The Legal Procedure Committee Of 1881
"Our suggestions are so many, and, if adopted, will work so considerable an alteration of practice and procedure, that we have thought it best to report at once."
Report of the Legal Procedure Committee, 1881
"The mountain has brought forth, but we have rarely read anything more insignificant in its result, compared with the labour and time devoted to production."
(1881) 71 Law Times, 382, on the report of the Legal Procedure Committee
The fourth of the Inner Temple Library illuminations depicts the Court of Chancery in the middle of the 15th Century.
Bowen and Mathew shared an active interest in reform of civil procedure. Mathew's knowledge of procedure matched his learning in the law, and he always encouraged his (many) pupils to make sure that they acquired a firm understanding of the rules. But this did not make him an admirer of the existing ways. On the contrary, a system in which the progress of every case towards a final judgment was delayed by pleadings, particulars, disclosure, interrogatories, multiple interlocutory hearings, and repeated appeals, was at odds with Mathew's no-nonsense attitude of identifying the real issue at the outset and then more or less ignoring everything else. Bowen, meanwhile, was convinced that a wrong turn had been taken with the reforms which had culminated in the Supreme Court of Judicature Acts. He believed that the main reason for ever-increasing cost and delay in the Queen's Bench was that complex and costly Chancery procedures which had evolved in the context of large-scale disputes about real property had been extended indiscriminately to smaller-scale to tort and contract cases, where they were seldom needed.
The two friends and former professional rivals got their first chance to reform what they both regarded as a defective system in January 1881. The Liberal Lord Chancellor Selborne (himself an active reformer, and, together with his Conservative counterpart Lord Cairns, one of the main promoters of the Judicature Acts) decided that the merger of the Queen's Bench, Common Pleas, and Exchequer Divisions after the deaths of Chief Justice Cockburn and Chief Baron Kelly was an opportune moment to review practice and procedure in common law cases. A Legal Procedure Committee was established to consider recommendations for change. Bowen and Mathew (on the eve of his elevation to the Bench) were both appointed to the committee.
The Legal Procedure Committee analysed the outcome of High Court actions commenced in 1879. There had been nearly 60,000 of them, the great majority in the Queen’s Bench. Just over 2,250 - about 4% - had gone to a full trial. Another 7% had been determined by the Court on a summary judgment hearing without trial, under Order 14 of the Rules of the Supreme Court. In a further 28%, the defendant had not entered an appearance to defend the claim, and the plaintiff had been able to obtain judgment in default, without any hearing at all. The remaining 61% had settled, often at a very early stage and without any intervention by the Court. In short, 89% of 60,000 cases had reached a conclusion without any sort of hearing on the merits of the dispute.
The Committee considered that the proper moral to be drawn from these statistics was clear: in the vast majority of cases, disclosure, interrogatories, and even pleadings, were a complete waste of time, effort, and, worst of all, money. The purpose of these stages was to identify and refine the issues and produce evidence directed to those issues, to put the case in a fit state for trial. But only a tiny minority of cases were ever going to come to trial. In the others, the expense of interlocutory stages was simply thrown away. These costs were often considerable, because, the Committee concluded, disclosure and interrogatories in particular often had a detrimental effect of racking up significant costs to no good purpose.
Proceeding from this starting point, the committee made two key recommendations. The first was that there should be no pleadings, discovery, or interrogatories in any Queen's Bench case without an order of the Court. The second was that the Court should decide what orders to make about these matters, and rule on any other interlocutory issues, at the hearing of a new "omnibus summons", which would be called the summons for directions. This would replace the numerous successive summonses with which Queen's Bench cases had become routinely afflicted. (The committee found that 74,500 Queen's Bench summonses had been issued in 1879. That was more than one summons for every case commenced and indicated, since a large proportion of cases settled before any applications were made, that many Queen's Bench cases were subject to multiple summonses.) The idea was that the Court would get a grip on each case at an early stage, dealing with all interlocutory matters at a single hearing by issuing a full set of directions specifically tailored to the particular requirements of each individual case.
The Committee illustrated its thinking by reference to commercial litigation:
The committee is of opinion that, as a general rule, the questions in controversy between litigants may be ascertained without pleadings... Of the cases which go to trial, it appears to the committee that, in a very large number, the only questions are - Was the defendant guilty of the tortious act charged, and what ought he to pay for it; or, did the defendant enter into the alleged contract, and was it broken by him? And, in a great many others, the pleadings present classes of claims and defences which follow common forms. We may take, for instance, the disputes arising out of mercantile contracts for sale, of affreightment, of insurance, of agency, of guarantee. The cases of litigants are usually put forward in the same shape, the plaintiff relying on the contract and complaining of breaches; the defendant on the other hand denying the contract or the breaches, or contending that his liability on the contract has terminated. The questions in dispute are, as a general rule, well known to the plaintiff and the defendant. It is only when their controversies have to be reproduced in technical forms that difficulties begin.
