The Courts of Appeal

1. The Court of Appeal


The Court of Appeal was almost exclusively an appeal court.1 It absorbed the appellate jurisdiction of the court of Appeals in Chancery, the court of Exchequer Chamber, and various others, though it did not cover Divorce and Prize appeals until 1881 and 1891 respectively.2 Appeals expressly assigned to a divisional court and other instances where appeals were limited or excluded altogether (such as most decisions on costs and criminal trials) were outside its competence.3 Appeals from chambers and from a divisional court hearing an appeal from an inferior court reached the Court of Appeal only with special leave.4

The Appellate Jurisdiction Act 1876 offered a further appeal to the House of Lords in most cases. For a while it was thought that the double appeal might be abolished for English cases and the two appeal courts amalgamated,5 but it gradually became clear that this was not practical politics and only the most optimistic reformers continued to argue for it.6

Instead, since the multiplicity of appeals was a much criticized feature of the remodelled judicature, attention became focused on the relation between divisional courts and the Court of Appeal. Divisional courts were preserved, and even extended to Chancery, Probate, and Admiralty, for ‘such causes as are not proper to be heard by a single judge’.7 This was Selborne’s concession to the common (p.799)lawyers’ dislike to the ‘single judge system’,8 but the number of judges in banc was reduced from four to three, or even two if there was difficulty in assembling a court.9 Cockburn’s Queen’s Bench in particular stuck to its traditions10 and the Coleridge Committee in 1881, while denying any intention of preserving sittings in banc under the guise of the divisional court, proposed to expand its role. The divisional court was to keep appeals from inferior courts, with further appeal only by leave; it was also to be available to suitors in a range of important public law matters and, most important, was to be the final forum for applications for a new trial in jury cases except (1) where special leave was granted; (2) where a difference of opinion emerged within the divisional court; or (3) where the sum at stake exceeded £500. The justification for this last category was curious; without these matters it was felt the common law judges might be underworked between circuits and the Court of Appeal overburdened. Presumably the same reasoning underpinned the proposal that chambers appeals—where section 9 allowed them at all—should not go beyond the divisional court without special leave.11

Selborne had little time for the divisional courts, and Muir McKenzie would later scorn them as an ‘antediluvian fatuity’,12 while the legal press condemned the Committee’s transparent attempt to put the clock back.13 Nonetheless, many of its recommendations were embodied in the 1883 rules.14However, as Bowen pointed out, divisional courts worked by a rotation of judges were a poor substitute for hearings in banc and Coleridge impotently lamented the decline of banc.15 At least initially official policy favoured the Court of Appeal; the Judicature Act 1890 (c. 44) moved chambers appeals and applications for new trials there and the Act of 1894 (c. 16) imposed some restrictions on interlocutory appeals and sent all practice matters direct to the Court of Appeal.16


The membership of the projected Court of Appeal was the subject of much variation, ranged in the several bills of the 1870s between eight and 11.17 All the proposals (p.800) included ex officio the Lord Chancellor (who was not expected to sit regularly18), the three common law chiefs, the Master of the Rolls, and the two lords justices of appeal in Chancery. The court set up in 1875 also included a single justice of appeal (Sir Richard Baggallay), but it never met, overtaken by the decision to preserve the Lords’ appellate role which, of course, diminished the new appeal court to an ‘intermediate court of appeal’.19 Its composition was also changed, emerging with three lords justices (so styled from 187720), and so comprising six permanent judges plus five ex officio. Each lord justice was paid £5000 and given his own clerk.21

Its existence in this shape was also brief, for in 1881 Selborne used the opportunity created by the abolition of two chiefs to remodel it, making the Master of the Rolls its president and exclusively a judge of appeal and adding the President of the PDA; the lord justices were reduced to five, making the full complement nine.22 Selborne had also intended to expand the role of puisne judges in the court. In 1875 the Lord Chancellor had been empowered to call on them at need, which was done by rotation and in order of seniority to avoid invidious reflections on aptitude.23 Now Selborne substituted ‘journeymen judges’24—three judges to be selected annually by their brethren and to sit in the court when business in their own courts allowed—but they did not survive a hostile reception from Cairns, who argued that they would not be available when most needed, during Assizes, and that not all were of the right calibre.25 At the beginning of the 1890s, when arrears were beginning to create difficulties, all former Lord Chancellors were added to the court, sitting at the Lord Chancellor’s request if they consented, though there was little opportunity for this to be invoked.26 Despite suggestions that the court needed more permanent judges there was no increase until 1938.27


