Judicature Acts
Encyclopedia
The Judicature Acts are a series of Acts of Parliament
, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales
. The first two Acts were the Supreme Court of Judicature Act 1873
(36 & 37 Vict c. 66) and the Supreme Court of Judicature Act 1875 (38 & 39 Vict c. 77), with a further series of amending acts (12 in all by 1899).
By the Act of 1873 (ss. 3, 4) the Court of Chancery
, the Court of Queen's Bench (known as the King's Bench when there is a male Sovereign), the Court of Common Pleas
, the Court of Exchequer
, the High Court of Admiralty, the Court of Probate
, and the Court of Divorce and Matrimonial Causes were consolidated into the Supreme Court of Judicature, subdivided into two courts: the "High Court", with (broadly speaking) original jurisdiction, and the "Court of Appeal". Besides this restructuring, the objects of the Act were threefold:
The enactment was bold and revolutionary. By one section the King's Bench, the Common Pleas (in which only serjeants
formerly had the right of audience), 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.
" 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 fiction
s, 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, with rules of equity
restricting the manner in which the courts of equity would intervene.
The existence of these two separate systems led to each party "forum shopping", selecting whichever of the two systems would most likely give judgment in his or her favour, and resulting in litigation being tried across both.
The solution adopted by the Judicature Acts of 1873 and 1875 was to fuse the administration of the two Pleadings became more relaxed, with the emphasis shifting from the 'form' of action to the 'cause' (or a set of causes) of action. Writs for action were filled out for a litigant stating facts, without any necessity of pigeonholing them into specific forms. The same court was now able to apply rules of the common law and the rules of equity, depending on what the substantial justice of a case required, and depending on what specific area of law the pleadings involved. The result was that, when the issues arising from the causes of action were decided in favour of one party, that party got relief.
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 Lord Chief Baron Kelly
(on 17 September 1880), and Lord Chief Justice
Cockburn
(on 10 November 1880), the Common Pleas and Exchequer divisions were consolidated (by an Order in Council of 10 December 1880) with the King's Bench division into a single division, under the presidency
of the Lord Chief Justice of England, to whom, by the Judicature Act 1881 s. 25, all the statutory jurisdiction of the Chief Baron and the Chief Justice of the Common Pleas was transferred. The High Court, therefore, came to consist of the Chancery division, the common law division (known as the King's Bench division), and the Probate, Divorce and Admiralty division. To the King's Bench division was also attached, by an order of the Lord Chancellor dated 1 January 1884, the business of the London
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 have held high judicial office, and certain Lords of Appeal in Ordinary created by the Appellate Jurisdiction Act 1876
.
The Comte de Franqueville in his interesting work, Le Systeme judiciaire de la Grande Bretagne, criticises the use of the word "supreme" as a designation of this court, inasmuch as its judgments are subject to appeal to the House of Lords; the name is a legacy of the Act of 1873 as originally passed, by which the appeal to the House of Lords was abolished. De Franqueville was also severely on the inconsistent usage of the terms "division" and "court" in many different senses (i. i 80 - i 8 i).
There was some exaggeration in both statements. In pursuing the fusion of law and equity which was the dominant legal idea of law reformers of that period, the framers of the first set of rules devised a system which they thought would meet the defects of both systems, and be appropriate for both the common-law and the chancery divisions. In a normal case, the plaintiff
delivered his statement of claim, in which he was to set forth concisely the facts on which he relied, and the relief which he asked. The defendant
then delivered his statement of defence, in which he was to say whether he admitted or denied the plaintiff's facts (every averment 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.
Demurrer
s were abolished, and instead thereof it was provided that any point of law raised by the pleadings should be disposed of at or after the trial, provided that by consent or order of the court the same might be set down and disposed of before the trial (Order xxv. rules I, 2). This, in the opinion of Lord Davey in 1902, was a disastrous change. The right of either party to challenge his opponent in limine, either where the question between them was purely one of law, or where even the view of the facts taken and alleged by his opponent did not constitute a cause of action or defence, was a most valuable one, and tended to the curtailment of both the delay and the expense of litigation. Any possibility of abuse by frivolous or technical demurrers (as undoubtedly was formerly the case) had been met by powers of amendment and the infliction of costs.