The choice of example surely betrays the influence of Bowen and Mathew. These comments hearkened back to the days before the Common Law Procedure Act 1852, to a time when pleadings in the common law Courts were couched in phrases which were anachronistic and formulaic, but also concise and clearly intelligible to the lawyers and Judges who actually had to read them. There were probably few common lawyers, whether Judges, practitioners, or commentators who strongly disagreed with the Committee's analysis of the basic nature of the problem in Queen's Bench litigation. It was a truth more or less universally acknowledged that pleadings had become more discursive, less coherent, and generally too long since the old ways had been abolished. It was also widely accepted that, while discovery and interrogatories might perform a valuable function in Chancery actions about the landed estates of the ancient English aristocracy, they were less obviously useful in common law claims for compensation by injured workmen or damages for breach of contract. The Committee's principal proposed solution was a different matter. While the Committee's recommendations extended to a variety of aspects of Queen's Bench litigation, such as appeals and costs, and included an eye-catching proposal that trial by Judge alone without a jury should become the default, it was the idea of the summons for directions which proved most controversial, and upon which the report foundered.
By the 19th Century, the Chancery had a bad reputation for excessive delay and cost. The procedures which Dickens attacked in ‘Bleak House’ had been developed for large-scale property litigation. They were even more wasteful when applied to smaller cases in the Queen’s Bench.
The Law Times condemned the concept as unworkable and contrary to common sense. (These remarks were comparatively measured: the same editorial castigated the Committee's proposals in relation to costs as "arbitrary", "absurd", "unjust and unfair", and "objectionable from every point of view". By contrast, The Law Journal welcomed the committee's ideas on the basis that they "are, in the main, such as have been advocated in these columns".) But the opposition which really mattered came from Bowen and Mathew's judicial colleagues. The Queen's Bench Masters protested that they would be unable to cope with the workload of having to deal with an "omnibus summons" in every case, and some Judges similarly complained that appeals from decisions of the Masters on summonses for directions would overwhelm them with interlocutory work.
The remarkable Sir George Jessel, who was Jewish, became Master of the Rolls in an age when it was difficult for anyone of his faith to make headway in the law. His success reflected a determination which could turn to stubbornness, as, for example, when he blocked the Legal Procedure Committee’s proposals for the summons for directions.
These objections were not necessarily rational. As the Committee pointed out, it was difficult to see why one all-embracing summons for directions in every case should generate more work than a succession of summonses directed to individual interlocutory issues. But they were sincerely held and vehemently expressed, and they carried the day. The summons for directions became part of the procedure of the High Court when the Rules of the Supreme Court were revised in 1883. But the amended Order 30 made the procedure voluntary, contrary to the Committee's proposal that the summons for directions should be compulsory in every case. The Master of the Rolls, Sir George Jessel, who was a prominent figure on the Rules Committee, was instrumental in this watering-down of the Committee's recommendations. It rendered the innovation almost entirely ineffective, since solicitors, long-accustomed to dealing with directions under successive summonses as they went along, rather than at a single hearing, and to progressing litigation at their own pace rather than under the control of the Court, almost never resorted to the new procedure. As if further to stifle the reform, the Treasury created an economic deterrent by imposing a relatively high issue fee on the summons for directions. By this combination of circumstances, the concept which had been central to the Committee's plans for procedural reform in the Queen's Bench was rendered a dead letter from the outset, at least in the short term. But not in the longer term. The summons for directions may not have effected any practical change in the 1880's, but at least it had made its way into the Rules of the Supreme Court. It would lie there, neglected and all but forgotten, for a dozen years. But in 1895, it would become central to the procedure of the Commercial Court.
Lord Esher's Initiative
"My dear Lord Chancellor - I received a little while ago a joint letter from Lord Justice Bowen and Mr Justice Mathew calling my attention to many points in our present system of judicature, or rather in the working of it, which, in their judgment, require at least investigation and probably amendment. As to some of these points, I should not perhaps agree with the amendments which I believe my correspondents to contemplate. As to others, I probably should... I propose to move for the appointment of a committee of our own body."
Lord Chief Justice Coleridge to Lord Chancellor Halsbury, December 1891
"My dear Chief Justice - I have myself heard nothing from either of the learned judges to whom you refer, and can, therefore, only guess at what their proposals may be, but I cordially agree with you."
