The Strand Magazine/Volume 1/Issue 5/The State of the Law Courts
The State of the Law Courts.
II.—THE COUNTY COURT.
The court gates.
HE County Court in every respect presents a marked contrast to the High Court, which formed the subject of our article last month. So widely, in fact, do these tribunals differ, that it is difficult to imagine that they both form a part of the same judicial system—if, indeed, such a word, which certainly implies cohesion and method, can properly be applied to our judicature at all. While the work of the High Court is continuously and (unless some reforms be introduced) permanently congested, that of the County Court is for the most part performed with celerity: while the High Court is mainly supported by the State, the expenses of the County Court are mostly covered by the fees extorted from suitors: while there is common complaint (which we by no means endorse) that there are not enough High Court judges, it is impossible to deny that, having regard to the amount of work they perform, there are too many for the County Court. Whatever the defects of the County Court may be, it is essentially a popular tribunal. It is interesting from many points of view, and not more so to the legal student than to the student of human nature. Probably nowhere are more curious and varied types of humanity to be observed than those gathered together at a busy County Court. The humorous and the pathetic are strangely mingled; there are rapacious creditors and broken-down debtors; there are victims of confidence in their fellow men, and wolves that prey upon the unwary. Witnesses and suitors of every class wait about the corridors for their cases to be called: some of them talking together and discussing their prospects with their solicitors in high spirits at the certainty of success; while others in blank despair await hopelessly a foregone conclusion, which probably means the seizure of their goods and perhaps their imprisonment.
"A misfit."
Sometimes the proceedings are relieved by an amusing scene, such as that shown in our illustration, where a voluble young lady is sued for the price of a pair of boots, which she declares to be a misfit. "They are too large," she persists. "She said she would not have them if they were tight," the plaintiff protests. Such an opportunity to bring off smart witticisms is not neglected by the counsel on either side. Eventually
the learned judge decides to see the boots tried on, and, sinking the lawyer, figures for the nonce as a judge of feminine fashionable attire. Cases of this sort are by no means rare. Only the other day a County Court Judge had to give a decision as to the fit of three elegant gowns supplied to an actress and her two sisters. It is a curious fact that the most amusing cases in the County Court are usually those in which members of the fair sex are engaged. Ladies, as a rule, seem unable to appreciate the laws of evidence, and when in the witness-box often take the opportunity to indulge in family reminiscences, and to pile satirical obloquy on their opponents. The judges (who, when the parties to a suit are without professional assistance, examine the
witnesses themselves) have great difficulty in keeping them to the point, and nothing but the fear of being committed for contempt will induce some excited females to give their evidence in a lucid manner. Incidents of this sort frequently relieve the tedium of the proceedings, but they are a source of considerable delay, and this is a serious matter to those suitors and witnesses who have had to give up a day's work in order to attend the Court. It is indeed a hardship for suitors who, perhaps, have brought their witnesses from long distances at serious expense, to have their cases postponed from one sitting to another in consequence of unexpected delays. But this only happens occasionally in the busy Courts, the working of the County Court being, as a rule, expeditious enough.
A glance at the history of the County Court is enough to show that from very early times it has always been the most popular of all legal tribunals. It is, in fact, the oldest of our Courts, having been instituted, according to Blackstone, by Alfred the Great. Mr. Pitt Lewis, in his most valuable work on County Court practice, remarks that the origin of the County Court is to be traced in the Folkmote, the gathering of the people, of Anglo-Saxon times. Hallam, in his "Middle Ages," describes it as the "great constitutional judicature in all questions of civil rights," and states that to it an English freeman chiefly looked for the maintenance of those rights.
Solicitor and Client.
