1. JURISDICTION

The original limit of the jurisdiction of the county courts in personal actions was £20, and attempts to enlarge it indirectly by ‘splitting the demand’ were struck down, although a plaintiff might abandon the excess of his claim above £20.¹

However, the pessimists who said that the county courts would be soon be expanded were justified. It was an era of weak governments and Henry Fitzroy’s County Courts Extension Bill exposed Russell’s to humiliating rebuffs in the Commons. It was left to the Lords, and in particular Brougham, to dilute its more adventurous provisions, in particular keeping the concurrent jurisdiction of the superior courts in cases over £20 free from any financial disincentive to the plaintiff. Though enthusiasts for expansion were disappointed, an extension of common law actions to £50 was a considerable step. However, despite lamentations that it would be the end of the bar and the prelude to further encroachments it was the last such increase for 50 years.²

Few contemporaries would have predicted that. Brougham’s fecundity in legislative initiatives generated a succession of bills (some of them mere sketches).³ One of them passed in mangled form, ‘a complete mess of confusion’.⁴ Vexed by several others—the Equitable Jurisdiction, Further Extension, and Arbitration Law Amendment Bills—in the session 1852–3, a harassed Lord Chancellor Cranworth charged a royal commission with enquiring, inter alia, whether ‘any further business can be profitably transferred’ to them.⁵

The investigation carried out by Sir John Romilly’s Commission was not very searching and its report is uninspiring. The county courts were praised for their (p.877) ‘simple, prompt and inexpensive procedures; the experiment has been eminently successful, and benefits have been conferred on the community by means of these courts, which it is perhaps difficult to exaggerate’.⁶ The Commission’s enthusiasm, however, fell short of recommending a substantially enlarged jurisdiction. They should be given one of the ‘excluded torts’, (malicious prosecution); a wider jurisdiction by consent and a minor extension to ejectment actions, but even these modest gains were offset by making it easier for the defendant to remove a case within the concurrent jurisdiction into the superior courts.⁷ Moreover, as John Pitt Taylor pointed out in his ‘observations’, the consent jurisdiction would remain illusory while it depended upon the express consent of both parties.⁸

Pitt Taylor advocated a change which continued to be strongly urged whenever reforms were under discussion: that the plaintiff might choose his forum subject to the defendant’s right (either absolute, or more radically, exercisable only on showing cause) to remove the case into a higher court.⁹ It alarmed the bar and its allies and was never enacted; instead there was repeated tinkering with the so-called ‘costs sanction’, the rule whereby a plaintiff who failed to recover more than £20 in contract or £5 in tort in a superior court action was liable to be deprived of his costs.¹⁰ Despite Pitt Taylor’s supposed influence over Cranworth, the ensuing legislation mostly followed the report. It denied the plaintiff costs in cases within the sanction where the defendant submitted to judgment by default, but since the costs to that point were small that may actually have encouraged plaintiffs to resort to the superior courts’ default procedure and allegedly superior machinery for enforcement.¹¹

Ten years later the costs sanction was rather timidly raised to £10 in torts. To the alarm of lawyers, the 1867 Act also entitled the defendant in a superior court action within the concurrent jurisdiction to have it remitted to the county court unless the plaintiff showed good cause.¹² ‘Not a reform but almost a revolution’, announced the County Courts Chronicle,¹³ but this was a wild exaggeration, for relatively few defendants wanted to change the forum and judges took little persuading that there was good cause to retain the action.¹⁴

(p.878) The Romilly Commission never delivered its promised further report on equitable jurisdiction.¹⁵ Nevertheless, over the following decade the county courts steadily acquired additional powers which (with the notable exception of divorce) came close to making it a court of complete civil jurisdiction.¹⁶ Small probates arrived in 1858,¹⁷ but much more important was the reconstruction of insolvency law and practice in 1861. From their inception the county courts had had some jurisdiction over insolvent debtors,¹⁸ but with the amalgamation of the separate regimes for bankruptcy and insolvency, judges and registrars in selected provincial towns were given jurisdiction in bankruptcy, something the Walpole Commission had rejected in 1854¹⁹ and which barely scraped through the Upper House.²⁰ Since there was no limit to the size of the estates they could handle, this created an anomalous situation whereby the county courts were trusted to handle estates worth thousands of pounds while contractual disputes and accident claims for less than £100 were regarded as beyond their capacity.²¹ It was well used too; in 1869 nearly 5000 bankruptcies, involving nearly £70,000 of property, went through the county court.²²

Equity jurisdiction over claims up to £500 finally arrived in 1865 after a rearguard action led by Lord St. Leonards. Opponents made some pertinent objections, in particular about the administrative machinery Chancery suits often needed, but the clamour for a forum where small estates would not be consumed in costs was ultimately unanswerable. In expectation of a considerable accession of business the Treasury agreed to raise the judges’ salaries by £300 and was unamused (others were puzzled) when it amounted to fewer than 800 suits a year.²³