Lord Chancellor Halsbury to Lord Chief Justice Coleridge, January 1892
It was not Bowen and Mathew who initiated the next attempt to reform the procedure of the Queen's Bench. In June 1890, Lord Esher, veteran common law Judge (he had had been appointed to the Common Pleas in 1868) and Master of the Rolls and head of the Court of Appeal since 1883, wrote to the Lord Chancellor, Lord Halsbury, proposing a new Royal Commission to investigate deficiencies in the administration of justice. Esher was a distinguished, if occasionally idiosyncratic, commercial lawyer. (In uncharacteristically deferential mood, T.E. Scrutton, pre-eminent commercial practitioner and, in time, one of the Commercial Court's most famous and bad-tempered Judges, dedicated the first edition of 'The Contract of Affreightment as expressed in Charterparties and Bills of Lading' to Esher.) But he did not have commercial cases specifically in mind when he wrote his letter to Halsbury. The two principal problems which he identified were delays in the Queen's Bench in general, and the drain on judicial resources caused by the proliferation of interlocutory hearings and the routine appealing of every kind interlocutory decision.
Halsbury had no intention of rising to Esher's bait. The original Royal Commission had sat on and off for nearly seven years, producing no fewer than five reports, all at great cost, The process of turning its often-controversial recommendations into Bills, and then steering those Bills through Parliament and into law as the Supreme Court of Judicature Acts of 1873 and 1875, had been time-consuming, arduous, and frequently acrimonious. Moreover, Parliament had been constrained to introduce a raft of amending and supplementary legislation since 1875. The Lord Chancellor had no appetite for starting the whole process all over again, and was too wily to allow the Judges to pass responsibility for resolving their problems to him. Instead, Halsbury tactfully replied that the Judges themselves were best placed to identify solutions.
In theory, this suggestion had merit. Section 75 of the Supreme Court of Judicature Act 1873 provided for an annual meeting of all of the Judges of the Supreme Court in a Council "for the purpose of considering the operation of this Act and of the Rules of Court for the time being in force… and of inquiring and examining into any defects which may appear to exist in the system of procedure or administration of the law". The Act did not actually contain any specific mechanism for implementing the Council's decisions. But the power to amend the Rules of the Supreme Court had been delegated to a Rules Committee of Judges, and so, in principle, it was within the Judges' own power to act on any of decision of the Council which fell within the (relatively wide) scope of the Rules. (Amendments produced by the Rules Committee were subject to a Parliamentary veto, but this seems never to have been exercised.)
Jessel’s successor as Master of the Rolls, Lord Esher, was keen to enlist the help of Parliament to help solve problems in the Queen’s Bench and other areas of the judicial system.
In practice, the Council of Judges had not proved a vibrant force for reform. The Judges were supposed to produce annual reports stating "what (if any) amendments or alterations it would in their judgment be expedient to make in this Act, or otherwise relating to the administration of justice, and what other provisions (if any) which cannot be carried into effect without the authority of Parliament it would be expedient to make for the better administration of justice". But, notwithstanding the widespread recognition of the malign side-effects of the Judicature Acts, the Council had only formally reported twice (in 1880 and 1884), and The 'Solicitors' Journal' doubted whether it had even met since the mid-1880's. In fact, the Council had held gathering as recently January 1890. But the brief and formulaic notice in The 'Law Journal' suggests that it took the form of a low-key and general discussion, rather than a debate about any particular proposals. The Council may not have met at all in 1891 (if it did, no-one appears to have noticed or reported the fact). Lord Chief Justice Coleridge's description of the Council as "practically a dead letter" was justified, for all the good that the body had done. In the circumstances, the Lord Chancellor's suggestion that the Judges themselves should seize the initiative seemed unlikely to lead to action. But Bowen and Mathew now made a critical intervention. In late 1891, they wrote jointly to Coleridge highlighting defects in the existing system of civil procedure.
Lord Chancellor Halsbury, on the other hand, was anxious to avoid a repeat of the protracted Parliamentary wrangling over the Judicature Acts.
Bowen and Mathew did not manage to fire the lethargic Coleridge with enthusiasm for reform. But the Lord Chief Justice could hardly ignore a joint approach from the most respected member of the Court of Appeal, who was also a close friend, and one of the most senior and highly regarded Judges of his own Court. Coleridge also had to concede that a number of other Judges thought that the Queen's Bench had a problem. And so, in December 1891, Coleridge informed Halsbury that he considered it his duty as Lord Chief Justice to summon a meeting of the Council of Judges for January 1892, and to lay before that meeting a proposal that a committee should be appointed to consider, and report to the Council upon, among other topics "the disappearance, or at least the great diminution, of commercial business; the causes of that diminution; and whether any attempts to bring it back to the courts of law be practical or desirable". The Lord Chancellor, no doubt gratified at the success of his tactic of passing responsibility back to the Judges, enthusiastically endorsed Coleridge's proposals. The plan became public when the correspondence between Coleridge and Halsbury was published in the press.