The Court was, at the time referred to, an assembly of the freemen of a county, presided over by the Bishop and the ealderman of a shire; "the one to teach the laws of God, and the other the law of the land." The actual judges, however, were the freemen themselves. The ancient functions of the County Court comprised the election of knights of the shire, the election of coroners, proclamations of outlawry, and "consultation and direction concerning the ordering of the county for the safety and peace thereof." It exercised jurisdiction in ecclesiastical suits, and appellate jurisdiction in certain criminal cases; it was empowered to try all civil cases where the amount in dispute did not exceed forty shillings (a large sum in those days), and by special authority, all personal actions to any amount. It will thus be seen that in old times the County Court possessed all the elements of a popular institution. It flourished for many centuries in full vigour, and to such a degree had it gained the confidence of the public that it practically exercised civil jurisdiction to the exclusion of all other courts.
Of course it was hardly to be expected that our ancestral law-makers would allow such a satisfactory state of things to continue, and in the reign of Henry I. it was virtually "improved" away by the establishment of itinerant justices, the predecessors of our present judges of assize. It appears, however, that the new arrangement did not work very well. There were numerous complaints of delay and expense that prevented suitors from obtaining justice. So, to meet this difficulty, James I. established the "Courts of Requests" throughout the country, with a limited jurisdiction, and it was not until the year 1846 that these Courts were abolished, and that the County Court was established in its present form.
The modern County Court is, as may be imagined, a very different affair from its predecessors. While retaining part of its ancient jurisdiction in common law, its powers have been altered and extended to such a degree, that they now cover a vast field of contentious matter.
It has jurisdiction in all actions of contract for less than £50, and in all actions for wrongs where the mount claimed does not exceed £50. To this general rule, however, there are many exceptions, with which it is unnecessary to trouble the reader.
The County Court also has a limited equity jurisdiction, and powers have been conferred upon it in many other matters. These include actions of contract remitted from the High Court up to £100, and actions for damages to any amount in respect of wrongs may likewise be remitted, when the defendant, if unsuccessful, is unlikely to be able to pay the plaintiff's costs. Cases to the amount of £1,000 are remitted to it from the Court of Admiralty, besides which it exercises jurisdiction in numerous special cases under various Acts, including the Married Women's Property Act, the Coal Mines Regulation Act, the Building Societies Act, the Friendly Societies Act, the Employers and Workmen Act, the Industrial and Provident Societies Act, and, most important of all, the Employers' Liability Act. But the Court is principally useful to the public as a tribunal for the recovery of small debts, and this is proved by the fact that in 1889, out of 1,034,689 plaints entered, no less than 1,022,295 were for sums not exceeding £20.
Waiting to be called—Outside the Court.
Upwards of 500 Courts are held in the various districts of England and Wales, and these districts are divided into circuits, which are distributed among the County Court judges, and are fifty-nine in number. The majority of circuits have one judge, but some have two.
Undoubtedly many of the judges in London, and in large provincial towns, have a great deal, though not by any means an excessive amount of work devolving upon them.
In some of the busy Courts, such as those of Brompton and Whitechapel, they are fully occupied, but, on the other hand, there are Courts in some provincial districts where the judges have so little to do that their office is almost a sinecure. In either case, however, the salary is the same, the County Court Judge receiving £1,500 a year, whether there is any work for him to do or not.
The judges were formerly paid by fees, but now they draw fixed salaries from the Consolidated Fund.
In addition to their salaries, they are allowed travelling expenses, to enable them to visit the various Courts of their circuits, in each of which they are bound to hold a sitting once a month, except in September, which month is a holiday. In many of the little villages that they have to needlessly visit, the opening of the Court is a mere matter of form, and it is not, perhaps, without justice that many of them complain of the irksome travelling that is thereby occasioned.
In 1889 the judges on no less than thirty-three out of the fifty-nine circuits held only 150 sittings in the year, and in some cases the sittings were less than a hundred. A large proportion of these sittings, too, were merely nominal, an hour or less being quite enough to enable the judges to get through the business of the Court.
It follows, therefore, by the present system that, while a taxpayer may have to wait several weeks for a pressing case to be decided in his own district, he is actually contributing towards the means by which judges in other parts of the country enjoy idleness with dignity, and £1,500 a year. It would seem fairer that the local authorities should pay their own County Court judges, as they do their stipendiary magistrates.
