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LAW MAGAZINE AND REVIEW.
No. CCCLXXV.- FEBRUARY, 1915.
1.—THE RULE COMMITTEE AND ITS WORK.
HE Annual Practice for 1915 consists of a volume of
over 2,400 pages, preceded by 164 pages of preliminary matter, and finished off by 382 pages of Index. The first half of the book deals with the Rules of the Supreme Court, which are more than 1,100 in number. These rules are the flywheels and cogwheels, the shafting and braces, the bolts and nuts of the machinery of the law, and their custody, with the duty of continual inspection and repair, casts a heavy responsibility upon the Rule Committee. This is a statutory body which has gradually assumed its present form, and a glance at its constitution will be sufficient to show that in theory it would be difficult to improve upon it. It consists of the Lord Chancellor and any four of the following—the Lord Chief Justice, the Master of the Rolls, the President of the Probate, Divorce and Admiralty Division, four other judges, two members of the Bar Council, a member of the Council of the Law Society, and a member of a provincial Law Society. The decisions of such a body must command the respect of the whole profession, but a complaint was made before the Royal Commission on Delay in the King's Bench Division
that there is no effective method of calling their attention to questions of practice and procedure, and that defects exist, and there is no means by which the exact nature of the question or defect can be explained to them.
This means that, although any decision given would be satisfactory, no decision can be given upon a question that has not been raised. Further light is thrown on the position by the evidence of the Lord Chancellor, who, in discussing the statutory annual meeting of the Judges, and in expressing the opinion that such a meeting was useless, said of the Rule Committee (Vol. II, p. 191): “My experi“ence is that, unless we have arranged beforehand very “ much by communication what we have to do, the time is “not long enough, and the opportunity is not sufficient, to “ talk these things over.”
But the Royal Commission recommended the Committee to consider some of the suggestions for improvement in the practice which were put forward in the evidence of experts, and there are others which can be made, also well worthy of attention. The magnitude of the task may be considerable, but it is of such importance to the community to have logical, consistent, and intelligible rules that the labour would be well spent.
Take for instance the thirty-four rules of Order XXXI, Discovery and Inspection, and consider that part which deals with Interrogatories only. Rule 2 has been in operation for twenty-one years, and provides that all proposed interrogatories shall be submitted to the Master before being allowed. On the whole, it is probably the general opinion that this innovation on the old practice has worked well, so well indeed that experienced practitioners often learn with astonishment that in the County Court, where expense is necessarily kept down, or on the other hand, where remitted actions may be tried, any number of interrogatories may be allowed ex parte by a registrar who does not see the result at the trial, but whether the rule is good or bad, it is surely time to recognise that some of the other rules are quite inconsistent with it. By Rule 1, not more than one set of interrogatories may be delivered to the same party without an order. As not even one may be delivered without an order, this is mere surplusage. By Rule 3, if interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by them, and the answers, shall be paid in any event by the party in fault, but if the Master has had the interrogatories submitted to him, and has allowed them, there can be no party in fault, and the provisions of this rule are obsolete. So also are those of Rule 7, which permit an application within seven days to set aside unreasonable or vexatious, or to strike out prolix, oppressive, unnecessary, or scandalous interrogatories. These non-effective rules can only remain by an oversight due to the absence of suggestion, the vast number of rules which require at least annual consideration, or to the scanty time at the disposal of the Committee.
Rules 6 and 25 are almost as objectionable. The former entitles the party answering to take objection in the affidavit to any scandalous or irrelevant interrogatory, or to one not put bonâ fide for the purpose of the cause or matter, but he has already taken the objection on the summons, and he has a decision against him, and has not appealed, or has appealed unsuccessfully. To take the same objection in the answer would be futile, and would merely expose him to the penalty of costs. The latter, Rule 25, is even more out of place. It purports to protect the litigant against oppressive interrogatories, which, of course, would not be allowed by the Master, or the Judge, or the Court of Appeal, by providing that the costs of the party seeking discovery, costs now included in the order, and invariably made costs in the cause, shall be allowed as part of the costs where and where only such discovery shall appear to the Judge at the trial, or if there is no trial, to the Court or a Judge (i.e., a Master, on some obsolete form of summons), or shall appear to the taxing officer to have been reasonably asked for.
Read with Rule 2 the continued existence of this rule is indefensible.
We have, then, a code of a dozen rules which are inconsistent, contradictory and confusing, and have been allowed to remain so for twenty-one years.
The Rule Committee would probably agree with what has been said, and would, perhaps, urge that their heavy and unpaid work in connection with such matters as the new rules for Regulating Procedure by and against Poor Persons, must be their excuse, but this does not meet the point, for not only does it not protect their predecessors in office, but it does not inform the public, or the profession, how, for instance, Order XXXI can be arraigned at the Bar where they sit as judges.
Order XXX has been definitely referred to them by the Royal Commission, and will, no doubt, in course of time, receive due consideration. The suggestion here made is that the Masters or a committee of experts should be asked to report concisely to the Rule Committee upon this and cognate matters. A report, for instance, from a Master, two practising junior barristers, and two managing clerks, would throw a flood of light on the subject. The Master knows much, but some managing clerks not only have a wide knowledge of the practice, but they know intimately all the Masters' Chambers, which no Master can really do, and they know how the various defects and delays touch the interests of clients, and what it amounts to in money. It is not their business to be zealous reformers, but they would report upon Order XXX with refreshing candour. I am informed that in former years a special committee of the Solicitors' Managing Clerks' Association did occasionally communicate with the Rule Committee, and succeeded in effecting some minor alterations in the rules, but that this effort has ceased.
Before proceeding to discuss the rules in connection with the all-important subject of costs, it may be noted in passing; that the absence of any means of communicating with the Rule Committee prevents the removal of quite small defects, which nevertheless involve innocent people in unnecessary expense, and mar the efficiency of our procedure. Take for instance the present Interpleader Rules which replace the repealed statutory provisions and the Rules of 1875. Interpleader is the process whereby a person in the possession of property not his own is enabled to call upon rival claimants to such property to appear before the Court, in crder that the right to such property, as between such claimants, may be determined (Annual Practice, p. 1082). It is familiar to every practitioner, and forms part of the machinery of the Courts which is in use every day. The applicant, or person seeking relief, may have money in his hands to which there are two claimants, or he may be the sheriff who has taken in execution disputed goods. He must be independent of both parties to the dispute, though he may be the defendant in an action, and he must take out summons under Order LVII. An order may then be made for an issue between the claimants to be stated, and tried, and it is upon this trial, and the difficulties which not infrequently arise upon it, that the aid of the supervising committee is invoked.
When the matter is of sufficient importance for a High Court trial, or the statement of a special case on a question of law, no difficulty arises, but cases of this kind are rare. Most interpleader issues are dealt with by the Master, although some are remitted to the County Court.
By Rule 8, which follows the Common Law Procedure Act 1860, the Master may, with the consent of both claim. ants, or on the request of any claimant (which seems to