1. The Problems of the Division

Within a decade of the completion of the new structure, the two most senior judges had each called upon the Lord Chancellor to set up another royal commission on the judicature to remedy serious deficiencies in its working. The Master of the Rolls was particularly concerned with delays in the Queen’s Bench and the proliferation of interlocutory motions and appeals, which he attributed to Jessel engrafting inapposite Chancery devices onto common law procedure,¹ while the Lord Chief Justice listed five issues needing urgent attention.² Halsbury was no enthusiast for another bout of reforming—he was making speeches extolling the virtues of special pleading and the circuit system³—but he could not ignore Coleridge’s plea, which reflected widespread dissatisfaction within and without the legal profession. Lawyers denounced delays, costs, and lack of finality, their journals highlighting the excessive use of interrogatories, great inconsistencies in rulings in chambers,⁴ incompetent case listing, and judges starting the long vacation early.⁵ Even the Law Society and Bar Committee were sufficiently united to set up a joint committee.⁶ Outside the profession, it was not just The Times which(p.810) thundered criticisms.⁷ The chambers of commerce renewed their campaign for more localized justice, including the enlargement of county court jurisdiction, a particular bête noire of Halsbury’s.⁸ Businessmen were deserting the courts for arbitration and the establishment of a London Chamber of Arbitration caused great fluttering in the legal dovecotes.⁹

Instead of a commission, Halsbury invited the Council of Judges to investigate, to the disappointment of his permanent secretary and scepticism of others.¹⁰ Unfortunately the Council did not have the benefit of the first set of civil judicial statistics issued under the auspices of Master Macdonell, whose penetrating analyses provided a fuller picture than the hitherto unimaginative compilations.¹¹ They showed that both original actions and appeals were fewer than in the early 1880s and even interlocutory motions, which had greatly increased after the Judicature Acts, had fallen back somewhat.¹² A decline in the number of small claims in the QBD was accompanied by a higher proportion of defendants entering an appearance, but that was offset by the increasing use of Order 14. ‘Notwithstanding the objection of judges to try in this manner cases presenting complexity’, in 1898 they formed more than 15 per cent of actions tried in town.¹³ A reduction in jury trials, from over 90 per cent of trials before 1883, to around 50 per cent, also saved time and costs.¹⁴ The problems of the division were essentially London ones, with more provincial cases being brought to town, and too few judges there to cope with them.¹⁵

So although it proposed curbs on appeals, the Council rightly focused on the QBD, which The Times was comparing with Eldon’s Chancery.¹⁶ Its report suggested improvements to the listing arrangements and sundry procedural changes, including the establishment of a special list purely for commercial cases and drastic amendments to the circuits to ensure that the capital had enough judges.¹⁷

The circuit proposals were never implemented and criticism did not abate. Atherley Jones supported his motion by claiming that the English judicature was more extravagant than any bar the French and made play with the short hours, (p.811) large salaries, and long holidays of the judges,¹⁸ though litigants, and the profession generally, complained more of its costs and delays.¹⁹ The appointment of an extra Chancery judge in 1899 and the adoption of the linked judges system did much to improve that division,²⁰ but the QBD was hopelessly in arrears, doing its best ‘to court extinction’ as one journal put it.²¹

This was not because business was expanding. MacDonell’s first commentary had noted that ‘the drift of business is distinctly towards the county courts’²² and the High Court continued to remit more than 1,000 cases a year to them. The fall in the QBD’s workload was clear from quinquennial averages of writs and trials:

In 1909 writs of summons issued from the QBD (62,916) were at their lowest level since the creation of the SCJ, and the decline continued, to 60,511 in 1913.²³ Furthermore, many cases were either undefended or were despatched with acceptable expedition and expense under Order 14; for the years 1891–4 judgment in default of appearance was given in 63.5 per cent of cases, with Order 14 judgments accounting for a further 22.4 per cent.²⁴

MacDonell concluded that ‘a larger proportion of the actions that come into court turn on real disputes’,²⁵ but most concerned comparatively small sums; in 1904 69 per cent of verdicts or judgments in London and Middlesex and 54.3 per cent of those on circuit were for £100 or less.²⁶