The Unexpected Energy Of The Council of Judges
"The Committee sat for four months after the rising of the Courts at the end of each day; it traversed a large region of subject-matter, and its recommendation have in substance, and with some few alterations, been adopted by the Council after three days' debate."
'A Member of the Bench' (Lord Justice Bowen, The Times, August 1892
The news did not send a thrill of excitement through legal circles. The ineffectual past performance of the Council of Judges generated low expectations. The legal press suggested that better results would be achieved by replacing the office of Lord Chancellor with a Ministry Of Justice to provide efficient administration of the Courts, and by replacing Coleridge with a "strong young head" to take charge of the Queen's Bench's "conglomeration of journeyman Judges". (In late 1892, a bizarre rumour circulated that Coleridge had indeed offered to leave office, but only on condition that his eldest son, Bernard, a QC and a Liberal MP like his father before him, was made a Judge. Even Coleridge's most damning critics in the legal press refused to believe this story. Bernard Coleridge did not become a Judge in 1892, although the Lord Chief Justice did appoint his youngest son, Gilbert, to a newly-created position in the Crown Office before the year was out. Bernard succeeded to the peerage on his father's death in 1894, and became a Queen's Bench Judge in 1907, the first instance of a grandson following his grandfather and father onto the Bench in England, although there was a precedent in Ireland. Paul James Duke Coleridge, great grandson of the Lord Chief Justice's other son, Stephen, became a Judge of the Family Division in 2000.)
In the event, the Council of Judges acted with an energy which defied predictions. In January 1892, the judicial business of the Court of Appeal and High Court was suspended for a day while the Council met and approved Coleridge's proposal to appoint a committee. The committee members worked outside Court hours for four months on a report which ultimately contained no fewer than 101 Resolutions (numbered 1 to 100, but pushed over the century line by the insertion of number 38A). Bowen and Mathew played leading roles in the work. The full Council met for three days in June 1892 to debate the report and vote on the Resolutions. The Council's report was published in August 1892.
The Judges' Resolutions
"Everything the Judges say is good, with but few exceptions... The most important reform of modern times."
(1892) 93 Law Times 380, on the Judges' Resolutions of 1892
"An honest attempt to deal with the many complaints which have been urged against the existing state of things."
(1892) 27 Law Journal 520, on the Judges' Resolutions of 1892
"The profession is glad to observe that the Judges have at length recognised that some Judges have a more special aptitude for trying commercial causes than others, and it is satisfactory that commercial lawyers are to be selected to try commercial causes. I am convinced, however, by information I have received from varied sources, that commercial men prefer commercial men rather than lawyers to settle their differences, and when one considers the better standard of education that now obtains among mercantile men, and the facility and cheapness of their machinery for settling disputes, it is hopeless to expect that the most dramatic reforms will restore commercial business to our Courts."
Llewellyn Atherley-Jones QC, letter to The 'Times', 10th August 1892
The report extended well beyond commercial litigation, and wider even than the more general problems besetting the Queen's Bench. The topics ranged from Chancery clerking arrangements to criminal appeals, from the administration of estates to costs, and from service of writs outside the jurisdiction to a root-and-branch re-organisation of the Circuit system. Indeed, the Circuit accounted for a large proportion of the document. But the committee came up with specific proposals to counteract the draining of commercial cases away from the Queen's Bench in Resolutions 32-38A:
Commercial Court
32. There shall be a cause list for London, headed the "Commercial List".
33. In this list none but commercial causes shall be entered.
34. The entry of causes in this list shall be allowed or disallowed by the associate, who shall have power to refer the question to one of the Judges allocated to try this list, from whose determination there shall be no appeal.
35. In May or June of each year two Judges shall be chosen by the judges of the Queen's Bench Division to try the causes in the "Commercial List" for the coming year beginning October 24.
36. These two Judges shall be continuously engaged in disposing of the causes in this list, except when they are engaged on Circuit.
37. This list shall be divided into two, and the causes in each of such lists shall be assigned to one of the two Judges and then each shall try the causes assigned to him until he has finished his list.
38. It shall be competent to either Judge to expedite the hearing of a cause in this list, or to direct a transfer to the other Judge with the consent of the other Judge.
38A. That for this "Commercial List" a general jury panel should be formed of persons conversed with commercial matters.