It is to be regretted that in the appointment of County Court judges sufficient care is not always taken to secure the selection of competent lawyers. Unlike the appointment of judges of the High Court, with which, as a rule, little fault can be found, many County Court judges have obtained their posts in consequence of no better qualification than the command of backstairs influence in high places.
Any barrister of seven years' standing is eligible to become a County Court judge, and appointments have often been obtained by men quite devoid of any practical legal knowledge. Many of the judges never practised at the bar at all, and never had any prospect of doing so with success. The County Court judges, therefore, it will be observed, need no further qualification than is required by a young student for a call to the bar, and these are the men who have to weigh the arguments of able counsel in complicated Admiralty and Employers' Liability cases. The Lord Chancellor, it is true, has power to remove any judge on account of inability or misbehaviour. This, however, is an extreme measure hardly ever enforced, and it is notorious that many of the County Court judges are totally unfit for even the decent performance of their work. Some of them are worn-out, old men who are quite incapacitated by deafness and other infirmities, to say nothing of ignorance, stupidity, and querulousness, and their retention on the Bench constitutes a great evil to suitors as well as a public scandal.
They may, with the consent of the Lord Chancellor, retire on a pension of £1,000 a year if suffering from permanent infirmity. As a matter of fact, however, no man likes to have £500 a year deducted from his income, and the consequence is that the judges retain their positions until they are long past their work. It is much more convenient to appoint a deputy than to retire, and out of the multitude of briefless barristers a deputy can be obtained for a very small sum. Indeed, there have often been scandalous instances of a judge retaining his salary while paying a deputy £200 a year or so to do his work. This was at one time so common, and the men appointed were often so grossly incompetent, that it was found desirable that the names of all deputy judges should be submitted to the Lord Chancellor for his approval. But, notwithstanding this restriction, abuses are still very numerous, for though the Lord Chancellor may take care that the deputy is a more or less capable man, he cannot dictate the amount of his payment. Thus the judicial "sweating system" continues to flourish as before.
The judges of the County Court are greatly assisted in their duties by the Registrars. These officials, who are appointed by the judges, exercise judicial functions, and receive a salary which is regulated by the number of plaints entered in their Courts, but may in no case exceed £1,400 a year. The duties of the registrar, who must be a solicitor of five years' standing, are multifarious, and include the hearing of Bankruptcy cases and undefended suits. The office of Registrar will in future include that of High Bailiff, for the last-named functionary is by the Act of 1888 to be allowed to die out, that is to say, vacancies are not to be refilled, and the Registrar will undertake the duties of High Bailiff in addition to his own at an increased salary. The High Bailiff is responsible for executing the process of the Courts, and is assisted by sub-bailiffs, of whom there are a varying number for each Court.
From what we have already said, it will have been gathered that in populous commercial districts a County Court judge may be kept largely occupied with cases of as much importance, and involving as difficult legal questions, as the bulk of those tried in the High Court. In other words, legislation has imposed upon the County Court the same class of work as that which was, until a comparatively recent period, confined to the High Court. In 1889 no less than 1,902 cases were remitted from the superior Courts.
Bankruptcy cases involving property of unlimited value and most delicate and difficult points of law, Employers' Liability cases, Admiralty cases, and a variety of other legal work requiring the highest judicial capacity can now be tried in the County Court. And yet, by some absurd superstition, an ordinary common law action for contract for £50 or above can only be tried by a judge of the High Court.
Father of eight children—and no work!
Side by side with the enforced idleness of many of the highly paid County Court judges, there is in the High Court, both on the Equity and the Common Law side, a growing accumulation of arrears. Many of these cases involve comparatively small sums, and they might very well be tried before a competent County Court judge. A litigant at the present time entering an action for £51 in the High Court will be subjected to a delay of at least twelve months; whereas if he sues for £49 in the County Court, even in a busy district, he may reasonably expect to have his case settled within a month. By a reorganisation of the County Court system, properly distributing the work among the judges, cases up to £100 might always be tried before them, and the congested state of the High Courts would be thereby relieved, without the necessity of appointing new judges with salaries of £5,000 a year—a remedy frequently advocated. But that only thoroughly reliable men should be appointed as County Court judges is a sine quâ non.