Yet still the division was slowing down. Figures for 1898 suggested that the whole process, from writ to trial, averaged 194 days, with a lapse of 51 days between entry in the lists and the trial, and it was getting worse.²⁷ The press may sometimes have exaggerated the delays, but by and large legal commentators (p.812) concurred.²⁸ Some delays arose from the extensive resort, sometimes for tactical reasons, to interlocutory proceedings, especially discovery.²⁹ The omnibus summons for directions was a failure³⁰ and interlocutory orders further clogged up the system by their propensity to generate appeals. They comprised around half of all appeals from the KBD in 1901 and with over 40 per cent of appeals from masters and district registrars succeeding there was every incentive to appeal.³¹

A gradual change in the type of business may also have been a factor, though MacDonell found it hard to make out the subject-matter from the writs.³² Slander and libel remained surprisingly persistent: 12½ per cent of actions on circuit in 1898 and more than 16 per cent in 1908, compared with 9 per cent in London.³³ Since defamation involved a jury and usually several witnesses, it tended to be a slow business. Torts were still a minority of actions (fewer than 10 per cent were personal injury claims³⁴), whereas more than 70 per cent were money claims.³⁵ However, some contract claims were more complex than before. The issuing of new rules governing service of proceedings on firms in 1891 signalled the growing prominence of limited companies in litigation, and by 1900 they were involved in 45 per cent of actions.³⁶ Many cases involving corporations were, no doubt, no different from those involving individuals, but they included a growing number of altogether more complex matters, involving masses of correspondence and sometimes quantities of peripheral matter unearthed by discovery.³⁷ Revenue actions, though comparatively few, were also notoriously complex.

Changes in procedure and business were not adequately met by adaptations in organization and arrangements and ongoing dissatisfaction with the KBD led to a series of inquiries beginning with the Gorell Committee on county court (p.813) jurisdiction in 1906. Its composition made it unlikely that a major devolution of business would be recommended, but it acknowledged that the status quo was only tenable if the KBD put its house in order, and in particular if it reformed the Assizes so as to improve facilities in London.³⁸ Because of Gorell’s startling recommendations to devolve divorce, that report generated an inquiry into divorce which embraced the capacity of the KBD to take on some of that work.³⁹ The Lord Chief Justice’s response to criticism was (reasonably enough) to demand more judges, but that meant legislation, which in turn necessitated an inquiry into his division. A joint select committee’s deliberations were abruptly curtailed by the calling of a general election in 1911 and it issued the briefest of reports, recommending two extra judges as a temporary measure and that ‘in the meantime and without delay, certain reforms, which have been suggested to them for the better organization of business in London and on circuit, should be considered with a view to such of them as are found to be practicable and desirable being carried into effect’.⁴⁰

It is hardly surprising that the Lord Chief Justice professed to be unable to understand exactly what the report had recommended,⁴¹ so Loreburn had to set up yet another inquiry, this time a royal commission. Concurrently, a departmental committee under Lord Mersey conducted an overdue examination of the jury system,⁴² and with the Civil Service Commission turning its attention to the legal departments, the KBD experienced a relentless and often uncomfortable scrutiny. It was not, however, a very productive one. It was easy to identify weaknesses, but to suggest remedies which were politically practicable and administratively feasible was another matter when, as an earlier writer had observed, ‘[j]udges cannot be ordered about like clerks in an office’.⁴³ This applied both to cheapening High Court litigation and speeding it up.

2. The Question of Costs

It was soon alleged that the Judicature Acts had actually increased the costs of litigation,⁴⁴ and despite the harmonization which all but ended the higher scale which had been almost the norm in Chancery,⁴⁵ little was done to make (p.814) it cheaper.⁴⁶ True, the provision in Order 65, r 11 which so aggrieved solicitors was sometimes invoked to deny them their costs⁴⁷ and rigorous taxation took off an average of 25–30 per cent of bills.⁴⁸ Even so, the gap between costs allowed to the successful party on a party-and-party basis and actual costs incurred on an indemnity (solicitor and own client ) basis remained a standing grievance.⁴⁹ The Judges’ Council in 1892 had recommended that ‘costs allowed in litigious matters shall be all those which have been reasonably incurred by the client’⁵⁰ and in 1897 Halsbury and the law officers professed themselves eager to implement it, but although it was hoped that the rules adopted on the unification of the taxing offices would have this effect, the distinction proved too deeply embedded to be removed.⁵¹