The final addition in the 1860s was Admiralty, but Admiralty practitioners and officers were successful in restricting the devolution to 22 named courts and the maximum at stake to £300.²⁴

(p.879) Notwithstanding these accretions, county court business continued to be dominated by common law actions, and even tort claims were fewer than might have been expected in the age of the railway and the factory.²⁵ Furthermore, most claims were still for small sums: of 940,342 plaints in 1869, only 12,029 were above £20 ( just 28 over £50, under the consent provisions).²⁶ A professional journal could still sneer that ‘at present the county courts furnish a mere machinery for the recovery of trumpery debts, indeed, are a kind of collecting agency for the tallyman and other small dealers’.²⁷Such bluster, however, often concealed unease at their potential impact, and particular anxiety over what the Judicature Commission might propose.

The questions it circulated suggest the Judicature Commission was predisposed to recast the county courts into fewer districts, each with a judge sitting mostly at a major trial centre and making forays to the satellite towns at need. The judge would probably handle some cases above the existing money limit, leaving his registrar to deal with small debts in the lesser towns.²⁸ The ‘central courts’ which its report envisaged were intended to deal with an ‘intermediate class of cases, which frequently involve questions of complexity, and of serious importance to the parties interested, yet the expense of taking the parties and witnesses to any considerable distance from the place where the cause of action arose, and they probably dwell, is generally wholly disproportionate to the value of the matter in dispute’.²⁹Like so many reformers before and after, the Commissioners favoured a jurisdiction unlimited by amount (and augmented by the remaining excluded torts) but with the defendant able to remove it upwards as of right; the judges would be freed for this work by giving the registrars jurisdiction in all cases up to £5.³⁰

Since this change would ‘necessarily cause a considerable diminution in the civil business of the assizes’,³¹ fierce opposition could be expected from traditionalists, and the delay in issuing the report, and its trail of dissents and reservations, considerably weakened its authority. Although Cairns (as would appear) had ambitious views of his own, he made no effort to enact the recommendations.³²

Impatient reformers brought forward their own proposals and in 1878 three bills, differing in their scope, and sponsored respectively by the radical Joseph Cowan, Sir John Eardley Wilmot, an ardent follower of Brougham, and Charles Norwood,³³ were forwarded to a Commons’ select committee. It revisited the questions so recently examined by the Commissioners but in a very different (p.880)atmosphere. Eardley Wilmot was a partisan and unskilful chairman and some members had entrenched opinions impervious to evidence. The chairman could not carry the Committee with him; his own bill was roughly handled, and even Norwood’s modest measure, which (somewhat revised) became the reformers’ choice, would clearly not have an easy passage.³⁴

Out of the blue Cairns produced a bill more radical than Norwood’s, seizing on severe congestion in the QBD as demanding several solutions: the unlimited county court jurisdiction, plus a higher limit for equity suits; an increase in the ‘costs protected’ limit to £200; and measures to encourage more remitted actions.³⁵ The failure of Cairns’s bill remains something of a mystery. Curiously, it was attacked by Selborne (who had signed the Commission’s report) and Hatherley, and though it reached the Commons in a modified form, it was withdrawn without explanation.³⁶ The following year (1880) the ministry fell and the bill never resurfaced. Norwood’s made token appearances for a few years but it became apparent that the movement to reform local justice was stalled.

There were several reasons for a failure which marks a watershed in the history of the county courts. Seemingly Cairns and Selborne found co-operation on this more difficult than on reforming Westminster Hall, and the Treasury’s veto on raising judges’ salaries (understandable after the equity jurisdiction episode) was a problem.³⁷ So too were the divisions among those, especially commercial interests, who wanted better local justice. A widespread preference for tribunals of commerce or provincial branches of the High Court weakened the lobbying for expanded county courts.³⁸Moreover even the most ardent advocates for county courts could not deny that they had serious defects. They lamented judges whose claims could only stem from connection, men who had made no mark at the bar. They deprecated the antics of others like J. W. Smith, W. H. Cooke, T. E. P. Lefroy and Crompton Hutton whose idiosyncratic interpretations of law, despotic courtroom manners, or sheer indolence brought the whole bench into disrepute. They admitted there were doubts over whether some of the country registrars could be trusted with judicial functions, and there was the undeniable fact that many liberals deplored the courts’ reliance on imprisoning poor debtors to enforce its judgments.³⁹

Perhaps the most powerful factor, however, was the attitude of the legal profession, particularly the higher judiciary, the bar and the Law Society. The bar was over-represented in Parliament and solicitously protected by the law officers; it (p.881) gratefully echoed Lord Blackburn’s warning that ‘the great central bar of England’, a necessary safeguard against judicial tyranny, would be irreversibly damaged if the Assizes were weakened by provincial courts or enlarged county courts.⁴⁰

