circumstances or requirements.
Indeed, it may truly be said that if we did not have this sys-
tem for the exercise of authoritative rule-making powers
which we now enjoy, we should have had to invent it.
Since the Rules of Court play such a crucial part in the
machinery of English civil justice, it may perhaps be helpful
to develop briefly some of their salient aspects and for this
purpose, it will be convenient to take the Supreme Court
Rule Committee as the model.
(a) Subordinate Legislation

Since they are made under statutory powers, the Rules of
Court themselves have the force and effect of law. The rule-
making authority itself is a subordinate legislative body and
in making the Rules of Court is performing a legislative
function. It must therefore ensure that the Rules of Court
do not exceed its own statutory powers and limits, other-
wise they would be ultra vires and invalid.
(b) Judge-made Legislation

The Supreme Court Rule Committee consists of eight
pre-eminent judges and four practitioners. 71 The Lord
Chancellor must himself be a party to any proposed Rule of
Court, so that in effect he can exercise what may be called
"the right of veto," and the rules are made by him
"together with" any four or more members of the Com-
71
See ibid. s.85. They comprise the Lord Chancellor, the Lord Chief
Justice, the Master of the Rolls, the President of the Family Division,
the Vice-Chancellor, two practising barristers and two practising soli-
citors.
mittee. Thus, in making Rules of Court this heavily-laden

judicial body exercises legislative powers. In England, it is
not thought that there is any conflict of function or interest
for judges who normally exercise judicial powers to exercise
also legislative powers, since in one way or the other they
are regulating the practice and procedure of the courts.
(c) Procedural not Substantive Law

This view may be supported in England by the fact that
the most decisive limitation on the powers of the Supreme
Court Rule Committee, as well as of other rule-making
authorities, is that they extend to regulating the "practice
and procedure" of the Supreme Court or other courts for
which the rules are made. Although under these powers,
almost the entire process of civil litigation and proceedings
is regulated by the applicable Rules of Court, yet these
powers do not extend into the area of substantive law.
There is thus a vital and essential dichotomy created
between "substance" and "procedure," 72 between substan-
tive law, the function of which is to define, create, confer or
impose legal rights and duties and procedural law, the func-
tion of which is to provide the machinery, the manner or the
means by which legal rights and duties may be enforced or
recognised by the courts of law or other recognised or prop-
erly constituted tribunal.
(d) Responsiveness to Change

The inestimable value of the English system of rule-
making is that the process of the Rule Committees to make
new rules, to add, delete, amend or substitute any necessary
72
See Jacob, "Practice and Procedure" in Halsbury's Laws of England (4th
Ed.) Vol. 37, para. 10.
rules, may be operated speedily and informally to meet the

changing demands of procedural reform, and generally this
is done after consultation with interested bodies but some-
times even without such consultation. Except where prim-
ary legislation is necessary to empower the Rule
Committees to make rules on fresh topics, they do not have
to wait for Parliamentary time to be found and the elabor-
ate Parliamentary procedures and processes to be gone
through and they can make the necessary changes as and
when it is appropriate to do so. Thus, the first Rules of the
Supreme Court in 1875 were wholly replaced in 1883, and
these were entirely revised in 1965. In between these dates,
and since the last revision, there have literally been
innumerable occasions when new Rules of Court were made
mostly of minor importance but some making radical and
fundamental changes in procedure.
In contrast to the making of English Rules of Court, in
European countries, the judges of the ordinary courts do
not take any part in the rule-making processes at all. In
France, for example, the canon that the courts have no
power to make Rules of Court which have a legal and bind-
ing effect is regarded as a corollary of the doctrine of the
separation of powers and is viewed as the equivalent of a
constitutional principle. On the other hand, the absence of
judicial rule-making power has not stood in the way of
desirable reforms, for there are in most European countries
close ties between the Ministry of Justice and a specialist
branch of the Judiciary, as, for example, in France, the
Conseil d'Etat, though this machinery has been criticised as
being a threat to civil liberties. The executive branch of the
government generally have broad legislative powers and
these have been used to facilitate the introduction of proce-
dural reforms. Thus, in France, the subjects reserved by the
constitution for primary legislation by parliament do not