Judges might have done something to reduce costs, but some were reluctant to permit short cuts in procedure and evidence which would have been economical. One Chancery judge would not allow the simpler method of extracting money from the court, by summons, to be used for sums above £1000 while the Rule Committee scarcely made use of the power given it in 1894 to simplify the rules of evidence, and even in the Commercial court an attempt to ‘dispense with the technical rules of evidence’ was quashed by the Court of Appeal.⁵²

Since bench and bar were usually keen to emphasize that proper justice could not be had in the less expensive inferior courts, it is unsurprising that few of them displayed much zeal for economy. Judges were insulated from, and often ignorant of the way costs accumulated,⁵³ and the rules still encouraged solicitors to do unnecessary things, such as extravagant use of interlocutories, to recompense (p.815)themselves for the necessary ones which were not remunerated.⁵⁴ Even so, their charges probably did not soar like the fees of the leading counsel.⁵⁵ Moreover barristers found other ways of enlarging their income. Taxing masters were persuaded to be generous in allowing three counsel,⁵⁶ accepted the 2/3rds rule for juniors and, despite solicitors’ objections, did nothing to stop the growth of refreshers.⁵⁷ Refreshers were particularly pernicious, providing a perverse incentive to prolong trials, and so contributing to delays as well as expense.

It was, however, the judges who perpetuated the general rule that costs follow the event. The wide discretion offered in the original Judicature bills was narrowed for jury cases by a Commons amendment during the 1873 bill’s passage and judges understandably sought the security of the simple rule in other cases too.⁵⁸ In fact they actually extended it. Before 1875 a successful common law appellant had to bear his own costs, but that was altered by the Court of Appeal, giving rise to what Hollams and others criticized as a ‘gambling system’ which encouraged appeals in the hope that an ultimately favourable decision would carry the costs of the entire suit with it.⁵⁹

Few successful barristers were interested in cheapening litigation. W. J. Disturnal airily told the KBD Commission that ‘[t]he question of cost does not appeal to me, so much as the manner in which business is done’,⁶⁰ but in advocating the appointment of several extra judges he was necessarily also suggesting an increase in court fees. This was because, while Lord Chancellors had successfully fought off Treasury demands that the SCJ be entirely self-supporting, they had had to concede that fees should cover all public expenses save the salaries of the judges; even the costs of building the courts in the Strand were to be recovered out of litigants’ fees.⁶¹ This compromise was embedded in the Fees Order of 1883 and it was fortunate that the yield from uncontested probates enabled the High Court (unlike the county courts) to turn a profit. This meant freedom from Treasury pressure to increase fees, but also that any extra judges would have to be fought for.

(p.816) The High Court was beyond the means of many. The in forma pauperis procedure which offered the impecunious access was very narrow in scope and had been confined to plaintiffs by the Judicature Acts.⁶² The gap was only partly filled by the charitable exertions of Poor Man’s Lawyer schemes and there was concern at the activities of unscrupulous ambulance-chasing solicitors and ‘legal aid societies’.⁶³ The creation of a Poor Persons’ Procedure was the major preoccupation of the Rule Committee between 1909 and its introduction in 1914.⁶⁴

One unwanted consequence of the High Court being so costly was that some determined or desperate men and women dispensed with the services of lawyers and the courts began to be infested with litigants in person.⁶⁵ Of course, the county courts had always had to grapple with individuals presenting their case in person and their procedure was designed with that in mind,⁶⁶ but before the procedural reforms of the 1850s only the most sanguine or foolhardy litigant would plunge into the procedural thickets that protected the courtrooms of the superior courts.⁶⁷ There had always been men and women who brought actions which were either frivolous or vexatious or both, and Denman’s Act⁶⁸ had strengthened the powers of the courts to deal summarily with those, though no legislation could entirely suppress the urge to go to law where there was believed to be a huge potential reward (as with the interminable attempts to get at William Jennens’ fortune⁶⁹) or where the plaintiff made it a matter of principle.

