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I cannot but recognize that there is one difficulty which many reformers are apt to overlook. I refer to the difference of interest of the solicitor practising in London and those who are well away from the great centre. In places distant from the metropolis, the Assizes are held at such long intervals (not to speak of the inextricable muddle into which the whole assize system has now got) that justice can be much more speedily obtained in the Provincial County Courts than through the High Court. In London a solicitor can now secure a trial in the High Court with little more delay than in the County Court, and he therefore naturally prefers to transact his business where something like order prevails, as against the County Court where all sorts and sizes of cases are jumbled together. Nobody can be in the latter Court for half an hour without seeing that important work has been cast upon machinery intended for unimportant work, and that a clean sweep is necessary before it is possible to arrive at a lasting solution of the difficulty.
The County Court does not possess that safeguard familiarly known in the High Court as “Order 14," one of the most satisfactory changes of modern times. When the Law Society Committee proposed, some fifteen years ago, to extend Order 14 to the County Court, it was successfully resisted on the ground that the average defendant dealt with by the Court was too poor and too inexperienced to have anything to do with so technical a process. The answer to this reasoning, if it were ever right, lies in the complaint that extended jurisdiction has been thrust upon the County Court without any consideration of these surroundings. I lay great stress upon the question of Order 14, as in my opinion it is of front rank importance.
The reference to Order 14 brings me to the consideration of the published views of the Incorporated Law Society as regards increase of jurisdiction. The existing representative Committee recommended, two or three years ago, that the
original jurisdiction of the County Court should be raised from £50 to £1000, with liberty for a defendant to transfer a case to the High Court as of right when the amount exceeds £ 100. This of course means £1000 when both parties are willing, and £ico if the defendant be unwilling, and even such limited recommendation was expressly coupled with the most important condition, that if so much High Court business was to be thrown into the County Court, suitable High Court rules should go with it, especially Order 14, which sifts the wheat from the chaff. Every solicitor knows that the great bulk of common law actions are really undefended, and never ought to be permitted to come into court at all without preliminary oath of the plaintiff and defendant, clearly establishing some difference between them. This principle represents the plain English of the scope and intention of Order 14.
The right to remove from the inferior Court to the High Court beyond £100 was strongly laid down by the Incorporated Law Society and the distinction between exclusive and concurrent jurisdiction was laid down from the beginning.
The Attorney-General very appropriately remarked in the House of Commons some weeks ago, when an unfettered extension of County Court jurisdiction to £ 1000 was asked by an influential mercantile body who did not exactly appreciate the difficulties, that for the Government to concede such a sweeping demand would almost deplete the business of the High Court, thus sending us from Scylla to Charybdis. No doubt the Associated Chambers of Commerce were anxious to get exclusive jurisdiction in the County Court for claims up to £1000, the demand being pressed mainly from the provinces on the strength of their having no courts sitting de die in diem, as we in London have (or are supposed to have), but this important mercantile Association has now clearly seen that the safeguards raised by the Committee over which I have presided have to be faced
in any future application to Parliament. The possibility of a friendly conference between the two great legal and mercantile bodies is now within range of realization. I do not say that the Incorporated Law Society, in confining their recommendation to the limit of £100, by way of exclusive jurisdiction, may not have drawn too fine a point. This,
, however, would, of course, be the principal subject of any proposed conference or communication, and my quasiofficial position excludes me for the moment from further dealing with the same in public.
I have often seen it suggested that County Court reform has been kept back by the opposition of solicitors in general, and the Incorporated Law Society in particular. As regards the profession, I have already shown that, up to about twenty years ago, there was no sort of reason why solicitors, individually or collectively, should trouble themselves about the court in which they were not recognized, and as to the Law Society, it is a libel to say that it has not interested itself in the subject, for, to my individual knowledge, Committees specially appointed have been sitting for at least two-thirds of the interval since the 1875 Act gave us a position ; such committees being formed of the best men that the Society could get together.
The astonishing changes created in County Courts since their establishment force a very large question upon our attention. Can the system be mended, or must it be ended in the sense of merger ? In London we have one County Court (the court I have previously mentioned), situated only some five hundred yards from the High Court, already doing an immense amount of work, which, in the early days of the present reign, formed the staple business of the High Court. It is not denied that this County Court does its work with admitted satisfaction (I only select it as an example because of its proximity of location to the High Court), yet it has no original jurisdiction to try the superior cases it docs try; it
having to wait for the same to be ladled out, as it were, from the High Court dish into which all cases are first placed.
But let us sec whether things are in order for original jurisdiction, and if not, can they be put into order? Some of our County Court judges are quite as capable of administering justice as are those of the High Court. I could name half a dozen who would worthily.fill a High Court seat. Some people have asked, inconsiderately, I think, why certain counsel with silk gowns, who have been less successful as leaders than they were as juniors, should be appointed judges of the County Court, instead of the selection being made from men who are in the thick of work. I confess I see nothing in this argument. A Queen's counsel who may not have the gift of eloquence or the characteristics which go to make up a successful leader, but who has had such experience at the junior Bar as to warrant his having asked for “silk” (experience unaffected by the wisdom or unwisdom of the change), seems to me to be just the man for the appointment.
Perhaps, as the jurisdiction of the County Court gradually touches the High Court, other selections of judges will possibly have to be made ; but, on the whole, I do not think there is now any substantial complaint against our County Court bench. There are judges with peculiarities, of course, but so there are in the High Court, for that matter, the only difference being that a judge, dealing with a number of poor and ignorant litigants in person, occasionally assumes a manner which does not properly belong to him, and which would soon be smoothed down if he had to deal more frequently with advocates whose own deportment commanded respect.
Innumerable suggestions and schemes have been advanced from various quarters for dealing with the existing County Court work (irrespective of the question as to the sum to which exclusive jurisdiction should be extended), and although
that put forward by His Honour Judge Yate-Lee is one of the latest, it seems desirable to consider his proposals first, especially as I respectfully differ from his views ; but my comments must be reserved for a further article.
FRANCIS K. MUNTON.
(To be continued.)
11.-IN MEMORIAM: VISCOUNT ESHER,
MASTER OF THE ROLLS.
S we stood on that bright summer morning of the 29th
of May in the pretty village churchyard beside the open grave of Lord Esher, it was, to those of us who had known and admired him, a strange and solemn thought that so strong a personality had passed beyond the veil. So vigorous was he to the very last, that at the age of eightyfour he still impressed those with whom he came in contact with a sense of power and will; and yet behind that handsome and commanding presence, and underneath that outwardly dictatorial manner, there lurked a warmth of heart and a tenderness of regard for the interests and weaknesses of others which endear his memory to all who really knew him.
His life was an example of directness of purpose and singleness of aim. Self-reliance and a determination to carry out whatever he set himself to do made the secret of his success. Of such men it may truly be said, “ Possunt quia posse videntur."
The record of William Baliol Brett's life and achievements and of the contemporaries amongst whom he moved has been so fully and recently before the public, that the present