In
the history of the
courts of England and Wales
The courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales.
The United Kingdom does not have a ...
, the Judicature Acts were a series of
Acts of Parliament
Acts of Parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries with a parliamentary system of government, acts of parliament be ...
, beginning in the 1870s, which aimed to fuse the hitherto split system of courts of
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
. The first two Acts were the
Supreme Court of Judicature Act 1873
The Supreme Court of Judicature Act 1873 (sometimes known as the Judicature Act 1873) was an Act of the Parliament of the United Kingdom in 1873. It reorganised the English court system to establish the High Court and the Court of Appeal, and ...
(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 Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
, the
Court of King's Bench
The King's Bench (), or, during the reign of a female monarch, the Queen's Bench ('), refers to several contemporary and historical courts in some Commonwealth jurisdictions.
* Court of King's Bench (England), a historic court court of common ...
(known as the Queen's Bench when there is a female Sovereign), the
Court of Common Pleas
A court of common pleas is a common kind of court structure found in various common law jurisdictions. The form originated with the Court of Common Pleas at Westminster, which was created to permit individuals to press civil grievances against one ...
, the
Court of Exchequer, the
High Court of Admiralty
Admiralty courts, also known as maritime courts, are courts exercising jurisdiction over all maritime contracts, torts, injuries, and offences.
Admiralty courts in the United Kingdom England and Wales
Scotland
The Scottish court's earliest ...
, the
Court of Probate
In the history of the courts of England and Wales, 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.
The Judg ...
, and the
Court of Divorce and Matrimonial Causes
In History of the courts of England and Wales, the history of the courts of England and Wales, the Court for Divorce and Matrimonial Causes was created by the Matrimonial Causes Act 1857, which transferred the jurisdiction of the ecclesiastical c ...
were consolidated into the
Supreme Court of Judicature, subdivided into two courts: the "High Court of Justice" ("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 law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
and
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
;
*to establish for all divisions of the new Supreme Court a uniform system of
pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adju ...
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 Queen's Bench, the Common Pleas (in which only
serjeants formerly had the
right of audience
In common law, a right of audience is generally a right of a lawyer to appear and conduct proceedings in court on behalf of their client.
In English law, there is a fundamental distinction between barristers, who have rights of audience in 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
In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, subpoenas, a ...
" 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
The Court of Chancery was a court of equity in England and Wales that followed a set of loose rules to avoid a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
(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
The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
'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
Charles John Huffam Dickens (; 7 February 1812 – 9 June 1870) was an English writer and social critic. He created some of the world's best-known fictional characters and is regarded by many as the greatest novelist of the Victorian e ...
in the fictional case of ''
Jarndyce and Jarndyce
''Jarndyce and Jarndyce'' (or ''Jarndyce v Jarndyce'') is a fictional probate case in ''Bleak House'' (1852–53) by Charles Dickens, progressing in the English Court of Chancery. The case is a central plot device in the novel and has become a ...
'' in ''
Bleak House
''Bleak House'' is a novel by Charles Dickens, first published as a 20-episode serial between March 1852 and September 1853. The novel has many characters and several sub-plots, and is told partly by the novel's heroine, Esther Summerson, and ...
''). 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. The court undertook self-restraint to safeguard its position. It elaborated the
maxims of equity
Maxims of equity are legal maxims that serve as a set of general principles or rules which are said to govern the way in which equity operates. They tend to illustrate the qualities of equity, in contrast to the common law, as a more flexible, ...
, 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.
Pleadings
In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adjud ...
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
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
Lord is an appellation for a person or deity who has authority, control, or power over others, acting as a master, chief, or ruler. The appellation can also denote certain persons who hold a title of the peerage in the United Kingdom, or are ...
Cockburn (on 10 November 1880), the Common Pleas and Exchequer divisions were consolidated (by an
Order in Council
An Order-in-Council is a type of legislation in many countries, especially the Commonwealth realms. In the United Kingdom this legislation is formally made in the name of the monarch by and with the advice and consent of the Privy Council (''Kin ...
of 10 December 1880) with the Queen's Bench division into a single division, under the
presidency
A presidency is an administration or the executive, the collective administrative and governmental entity that exists around an office of president of a state or nation. Although often the executive branch of government, and often personified b ...
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 Queen's Bench division), and the Probate, Divorce and Admiralty division. To the Queen's Bench division was also attached, by an order of the Lord Chancellor dated 1 January 1884, the business of the
London
London is the capital and largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary down to the North Sea, and has been a majo ...
Court of Bankruptcy
A Commissioner of Bankruptcy (England and Wales) was, from 1571 to 1883, an official appointed (initially by commission of the Lord Chancellor) to administer the estate of a bankrupt with full power to dispose of all his lands and tenements.Commi ...
.
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
Lords of Appeal in Ordinary, commonly known as Law Lords, were judges appointed under the Appellate Jurisdiction Act 1876 to the British House of Lords, as a committee of the House, effectively to exercise the judicial functions of the House o ...
created by the
Appellate Jurisdiction Act 1876
The Appellate Jurisdiction Act 1876 ( 39 & 40 Vict c 59) was an Act of the Parliament of the United Kingdom that altered the judicial functions of the House of Lords by allowing senior judges to sit in the House of Lords as life peers, known as ...