From the 1880s these conservative forces had a staunch ally in Lord Halsbury. In and out of office Halsbury was a doughty champion of the High Court and the Assizes and an immovable opponent of county court encroachments.⁴¹ His unwillingness to bring forward even minor procedural improvements was probably influenced by a disagreeable experience with the consolidation bill of 1888. Such a measure was badly overdue and though Halsbury had dropped the accompanying amending bill⁴² and insisted that it should not become a vehicle for changes, the government was hard pressed on several important amendments; one sought to raise the money limit to £150; another to create unlimited jurisdiction subject to removal on showing good cause, and a third raised the costs—protected figure in contract from £20 to £50.⁴³ As it was, Halsbury had to accept several unpalatable minor changes; in particular, registrars were given jurisdiction in contested personal actions up to £2⁴⁴ and the ill-drafted section 65, which Cave J. was ‘unable to put any meaning on’⁴⁵ required contract actions for £100 or less to be remitted from the High Court ‘unless good cause is shown to the contrary’; since 30 per cent of defended QBD actions already fell within the scope of remitted actions, section 65 had the potential to displace a lot of business into the county courts.⁴⁶

Halsbury’s hostility to county courts did not extend to new statutory duties. These were numerous, but few created much work, even when expected to do so, like the Employer’s Liability Act 1880.⁴⁷Ironically, the next statutory initiative covering industrial accidents, Chamberlain’s Workmen’s Compensation Act 1897, which its author intended to be as judge proof as possible, gave county(p.882) courts more work than any special jurisdiction before the Rent Acts. County court judges were by far the most popular choice among the arbitrators listed in the Act and after the protective regime was extended to most trades in 1906 their caseload rose from 1046 in 1900 to 5289 in 1913,⁴⁸while registrars had the duty of appraising the adequacy of voluntary settlements presented to the court for approval and in managing funds deposited for infants and widows.⁴⁹ Judges found their role a taxing one, since besides the notorious difficulty of interpreting key words and phrases in the legislation, the parties tended to be supported by trade unions and insurance companies who funded professional representation, and showed a willingness to appeal hitherto confined to railway companies.⁵⁰

Until 1902 Halsbury easily fended off demands for wider common law jurisdiction. The Association of British Chambers of Commerce began a new campaign in the 1890s⁵¹ but bills presented from 1897 onwards to raise the money limit to £1000 (cases above £100 being removable on good cause) and designate ‘special courts’ on the busiest circuits with better paid judges whose registrars would hear cases up to £20, were given short shrift.⁵² Still, there was rising dissatisfaction with the QBD and though many resorted to arbitration even some with little love for county courts were driven to support their enlargement as a palliative.⁵³ When a former county court registrar, Sir Albert Rollit, took up the cause in 1902 the government was thrown onto the defensive. Rollit persuaded the chambers of commerce and the Law Society to support a less ambitious scheme, giving registrars jurisdiction up to £5 and doubling the upper limit in tort and contract to £100. He neatly sidestepped the usual objection—that county courts were overworked and lacked the facilities to handle larger cases—by stipulating that those should be heard only in courts designated as suitable by order in council.⁵⁴

Halsbury had the backing of the Treasury (which feared having to pay judges bigger salaries) in resisting Rollit⁵⁵ and he was characteristically scornful of the ‘marvellous ignorance’ of the bill’s supporters.⁵⁶ However, the ministry badly misjudged the temper of the Commons and suffered humiliating defeats.⁵⁷ Even then Halsbury would not yield, but nearly two years of clumsy manoeuvering (p.883) to emasculate the unwanted measure ended in failure. The Act Halsbury had denounced as unworkable was found to be quite straightforward, but in the acrimony and blundering opportunities were lost for much needed procedural reforms and the indignant judges were left unrewarded. ⁵⁸

This measure, which one opponent had claimed ‘would practically wreck the ancient system of the administration of civil justice in the country’,⁵⁹ did nothing of the sort. Nevertheless it was fairly successful, leading to more than 2000 suits a year over £100. Even so the KBD was still unable to cope, but Halsbury proved no less dogmatic in opposition and Loreburn had problems enough in persuading the whips to find room for county courts in a crowded legislative programme without the likelihood of opposition in an Upper House with a big Conservative majority. Loreburn set up a committee under Lord Gorell to investigate relations between High Court and county court and was disappointed with the conservative tenor of its report.⁶⁰ The Committee was more concerned to improve the workings of the High Court than to remove business from it,⁶¹ but since it could not ignore the exasperation of commercial litigants it reluctantly revived the old suggestion that it should be open to the plaintiff to start almost any case in the county court, the defendant being able to remove it simply by entering an appearance in the High Court. Cases above the county court money limit would be confined to special county courts and the bar would have exclusive audience.⁶² Even this measure would not be brought in until its proposed remedial measures in the KBD had been implemented.⁶³

