Judicature Acts

This article needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. Find sources: "Judicature Acts" – news · newspapers · books · scholar · JSTOR (October 2014) (Learn how and when to remove this template message)

Supreme Court of Judicature Act 1875

Act of Parliament
38 & 39 Vict. c. 77
Dates
Royal assent	11 August 1875
Other legislation
Amends	Supreme Court of Judicature Act 1873
Text of statute as originally enacted

In

c. 77), with a further series of amending acts (12 in all by 1899).

By the act of 1873 (ss. 3, 4), the

". Besides this restructuring, the objects of the act were threefold:

• to combine the historically separate courts of common law and equity;
• to establish for all divisions of the new Supreme Court a uniform system of pleading and procedure; and
• to provide for the enforcement of the same rule of law in those cases where equity and common law recognised different rules.

The enactment was bold and revolutionary. By one section, the

), and the Exchequer, and all their jurisdiction, whether criminal, legal, or equitable, were vested in the new court. The fusion of the systems of law and equity was not complete, however, as the Chancery (equity) division retained a distinct existence within the new court from the Queen's Bench (common law) division, having a certain range of legal questions under its exclusive control, and possessing to a certain extent a peculiar machinery of its own for carrying its decrees into execution. Nevertheless, all actions could now for the first time be initiated in a single High Court, and (subject to such special assignments of business as mentioned) could be tried in any of its divisions.

Common law and equity

The procedure of the common law courts had developed along highly technical and stylised lines. For example, to bring an action in the common law courts a litigant had to file a "writ" chosen from a set of standard forms. The court would only recognise certain "forms of action", and this led to the widespread use of legal fictions, with litigants disguising their claims when they did not fit into a standard recognised "form". The emphasis on rigid adherence to established forms led to substantial injustice.

On the other hand, the Court of Chancery (a court of equity) ran separately and parallel to the common law courts, and emphasised the need to "do justice" on the basis of the Lord Chancellor's conscience, softening the blunt instrument of the common law. However, by the nineteenth century proceedings before the Court of Chancery often dragged on and on, with cases not being decided for years at a time (a problem that was parodied by Charles Dickens in the fictional case of Jarndyce and Jarndyce in Bleak House). Also, the practice of the court departed from the original principle of the Lord Chancellor's conscience, wary of its legal superiority, clarified for once and for all 1615, wherever it conflicted with the common law.^[1] The court undertook self-restraint to safeguard its position. It elaborated the maxims of equity, many centuries old, that restrict its jurisdiction to certain fields of law, impose preconditions for suits/applications and curtail its remedies (particularly damages) which equity might award if there were no common law courts or statute.

The existence of these two separate systems in some of the more common areas of law enabled each party to go "forum shopping", selecting whichever of the two systems would most likely give judgment in his or her favour. A wealthy loser in one court would often try a court in the other system, for good measure.

The solution adopted by the Judicature Acts of 1873 and 1875 was to amalgamate the courts into one Supreme Court of Judicature which was directed to administer both law and equity.

Overview

Lord Chief Baron of the Exchequer

.

There were originally three common law divisions of the High Court corresponding with the three former courts of common law. However, after the deaths of

Court of Bankruptcy

.

The keystone of the structure created by the Judicature Acts was a strong court of appeal. The House of Lords remained the last court of appeal, as before the Acts, but its judicial functions were transferred in practice to an appellate committee, consisting of the lord chancellor and other peers who had held high judicial office, and certain Lords of Appeal in Ordinary created by the Appellate Jurisdiction Act 1876.

The High Court and Court of Appeal were formerly referred to as comprising the Supreme Court of Judicature,^[4] a concept wholly distinct from the current Supreme Court of the United Kingdom

Pleading

The most important matter dealt with by the rules is the mode of pleading. The authors of the Judicature Act had before them two systems of pleading, both of which were open to criticism. The common law pleadings (it was said) did not state the facts on which the pleader relied, but only the legal aspect of the facts or the inferences from them, while the chancery pleadings were lengthy, tedious and to a large extent irrelevant and useless.

There was some exaggeration in both statements. In pursuing the

not traversed being taken to be admitted), and any additional facts and legal defences on which he relied. The plaintiff might then reply, and the defendant rejoin, and so on until the pleaders had exhausted themselves. This system of pleading was not a bad one if accompanied by the right of either party to demur to his opponent's pleading, i.e. to say, "admitting all your averments of fact to be true, you still have no cause of action", or "defence" (as the case may be).

It may be, however, that the authors of the new system were too intent on uniformity when they abolished the common-law pleading, which, shorn of its abuses (as it had been by the Common Law Procedure Acts), was an admirable instrument for defining the issue between the parties though unsuited for the more complicated cases which are tried in chancery, and it might possibly have been better to try the new system in the first instance in the chancery division only.