.
The High Court and Court of Appeal were formerly referred to as comprising the Supreme Court of Judicature, 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
fusion of law and equity
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
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
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
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
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
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
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. Lawyers informally define a demurrer as a de ...
s were abolished, and instead 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 they 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 An amendment is a formal or official change made to a law, contract, constitution, or other legal document. It is based on the verb to amend, which means to change for better. Amendments can add, remove, or update parts of these agreements. The ...
and the infliction of
costs
In production, research, retail, and accounting, a cost is the value of money that has been used up to produce something or deliver a service, and hence is not available for use anymore. In business, the cost may be one of acquisition, in which ...
.
Many of the most important questions of law had been decided on
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. Lawyers informally define a demurrer as a de ...
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 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
verdict
In law, a verdict is the formal trier of fact, finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In Engl ...
of a
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty o ...
. "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".
['' Timson v Wilson'' 38 Ch D 72, 76] The effect of the rules may be thus summarised:
*In the Chancery division no trial by jury unless ordered by the
judge
A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
.
*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
slander
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
,
libel
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
, false imprisonment, malicious
prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the Civil law (legal system), civil law inquisitorial system. The prosecution is the legal party responsible for presenting the ...
,
seduction
Seduction has multiple meanings. Platonically, it can mean "to persuade to disobedience or disloyalty", or "to lead astray, usually by persuasion or false promises".
Strategies of seduction include conversation and sexual scripts, paralingual ...
or
breach of promise
Breach of promise is a common law tort, abolished in many jurisdictions. It was also called breach of contract to marry,N.Y. Civil Rights Act article 8, §§ 80-A to 84. and the remedy awarded was known as heart balm.
From at least the Middle ...
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
High Court, typically emerging because a plaintiff is convinced that he will not succeed in a
civil action
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
. 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 A non-suit (British English) or nonsuit (American English) is a legal procedure. A plaintiff (or other person bringing a civil action, such as a petitioner) drops his or her suit, under certain circumstances that do not prevent another action being ...
); but since 1875 this right has been considerably curtailed, and a plaintiff who has delivered his reply (see
pleading
In law as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a civil action. The parties' pleadings in a case define the issues to be adju ...
), 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
In parliamentary procedure, a motion is a formal proposal by a member of a deliberative assembly that the assembly take certain action. Such motions, and the form they take are specified by the deliberate assembly and/or a pre-agreed volume detail ...
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
The Supreme Court of Judicature Act (Ireland) 1877 was an Act of the Parliament of the United Kingdom that brought about a major reorganisation of the superior courts in Ireland. It created a Supreme Court of Judicature, comprising the High C ...
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
The Court of Session is the supreme civil court of Scotland and constitutes part of the College of Justice; the supreme criminal court of Scotland is the High Court of Justiciary. The Court of Session sits in Parliament House in Edinburgh ...
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
The Court of Appeal in Chancery was created in 1851 to hear appeals of decisions and decrees made in the Court of Chancery, Chancery Court. The appeals in the court were heard by the Lord Chancellor alone, or as a tripartite panel (supplemented by ...
,
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 a slow pace of change and possible harshness (or "inequity") of the Common law#History, common law. The Chancery had jurisdiction over ...
,
Queen's Bench,
Court of Common Pleas (England),
Exchequer of Pleas,
Court of Probate
In the history of the courts of England and Wales, 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.
The Judg ...
Court for Divorce and Matrimonial Causes
In the history of the courts of England and Wales, the Court for Divorce and Matrimonial Causes was created by the Matrimonial Causes Act 1857, which transferred the jurisdiction of the ecclesiastical courts in matters matrimonial to the new cou ...
, and
Admiralty court#Admiralty Courts in England and Wales.
*
Common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
*
Courts of England and Wales
The courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales.
The United Kingdom does not have a ...
*
Equity (law)
Equity is a particular body of law that was developed in the English Court of Chancery. Its general purpose is to provide a remedy for situations where the law is not flexible enough for the usual court system to deliver a fair resolution to a cas ...
**''
Earl of Oxford's Case
''Earl of Oxford's case'' (1615) 21 ER 485 is a foundational case for the common law world, that held equity (equitable principle) takes precedence over the common law.
The Lord Chancellor held: "The Cause why there is Chancery is, for that Mens ...
''
*
Judicature Act
Judicature Act is a term which was used in the United Kingdom for legislation which related to the Supreme Court of Judicature.
List United Kingdom
:The Supreme Court of Judicature Act 1873 (36 & 37 Vict. c.66)
:The Supreme Court of Judicature Ac ...
Notes
External links
Judicature Acts on the Parliamentary Website*
{{UK legislation
Acts of the Parliament of the United Kingdom
English law
Courts of England and Wales
1870s in the United Kingdom
Civil procedure