Besides these matters the Legislature might reasonably address itself to the evils resulting from imprisonment for debt; or, as it is now, out of respect for the humanitarian tendency of the age, euphoniously termed, contempt of Court. Six thousand five hundred and fifty-four debtors were actually imprisoned in 1889. There were no less than 213,831 judgment summonses, and 63,836 warrants of commitment issued. It is a somewhat melancholy fact that the number of judgment summonses in 1889 was nearly 80,000 in excess of what it had been ten years previously. It is, however, satisfactory to observe that in the number of imprisonments in the same period there was a decrease of 1,358.
Many Courts are occupied with sixty or more judgment summonses a month. The practical result of the working of the present system of imprisonment for debt is that persons of good position are very rarely committed. Nearly all the imprisoned debtors are very poor persons, and the amounts that they owe are very small, the average not exceeding £10. It is melan- choly to see delicate, half-starved women, some of them with babies, come into Court after trudging miles in order to save their husbands, who perhaps have got a bit of work, from imprisonment.
A fair defendant.
Many judges are most careful and painstaking in their efforts to find out whether the debtors are, or are not, able to pay, while others perform these duties in a very perfunctory manner. In illustration of this it may be mentioned that in the year 1889, while one judge heard 2,256 judgment summonses and granted 855 warrants of commitment, another heard 1,220 judgment summonses and committed 1,043 persons to prison.
The statute gives the judge power to commit if satisfied that the debtor has means at the time when the order for imprisonment is sought, or has had means since the liability to pay was incurred. The latter provision permits the monstrous injustice that because six months ago a man had money that he was obliged to expend on the necessaries of life, he may be imprisoned for a debt previously contracted, and his family thereby deprived of the means of support.
It is a moot point whether imprisonment for debt might not with advantage be abolished altogether. The State has to keep the imprisoned debtor, whose wife perhaps has to go to the workhouse, a double burden thus being thrown on the public.
If there were no imprisonment for debt, people would certainly be more careful in giving credit, and a corresponding decrease in litigation would no doubt be the result.
The annual cost of the County Courts is about £566,000 and of this no less than £443,000 is provided by the suitors in fees and stamps. It is not consistent with the spirit in which justice should be administered that it should be paid for by the litigants. This was the view expressed by the County Court Commissioners, but no effect has been given to their opinion. There is no reason in justice or expediency why the County Court, the poor man's court, should be supported by the suitors themselves while the High Court, the rich man's court, is mainly paid for by the State.
Discussing the case.
We have endeavoured to point out, in a temperate spirit, the chief defects of the present County Court system. Its greatest merit lies in the rapidity with which its business is transacted; but this is only accomplished with a serious waste of judicial strength.
No doubt a thorough reorganisation is required. A re-grouping of the districts over which the judges exercise their functions is needful, so that time may be economised on busy circuits, and more work given to those judges who have little or nothing to do. In these days of facile railway communication many of the Courts in little villages might be dispensed with, and central Courts established in convenient places, where they could easily serve the surrounding country.
In some cases, at present, judges have to hold Courts at a number of little villages within a few miles of each other, and all of them on a good line of railway. Obviously much time would be saved if one central Court were made to serve for all, and the inconvenience to suitors would be so slight as to be quite insignificant.
Several circuits where there is but little business might, on this principle, be consolidated. Many judges being thus made available for extra work, their jurisdiction should be extended so as to relieve the High Court, and the salaries should be increased to such a standard as would secure the services of competent men. The Court fees for plaints should at once be reduced from one shilling to sixpence in the pound, and for hearing from two shillings to one shilling. It is scandalous that the cost of process is greater in the County Court than in the High Court, and the State nndoubtedly ought to contribute toward the maintenance of the County Court in the same proportion as it provides for the High Court. But most of all is it desirable to be rid of that not inconsiderable number of County Court Judges whose flagrant incapacity renders them a scandal to the bench, and to inaugurate a new system of appointment, so that the administration of justice may be placed in the hands of only such men as are able to command the full confidence of the public.
Witnesses.