However, the Gorell Report contained one unexpectedly radical recommendation. It felt that the only economical way to meet pent up demand for divorce from the poor was in the county court, though here again the bar was to have exclusive audience to preserve dignity and propriety.⁶⁴ This was altogether too controversial for the government, which made Gorell chairman of a commission to investigate divorce law and practice generally. The Commission suggested instead that county court judges might be made Commissioners of Assize and handle divorce in that capacity, but that was shelved too.⁶⁵

Meanwhile Loreburn’s officials assembled a County Courts Bill comprising a mixture of long-standing reform suggestions and the Gorell Committee’s other proposal. The unlimited jurisdiction was boldly placed at the head of the bill (p.884) but in a thin House of Lords Halsbury mustered 37 votes to the government’s 32; Loreburn would not have the bill without its centrepiece and it was therefore withdrawn.⁶⁶ It was reintroduced in 1911 under the shadow of the Parliament Bill but the opposition of several eminent judges and lawyers delayed it in the Lords long enough for it to fail for lack of time.⁶⁷It is probable that Haldane, who succeeded Loreburn, could have forced it through if it had been his top priority, but his interests lay elsewhere and Muir McKenzie told the Civil Service Commission a melancholy tale of bills regularly slaughtered for want of time and energetic backing.⁶⁸ In fact, remitted actions apart, Rollit’s Act was the only substantial change to the common law jurisdiction of the county courts between the Romilly Commission and the First World War.

2. BUSINESS

Denunciations of this ‘ruinous piece of experimental quackery’⁶⁹ concealed fears that it would be only too successful, and so it proved. Even before the money limit was raised in 1850 almost half a million plaints a year were being entered and by 1860 there were more than three-quarters of a million.⁷⁰ The initial impetus came from the release of a pent-up demand, but later trends probably owed more to economic and social changes than to developments within the legal system.⁷¹ Plaint numbers passed 900,000 in 1861 and then fell quite steeply, recovering from 1865 to peak in 1868 before dropping from 975,373 to 865,040 in 1874. Another rise carried them past the million mark in 1877 and they remained pretty stable, between 900,000 and 1,100,000, until the end of the 1890s, rising thereafter to a peak of 1,338,732 in 1904. Shortly before the War they had begun to fall significantly, dropping below 1,200,000 and then they fell precipitously.⁷² Set against changes in the size of the population, however, these fluctuations look less notable. There was certainly a substantial rise in the 1850s and early 1860s but thereafter the picture is one of general stability, with a gentle decline in litigiousness overall.⁷³

(p.885) Since the county courts were highly dependent upon one class of business—contractual debts—the volume of business might be expected to vary noticeably in line with economic fluctuations. Actions for debt recovery arose from two circumstances. The working class (against whom they were chiefly brought) was more likely to seek ‘premeditated’ credit for consumer goods in good times, when they were also less likely to need ‘crisis’ credit for life’s necessities. In bad times the converse would be true, but they would then be more likely to default, though some creditors might be more forbearing for humanitarian or practical reasons.⁷⁴ The most detailed study suggests variations in plaint numbers ‘strongly related to specific short-term fluctuations in the labour market and labour income’⁷⁵ and, as was noticed in the 1890s, trends were often far from uniform across the country;⁷⁶ courts in areas prone to violent cycles of prosperity and misery experienced correspondingly sharper fluctuations in business.

Within these fluctuations one remarkably constant feature was that county courts remained principally institutions for the recovery of small debts. The average plaint value between 1858 and 1862 was £2 8s10d; in 1893–4 it was £3 1s,⁷⁷ and the typical action was for even smaller sums; 70 per cent of judgments issued in 1865 were for £2 or less, 90 per cent for no more than £5, while in 1913 more than 98 per cent of plaints were for less than £20.⁷⁸ The proportion of larger cases hardly increased during the period although in sheer numbers they were not unimpressive; in 1913 some 16,000 plaints above £20 were issued, nearly 3000 of them above £50.⁷⁹

Nevertheless, numerically the county courts dwarfed the High Court, generally accounting for between 80 and 90 per cent of the total, and at times when the QBD/KBD was particularly beset by delays there was a distinct decrease in its share.⁸⁰ However, KBD business was much more mixed; torts made up around a quarter, whereas in county courts they were comparatively unimportant.

This was partly a result of the deliberate exclusion of certain torts from the county court jurisdiction.⁸¹ Though subsequently removed for several, the prohibition remained for the only ones likely to produce substantial business—libel and slander. Though other reasons were sometimes adduced—the doubtful quality of (p.886) the county court jury and congestion in the courts⁸²—the main reason, openly avowed by the Gorell Committee, was simply that ‘it is not desirable to encourage them’.⁸³ Most county court judges probably shared these sentiments, but this came perilously close to ‘class law’: the ‘pothouse slander’ was to be shrugged off, the defamatory utterance in a gentleman’s club might be pursued in the High Court.