It should be added that the rules contain provisions for actions being tried without pleadings if the defendant does not require a statement of claim, and for the plaintiff in an action of debt obtaining immediate judgment unless the defendant gets leave to defend. In the chancery division there are of course no pleadings in those matters which by the rules can be disposed of by summons in chambers instead of by ordinary suit as formerly.

The judges seem to have been dissatisfied with the effect of their former rules, for in 1883 they issued a fresh set of consolidated rules, which, with subsequent amendments, are those now in force. By these rules a further attempt was made to prune the exuberance of pleading. Concise forms of statement of claim and defence were given in the appendix for adoption by the pleader. It is true that these forms do not display a high standard of excellence in draftsmanship, and it was said that many of them were undoubtedly demurrable, but that was not of much importance.

.

Many of the most important questions of law had been decided on

, Lushington and Fox) said (p. 272): "Points of law raised by the pleadings are usually disposed of at the trial or on further consideration after the trial of the issues of fact," that is to say, after the delay, worry and expense of a trial of disputed questions of fact which after all may turn out to be unnecessary.

The abolition of demurrers has also (it is believed) had a prejudicial effect on the standard of legal accuracy and knowledge required in practitioners. Formerly the pleader had the fear of a demurrer before him. Nowadays, he need not stop to think whether his cause of action or defence will hold water or not, and anything which is not obviously frivolous or vexatious will do by way of pleading for the purpose of the trial and for getting the opposite party into the box.

Juries

Another change was made by the rules of 1883, which was regarded by some common law lawyers as revolutionary. Formerly every issue of fact in a common law action, including the amount of damage, had to be decided by the

The effect of the rules may be thus summarised:

• In the Chancery division no trial by jury unless ordered by the judge.
• Generally the judge could order trial without a jury of any cause or issue, which before the Judicature Act might have been so tried without consent of parties, or which involves prolonged investigation of documents or accounts, or scientific or local investigation.
• Either party had a right to a jury in actions of
  prosecution, seduction or breach of promise
  of marriage, upon notice without order;
• or in any other action, by order.
• Subject as above, actions were to be tried without a jury unless the judge, of his own motion, otherwise orders.

Abandonment

Among the specific changes to procedure that occurred as a result of enactment of the Judicature Acts was one impacting on the matter of "abandonment of an action". Such an abandonment involves the discontinuance of proceedings commenced in the

), and afterwards wishes to abandon his action, can generally obtain leave so to do only on condition of bringing no further proceedings in the matter.

Other changes

Further steps have been taken with a view to simplification of procedure. By Order xxx. rule i (as amended in 1897), a summons, called a summons for directions, has to be taken out by a plaintiff immediately after the appearance of the defendant, and upon such summons an order is to be made respecting pleadings, and a number of interlocutory proceedings. To make such an order at that early stage would seem to demand a prescience and intelligent anticipation of future events which can hardly be expected of a master, or even a judge in chambers, except in simple cases, involving a single issue of law or fact which the parties are agreed in presenting to the court. The effect of the rule is that the plaintiff cannot deliver his statement of claim, or take any step in the action without the leave of the judge. In Chancery cases the order usually made is that the plaintiff deliver his statement of claim, and the rest of the summons stand over, and the practical effect is merely to add a few pounds to the costs. It may be doubted whether, as applied to the majority of actions, the rule does not proceed on wrong lines, and whether it would not be better to leave the parties, who know the exigencies of their case better even than a judge in chambers, to proceed in their own way, subject to stringent provisions for immediate payment of the costs occasioned by unnecessary, vexatious, or

dilatory

proceedings. The order does not apply to admiralty cases or to proceedings under the order next mentioned.

The Supreme Court of Judicature Act (Ireland) 1877 followed the same lines as the English Acts: the pre-existing courts were consolidated into a Supreme Court of Judicature, consisting of a High Court of Justice and a Court of Appeal. The Judicature Acts did not affect the Scottish judicial system, but the Appellate Jurisdiction Act included the Court of Session among the courts from which an appeal would lie to the House of Lords.

See also

• For a more detailed account of the composition of the various courts, see Court of Appeal in Chancery, Court of Chancery, Queen's Bench, Court of Common Pleas (England), Exchequer of Pleas, Court of Probate, Court for Divorce and Matrimonial Causes, and Admiralty court#Admiralty Courts in England and Wales.
• Common law
• Courts of England and Wales
• Equity (law)
  • Earl of Oxford's Case
• Judicature Act

Notes

External links

• Judicature Acts on the Parliamentary Website
• Text of the Supreme Court of Judicature Act 1891 (c.53) as originally enacted or made within the United Kingdom, from legislation.gov.uk.