include civil procedure, and therefore the Code of Civil Pro-
cedure may be and has been revised and rewritten by
executive action on the part of the Ministry of Justice with
the approval of the Conseil d'Etat.
3. Judicial Precedent
As in the case of other branches of English law, judicial
decisions provide a rich quarry of civil procedural law.
Those given by the appellate courts are of course binding
upon all the lower courts, for the doctrine of stare decisis or
judicial precedent applies as much to procedural as to sub-
stantive law. Judicial decisions thus play a crucial and sig-
nificant part in English civil justice by providing
authoritative guidance, certainty and uniformity in the pro-
cedure and practice of the courts. Experience in recent
years has shown that there are about two to three hundred
cases on civil procedural questions reported annually. Some
of these cases are of far-reaching importance and may be
said to have a virtually legislative effect, so much have they
changed the operation of civil procedural law. Many of the
other cases lay down the principles or provide examples of
the way in which the discretionary powers of the court
should be or have been exercised. Very often, the decision of
the appellate court upon a procedural question, on what
may be called "procedural facts" may well have the effect of
creating or imposing a substantive legal right or duty, with-
out deciding the substantive merits of the particular case.
The judicial decisions in a given area of procedural law, as
for example, on applications for judicial review or on mat-
ters of industrial relations, help to build and develop a
uniform and systematic body of law, a kind of specialised
jurisprudence in that area.
By contrast, in European countries, judicial decisions,

even of the appellate courts, do not have binding effect, for
the principle of stare decisis does not apply there, and thus
they do not provide a source of law. Nevertheless, they are
of persuasive authority and are more often than is thought
consulted, if not cited, in later cases, and indeed they are
closely studied and constantly cited by scholars, including
proceduralists, in their writings. In this way, they provide
what the French call the jurisprudence on a particular area of
law, and they serve to develop a uniform and systematic
body of guidance, if not of authority, based on their respect-
ive Codes of Civil Procedure.
4. Practice Directions
An extremely important and interesting source of rules of
practice and procedure is provided by what are called
"Practice Directions." These are peculiarly English, in the
sense that they are essentially practical and pragmatic, and
they are not to be found in European countries, or for that
matter elsewhere besides. Their peculiar character lies in
the fact that they do not have the force of law but yet they
are expected to be and are in fact applied by the courts and
complied with by practitioners, officers of the Court and
others who are involved in the judicial process. They have
what may be called a demi-legislative effect.
Practice Directions are issued from time to time, at fairly
frequent occasions, by the senior judges and Masters of the
separate Divisions of the High Court as well as the Court of
Appeal to regulate the mode and manner of procedure in
their respective courts. They provide directions as to the
methods of practice and procedure for the guidance and
assistance of the litigants in the conduct of their proceedings
and in the administration of civil justice generally. Perhaps
the most important Practice Direction is that which was

issued by the House of Lords in which the House
announced that, in specified circumstances, it would no exam
longer be bound by its own decisions.73 Other examples of ple
important Practice Directions are those relating to the trial
of actions in the Queen's Bench Division and in the Chan-
cery Division in London and outside London, the procedure
for claims and judgments expressed in foreign currency, the
machinery for conducting business with the courts by post
instead of by personal attendance, and the times limited for
acknowledging service of process served out to the jurisdic-
tion and such like directions.
The juridical authority for the making of Practice Direc-
tions is derived from the inherent jurisdiction of the Court
to control and regulate its own process.
5. Prescribed and Practice Forms