Even allowing for the excluded torts, however, observers have been struck by the relative paucity of accident claims in county courts,⁸⁴ for given the number of accidents on railways, in factories and in the streets, it was potentially a fertile field. Yet when Judge Kettle described and disparaged the torts brought before him in the industrial west midlands in 1878, he might have been describing a rustic community. There are several possible explanations. Certainly, as opponents of wider jurisdiction pointed out, the county court lacked the full apparatus of pleadings and interlocutories, but that defect was often exaggerated. Then too, it might be difficult to obtain trial by jury and, more important, the venue was likely to be the defendant’s place of business—inconvenient for anyone suing a railway company. The upper limit on damages was a drawback too, though average awards in the higher courts were below £50. And for solicitors the High Court offered more generous costs; with the costs sanction in torts kept very low there was no real disincentive to take one’s chance in the more promising forum.⁸⁵

Sometimes torts were remitted to a county court from above. Numerically unimportant—they never reached 2000 and by 1914 were little over 1000 a year—their impact was sometimes serious. They were not evenly distributed around the country but were concentrated disproportionately in the London courts⁸⁶ where they disrupted judges’ listing arrangements and were likely to take longer than a run-of-the-mill case.⁸⁷ For these reasons some county court judges vented their irritation in the courtroom or in print.⁸⁸

Though personal actions greatly predominated, others were important for making greater demands upon time and resources. Thus, although the equity jurisdiction was generally seen as a failure, it generated between 600 and 900 cases a year (a remarkably consistent figure), while bankruptcy work, except between 1869 and 1883, was considerably heavier, usually in the 3000s; administration orders, though never so popular as had been hoped, also amounted to several (p.887) thousand a year. The Workmen’s Compensation Acts also kept both judges and registrars busy, with 9000 arbitrations in 1913 and 30,000 memoranda registered (often, but by no means always, a formality).⁸⁹

3. CENTRAL ORGANIZATION

Responsibility for the county courts was initially divided among three government departments. The Lord Chancellor chose the judges and, if it became necessary, removed them, while the Treasury oversaw the financial administration. The main burden fell upon the Home Office, which had general responsibility for organization and operations, including finding courtrooms, arranging the districts and handling complaints, but it was indifferent towards its new charge, and in 1868, with the Judicature Commissioners already deliberating on the future of civil justice, it willingly ceded its responsibilities to the Lord Chancellor, though without any transfer of resources.⁹⁰

In practice the running of the county courts had for some years devolved upon Henry Nicol.⁹¹ Nicol was a relatively junior Treasury official, given charge of its new ‘county courts department’ in 1861. He became ‘a kind of Secretary to [the Lord Chancellor] for regulating the offices of the County Courts’, whose importance belied his modest position and made his attempts at self-depreciation unconvincing. Until a permanent secretary arrived in the mid-1880s he had direct access to the Lord Chancellor and his great experience made him the indispensable factotum in county court matters.⁹²

After Nicol’s retirement in 1892 his successors in the county court department enjoyed nothing like the same influence. Muir McKenzie kept things within his own grasp and dealt directly with his Treasury opposite numbers while the county courts department still carried out the ‘accountant’ duties, along with ‘certain duties not strictly financial’ which arose from the inspections carried out by its examiners.⁹³ The superintendent exercised day-to-day supervision over registrars and their staffs and B. J. Bridgeman (superintendent between 1896–1922) was felt by many registrars to have a narrow and economy-driven outlook. Bridgeman made no secret of his low opinion of many judges, and of registrars and clerks generally, and the registrars came to regard him as their enemy. His entrenched opposition to change also made him unpopular with the LCO and he continually obstructed necessary reforms.⁹⁴

(p.888) One intractable problem in providing a public forum for disputes over small sums is that the cost of providing the facilities will be disproportionate to the amount in dispute. The balance between charging the suitors (which in the superior courts system essentially meant the losing party) and meeting the cost out of general taxation has always been difficult; indeed courts of requests were popular because without paid judges and costly courtrooms their fees could be set very low.

The Common Law Commissioners had optimistically pronounced that ‘very moderate fees, to be paid in each cause, would supply a fund sufficient to defray every expense attendant on the establishment of Local Courts’⁹⁵ and that was the principle adopted in 1846, though the fees were hardly moderate and were supplemented by a temporary ‘tax on suitors’ to defray the cost of setting up offices and courthouses.⁹⁶ Despite a reduction in 1850, the level of fees was the subject of wide and persistent complaint⁹⁷ and with a healthy surplus flowing into Treasury coffers the pressure intensified.⁹⁸ One of the questions asked of the Romilly Commission therefore was ‘whether the fees can be made reduced, or levied in a less burthensome manner’.⁹⁹