In substance, these Resolutions adopted the 1888 recommendation the Joint Committee of the Bar and the Law Society. They were directed squarely at the problem of commercial disputes being determined by people with no experience of commercial law or practice. In the proposed Commercial List¸ cases would be tried before specially-selected Judges, with experienced jurors for jury trials. The provision for the Judges to try commercial cases continuously until they had finished their list was intended to reduce the waiting time for commercial trials. Resolutions 32-38A did not address the problems of excessive delay and costs at the interlocutory stages of Queen's Bench proceedings. The Joint Committee's 1892 report had included a new proposal that the Judge should deal with all interlocutory applications in commercial cases. The Council of Judges did not adopt this. Instead, they proposed more general reforms for the interlocutory stages in all Queen's Bench cases. By Resolutions 11, 15 and 19-20, voluntary summons for directions provided for in Order 30 of the Rules of the Supreme Court was to become compulsory in all Queen's Bench cases (unless the Plaintiff applied for summary judgment in which case the Court would give directions if it gave the defendant liberty to defend). Pleadings, interrogatories and disclosure were only to be allowed if the Master decided, on the giving of directions, that they were necessary for the fair trial of the case.
The mystery “Member of the Bench” who wrote two lengthy letters to The ‘Times’ explaining the thinking behind the Judge’s Resolutions was Charles Bowen. The publicity did not help to get the proposal for a Commercial Court past Lord Coleridge.
This revived the key recommendations of the 1881 Legal Procedure Committee, which had been frustrated by Sir George Jessel MR. of the Queen's But, by 1892, Jessel had been dead for 9 years, killed by diabetes-related heart disease at just fifty-nine. Since his successor, Lord Esher, was a supporter of reform, this scheme for judicial control of the interlocutory stages of Queen’s Bench litigation appeared to have better prospects of winning acceptance now than a decade before. Resolutions 79-80, meanwhile, tackled the problem of interlocutory appeals by proposing restrictions on appeal from a Judge. The idea was that, in most cases, decisions on the summons for directions could be appealed once, from the Master to a Judge, but no further.
Bowen, writing as an anonymous 'Member of the Bench', sent two letters to The ‘Times’ explaining in detail why change was necessary and the thinking behind the proposed reforms. He vividly explained the problems which had driven commercial litigants from the Queen's Bench and why the Commercial List was needed:
The bulk of the disputes of the commercial world seldom in these modern days finds its way into the Courts. Merchants are shy of litigation. No solicitor can tell his client beforehand, even with a moderate degree of certainty, what is the limit of cost to which a man may be put, either in prosecuting or in defending his just rights. Statements of claim and statements of defence, affidavits of documents, and copies of correspondence, interrogatories, and further interrogatories - all may furnish materials for learned arguments before master and judge, before Divisional Court and Court of Appeal. And when at last the exhausted belligerents arrive at the verdict of a jury or the decision of a High Court judge, a year's law is given even then to the defeated party, during which he may appeal to the Court of Appeal, and one more year within which to begin his luxurious march towards the House of Lords. Two considerations are important to men of business when contemplating the possibilities of litigation. The first is - money. 'How much is it likely at most to cost?' The second is - time. 'How soon at the latest will the thing be over?' They want to close their books at the end of the current year, to write off bad and hopeless debts, to know upon what lines next year to deal with similar questions should they arise.
The Failure Of The Judge's Resolutions
"What has become of the report of the Council of Judges?"
The 'Times', 27th October 1892
"The almost forgotten Resolutions of the Council of Judges..."
(1892) 93 Law Times 265
What effect Bowen's letters had on the newspaper-reading public is unknowable. But it is certain that his case, although persuasively put, did not convince all of his colleagues. When the Council of Judges voted on the Commercial List on 17th June 1892, Resolutions 32-38A were approved by twenty votes to five. The figures indicate an enthusiastic turnout, or at least a dutiful one: leaving aside the Lord Chancellor, who was a Judge of the Supreme Court by virtue of his office, there were twenty-eight eligible voters. And the size of the majority conveys the appearance of a ringing endorsement. But this is deceptive. All five dissentients were members of the Queen's Bench, so that the margin in the Division which would be affected by the introduction of the Commercial List can have been no greater than ten to five. More significantly, the opposition was led by the head of the Division, the Lord Chief Justice. Coleridge stuck resolutely to his principle that the Queen's Bench was a collegiate body, and that all of its Judges were equally capable of undertaking any of its work. (This attitude of mind outlived Coleridge. In February 1897, nearly two years after the creation of the Commercial Court, the Attorney General, Sir Richard Webster - who later occasionally sat in the Court as Lord Chief Justice Alverstone - told the House of Commons that, while the new Court had been a success, increased judicial specialisation was undesirable because it would "narrow and dwarf the minds of the Judges" and prevent them from becoming all-rounders. Approaching the point from a very different perspective, The 'Law Times', which generally supported the Commercial Court, expressed concern in 1898 that insulating a substantial part of the Queen's Bench from the intellectual challenges of commercial litigation would make it easier for governments to appoint talentless lawyers to the non-commercial sector as a reward for political services.)