An exceptionally valuable source of civil procedural law
and practice is provided by forms of documents for use in
the practical application and operation of the judicial pro-
cess. At almost every stage of civil proceedings, except the
oral stage, a particular form is needed to express what is
required to be done or what has been done, and it contains
the only authorative record of the step which is being or has
been taken.
In the English system, there are two classes of such
forms, namely, Prescribed and Practice Forms. Prescribed
Forms are those prescribed by the Rules of Court and thus
they have the force of law and they must be used where
applicable with such variations as the circumstances of the
73
Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 123 k; [1966] 3
All E.R. 77.
particular case require. Practice Forms are those directed to

be used by Practice Directions and thus they do not have
the force of law, but they are nevertheless in constant use.
Both these classes of forms provide the lubrication for the
smooth and speedy working of the machinery of civil
justice.
6. The Inherent Jurisdiction of the Court74

The most extraordinary source of law in the English legal
system is commonly called "the inherent jurisdiction of the
court." There is no equivalent to this peculiar English con-
cept of judicial power in any European country. The over-
riding feature of the inherent jurisdiction of the court is that
it is part of procedural law, mainly civil but also criminal,
and not part of substantive law. It is normally exercisable
by the Superior Courts of Law and to a limited extent by
inferior courts but not by tribunals. It is not to be confused
with the statutory jurisdiction of the court nor with the
exercise of discretionary judicial powers. It is not derived
from any statute or rule of law, but from the very nature of
the court as a court of law, which is why it is called "inher-
ent." The underlying principle in English procedural law is
that the essential character of a court of law necessarily
involves that it should be invested with the power to main-
tain its authority, to control and regulate its process and to
prevent its process from being abused or obstructed. Such a
74
See Jacob, "The Inherent Jurisdiction of the Court" in The Reform of
Civil Procedural Law, supra p. 221 and Current Legal Problems (1970)
Vol. 23, p. 23. This paper was cited and applied in Montreal Trust Co. v.
Churchill Forest Industries (Manitoba Ltd). [1971] 4 W.W.R. 542: 21 D.L.R.
(3d) 75 (Manitoba Court of Appeal); Taylor v. Att.-Gen. (1975) 2
N.Z.L.R. 675 (New Zealand Court of Appeal). See also per Lord Dip-
lock in Bremer Vulkan etc. v. South India Shipping Corp. [1981] A.C. 909,
and Halsbury's Laws of England, (4th Ed.) Vol. 37, para. 14.
power is intrinsic in a superior court of law; it is its very life-

blood, its very essence, its immanent attribute. The court
must needs have such a power in order to enable it to main-
tain and fulfil its character as a court ofjustice.
Apart from the power to control and regulate its process,
the inherent jurisdiction of the court is exercised by coercive
powers, in the case of contempt of court by punishing the
offender and in the case of an abuse of process, by an order
to stay or dismiss the action or to give judgment against the
defendant or to impose terms as it thinks fit. Blackstone
thought that the coercive powers in relation to contempt of
court had been "actually exercised as early as the annals of
our law extend." Lord Blackburn asserted that this inher-
ent power to stay or dismiss actions has been exercised from
very early times and he thought indeed from the earliest
times.
A basic and distinctive feature pf the inherent jurisdiction
of the court is that it is exercisable by summary process,
without a plenary trial conducted in the normal or ordinary
way, that is, in an open, public oral trial nor even after the
normal preparations for such a trial such as the discovery of
documents and generally without waiting for the trial or for
the outcome of any pending or other proceeding. Moreover,
the inherent jurisdiction of the court may be exercised even
in matters which are regulated by statute or by Rules of
Court, so long as the court can do so without contravening
any statutory provision.
The inherent jurisdiction of the court is thus a virile and
viable doctrine of English procedural law. It has been
defined as being a reserve or fund of powers, a residual
source of powers, which the court may draw upon as necess-
ary whenever it is just and convenient to do so, and in par-
ticular to compel the observance of the due process of law,
to prevent improper vexation or oppression, to do justice

between the parties and to secure a fair trial between them.
7. The Practice of the Court