That lawyer-dominated body rose easily to that challenge and after a superficial examination produced a draft fees table which abandoned the premise that the courts must be self-financing, assuming that the state should meet the cost of judges and buildings with the suitors paying the rest of the expenses. On that footing, and with the sanguine view that ‘experience renders deficit improbable’,¹⁰⁰ the Commission had no difficulty in suggesting substantial reductions. This more generous funding arrangement was duly implemented in 1856¹⁰¹ but the Commission’s optimism proved unjustified and fees had to rise in 1864. The financial arrangements then came under fire from two inquiries. The Judicature Commissioners found that fees were sometimes oppressive and recommended simplifications in procedure (notably the curtailment of the ‘banking function’) with a view to effect a reduction in fees for the benefit of suitors,¹⁰² while the Childers Committee invoked the taxpayers’ interests; with the net charge reaching £175,000 per annum it found the provision of judges, officials, and courts extravagant.¹⁰³

(p.889) Economies had already been effected by the abolition of district treasurers and most high bailiffs,¹⁰⁴ but when in 1872 the Treasury made a unilateral hamfisted attempt at economy by curbing the judges’ travelling allowances it was forced into an undignified retreat by strident criticism from the judges and lawyers.¹⁰⁵ Nicol was given a hard time by successive inquiries probing the hitherto ineffectual efforts to streamline and modernize the district structure¹⁰⁶ but Selborne, while admitting his failure to reduce judges and districts, insisted that ‘it is clearly not the intention of the Constitution that the Treasury should have the control over the legal departments’.¹⁰⁷

Once the external pressures were relaxed the Treasury and the LCO reached a tacit understanding. The Treasury would not seriously press for major economies while the LCO would not push for higher judicial salaries nor give any encouragement to campaigners for lower fees. The fees agitation resurfaced in the early 1890s, when Henry Fowler described them as ‘enormous’¹⁰⁸ and returns showed that at 5s 2d in every pound recovered they were a little higher than for 1858–62, albeit the rise in legal costs over that period from 10d to 1s 10d, was much greater.¹⁰⁹ The Law Society won enough influential support to force an internal inquiry, but it only resulted in redistribution, not significant reductions.¹¹⁰ The usual defence to the professions’ complaint that High Court costs in small cases were much lower was that the county court plaintiff got a fuller service for his money, but many plaintiffs would have been very willing to forgo that.¹¹¹ They were probably even less impressed by a government spokesman’s defence that high recovery fees helped to discourage the irresponsible granting of credit.¹¹²

The demand for lower fees remained at the top of the shopping lists of reforms presented by creditors’ organizations, fuelled by such annual statistics as those of 1906 showing fees making up 25 per cent of the total monies recovered,¹¹³ and in 1913 the Law Society renewed its campaign. There was little hope of success however. The Treasury was showing a ‘profit’ in most years and the LCO would not jeopardize a subsidy of £100,000 a year.¹¹⁴ Only in a post-war overhaul of the whole structure was a financial re-settlement practical politics.

(p.890) 4. LOCAL ORGANIZATION AND STAFF

The 1846 Act set no limit to the number of judges and courts and, after consultation with local leaders and lobbying from towns, the scheme drafted by Drinkwater Bethune for the Home Office employed 60 judges. Each had a district¹¹⁵ which (outside the metropolitan courts) ranged in population size from 202,000 in mid-Wales to 312,000 in Hampshire.¹¹⁶ R v. Parham ¹¹⁷ confirmed that the Act should be read as allowing one judge per district rather than one per court, which was just as well, for the provision was generous if not downright lavish, with no fewer than 491 courts, some in places which even Bethune called ‘inconsiderable’.¹¹⁸ He followed instructions that no one should be more than seven or eight miles from a court, which was an admirable prescription for local justice in the age of the stagecoach but soon looked extravagant in the age of the railway.¹¹⁹

The power to add or remove towns by order in council was soon exercised: Henley and Woolwich were added, Clutton (Somerset) and Boston (Yorkshire) removed.¹²⁰ Though it was also possible to alter or abolish whole districts, express statutory authority was obtained to give Liverpool a second judge at the expense of an underused district.¹²¹ Once it had become clear that over 300 courts would not pay their way, Nicol prepared schemes for drastic reductions, but local opposition frustrated a plan to close 100 or so in 1849 and half that number in 1857.¹²² Though Nicol kept a list of 60 for possible closure, political considerations continued to make major alterations impossible¹²³ and even minor ones could be thwarted, as in Sussex in 1877.¹²⁴

Similarly, attempts to equalize the workload between districts, strongly urged by inquiries in the 1860s and 1870s, proved tricky. Travelling times had to be taken into account and there were unforeseen obstacles. When a judge in the Manchester district found that courts had been transferred to him he promptly reduced the frequency of his sittings in others to keep his working days at their previous number, and this embarrassing outcome made Nicol wary of further attempts.¹²⁵

As that incident suggests, judges had considerable autonomy in managing their districts. They were supposed to hold court at least monthly in each town but on (p.891) finding little or no business some reduced the frequency even before statutory authority was obtained in 1858.¹²⁶ They found the Lord Chancellor a good deal more liberal in this than the Home Office had been but there were still occasions when a judge would arrive to find no business, like Martineau on three successive visits to East Grinstead.¹²⁷ Official statistics exposed glaring variations in the judges’ number of sitting days; in 1864 three sat more than 165 days, three others less than 110; their average of 135 days in 1873 was well short of the 200 of superior court judges.¹²⁸ Some also made rather liberal use of the power to appoint a deputy in case of ‘illness or unavoidable absence’, so that had to be more strictly regulated in 1888.¹²⁹ Opponents of a wider jurisdiction argued that the judges could not cope with extra work, but though London judges were generally acknowledged to be hard working, Loreburn and Bridgeman felt many had a rather easy life.¹³⁰

