The Judicature Act 1873 protected the Chancery division by specifically assigning to it the core areas of Chancery business: administration of estates, mortgages, partnerships, trusts (including charities), land contracts, and wardship.1 Business was brisk, with total proceedings rising steeply from an average of 4,633 between 1871 and 1876 to 7,014 in the next quinquennium and continuing to rise thereafter, though more gently.2 This necessitated the appointment of an extra judge in 1877 and by 1883 cases were being transferred to the QBD to meet complaints of delays.3 Some judges blamed solicitors for bringing nisi prius type actions in Chancery because of its greater generosity with costs, and the Esher Committee accepted that another judge was needed to assist with the growing number of lengthy witness actions.4
When the sixth judge was added, in 1899, business was already in decline. With the exception of 1896–1900 the number of actions commenced fell in every quinquennium after 1886, a trend regularly noted in MacDonell’s annual review. Yet although he described it as ‘one of the most striking facts in the returns of recent years’,5 he made little attempt to explain it.
There is in fact no easy explanation, for the fall does not match the general trend of civil litigation.6Even after the costs in the two divisions were aligned it does not seem that plaintiffs who had the option chose the QBD,7 while the county courts did not attract more equity business in the period of Chancery’s decline.8 Company winding-up petitions were transferred to Vaughan Williams J. ‘as an additional judge of the Chancery division’ in 1892, but were restored to the division (p.835) in December 1901.9 It managed, however, to reject the resumption of bankruptcy, which had been the responsibility of Vice-Chancellor Bacon until 1884, when it was transferred to the QBD.10 The removal of bankruptcy made a considerable dent in Chancery business while the restoration of company matters did little to offset the decline elsewhere. By an Act of 1907 patents were also made the responsibility of a Chancery judge, without much impact on the volume of business.
In the absence of detailed studies, a profile of Chancery litigation, albeit of questionable accuracy, can be derived from the Law Reports.11 The principal categories in 1883 and 1913 respectively were:
(including nine administration suits)
(including two administration suits)
Trusts and Settlements
Settled Land Act
Land (including Vendor and Purchaser Act)
Company and Partnership
Patents, Copyright, Trade marks, Passing Off
Bills of Sale
Land Clauses Acts
Building Societies Acts
Exercise of statutory powers
Such fluctuations are often attributable to changes in the economy and society, but legislation and a court’s reputation also play a part. So with land transactions: their volume and value, at any rate in towns, followed long cyclical movements, one of which reached its peak in 1899 and then fell away steadily until the First World War,12 but their capacity to generate disputes may have diminished. The first Chancery Commission had partly blamed the complexity of the land law for causing delays in Chancery13 and although a comprehensive overhaul only took place in the 1920s, earlier amendments, especially the Conveyancing Act 1881, certainly effected considerable simplifications.14Against that, however, Chancery became a less forbidding venue for land disputes. From 1854 six eminent conveyancers were retained to sort out tangled titles15 and the Vendor and Purchaser Act 1874 (c.78) introduced a more user-friendly procedure for resolving single questions.
No comparable economic trends or legislative reforms affected wills and estate administration but there was a major change in how they were handled. Judges in the 1880s were still despondent at ‘the suffering and ruin occasioned by the delay and expense of chancery proceedings’16 and small estates were still swallowed up in costs; Kay instanced Brown v. Burdett, in which a £4000 estate was consumed by the costs of probate (£1500) and an administration suit (£3000).17 As late as 1895 the Trusts Administration Committee ruefully accepted that any form of official trusteeship must avoid any association with Chancery—indeed the judicial trustees borrowed from Scotland failed partly through that very taint.18 By then, however, the court’s ill-repute was less deserved, for in 1883 the new RSC (Order 55, rule 10) had at last created a simpler procedure; this avoided the full-blown(p.837) administration action which, though not obsolete, quite quickly became a comparative rarity.19
As noticed above, the rules of ‘necessary party’ which had bedevilled both wills and trusts had been much modified in the mid-century. Moreover, alterations to settlements of land, hitherto only possible by a private Act of Parliament, were brought within the jurisdiction of the court, especially by the Settled Land Act 1882, and applications for that purpose were quite numerous.20 Trustees of other settlements, however, found their position so onerous as to produce a crisis of trusteeship towards the end of the century, for despite the Trustee Relief Acts there continued to be a steady flow of disputes arising out of the clash between beneficiaries’ desire to profit from the widening range of investment opportunities and the court’s strict and narrow view of what was permissible.21
2. THE JUDGES
