Common law reasoning and institution
‘This is the Court of Chancery… which gives to monied might the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is no tan honorable man among its practitioners who would not give – who does not often give – the warning, “Suffer any wrong that can be done you, rather than come here”.’ (Charles Dickens, Bleak House, 1853, Penguin Classics 1971: 51) To what extent, if any, does this warning hold true today in the civil justice process?
The civil justice system is designed to sort out disputes between individuals or organizations. One party, known as the claimant, sues the other, called defendant, usually for money they claim is owed or for compensation for a harm to their interests, like for example the victim of a car accident suing the driver of the car for compensation.
But, however, filing a law suit or claiming damages has not been as easy as it theoretically seems, especially in the field of civil justice. It can be easily observed from the history of English Civil Justice System how things used to and still work. It cannot be better explained in the following: ‘Jarndyce v Jarndyce drones on. This scarecrow of a suit has, in the course of time, become so complicated that no man alive knows what it means. The parties to it understand it least;….. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it….there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee house in Chancery Lane; but Jarndyce v Jarndyce still drags its dreary length before the Court, perennially hopeless [Bleak House, 1853, Charles Dickens].
Holdsworth1 makes much of the fact that Dickens’s novel opens in physical fog and this fog is indicative of the system at the time. Holdsworth points to problems within the system at this time. First, the official machinery of the system was medieval and had been relatively unaltered since that time. Second, the practices of the court had become so technical and so slow and even in uncontested cases the delays were indefensible. Even where new procedures were introduced to attempt to reform the system so the old procedures continued to operate because it was in the officials’ interest for them to do so. Holdsworth notes that just as Gibbon had commented on the operation on Roman law in much the same way the procedure of the court of Chancery was a ‘mysterious science and a profitable trade’2.
At this time there were two main types of courts: (a) Courts Of Common Law, applying the precedents, principles, and rules developed over time by the judges and (b) the Court of Chancery, dealing with disputes regarding property and deciding on the principles of equity. Equity, often derided as discretion varying with the length of the Lord Chancellor’s feet , had built up sets of procedures and rules as complex as common law, thus, Chancery was ineffective, expensive and technically difficult.
The extent of delay, complication and therefore expense of civil litigation may have changed since the time of Dickens’ observations, but how far has it changed or has increased in efficiency is a matter of some debate. According to Civil Justice Review (CJR) 1988, delay in litigation ‘causes continuing personal stress, anxiety and financial hardships to ordinary people and their families. It may induce economically weaker parties to accept unfair settlements. It also frustrates the efficient conduct of commerce and industry’.
The change in the legal system has been slow and gradual. The report of the CJR was largely ignored. The whole process began again with the Woolf Review of the Civil Justice system. In March 1994, the Lord Chancellor set up the Woolf Inquiry (headed by Lord Woolf) to...