Guilty men: the four Queen’s Bench Judges who sided with Lord Coleridge in opposing the Resolutions for a Commercial Court: (from top) George Denman, “Hanging” Henry Hawkins, William Grantham, and John “Judgment” Day. They were not the brightest and best of the judiciary.
The others who voted against the resolution were Sir George Denman, Sir Henry Hawkins (the same Henry Hawkins who had worked with Coleridge, Bowen, and Mathew in Tichborne days), Sir William Grantham, and Sir John Day. Perhaps they simply followed the Lord Chief Justice's lead. But there were possible reasons for opposing a Commercial List which were very different from Coleridge's. Coleridge's philosophy was reactionary, rooted in nostalgia for the days before the Judicature Acts. However, special arrangements for commercial cases were, in principle, just as objectionable to progressives (as they saw themselves) who championed the Acts. The whole point of the Acts had been to do away with the different royal Courts of olden times, with their diverse traditions and procedures, applying either common law or equity according to their historical origins, and replace them with a single High Court which would try every sort of civil case applying both common law and equity and under a unified procedure. In that context, the suggestion that commercial cases should be treated differently could be seen as deeply retrograde. It was true that the separation of the High Court into different Divisions with their own allocated areas of business meant that a degree of specialisation survived the Acts. But the most enthusiastic reformers hoped that this would be a short term arrangement, and that, in time, even the conceptual divide between common law and equity would disappear, leaving a single Court to administer a single body of substantive law under a uniform procedure.
In the event, this lofty ambition did not flourish. In an early bout of enthusiasm, a small number of innovative judicial appointments were made, with common law practitioners assigned to the Chancery Division and equity specialists to the common law Divisions. But this was not popular with the legal profession (or existing Judges), and, within a decade of the Judicature Acts, it was settled practice to appoint Chancery Judges exclusively from equity practitioners and Queen's Bench and Probate, Divorce & Admiralty Judges solely from the common law Bar. This inevitably generated a sense of entrenched separation between the Chancery and the other Divisions. In substance, if not in form, the equity and common law courts of old were in many ways preserved. This divide was reinforced when an unedifying experiment in sending manifestly unqualified Chancery Judges on Circuit was abandoned after some notable fiascos in criminal cases. As a result, the Circuits became the exclusive preserve of the Queen's Bench. (Although the Probate, Divorce & Admiralty Judges were common lawyers, they habitually avoided Circuit by the simple expedient of claiming to be too busy with their regular caseload.) These developments reflected a dominant perception that the Divisions, although in some sense a single Court, were in another sense three distinct entities, each with their own fields of expertise and responsibility, much like the pre-reform Courts. This idea of difference filtered upwards to the Court of Appeal. Panels were selected according to the nature of the case, with former Chancery Judges dominating on Chancery appeals and common lawyers on cases from the other Divisions. In time, the Court of Appeal came to acquire a common law side and an equity side, which seldom mingled.
In this environment, the proposed Commercial List could be seen as consistent with the continued survival of judicial specialisation. As the legal press pointed out, there were already dedicated Bankruptcy and Railway & Canal Commission Judges. There was also growing pressure for specific judicial expertise in other areas. Arrangements had been made in 1891 to direct all High Court bankruptcy work to Sir Roland Vaughan Williams, who was a recognised expert. This was followed by calls for a dedicated patent Court, or at least a separate list of patent cases to be tried by a specialist Judge. Nevertheless, it was impractical to force the Commercial List into being against the will of its opponents, and particularly in defiance of Coleridge. Any attempt to do so would have generated resentment and undermined judicial harmony, and the resolution was not pressed.
The rest of the Council's Resolutions generally shared the same fate in the short term. Although the legal and national press generally acknowledged the Judges' effort and supported many of the Resolutions, there were also various criticisms, some of them fierce, and as much scepticism about whether legislation or Rules of the Supreme Court to implement the proposals would ever see the light of day. This proved justified. The Council's proposals for reform of the Circuit system proved so contentious that the government announced that it did not feel justified in adopting them and that, since these changes had been central to the Resolutions, it would not legislate on any of the other Resolutions either. As a result, the Resolutions lost all momentum, although they were not all completely forgotten: the Council's proposal for a Court of Criminal Appeal, for example, did eventually make onto on the statute book, but not until 1907.
The Unlamented End Of An Era
"As a Judge, he left no great mark... As Lord Chief Justice, he will be severely judged... At the moment of the Lord Chief Justice's death, it may fairly be said that the greatest court of the greatest commercial empire is denuded of commercial business."