Halsbury and his successors preferred to avoid stirring up the question of county court organization generally, and apart from a remodelling of the London courts in 1893 no major changes in distribution or numbers were sought until after the First World War.¹³¹ New courts were opened, underused ones closed, but the number was practically the same in 1914 as in 1847 and the district organization and number of judges was likewise little altered. That may be regarded either as a tribute to Bethune’s well-crafted scheme or an indication of how difficult it was to change the institutions of the law.

5. REGISTRARS

Each court had its clerk, soon styled registrar.¹³² Registrars were required to be solicitors, appointed by the judge subject to the Lord Chancellor’s approval. The Act allowed pluralism and some judges carried this to extremes, as in district 57 where J. M. Carew had charge of all 13 courts.¹³³ Criticisms of a similar position in west Wales, where Morris of Carmarthen had ten courts in his keeping,¹³⁴ soon led to restrictions; unless the Lord Chancellor gave his sanction, it was to be one (p.892) registrar, one court and few exceptions were made;¹³⁵ and in theory at least, registrars had to attend at offices where a day with even a single plaint to be entered was the exception rather than the rule.¹³⁶Numbering almost 500, registrars were able to form their own association with a sizeable membership and it played an active and constructive role in regularizing practice. ¹³⁷

Most registrars were paid by fees. A few made a good thing out of it, but three-quarters were getting less than the statutory minimum of £100 and in small courts the rewards proved insufficient to attract the better class of solicitor.¹³⁸ Part-timers had therefore to be allowed, which became a problem when it was wished to give them judicial powers: there was disquiet at the notion of a man sitting in judgment over litigants who were also clients of his. There were instances where a registrar acted as a judge in his own cause¹³⁹ but more commonly there was a suspicion of bias towards one party, which was hard to test.¹⁴⁰ Although their common law jurisdiction was limited to undefended cases, it was notorious that many registrars helped the judge get through the mass of small debt actions of all sorts¹⁴¹ and in 1888, with formal extension to defended cases under discussion, the government was hard pressed to defeat an amendment making all registrars whole-time.¹⁴² It was, however, unthinkable to instigate a mass closure of all the smaller courts and the solution eventually adopted was a gradual return to controlled pluralism under the guise of ‘grouping’ courts, though this had not been carried far by 1914.¹⁴³

As a rule the judge’s field of choice was rather narrow and in smaller towns the office tended to become the perquisite of one or two of the leading firms, sometimes passing from father to son as it did with the Tassells in Faversham.¹⁴⁴ Some judges resorted to nepotism, a particularly bad example being Pitt Taylor’s appointment of his newly qualified son.¹⁴⁵ Not all incestuous choices turned out badly, however—T. H. Marshall of Leeds was widely reckoned an abler man than his father the judge.¹⁴⁶ The practice of a judge bringing in a registrar from outside, as when Woodfall took F. B. McFea to Plymouth, probably became commoner in the big courts after the changes in remuneration made in 1888, but was always unpopular with local practitioners.¹⁴⁷

(p.893) Remuneration continued to pose an intractable difficulty. It had always been possible for a registrar to be paid a fixed salary (up to £600, raised to £700 in 1856), but the Treasury had seldom been persuaded.¹⁴⁸ A new structure was created after the Romilly Report with three different formulae depending upon the business level in the court, but although fees henceforth went to the Treasury, most registrars’ income was still tied to the number of plaints, or subsequently regulated by a more complicated formula.¹⁴⁹ The registrars’ peculiar hybrid status puzzled the Lisgar Commission¹⁵⁰ and matters were further complicated when two overlapping provisions in the 1888 Act empowered the Lord Chancellor to exclude registrars from practice and make them salaried civil servants. Only 22 cases had occurred by 1914 (more than 40 other registrars undertook not to practise as a condition of appointment) but it had become a widespread aspiration.¹⁵¹ Bridgeman and the Treasury still preferred a system with an element of payment by results, but it was increasingly criticized as anomalous and overcomplicated: as Chalmers wrote, ‘[f]rom a Treasury point of view there is a good deal to be said for the system of payment by results, but as a question of public morality the system is abominable’.¹⁵² Besides the potential for conflicts of interest, it encouraged registrars to stay in post when their physical and sometimes mental condition had deteriorated; Nuneaton’s first registrar, Henry Dawes, was there for 60 years and another arthritic veteran’s contorted progress to the office provided public entertainment.¹⁵³ Both consequences provided legitimate grounds for objecting to the increase in registrars’ judicial powers proposed in successive government bills.