One of the contentious issues was whether the appeal court should sit in banc or in divisions. The Judicature Commission took the latter view and although some common lawyers objected, arguing that a three-man court would lack authority if it reversed the decision of a four-strong common law court in banc, it was hardly practicable to do otherwise.28 Cairns and Selborne were in agreement on(p.801) this, and offered only the concession that it might enlarge itself if differences of opinion emerged.29 It mustered eight in Bustros v. White, six in Vagliano v. Bank of England and Re Holloway30 but this was rare, and the Coleridge Committee’s proposal that an appeal from a divisional court by special leave should be heard by at least five was ignored.31

In theory the court had enough members for a third division, and in 1902 this was authorized, though it does not seem to have been a regular occurrence.32 What the LCO really wanted was for the court to be able to sit with just two judges. The 1875 Act had authorized this only in appeals from interlocutory decisions, thereby generating a considerable body of case law on which appeals qualified.33 From 1899 it was permitted in any case where the parties consented, but even then, if the judges differed it must be re-argued before a three-man panel.34 The Bar Council had opposed that extension and was joined by the Law Society in a successful resistance to a further one in 1907.35


In contrast to the Lords’ costly and elaborate mechanism, the Court of Appeal was regarded as ‘simple and satisfactory’.36 All appeals were by way of re-hearing and commenced by notice of motion in a summary way,37 but this concealed a distinction between appeals from interlocutory decisions, in which new evidence was readily admitted, and others, where fresh evidence needed special leave and the process was essentially a review.38 Counsel were limited to two for each party39 and the court normally relied upon the judges’ notes, accepting shorthand notes only if there was good cause.40 The court resisted attempts to deny it the routine service of a registrar in court41 and Kay was credited with introducing the practice of issuing a written judgment as a matter of course.42

There were some criticisms of the court’s methods. It was said to rise earlier for the long vacation than the other courts43 and efforts to discourage long speeches (p.802) from counsel, especially in patent cases, seem to have met with little success;44 indeed the reading of increasingly prolix judgments lengthened trials and some judges were too prone to interrupt counsel.45

The court did make some attempt to discourage appeals. They made it known in the 1880s that they would seldom interfere with a judge’s discretion on matters such as whether to require pleadings and were reluctant to reverse a judgment where the judge had heard and formed an opinion of witness evidence.46 It became notorious that in Esher’s division it was almost a waste of time to challenge a jury verdict;47 in fact after Esher’s retirement, his junior colleague Lopes acknowledged that reverence for the jury had been carried too far.48 If Hollams was right, there was a noticeable change in the new century, for he claimed the court was by then very ready to reverse judges and grant new trials and that this contributed to that spirit of treating litigation as a gamble which drove many commercial disputants to arbitration.49

Hollams’ severest criticism, however, was that the court espoused from the beginning the principle that the loser must pay the costs both of the appeal and the original trial.50 This was not inevitable, for it had a broad discretion to ‘make such order…as may be just’51 and practice in the Exchequer Chamber had been apt to burden the party who claimed that the verdict was against the weight of the evidence with costs. Whether the practice with regard to costs did, as Hollams and others suggested, encourage appeals remains unexplored.52