(1893-94) 38 Solicitors' Journal, 560
While Lord Chief Justice Coleridge blocked reform in the Queen's Bench, another division of the Supreme Court of Judicature was providing a demonstration of how commercial litigation could and should be handled. When he had been in practice at the Bar, J.C. Mathew had impressed upon his pupils the importance of learning thoroughly the rules of procedure. His most successful pupil, John Gorell Barnes, counsel for the Bank in Rose v Bank of Australasia, had taken this to heart. When he became a Judge of the Probate, Divorce & Admiralty Division 1892, Barnes took the opportunity to try out some ideas which he and Mathew had discussed as possible ways of accelerating the pace of commercial litigation. These included making greater use of the procedure for trying points of law as preliminary issues, and encouraging parties to dispense with pleadings, agree facts, and waive formal rules of evidence. The results were striking: in 1893, Barnes astonished the legal and commercial world by trying The 'Alps' (1893) 62 Law Journal Reports 59, a marine insurance case about loss of hire, within a fortnight of the issue of the writ. The achievement was hailed as "little short of marvellous". By comparison, the time-lag between writ and trial in the Queen's Bench in the 1890's could be as great as 6 months or more.
The facts in The 'Alps' were that the defendant underwriters had insured the plaintiff shipowner against loss of hire caused by "fire". The shipowner had let the ship under a charter under which hire was not payable if the ship was taken out of service for repairs. The ship was damaged by fire and required repairs. Hire was not payable for the period of the repairs, and the plaintiff claimed on the policy. The issue, essentially one of construction, was whether the proximate cause of the loss was the fire, as the plaintiff claimed, or the "special clause in the charter", as the defendants contended. The speed with which the case came to trial was the result of Barnes's order that the construction of the policy should be tried as a question of law on the basis of the facts appearing from an average adjustment and associated documents. Since the order involved dispensing with the strict rules of evidence, both parties must have consented to this procedure. But, as Barnes emphasised in highlighting "a remarkable feature about the case to which it is extremely desirable that attention should be drawn", such co-operation was obviously sensible "where both parties to a commercial case, as this is, are anxious to have the dispute determined at once". Barnes enthusiastically endorsed the procedure which had been followed as "a most businesslike course, which is worthy of encouragement, and which might be frequently followed with advantage in similar cases". He followed this up with his most significant remark: "I think I ought to add that although actions of this kind have not usually been brought in this Division, yet such actions, if brought here, may be retained in this Division, if the Court thinks it expedient; and, in my opinion, it was expedient that this action should be disposed of here under the circumstances, and it is very desirable and convenient that the wish of the parties to have it so dealt with should be acceded to". It was virtually an open invitation to commercial litigants who were disgusted by the delays of the Queen's Bench to bring their cases to Barnes for trial under the more imaginative procedures which he had to offer. The invitation was gratefully accepted, and there was a marked increase in the business of the Probate, Divorce & Admiralty Division.
Barnes appears to have felt about his achievement in The 'Alps' a sense of pride which grew over time. Referring to the case in 1898, he made the relatively modest boast that the example which he had set "had, to some extent" influenced the development of the Court. But by 1909, Barnes was claiming that the creation of the Court had been a direct consequence of the awe in which Master of the Rolls Lord Esher had held the wonders which he had worked in The 'Alps'. Barnes was justly entitled to credit for what was a dazzling performance by the standards of the day, but there was rather more to the story of the foundation of the Commercial Court than he suggested.
Barnes's willingness to innovate hinted at what might be achieved with a little ingenuity. Unhappily, Barnes also inadvertently identified a potential pitfall with a Court dedicated to the prompt resolution of a stream of commercial litigation: in 1894, he collapsed from overwork. He went on extended leave, and was so ill that it was widely believed that he would never return to duty. He did, but retired prematurely in 1909, and died in 1913 aged only 64.
John Gorell Barnes showed how case management could be improved.
Quite aside from health and safety considerations for the judiciary, it was easier to implement this sort of initiative in Barnes’s Division than in the Queen’s Bench. The Probate, Divorce & Admiralty had a relatively small caseload and only two Judges, both based permanently in London, and each with considerable freedom to organise his own Court. The Queen's Bench was much busier, was staffed by peripatetic Judges who were constantly being sent away on Circuit, and was dominated by its Chief Justice, and therefore under the sway of Coleridge's conservative and unimaginative personality. Barnes's experiments showed that things might be done differently, but did not have any immediate effect on the Queen's Bench.