However, the legal press noticed a significant increase in the number of litigants in person. Some, probably the majority, could not afford counsel, while others had a usually unfounded confidence in their own forensic aptitude.⁷⁰ ‘Amateur litigation of this class appeared to have reached epidemic proportions’ wrote one barrister,⁷¹ and Mr Justice Chitty had to deal with three in the same week.⁷²Besides resenting these incursions into their cosy quasi-private courts, judges and lawyers had a more legitimate concern with the way laymen protracted proceedings. They experienced particular problems with ‘the gentle sex’, which provided (p.817) some of the most pertinacious litigants in person. Some were far from gentle⁷³ but others skilfully exploited the conventions of a patriarchal society. Judges like Lord Esher, habitually brusque and intimidating to counsel, were disarmed by feminine charms and wholly unable to maintain control of the pace of the trial.⁷⁴ ‘We are at your mercy’, lamented Lord Coleridge, and Lord Hatherley bemoaned the fact that Miss Shedden had consumed 28 days of the House of Lords’ judicial time.⁷⁵ Rosanna Fray was styled ‘the queen of lady litigants’, but the most prolific and successful serial litigant was the celebrated Georgina Weldon.⁷⁶

For a time Mrs Weldon was assisted by Alexander Chaffers, whose notoriety, in legal circles at any rate, equalled her own. Chaffers’ melodramatic persecution of Lady Twiss in 1872 cost him his profession, his reputation, and his livelihood and as with many a litigant in person his grievances ripened into obsessions and drove him to fire off writs against judges, politicians, archbishops, and all sorts; most piquantly, he even sued Pym Yeatman, a barrister so combustible and litigious that newcomers to the midland circuit were warned to avoid him.⁷⁷ The judges pressed their inherent jurisdiction to its limits through Grepe v. Loam orders, and occasionally beyond,⁷⁸ but faced with Chaffers, Yeatman and their like, who seemed disposed to plague the courts with accusations against the judges themselves, Halsbury resorted to statute. The Vexatious Actions Act 1896 (c. 51) enabled the court to create a list of persons who would be unable to bring any action without express permission; Chaffers had the dubious distinction of being the first on the list.⁷⁹

The 1896 Act only removed the menace of the most extreme litigant in person. Others continued to prolong trials and a few, like Horatio Bottomley, appeared with some regularity.⁸⁰ ‘If you could find some way of dealing with the lady litigant we should all be grateful’, said Scrutton⁸¹ and the senior master said that his correspondence with solicitors over cases involving litigants in person was steadily growing.⁸²

(p.818) 3. Pre-trial Proceedings

The draftsmen of the SCJ rules had wanted to create a uniform procedural framework across the divisions, all actions being commenced with a writ of summons. The revenue departments, however, succeeded in retaining their antiquated procedure by way of English information⁸³ and the 1883 rules restored to the Chancery division the originating summons omitted from those of 1875. This provided a short cut for parties in cases where only a decision on the construction of a document, such as a will, was sought, the facts being set out in rival affidavits and the decision often given in chambers. It became so popular that it was extended to the QBD in 1893 even though many common lawyers (and seemingly the masters) disliked it, arguing that a similar result could be better obtained through a specially endorsed writ coupled with minor modifications to the Order 14 procedure.⁸⁴ Not surprisingly, the originating summons never caught on outside its original home.⁸⁵

With pardonable exaggeration, Bowen ‘asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation’.⁸⁶ Elsewhere he conceded that this achievement came at a price. ‘What was believed ten years ago by the authors of the Judicature Rules to be a simplification of pleading and an abolition of pleading technicalities has turned out to be the introduction of a mode of pleading so confused and inartistic as to be in many instances only a source of embarrassment and expense.’⁸⁷ Carelessness was encouraged by the awareness that the liberal power to allow amendments up to and including the trial was being generously exercised,⁸⁸ and that even the power to strike out pleadings which disclosed no cause of action or (p.819) defence was only used where it was ‘plain and obvious’.⁸⁹ Even the general denial, seemingly specifically outlawed by rule, made a reappearance in 1893.⁹⁰