The ideal of a unitary court with members drawn from law and equity and hearing appeals from both indifferently did not survive the concerns of the respective bars that their doctrines would be at the mercy of ignorant appeal judges from the other.53 These had to be allayed by making provision for common law puisnes to sit on appeals54 and, more importantly, by conceding that each division of the court (p.803) would comprise a mixture of common law and equity judges, with appeals from equity handled by the division with a preponderance of the latter, and vice-versa.55 How this was actually worked in the early years is uncertain, as there are puzzling variations in the composition, and indeed size, of the divisional sittings, and nor did it bed down easily. Cotton had to be allowed to confine himself to Chancery cases, Bramwell occasionally vented his robust dislike of equity and Lush was palpably unhappy outside the common law.56 Sir William James complained of having a common lawyer (Brett) sitting on an equity appeal, but Brett soon got his own back. He claimed that Jessel MR had been given the task of implementing doctrinal fusion through the Court of Appeal and after Jessel’s early death, when Selborne disregarded Sir Henry James’ plea to keep the rolls as the preserve of the equity bar and made Brett MR, the latter set himself to foil any movement of that sort. 57

The accepted view is that Brett’s division of the court tended to dispense common law rather than equity in cases, such as contract disputes, where the two approaches came into conflict although Lindley was something of a counterweight.58 This was particularly important because, as Bowen put it, the Court of Appeal had become ‘the pivot of the system’59 and the chief source of judicial law-making. Broadly speaking, the balance between equity and common law in membership was retained, though the equity bar was angered when A. L. Smith succeeded Fry in 1892, and in 1900 it was suggested that it should lobby for a stronger representation.60

It is not clear how business was allocated between the divisions, since if they sat more or less the same number of days61 that would suppose a broad equality of appeals proceeding from the QBD on the one side and the Chancery and PDA on the other, which statistics do not bear out. Presumably a steadily rising number of appeals under various statutes helped to balance the workload. The Master of the Rolls and the most senior lord justice headed the divisions, an arrangement which had caused Kelly and Coleridge to mutiny because Jessel and James were both from equity,62 and one which did not always work out well. Much clearly depended upon the management style and personality of the chief of division. Thus Brett gave his division a reputation for being ‘very robust’ and unpleasant for senior counsel to argue before and for being cavalier with precedents.63 When (p.804) A. L. Smith took over that character changed, though it was then thought unduly narrow in workmen’s compensation cases.64 The worst court was Vaughan Williams’s. He drove counsel and fellow judges alike to distraction by his garrulousness, impelling Romer, a very able judge, into premature retirement.65Fletcher Moulton became notorious for the frequency of his dissents and the length of his speeches, and when Eady joined the court his frigid sarcasm hardly improved matters.66 There is, however, need for a fuller study.67

2. Criminal Appeals

The Court for Crown Cases Reserved

As explained elsewhere, growing demands to provide a more extensive and effective appeal procedure for those convicted upon indictment led to the establishment of the Court for Crown Cases Reserved in 1848.68 However, the court was intended by its promoter, Lord Campbell, to deflect those demands into a narrower, less contentious channel, and really only gave institutional form to an existing process whereby a trial judge at Assize or the Old Bailey might refer a point of law to the collective deliberation of the common law judges.69

Those private and informal proceedings would now be heard in public, with judgments which might be properly reported.70 The court would have power to quash verdicts or arrest a judgment, though not to order a new trial, and would take references from quarter sessions.71 It would not be necessary for the full court to (p.805) sit, a quorum being set at five, headed by one of the common law chiefs.72However, with no provision for majority decisions, any irreconcilable disagreements would require further argument before the full court.73 The inconvenience of this was spectacularly demonstrated in the Franconia case in 1876, where the difficulties experienced were compounded by uncertainties about the appropriate composition of the full court following changes made in the Judicature Act 1873.74

Full hearings were in fact rare (one or two a year)75 and business was never large,76 perhaps because the decision to refer remained in the unfettered discretion of the trial judge and (for much of its history at least) chairmen of quarter sessions proved reluctant to do so.77 Because of its narrow remit, the court did not meet the demands for a court of criminal appeal.

The Court of Criminal Appeal

In the teeth of tenacious opposition, including that of most KBD judges, a right of appeal from conviction and/or sentence for an indictable offence was at length established in 1907 and the new court began its sittings in 1908.78 Since it was not part of the SCJ, separate provision for rules was needed, entrusted to the Lord Chief Justice and at least three of the court’s judges with the advice of a committee. The committee, on which no judges sat, actually produced the rules, and then went into(p.806)

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