A somewhat amorphous and strange source of civil pro-
cedural law is provided by the "Practice of the Court"
which is expressly recognised by statute. 75 It is not laid
down in any Rule of Court or Practice Direction, nor is it
defined or described, but it is derived from what the court
states to have been the course which has been followed in
particular proceedings over a period of time by successive
judges. The course or practice of the court is said to be "the
law of the court," and such a course or practice is one which
has become fixed and settled so that it should not be
departed from. Its underlying principle is, no doubt, to
maintain uniformity and certainty in the practice of the
court, though it is probably open to a judge to differ from
what he is told or believes is the practice of the court.
8. Practice Books
In England, 76 books and writings on the practice and
procedure of the courts have not been treated as themselves
75
See S u p r e m e C o u r t A c t 1981, s.67, a n d Halsbuty's Laws of England (4th
Ed.), Vol. 37, para. 15.
76
In Scotland, the works of the institutional writers are accorded much
greater authority, and it is generally accepted that, in default of other
authority, a statement in the institutional writings will almost certainly
be taken as settling the law; see David M. Walker, The Scottish Legal
System 1981 (5th Ed. W. Green & Sons). Among the most famous and
authoritative are those by Viscount Stair, The Institutions of the Law of
Scotland (1681), and Erskine, An Institute of the Law ofScotland (1773). See
also Sheriff A. C. Black "The Institutional Writings 1600-1826" in An
Introductory Survey of the Sources and Literature of Scots Law (Stain Society,
Vol. 1. (1936) p. 59.); D. M. Walker, "The Scottish Jurists" (Green,
1985).
constituting a true source of civil procedural law but rather

as providing both the courts and practitioners with valuable
and convenient instruction and learning on the underlying
principles or the state of the procedural law and practice. In
modern times, such books, updated from time to time, are
in fact in constant, everyday use, and are relied on by both
the legal profession and the judiciary as giving guidance,
assistance and even authority in matters of practice and
procedure.
On the other hand, in European countries, an important
and distinctive source of civil procedural law consists of the
writings of jurists, scholars and learned experts. These
carry a great deal of weight and are generally regarded as
useful and authoritative. This source of law, for example, is
known in France as le doctrine (or in Italy, Dottrina), and it
may take the form of commentaries on the Code of Civil
Procedure in which each article is interpreted with citations
of judicial decisions and the opinions of other jurists and
scholars, or the general treatment of civil procedure in text-
books, monographs or articles in legal periodicals, in which
existing materials are collected, analysed and systematised.
Supremacy of Procedure
Civil procedural law is perhaps the most pervasive and

extensive branch of the law, since it is the indispensable
instrument to activate every other branch of the law, except
the criminal law. Its essential function is to infuse life into
all other areas of the law, to bring into actual being and to
give reality and effect to all the legal rights and duties of
every person and body in society. Bentham long ago defined
"procedure" as the course taken for the execution of the
laws, and he characterised it as adjective law in contrast to
the correspondent opposite term substantive law; and he

stressed that the object and end of the code of procedural
law is to give execution and effect to the rules of substantive
law.77
This way of thinking has been the traditional English and
even common law view of the place of civil procedural law
in the legal system. It underscores the fundamental features
of English civil justice as being complementary, or acces-
sory or auxiliary to the substantive areas of law. The prov-
ince of procedure is to assist in the administration ofjustice
by enabling legal rights and duties to be enforced and
defended and to achieve justice on the substantive merits of
the case. Procedure has been described as the servant not
the master ofjustice, so that its rules should not compel any
court to do what will cause injustice in any particular
case.78 This character of civil procedural law places it at
least on an equal footing with substantive law, so that it
should not be regarded as secondary or still less "second-
class" law.
Indeed, a closer analysis of the machinery of civil justice
seems to reveal that in its actual everyday operation, pro-
cedure stands on a much higher level of importance, signifi-
cance and usefulness in the legal system. The truth is that
recourse to the courts is the ultimate testing ground of all
rules of substantive law. In whatever form the substantive
rules of law are stated or clothed, whether it be in a statu-
tory provision or in a private document, such as a contract
or a will, or in a judicial decision or any other form, their
true legal meaning and effect can only be ultimately ascer-
tained and applied by the decision of the appropriate court
77
B e n t h a m Principles, p . 5. H e also called it " a n accessory c o d e " ibid p . 4.
78
See per Collins M . R . in Re Coles and Ravenshear [1907] 1 K . B . 1, a t p . 4 .
of law, perhaps the final appellate court, the House of