Since the Coleridge Committee had pronounced that ‘as a general rule, the questions in controversy between litigants may be ascertained without pleadings’,⁹¹ the rules enabled parties to dispense with them, but this never became widespread. It was later rumoured that the Council of Judges would recommend the abolition of pleadings⁹² but the rule made in 1897 instead required permission for pleadings to be used, and that proved futile, since permission was given as a matter of course.⁹³Pleadings remained, but the days of Bullen and Leake which some hankered after⁹⁴ would never return, and neither would the speedy identification and resolution of issues which old-style pleadings had promoted. It became common for parties to seek further and better particulars; sometimes justified by the looseness of the pleadings, they nevertheless developed into an abuse which Esher denounced as ‘expensive, oppressive, and [liable] to cause infinite delay’ and which the Gorell Committee agreed required curbing.⁹⁵

The Coleridge Committee had intended that the dangers posed by looser pleadings and greater facilities for discovery etc. should be curbed by ‘a change in procedure which would enable the court, at an early stage of litigation, to obtain control over the suit, and exercise a close supervision over the proceedings’.⁹⁶ The vehicle for this supervision was the summons for directions, but while it was clearly intended to supersede the previous practice, it proved a complete failure.⁹⁷ A major reason was hostility to this ‘foisting of the Chancery principle upon the (p.820) common law’.⁹⁸ Because the Law Society and most of the bar were antagonistic to the whole notion of interference with the parties’ freedom to control the pace and direction of a suit, it had not seemed feasible to make it compulsory and it was generally shunned.⁹⁹

The last of Mathew’s rule-making contributions was to strengthen the summons for directions,¹⁰⁰ but consultations in 1896 showed that, as well as lawyers, many judges were hostile; Bruce felt it would mean ‘the abolition of all settled procedure’¹⁰¹ and Wright produced alarmist calculations suggesting a judge would have 150 to deal with per day.¹⁰² If it were to be imposed, insisted the QBD judges, it must be by masters with an appeal to the judge to whom the case was allocated, and on that basis the rules were again amended in 1897.¹⁰³ Advancing it to an earlier stage in the proceedings as in the Commercial court seems only to have made it less effective. The solicitors’ clerks who attended often knew too little about their case to be helpful, especially in country cases sent to London, so it became formulaic and made no substantial impact upon the volume of applications for discovery, interrogatories etc.¹⁰⁴ It continued to attract devotees of procedural reform¹⁰⁵ but was too inconsistent with the way the profession and the courts preferred to operate to make much impact upon the problems of the QBD, especially those stemming from the lavish use of interlocutories.¹⁰⁶

Since the summons for directions was ineffective, there was little to restrain parties from fully exploiting the facilities the Judicature Acts provided. The results were unfortunate. ‘Discovery of documents and interrogatories, the theoretical value of which is evident, and which occasionally in practice are essential to the attainment of truth, in very many instances only added to the costs of the action without any commensurate benefits to the suitor.’¹⁰⁷ The main benefit was often to solicitors in generating additional costs at little expense in time (p.821) and effort.¹⁰⁸ Consequently restrictions had to be considered, though opponents argued that the ready resort to information about the other side’s case frequently brought about a settlement.¹⁰⁹ Leave was already required for interrogatories in most cases, and from 1893 they were to be allowed only where ‘necessary either for disposing fairly of the cause or matter or for saving costs’.¹¹⁰ It would seem, however, that they were still freely sought and granted.¹¹¹

On the common law side discovery of documents was even more eagerly embraced, and when the Judges’ Council proposed stricter rules strong professional opposition prevailed.¹¹² Like interrogatories, discovery sometimes operated to terminate a suit, but where it did not, it often inundated the trial with documents, some of doubtful relevance.