Many of the most important questions of law had been decided on demurrer
both in common law and chancery. Lord Davey considered that demurrer was a useful and satisfactory mode of trying questions in chancery (on bill and demurrer), and it was frequently adopted in preference to a special case, which requires the statement of facts to be agreed to by both parties and was consequently more difficult and expensive. It is obvious that a rule which makes the normal time for decision of questions at law the trial or subsequently, and a preliminary decision the exception, and such exception dependent on the consent of both parties or an order of the court, is a poor substitute for a demurrer as of right, and it has proved so in practice. The editors of the Yearly Practice for 1901 (Muir Mackenzie
, Lushington and Fox) said (p. 272): "Points of law raised by the pleadings are usually disposed of at the trial or on further considerationafterthe 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
.
of a jury
. "The effect of the rules of 1883," said Lord Lindley, who was a member of the rule committee, "was to make trial without a jury the normal mode of trial, except where trial with a jury is ordered under rules 6 or 7a, or may be had without an order under rule 2". The effect of the rules may be thus summarised:
), 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.
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.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
, beginning in the 1870s, which aimed to fuse the hitherto split system of courts in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
. The first two Acts were the Supreme Court of Judicature Act 1873
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 was an Act of Parliament by the Parliament of the United Kingdom in 1873...
(36 & 37 Vict c. 66) and the Supreme Court of Judicature Act 1875 (38 & 39 Vict c. 77), with a further series of amending acts (12 in all by 1899).
By the Act of 1873 (ss. 3, 4) the Court of Chancery
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
, the Court of Queen's Bench (known as the King's Bench when there is a male Sovereign), the Court of Common Pleas
Court of Common Pleas (England)
The Court of Common Pleas, or Common Bench, was a common law court in the English legal system that covered "common pleas"; actions between subject and subject, which did not concern the king. Created in the late 12th to early 13th century after splitting from the Exchequer of Pleas, the Common...
, the Court of Exchequer
Court of Exchequer Chamber
The Court of Exchequer Chamber was an English appellate court for common law civil actions, prior to the reforms of the Judicature Acts of 1873-1875....
, the High Court of Admiralty, the Court of Probate
Court of Probate
The Court of Probate was created by the Court of Probate Act 1857, which transferred the jurisdiction of the ecclesiastical courts in testamentary matters to the new court so created....
, and the Court of Divorce and Matrimonial Causes were consolidated into the Supreme Court of Judicature, subdivided into two courts: the "High Court", with (broadly speaking) original jurisdiction, and the "Court of Appeal". Besides this restructuring, the objects of the Act were threefold:
- to combine the historically separate courts of common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and equity; - to establish for all divisions of the new Supreme Court a uniform system of pleadingPleadingIn law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...
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 King's Bench, the Common Pleas (in which only serjeants
Serjeant-at-law
The Serjeants-at-Law was an order of barristers at the English bar. The position of Serjeant-at-Law , or Sergeant-Counter, was centuries old; there are writs dating to 1300 which identify them as descended from figures in France prior to the Norman Conquest...
formerly had the right of audience), 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 "writWrit
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
" 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 fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...
s, 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
Court of Chancery
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
(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
Lord Chancellor
The Lord High Chancellor of Great Britain, or Lord Chancellor, is a senior and important functionary in the government of the United Kingdom. He is the second highest ranking of the Great Officers of State, ranking only after the Lord High Steward. The Lord Chancellor is appointed by the Sovereign...
'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
Parody
A parody , in current usage, is an imitative work created to mock, comment on, or trivialise an original work, its subject, author, style, or some other target, by means of humorous, satiric or ironic imitation...
by Charles Dickens
Charles Dickens
Charles John Huffam Dickens was an English novelist, generally considered the greatest of the Victorian period. Dickens enjoyed a wider popularity and fame than had any previous author during his lifetime, and he remains popular, having been responsible for some of English literature's most iconic...
in the fictional case of Jarndyce and Jarndyce
Jarndyce and Jarndyce
Jarndyce and Jarndyce is a fictional court case in Chancery in the novel Bleak House by Charles Dickens.The case concerns the fate of a large inheritance. It has dragged on for many generations prior to the action of the novel, so that, by the time it is resolved late in the narrative, legal costs...
in Bleak House
Bleak House
Bleak House is the ninth novel by Charles Dickens, published in twenty monthly installments between March 1852 and September 1853. It is held to be one of Dickens's finest novels, containing one of the most vast, complex and engaging arrays of minor characters and sub-plots in his entire canon...