The registrars’ discontent with their terms of employment was greatly exceeded by their clerks. To keep costs down and enable changes to courts and districts to be made without generating claims to compensation, the registrar’s clerks were supposed to be his own employees, and he was financially responsible for losses caused by their carelessness or fraud. Often drawn from his own firm, they were seldom well paid (and sometimes badly treated) and save in a few busy courts (Birmingham was exceptional in having over 50 clerks and ushers) they had minimal prospects of promotion. Lacking any pension scheme, they were even more prone than the registrar to cling on at their desks despite age and infirmity and many registrars were too compassionate to dismiss them, with unfortunate results for efficiency. The clerks formed associations to press their demand for civil service status and pensions, but scattered and vulnerable as they were, (p.894) they were unable to move the Treasury, which did not even know how many they were.¹⁵⁴

6. PRACTICE AND PROCEDURE

In their first quarter century a dozen further county courts Acts, of widely varying size and importance, were passed. The consolidation Act of 1888 was therefore both desirable and overdue, but as the 1903 Act was the only substantial measure before 1919 no further consolidation was necessary until the 1920s.

The 1846 Act was supplemented by a rather sketchy set of rules drawn by a group of superior court judges¹⁵⁵ and in 1850 this code was expanded from 52 to 210 by a newly established rule committee comprising five county court judges.¹⁵⁶ Initially the Lord Chancellor might (and did) alter its composition at will, but from 1856 his power was limited to filling vacancies.¹⁵⁷ The rule-making power was broad and vague and the Committee’s efforts were often criticized.¹⁵⁸ Its most demanding task was dealing with costs, and the first attempt was rejected as too generous by the superior court judges charged with oversight of the Committee.¹⁵⁹ The Committee also made itself unpopular in some quarters a few years later, when it was rather unfairly told to investigate the use of committals; it prudently sought, and essentially adopted, the views of most county court judges, who favoured only minor changes.¹⁶⁰

The superior court judges’ oversight was removed in 1856, only the concurrence of the Lord Chancellor being required, but from 1884 the newly established SCRC scrutinized the rules in draft. It soon found itself with plenty to do.¹⁶¹ The rules had steadily been expanding as new duties were imposed and the initial simplicity of procedure became encumbered with interlocutory facilities etc.¹⁶² In 1886 a much-needed revision was undertaken, mostly the work of the new Birmingham judge McKenzie Chalmers and G. W. Heywood, author of practitioners’ works.¹⁶³ The rules were recast along the lines of the supreme court rules, and by section 164 of the consolidation Act the High Court practice was to apply in default of any rule inconsistent with it.¹⁶⁴

(p.895) The consolidation was urged by Muir McKenzie, and after Nicol retired he and the chairman Lucius Selfe were the dominant force on the Committee. Under their guidance, and with the assistance of several able and long-serving members, the Committee settled into a pattern of productivity (or at least unceasing activity), making or altering at least one set of rules each year. Some were responses to new Acts—the Workmen’s Compensation Acts alone required 100 rules and 80 forms—or decisions of the higher courts, others the result of suggestions received or the members’ own initiatives. Though the rules usually had their critics and were occasionally argued to be ultra vires, most were uncontentious.¹⁶⁵ However, the Committee once blundered rather badly. Since recent High Court decisions, especially Northey, Stone & Co v. Gidney,¹⁶⁶ had so encouraged bulk plaintiffs by a generous interpretation of section 74 of the 1888 Act (which enabled defendants to be sued ‘in the district within which the cause of action or claim wholly or in part arose’ in certain circumstances) that 10 per cent of actions were now being brought under the section, they made the governing rule (Order 5, rule 9) much narrower to curb the practice. The Committee badly underestimated the influence of the credit traders and solicitors and the rule had to be embarrassingly withdrawn.¹⁶⁷

Such was the Committee’s diligence, and the extra duties imposed on the courts, that the rules—consolidated again by Selfe in 1903—had passed 1000 by 1914. The Committee accepted, however, that it was usually beyond them to impose uniform interpretations and practice on the judges,¹⁶⁸though the Association of County Court Registrars, besides being the most useful source of suggestions for rule changes, issued helpful practice notes from 1907. Its president, A. L. Lowe, was regularly consulted on draft rules¹⁶⁹ and many felt the Rule Committee would benefit from the inclusion of a registrar, since judges were less exposed to the direct consequences of some rule changes.¹⁷⁰However, some judges were themselves aggrieved at not being consulted; since their own meetings were thinly attended this grievance was perhaps imaginary.¹⁷¹ In 1919 the Committee was expanded to include a registrar, and also a barrister and solicitor.

To provide speedy and cheap justice the county courts would necessarily be shorn of many of the trappings of the superior courts and could not be expected to match their quality of justice; as one High Court judge rather superciliously (p.896) put it, they were ‘usefully administering summary, imperfect justice’.¹⁷²