4. The Trial of Civil Actions¹¹³

The whole pre-trial process had therefore become greatly extended and complicated,¹¹⁴ and it was commonly believed that another problem was ‘the more elaborate manner in which cases are contested’.¹¹⁵ Changes in the law of evidence no doubt contributed to lengthening criminal trials¹¹⁶and Hollams felt the increasing reliance on expert witnesses had a similar effect on civil trials.¹¹⁷Counsel’s speeches were said to be growing longer¹¹⁸ and, increasingly anxious about appeals, judges contributed to the lengthening of trials, both by permitting counsel to read long documents to the court, and by elaborating their own summings up and judgments.¹¹⁹ What may also have contributed was the failure of a new mode of trial, before an official referee, and the tenacity of an old one, trial by jury.

One of the innovations suggested by the Judicature Commissioners was that a plaintiff should be able to elect for trial before a referee, preferably one of the new, full-time official referees. It would also be open to a judge to direct a referee (p.822) to handle either the cause itself or any matter in connexion therewith.¹²⁰ Despite resistance to giving the judges this power the official referees were created by sections 56–7 of the 1873 Act.¹²¹

The first referees were appointed in 1875¹²² but it was soon noticed that they were not being used to any extent and in February 1877 the Attorney-General admitted that they were such a failure, that judges and litigants were preferring the ‘special referees’ also allowed by the Act.¹²³ If the official referees were to be credible that they needed to be men of some repute yet the salary was only £1500 and the first appointments were tainted and discredited by jobbery.¹²⁴ One referee, H. W. Verey, was the subject of personal attacks in Parliament and the press¹²⁵ and others had no pretensions to such positions. These weak choices were all the more damaging because the Lord Chancellor and Lord Chief Justice had successfully fought the Treasury to get them something akin to judicial tenure, and since they had to serve 25 years for a full pension there was no getting rid of them.¹²⁶

Lack of confidence in the referees may have disposed the judges to a very narrow interpretation of their powers, denying them the right to pronounce judgment or to try a case as opposed to an issue.¹²⁷ This was rectified in 1884 but still business was slack,¹²⁸ and as well as substituting an hourly fee for a flat one (the size of the fee was said to have been another deterrent¹²⁹) the Lord Chancellor ordered an inquiry into whether they could be made useful in other ways.¹³⁰ This may have succeeded, for in 1897 one referee was described as ‘the hard-working official, the bearer of so many heavy burdens of the High Court judges’.¹³¹ It was ironic that he was also praised as ‘a conscientious worker in the discharge of a duty from which almost every Queen’s Bench judge draws back as wearisome (p.823) and unpleasant’,¹³² for if that duty was examining judgment debtors, the referee in question, Edward Ridley, made a great fuss about having to do it.¹³³

Ridley had been appointed by Halsbury when it was at least arguable that the referees should be reduced in number, and in 1897 he was further favoured by promotion to the High Court, one of Halsbury’s worst appointments. His replacement, G. W. Hemming, was not held in high regard and was said to eke out his work, which was perhaps one reason why hearings before the referees lengthened like those before judges.¹³⁴ The referees’ court was not popular with the bar,¹³⁵ and when Montague Muir McKenzie, known as ‘the bankruptcy attorney-general’, became a referee his greater aptitude with complicated accounts caused many parties to seek dispensation from the rota of business to obtain his services.¹³⁶ By that time the official referees were performing a useful function, but their role fell well short of what the Judicature Commissioners had envisaged, and in the inquiries into the arrears in the KB Division they were neither consulted nor seen as a possible source of relief.¹³⁷

A sharp fall in jury trials following the 1883 rules quickly levelled out at around half of civil trials and in 1910 had recovered from 54 to 62 per cent. It was always higher on circuit,¹³⁸ but was above half in town too, though Chitty said they were sometimes sought just to delay a trial.¹³⁹ Even the special jury, though often very far from special, was still in vogue.¹⁴⁰ That juries were invincibly prejudiced in certain types of case, particularly where the defendant’s insurance exercised a ‘corrupting influence’, was widely recognized,¹⁴¹ but they still had many defenders.

