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make the earlier phrase redundant), if, having regard to the value of the subject-matter in dispute it seems desirable so to do, dispose of the merits of their claims, and decide the same in a summary manner and on such terms as may be just.
This rule is acted upon every day, whether the Master deals with a question of law only, a matter which by another rule involves the possibility of stating a case for the opinion of the Court, or whether he decides a question of fact. In practice it is found unnecessary to state a case. The Master hears the summons, and either comes to a decision, or adjourns it for further hearing, or orders an issue. Very often this issue, like the adjourned hearing, comes on before the same Master. It sometimes involves oral evidence, sometimes admissions of fact; it may take half-anhour, or half-a-day. If it can be said to be decided in a summary manner there is the usual appeal to the Judge in Chambers, whereas if the procedure is not summary, and no one knows where the line is drawn, the Master ceases to act as such and becomes a referee, from whom an appeal lies to a Divisional Court.
The convenient, economical, and popular practice of trying the case before the Master is not based upon any rule, and was not contemplated by the framers of the rules. It is pretty clear that they never thought of an appeal from a Master direct to the Divisional Court, but the present practice has become so firmly established that it is not uncommon for the parties to agree that there shall be no appeal, or that the appeal, if any, shall be specifically either to the judge or the Court, that is to say, that no objection will be taken by the party to the tribunal of appeal.
If the Masters, or some such expert advisers as are mentioned above, were to report to the Rule Committee upon the present practice under Order LVII, no doubt other points would arise. Under another set of rules a party often loses his right to a jury without knowing it.
A larger matter remains for notice. It will be generally conceded that one of the most important subjects dealt with by the rules is that of costs. It is the fount of endless dispates and heart-burnings, and although it is so complicated and difficult that it requires both courage and industry to approach its consideration, it should not be beyond the powers of so great a body as the Rule Committee, if only it had time, to effect serious reforms in the direction of simplicity, certainty, and fairness. To say that the present rules cannot be improved is a counsel of despair.
Order LXV, which contains nearly ninety rules, is the general order dealing with costs, and it occupies with its explanatory notes 114 pages of the Annual Practice, but there will be found in the previous pages no less than 115 rules which deal, in some way or other, with details of the same subject. Probably no one who had not made a special study of this most arid and repellent branch of the law would believe the bare statement that costs are dealt with in over 200 rules, and it seems clear that, although it must be large, the number might be greatly reduced with advantage, and if reduction is once attempted some correction will be easy.
A vague suggestion of this kind is of no value, but on the other hand it is not possible in a single article to discuss in detail what might be done in the way of correction, compression, and simplification. The various numbers quoted above are meant to convey this intimation as forcibly as figures can.
But illustrations can be given which should be enough to attract attention.
Let us first take the case of a new rule which has been in use long enough to test its efficacy, but not long enough to become so deeply embedded in the practice, and so garnished with the decisions of the Courts that it is immune from attack, like an ancient landmark or an insanitary and dangerous, but historic, building.
Ought not the Rule Committee, for instance, to ask how Order XIV, Rule 9 (b), is working? How can any Master, counsel, solicitor or clerk try to arrange or even hope that the busiest and most eminent men in the profession will communicate with each other, in the words of the Lord Chancellor, on this not unimportant item before a committee meeting, as the time is not long enough when they meet? The rule provides that, when the plaintiff knew that the defendant relied on a contention which would entitle him. to unconditional leave to defend, and still persisted in taking out a summons for summary judgment against him, he shall not only pay the costs to the defendant, but pay them at once. If this were rigidly enforced it would destroy half the usefulness of the order under which nine-tenths of the King's Bench judgments are obtained, but it is not and cannot be rigidly enforced, as a single example will show, and a rule which is capriciously enforced is far worse than no rule at all.
A plaintiff brings an action for, say, goods sold and delivered, to which there is no defence in law or in fact, and he takes out a summons for judgment. Before the Master the defendant's counsel produces a verified copy of a letter from the defendant to the plaintiff saying that there has been a breach of warranty and that the goods are of little or no value, and, as not infrequently happens, reminding him of Rule 9. Both parties know that the statement of fact is untrue, but the Master does not. Leave to defend must be given, and the Master is bound by the rule to make the plaintiff pay forthwith to the defendant costs which amount on taxation to about £12.
Even if the defendant does not deliver a defence, even if the defendant is insolvent and puts the plaintiff to further expense, besides delay, and does not appear at the trial, the plaintiff has no means even by a prosecution for perjury—an almost impossible event, by the way of getting back the
£12, or recovering his own costs of the summons.
tively and unscrupulously used, as it often is, the rule defeats its object. So much is this the case that the application to enforce it is often, though unfortunately not always, refused.
The least modification that could be made would be to order payment into Court of the costs incurred, or, still better, security to be given, which would avoid the costs of taxation.
To turn to another point, we find that by Order LXV costs shall be in the discretion of the Court or judge, except where there is a jury. This, with certain provisoes, not necessary to mention here, is a rule of universal application, but we also find that this discretion is specially and unnecessarily mentioned in 33 other previous rules.
It is perhaps wearisome to give further examples of defects. There is Order LXV, Rule 12 (County Court costs where not more than £50 recovered), which has been obsolete for 11 years. The Annual Practice calls it "wholly inoperative," and only accords to it half-a-page of notes. Upon an annual revision, however slight, it would long ago have disappeared.
There are other points which arise on many of the orders, long overdue for settlement, but the above must suffice.
Can it be that the reason why we are so slow to move, and so unscientific in our ways, is that it is not to the interest of any member of the legal profession to make improvements? It is possible that no judge who devoted himself to the re-organisation of the White Book could hope to leave behind him a great name as a jurist, that no barrister would willingly choose to seek business or notoriety by irrevocably coupling his name with a repealed. order, or some new rules, and that no solicitor of eminence would think it worth while to waste himself upon what might be a useless effort.
Compared with other legal work it is a thankless task. It makes no appeal to self-interest, to ambition, or to duty. No Member of Parliament can spare a thought for it, no novelist has ever heard of it, no dramatist could understand it. The eleven hundred Rules, two hundred of which deal with costs, will go on perennially clogging the slow wheels of civil justice until some method is devised for bringing their defects to the notice of the Rule Committee without imposing upon that body the necessity for debating in a full meeting, all the numerous points, large and small, which must arise.
In many American States the recent expressions of public dissatisfaction with the working of legal machinery have impelled the lawyers to advocate a reform from within, to take the shape of transferring to the judiciary the power to regulate procedure which is now exercised almost exclusively by the several State Legislatures. The English rule-making system is the model they point to. It does not detract from the manifest superiority of that system over one of direct legislation that there are minor details in which it might be improved, and it might be profitable to make some mention of objections which have been raised from time to time either to the system itself or to the manner in which the rule-making power has been used. In forty years much has been learned about defects in the former and mistakes in the latter. Some of them have been corrected, others are still the subjects of controversy.
First and foremost among adverse criticisms of the Rule Committee and the Rules is the long-continued complaint