). Also, the practice of the court departed from the original principle of the Lord Chancellor's conscience, with rules of equity
Maxims of equity
The maxims of equity evolved, in Latin and eventually translated into English, as the principles applied by courts of equity in deciding cases before them.Among the traditional maxims are:-Equity regards done what ought to be done:...
restricting the manner in which the courts of equity would intervene.
The existence of these two separate systems led to each party "forum shopping", selecting whichever of the two systems would most likely give judgment in his or her favour, and resulting in litigation being tried across both.
The solution adopted by the Judicature Acts of 1873 and 1875 was to fuse the administration of the two Pleadings became more relaxed, with the emphasis shifting from the 'form' of action to the 'cause' (or a set of causes) of action. Writs for action were filled out for a litigant stating facts, without any necessity of pigeonholing them into specific forms. The same court was now able to apply rules of the common law and the rules of equity, depending on what the substantial justice of a case required, and depending on what specific area of law the pleadings involved. The result was that, when the issues arising from the causes of action were decided in favour of one party, that party got relief.
Overview
Fitzroy Kelly
Sir Fitzroy Edward Kelly PC, KC , was an English commercial lawyer, Tory politician and judge.-Background and education:...
(on 17 September 1880), and Lord Chief Justice
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
Cockburn
Sir Alexander Cockburn, 12th Baronet
Sir Alexander James Edmund Cockburn, 12th Baronet Q.C. was a Scottish lawyer, politician and judge. A notorious womaniser and socialite, as Lord Chief Justice he heard some of the leading causes célèbres of the 19th century.-Life:Cockburn was born in Alţâna, in what is now Romania and was then...
(on 10 November 1880), the Common Pleas and Exchequer divisions were consolidated (by an Order in Council of 10 December 1880) with the King's Bench division into a single division, under the presidency
Presidency
The word presidency is often used to describe the administration or the executive, the collective administrative and governmental entity that exists around an office of president of a state or nation...
of the Lord Chief Justice of England, to whom, by the Judicature Act 1881 s. 25, all the statutory jurisdiction of the Chief Baron and the Chief Justice of the Common Pleas was transferred. The High Court, therefore, came to consist of the Chancery division, the common law division (known as the King's Bench division), and the Probate, Divorce and Admiralty division. To the King's Bench division was also attached, by an order of the Lord Chancellor dated 1 January 1884, the business of the London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
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 have held high judicial office, and certain Lords of Appeal in Ordinary created by the Appellate Jurisdiction Act 1876
Appellate Jurisdiction Act 1876
The Appellate Jurisdiction Act 1876 is an Act of the Parliament of the United Kingdom that altered the judicial functions of the House of Lords. The act was repealed by the Constitutional Reform Act 2005, which transferred the judicial functions from the House of Lords to the Supreme Court of the...
.
The Comte de Franqueville in his interesting work, Le Systeme judiciaire de la Grande Bretagne, criticises the use of the word "supreme" as a designation of this court, inasmuch as its judgments are subject to appeal to the House of Lords; the name is a legacy of the Act of 1873 as originally passed, by which the appeal to the House of Lords was abolished. De Franqueville was also severely on the inconsistent usage of the terms "division" and "court" in many different senses (i. i 80 - i 8 i).
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 fusion of law and equity which was the dominant legal idea of law reformers of that period, the framers of the first set of rules devised a system which they thought would meet the defects of both systems, and be appropriate for both the common-law and the chancery divisions. In a normal case, the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
delivered his statement of claim, in which he was to set forth concisely the facts on which he relied, and the relief which he asked. The defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
then delivered his statement of defence, in which he was to say whether he admitted or denied the plaintiff's facts (every averment 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
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial 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.
Demurrer
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
s were abolished, and instead thereof it was provided that any point of law raised by the pleadings should be disposed of at or after the trial, provided that by consent or order of the court the same might be set down and disposed of before the trial (Order xxv. rules I, 2). This, in the opinion of Lord Davey in 1902, was a disastrous change. The right of either party to challenge his opponent in limine, either where the question between them was purely one of law, or where even the view of the facts taken and alleged by his opponent did not constitute a cause of action or defence, was a most valuable one, and tended to the curtailment of both the delay and the expense of litigation. Any possibility of abuse by frivolous or technical demurrers (as undoubtedly was formerly the case) had been met by powers of amendment and the infliction of costs.