Sir Charles Hall, who filled the vacancy left by Wickens’ retirement in 1873,22 was the last of the vice-chancellors in this incarnation, for though they kept their title under the Judicature Act 1875, future Chancery division judges were styled justices of the High Court; the last vice-chancellor, Sir James Bacon, retired at 88 in 1886.23 Unlike the vice-chancellors, their successors were not initially exempted from circuit duty, which was one factor in the ‘block in Chancery’ until they were relieved of it in 1884.24 By then the Master of the Rolls had been made a purely appellate judge and replaced by a further puisne,25 and although this left the division without a resident head, that seems not to have concerned the judges, while the Lord Chancellor and his permanent secretary probably preferred not to have an intermediate authority through whom reforms of the organization must be negotiated. Certainly Muir McKenzie would claim that more ‘leapfrogging’ occurred in promotions among the clerks in Chancery, where he kept a closer eye on such matters, than elsewhere and the division was the last to have a committee for staff appointments and promotions.26
Just as before, ‘the Division functioned more as a collection of separate courts than as a unitary Division’.27 Apart from the most junior, each judge had three (p.838) chief clerks, with their junior clerks, attached to his chambers and each judge combined hearing witness actions and motions with chambers work.28 Each had leaders who practised (unless on special retainer) only in his court and until 1883 suitors still chose their judge, creating workload imbalances which had to be redressed by periodic transfers of business to the less favoured judges.29 The junior judge had no chambers staff and dealt only with witness actions and business coming from district registries. With the exception of Manchester and Liverpool, the district registries did not account for many actions,30 and although it was suggested that Liverpool originated 1/6th of Chancery actions and Manchester almost 500, the only concession to their insistent demand for devolution was extended sittings at the Assizes; even then, provisions protecting the Duchy of Lancaster court limited their applicability.31 That apart, Chancery remained essentially a metropolitan court.
The division did not cope well with the rapid increase in witness actions and the unexpected enthusiasm of solicitors for originating summonses under various statutes.32 Jessel’s ruthless abuse of the power to send cases to Assizes for trial could not be copied by the other judges33 and a chorus of complaints led to the setting up of the Esher Committee. The Committee’s proposals for remodelling practice were predicated on the addition of a sixth judge,34 business slackened soon afterwards and the new rules probably improved matters. Lord Chancellors found the Treasury unaccommodating, which in turn hampered some of the economies the reorganization promised.35 The new judge finally arrived in 1899, and two years later a scheme first suggested by Horace Davey was implemented, whose principal feature was to combine judges in pairs. Each new action was assigned to a pair, one of whom heard witness actions while the other did interlocutory and chamber work, each pair being assisted by four masters and their clerks.36 The system seems (p.839) to have worked well, at least while business remained relatively slack, and it enabled them to retain their cherished ‘closed shop’ among the Chancery leaders.37
For the Childers Committee the Judicature Acts were an unmissable opportunity to rationalize and economize on the offices of the courts, combining most of the clerical departments, so when the Jessel Committee was charged with putting this administrative reorganization into effect, the separate existence of all Chancery offices—the chambers staff, the registrars, the taxing masters, the pay office, and the office of records and writs—was threatened.38 In fact, however, the integration was both gradual and incomplete.
The Chief Clerks in Chambers [Masters]
In 1874 the chief clerks in chambers were described as being ‘among the hardest worked men in the State service’.39 Pressure on them was growing as statutes sent new types of business their way and solicitors awoke to the possibility of getting things done more cheaply and quickly.40 Some judges, notably Sir John Romilly MR and his successor Sir George Jessel, delegated matters so freely that some lawyers, and at least one judge, felt they had gone rather too far.41 A troubling diversity of practice arose between different chambers, so that ‘[t]he practitioner, instead of being able to conduct his business according to one uniform method, must endeavour to learn the different mode of treatment in each Court and set of chambers. The difficulty of doing so leads to mistake, and mistake causes delay and expense.’42 The problem was that RSC Order 55, rule 15 empowered each judge ‘[s]ubject to these Rules, to order what matters shall be heard and investigated by their Chief Clerks, either with or without their direction, during their progress’, leaving ample scope for divergence.43
(p.840) That the chief clerks got through a great quantity of business was not in doubt,44 but they might have done more, and done it better, had solicitors been less inclined to send inexperienced or incapable clerks and had the snobbery of the bar not precluded counsel from condescending to argue before a mere clerk.45 Nevertheless, the Esher Committee recommended that their authority be enlarged to allow them to draw up certain kinds of order and that they should gradually absorb the registrars and taxing masters.46 Some Chancery judges feared that these proposals would weaken the principle that the judge was to draw his own orders in chambers rather than referring matters to independent minor judges,47 but in practice, ‘either immediately or by degrees, the [clerks] came to do practically everything that their predecessors had done in the exercise of their judicial functions’.48 Many of them disliked winding-up, which was subject to extensive fluctuations and could disrupt their timetable and they were relieved when it was shifted to the registrars in bankruptcy in 1892 as a non-divisional winding-up department.49 Even when business fell away, leaving the chambers vulnerable to accusations of over-manning, they resisted taking on lunacy work as a royal commission suggested,50