Lords, or even where this is directly applicable the decisions
of the European Court of Justice. Today, more perhaps
than ever before, it is the received perception of prac-
titioners, politicians and the public that what is the law
applicable in any given circumstances or events is not that
which it is thought to be or any person has been advised
that it is, but it is that which is duly laid down by the appro-
priate court of law in actual proceedings dealing with those
circumstances or events. It is by operating the machinery of
civil justice that those proceedings are brought before the
court and it is in such proceedings that the law is deter-
mined and applied. When in a seminal maxim Sir Maurice
Amos postulated79 that, "Procedure lies at the heart of the
law," he was in fact proclaiming the supremacy of pro-
79
See "A Day in Court at Home and Abroad," (1926) C.LJ. 340. In the
first paragraph of their Final Report (Cmnd. 8878 (1953), the Evershed
Committee on Supreme Court Practice and Procedure recalled the
famous adage of Sir Henry Maine (Early Law and Custom, John Mur-
ray, London, 1901) that "Substantive law has at first (i.e. in the infancy
of Courts of Justice) the look of being gradually secreted in the inter-
stices of procedure" and they added that "the shape and development of
the substantive law of England have always been, and always will be,
strongly influenced by matters of procedure and that it is from the prac-
tice and procedure of the Courts . . . that the ordinary citizen . . .
obtains his experience of our legal system, and on that evidence he is
likely to form his judgment on the claim commonly made of Englishmen
to excellence in the administration of justice." Holdsworth expressed
the view that "it was from the law of procedure and around the forms of
actions that the principles of the common law were developed" A History
of English Law Vol. IX, p. 311. See also Jacob, "[The administration of
justice] constitutes the touchstone of the quality ofjustice enjoyed by the
members of a civilised community. For the administration of justice is
the life-blood of the civil legal system of any country, and at the same
time, it is also the life-line of its citizens to secure justice and, as
Bentham put it, the effectuation of their legal rights." "The Administra-
tion ofJustice" in The Reform of Civil Procedural Law, (Sweet & Maxwell,
1982), p. 59.
cedure; and perhaps the true relation between substantive

law and procedural law should be redefined in terms of the
primacy of substantive law and the supremacy of pro-
cedure. The supremacy of procedure is the practical way of
asserting the primacy of the law, the practical way of secur-
ing the rule of law, for the law is ultimately to be found and
applied in the decisions of the courts in actual cases.
This conclusion is greatly fortified by the protective
character of procedural law. It is a fundamental feature of
English civil justice that the machinery of procedure should
operate on the principle of the due process of law. On this
basis, civil justice provides the effective safeguard against
arbitrary, capricious or unprincipled invasion or denial of
the legal rights of any person, and it takes on the character
of a protective shield to prevent any person being deprived
of or suffering any loss of his rights except by due process of
law. The phrase "due process of law" has its roots in
Magna Carta 80 and it is expressly written into the Four-
teenth Amendment of the American Constitution,81 yet it
has had its dark periods in England, as for example, during
the excesses of the Court of Star Chamber and also in
America, as for example, in the decisions of the Supreme
Court before the changes made by President Franklin
Roosevelt. In modern times, however, the precept of the
due process of law has come to be equated with the funda-
mental characteristics which the Franks Report attached to
tribunals, namely, openness, fairness and impartiality. 82 It
may be said to be the foundation of some fundamental prin-
80
It is said to have been expressly used for the first time in an English stat-
ute in the middle of the thirteenth century.
81
This provides (inter alia) " n o r shall a n y State deprive a n y person of life,
liberty or property, without d u e process of law."
82
See n. 41 above.
ciples of English civil justice, as for example, the principles