Many of the most important questions of law had been decided on demurrer
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
both in common law and chancery. Lord Davey considered that demurrer was a useful and satisfactory mode of trying questions in chancery (on bill and demurrer), and it was frequently adopted in preference to a special case, which requires the statement of facts to be agreed to by both parties and was consequently more difficult and expensive. It is obvious that a rule which makes the normal time for decision of questions at law the trial or subsequently, and a preliminary decision the exception, and such exception dependent on the consent of both parties or an order of the court, is a poor substitute for a demurrer as of right, and it has proved so in practice. The editors of the Yearly Practice for 1901 (Muir Mackenzie
Kenneth Muir Mackenzie, 1st Baron Muir-Mackenzie
Kenneth Augustus Muir Mackenzie, 1st Baron Muir Mackenzie GCB, PC, QC , was a British barrister, civil servant and Labour politician.-Background and education:...
, Lushington and Fox) said (p. 272): "Points of law raised by the pleadings are usually disposed of at the trial or on further considerationafterthe 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
Box
Box describes a variety of containers and receptacles for permanent use as storage, or for temporary use often for transporting contents. The word derives from the Greek πύξος , "box, boxwood"....
.
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 verdictVerdict
In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. The term, from the Latin veredictum, literally means "to say the truth" and is derived from Middle English verdit, from Anglo-Norman: a compound of ver and dit In law, a verdict...
of a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
. "The effect of the rules of 1883," said Lord Lindley, who was a member of the rule committee, "was to make trial without a jury the normal mode of trial, except where trial with a jury is ordered under rules 6 or 7a, or may be had without an order under rule 2". The effect of the rules may be thus summarised:
- In the Chancery division no trial by jury unless ordered by the judgeJudgeA judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
. - Generally the judge may 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 has a right to a jury in actions of slander, libel, false imprisonment, malicious prosecution, seductionSeductionIn social science, seduction is the process of deliberately enticing a person to engage. The word seduction stems from Latin and means literally "to lead astray". As a result, the term may have a positive or negative connotation...
or breach of promiseBreach of promiseBreach of promise is a former common law tort.From at least medieval times until the early 20th century, a man's promise of engagement to marry a woman was considered, in many jurisdictions, a legally binding contract...
of marriage, upon notice without order; - or in any other action, by order.
- Subject as above, actions are 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 High Court, typically emerging because a plaintiff is convinced that he will not succeed in a civil action. Prior to the 1875 Act, considerable latitude was allowed as to the time when a suitor might abandon his action, and yet preserve his right to bring another action on the same suit (see nonsuit); but since 1875 this right has been considerably curtailed, and a plaintiff who has delivered his reply (see pleadingPleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion...
), 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
Supreme Court of Judicature Act (Ireland) 1877
The Supreme Court of Judicature Act 1877 was an Act of the Parliament of the United Kingdom that brought about a major reorganisation of the senior courts in Ireland.-Provisions:...
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
Court of Session
The Court of Session is the supreme civil court of Scotland, and constitutes part of the College of Justice. It sits in Parliament House in Edinburgh and is both a court of first instance and a court of appeal....
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 ChanceryCourt of ChanceryThe Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid the slow pace of change and possible harshness of the common law. The Chancery had jurisdiction over all matters of equity, including trusts, land law, the administration of the estates of...
; King's BenchKing's BenchThe Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
; and Probate, Divorce And Admiralty Court. For appeal system, see AppealAppealAn appeal is a petition for review of a case that has been decided by a court of law. The petition is made to a higher court for the purpose of overturning the lower court's decision....
.
- Common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
- Courts of England and WalesCourts of England and WalesHer Majesty's Courts of Justice of England and Wales are the civil and criminal courts responsible for the administration of justice in England and Wales; they apply the law of England and Wales and are established under Acts of the Parliament of the United Kingdom.The United Kingdom does not have...
- Equity (law)
- Judicature ActJudicature ActJudicature Act is a term which was used in the United Kingdom for legislation which related to the Supreme Court of Judicature.-United Kingdom:...