More than 40 years after Coleridge’s attempt to remodel the jury, a Home Office committee under Lord Mersey sat to overhaul the law and practice. Contained in over 30 statutes, supplemented by custom and practice which varied from place to (p.824) place, it was badly in need of tidying-up and there was a steady volume of complaint about the treatment of jurors and the quality of the justice they delivered.¹⁴²

Aside from rationalizing and improving the processes by which jury lists were compiled and entered into the jury book and jurors summoned and selected, there were several more fundamental issues: qualifications for jury service; the future of the special jury; the payment of jurors and, most fundamental, the right to jury trial. The barristers on the Committee argued that its reference did not extend to the dangerous ground of curtailing the right to jury trial but the chairman ruled that a partial exclusion was within their terms.¹⁴³ Other questions which had been extensively debated in the 1870s—majority verdicts and smaller juries—received only cursory examination this time.¹⁴⁴

The Committee was split on the desirability of democratizing the jury. Most members were not convinced that it was necessary in order to meet the feeling in the labouring classes (especially among trade unionists) that juries brought middle-class prejudices into the box,¹⁴⁵ and while making the optimistic prediction that ‘the amount of education to be found among all classes is steadily and progressively increasing, [and] it is obviously permissible to anticipate a corresponding advance in the standard of intelligence of the common juror’,¹⁴⁶ wanted to retain a property qualification as a surrogate for intelligence and responsibility. The report suggested a reduction to £15 rateable value, £20 in Middlesex¹⁴⁷ and proposed raising the maximum age from 60 to 65.

The inquiry also reprieved the special jury, though a minority dissented, describing it as ‘a class jury chosen by reason of the wealth of its members’.¹⁴⁸ It had, however, been attacked from the opposite viewpoint; the London special juries in particular were said to be of very poor quality, often with a disproportionate number of publicans.¹⁴⁹ This was met by recommending higher property qualifications and abandoning the pretence that special jurors were ‘bankers, merchants or esquires’.¹⁵⁰

(p.825) Payment of jurors had long been a sore point, especially since special jurors received a guinea a day, while common jurors received only a shilling per case (eight pence on circuit).¹⁵¹ This was obviously bound up with the issue of qualifications and it was probably impracticable to make any recommendation entailing substantial public expenditure. As it was, the Committee suggested a modest allowance for travel and subsistence (and, where necessary, accommodation) hoping the cost would not exceed £40,000 per annum.¹⁵²

The most delicate question was, of course, whether the right to jury trial in civil cases should be curtailed. The representatives of the bar were stoutly opposed and were content to repeat the views of previous Chief Justices and a 50-year old Commission.¹⁵³ The others differed and the KBD Commission sided with them.¹⁵⁴ The Mersey Committee recommended that while the right to jury trial was to remain absolute where character was at stake or where all parties desired, it should otherwise be at the discretion of the judge, as would any request for a special jury.¹⁵⁵ But the Mersey report was overtaken by events, and the right to jury trial in civil actions, curtailed near the end of the War and restored in 1925, survived until 1933.¹⁵⁶

5. The Assizes

The shift in business from the provinces to the capital was noticeable in the 1890s and Webster’s optimistic notion that the summons for directions, by giving the master or judge the power to decide where trial should take place, would undo the damage done by the abolition of the venue rule and restore business to the smaller Assize towns, was soon dispelled.¹⁵⁷ On the contrary, it became more pronounced, so that by 1909 there were 2320 actions set down in London and Middlesex against 935 elsewhere.¹⁵⁸ The disproportion in trials was not so great (1,249 against 699), but the respective amounts recovered, £533,211 against £120,211, suggest that (p.826) the metropolitan drift was most pronounced in the heavier cases. As the KBD Commission reported in Benthamic language, ‘[i]f the greatest good of the greatest number is to be studied’, then in the ‘long continued struggle between London and the provinces for the time of judges’, London was getting a raw deal.¹⁵⁹

The beneficiaries were small Assize towns which MacDonell’s annual statistics regularly named and shamed. In 1911 715 criminal cases were tried in five places outside London, another 51 places mustering just 1,752.¹⁶⁰ In civil cases the disparity was even more glaring, for of 620 circuit trials in 1906 no fewer than 270 were held in Liverpool, Manchester, and Leeds.¹⁶¹