ofNatural Justice, Public Justice, and Equality in Procedural Law.
Indeed, the fabric of English civil justice is enormously
strengthened and enhanced by the wide reception and
application of the principle of the due process of law.
An ancient, unexpected source, no less than the Second
Book of Samuel, provides some support for the concept of
the supremacy of procedure. 83 When Absalom was plotting
rebellion against his father, King David, one of the popular
causes he espoused to rally the support of the people and to
win their hearts was the vital need for recourse to the judg-
ment seat, the supremacy of procedure. It is related that he
stood beside the gate, and to those who came to the King for
judgment, but there was none to hear them, he cried, "Oh
that I were made judge in the land, that every man which
hath any suit or cause might come to me, and I would do
him justice!"
The supremacy of procedure points towards the pathway
to justice.
83
Samuel Book II, Chap. 15, VV. 1-6.

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Introductory 3

is, civil procedure in the narrower sense of the term as the

de-mystify the process, to render it plain, simple and intelli-

comparative, critical and reformist approach, and to con-

The Adversary System

The fundamental, characteristic feature of English civil jus-

1215 of the promise in Magna Carta of the right to "trial by

cedure is that prevailing in the civil law countries of

deal with, namely, that the opposing parties are in contro-

1. Role of the Court

"The judges sit in Court, not in order that they may

of its own motion 12 and thus to be active and if necessary to

the duty to take notice of illegality (see Holman v. Johnson (1775)

may appear from the pleadings or other statements of the

has no power or duty to promote a settlement or compromise

2. Role of the Parties

lawyers. The roles are in fact reversed, and the responsi-

to the court to compel his opponent to comply with the rules

ment of surprise and technicalities as weapons in the con-

3. Failings and Changes

lawyers of their own choice rather than be managed by

gant who is defeated by the negligence of his own lawyer

administration of civil justice lies much deeper, for it lies in

the statements of the witnesses of the parties, to increase the

the oral evidence at the trial, the oral judgment of the

and so forth was followed by extensive written interrogator-

and ancient history, since it is the manifest method of trial

tered from public accountability. There are, indeed, two

A basic feature of English civil justice may be called "the

from the practice ofjury trials in the former Superior Com-

This principle, which reflects the general tendency in

derived at one removed from the Divorce Court, and more

specialist practitioners. It develops its own expertise and

cacy is the art of persuasion, the talent and technique of

likely to undergo a fundamental change as written pro-

Demarcation between Pre-Trial and Trial

A pre-eminent feature of the system of English civil justice

(a) the method of trial, which consists of a continuous

and trial, simply because they do not have the method or

Structure of Courts and Tribunals

In the system of English civil justice, there are several fac-

force in the system of its administration of civil justice.

(1) Division between superior courts and inferior courts;

property matters and it has as part of it a specialist

High Court is general and unlimited and extends over the

^ See ibid. s.16.

of their jurisdiction, not merely to match inflation but in

In the County Courts, an area of proceedings which is of

rates, like the recovery of national taxes, would seem to be

appendages of the executive. Their basic characteristics

considerations and not on legal or juridical principles. Per-

estic tribunals of their jurisdiction and powers is that they

have arisen or may be contained in the rules of trade associ-

mercial arbitrations to London, and this move may increase

There are three separate but related facets of the systems

charges. 60 It is a stark, simple rule, which has a pervading

ations in the English system of civil justice and the problem

2. Provision for Legal Aid 61

death due to the abolition of the rule of contributory negli-

to the Law Society, answerable to the Lord Chancellor, who