But Lord Chief Justice Coleridge could not postpone the idea of a Commercial List for much longer. On 24th May 1894, the Queen's Bench Judges (or the twelve who were available to attend a meeting in London) passed twenty-one Resolutions. Number 14 declared:
That it is desirable that a list should be made of commercial causes to be tried at the Royal Courts of Justice by a judge alone, or by jurors summoned
from the City; and that a commercial court should be constituted of judges to be named by the judges of the Queen's Bench Division.
This was a simplified version of the 1892 proposals. The new Resolutions were expressed to come into effect on 15th June 1894, but there is no indication that any form of Commercial Court did in fact start sitting in 1894. Indeed, as The Solicitors' Journal pointed out, the exact status of the Resolutions was unclear in circumstances where some of them covered the same topics as existing Rules which had not been revoked and they did not bear the endorsement of the Lord Chief Justice.
Coleridge did not attend the 24th May 1894 meeting. If he had done, he would no doubt have opposed the Commercial List, as he had done in 1892. (Two of the other 1892 dissenters, Hawkins and Day, were also absent, presumably on Circuit, and Denman had retired. Grantham supported the proposal for a Commercial Court on this occasion.) But a judicial age was drawing to a close. On 2nd May 1894, dressed in his ceremonial robes, Coleridge had attended an event at the Royal College of Music, in unseasonally cold conditions. He contracted a severe chill. Within days, he was confined to his sickbed, and it became plain that he would not realise his hopes of remaining in office until 1896, when he would become entitled to a full pension. On 14th June 1894, John Duke, first Baron Coleridge, Lord Chief Justice of England and former Lord Chief Justice of the Court of Common Pleas, son and father of Queen's Bench Judges, less poetically-talented great-nephew of the author of 'The Rime of the Ancient Mariner', and the last man living to have presided over one of the ancient royal Courts of common law, died at his London home. He outlived by two months his friend and protégé, Charles Bowen. Prone to ill-health since the 1860's, and worn out by overwork (Herbert Henry Asquith, Prime Minister at the outbreak of the Great War and Bowen's pupil in the 1870's, recalled that Bowen was too much of a perfectionist to ever delegate), Bowen had been made a Law Lord in 1893. But sickness prevented him from ever sitting, and he died in April 1894, aged just fifty-nine.
John Duke Coleridge’s son, Bernard, succeeded to his father’s title. The 2nd Baron Coleridge was a King’s Bench Judge from 1907-1923.
Coleridge's long tenure was recognised with a service in Westminster Abbey (The Law Times commented that it "was as badly managed as such things usually are in English churches") before his burial at the family seat in Devon. The commentaries which marked his passing were distinctly mixed, in poignant contrast to the reverent tones of the near-contemporaneous tributes to Bowen. The legal journals found it easy enough to praise Coleridge's pleasant personality. Finding anything favourable to say about his term of office was far more challenging. The Solicitors' Journal briefly but damningly commented that the Queen's Bench had gone "from bad to worse" in Coleridge's time, and mused that it would have been preferable if Bowen had been made Lord Chief Justice of the Common Pleas instead in 1874. The Law Times obituary was understated, observing that "he did not evince any strong desire to promote or encourage reforms in our judicial system". But an editorial condemned Coleridge's influence as "malign and disastrous" and complained that "the administration of the common law fell into well-merited contempt. Laxity, unpredictability, apparent indifference, chaos marked his reign. Law as a science fell into disrepute and the public steadily but surely forsook the courts of the Queen's Bench".
A New Lord Chief Justice
"Russell's knowledge of business and of the law enabled him to go straight to the point... But, where there was a conflict of evidence, his style of advocacy was open to criticism and complaint. He was not a pleasant antagonist. Occasionally his opponents were made to feel a personal pressure fatal to the harmony which is a tradition of the bar. Always desperately in earnest and determined to win, he was neglectful of the small amenities which soften professional contests... He was a man of business and a man of dreams. Under a manner often cold and severe there lay concealed great kindliness and consideration for others."
Dictionary of National Biography entry for the 1st Lord Russell of Killowen. Contributed by Sir J.C. Mathew
Moves to implement the Commercial List were revived with almost unseemly haste after Coleridge's death. The major judicial opposition to the idea had died along with the late Lord Chief Justice. Of the four other Judges who had opposed the Resolutions 32-38A in June 1892, Denman, who was himself the seventh son of an earlier (and more energetic) Lord Chief Justice of the King's Bench had retired to compose Greek and Latin verse (an occupation which was generally considered more fitted to his talents), and the other three lacked Coleridge's status and influence: "Hanging" Hawkins was so divisive a figure that he was denied a valedictory on his own retirement in 1898, for fear that the event would descend into vulgar abuse (former Solicitor-General Sir Edward Clarke threatened to appear at any ceremony in order publicly to denounce Hawkins); Grantham was haplessly prone to ill-judged pronouncements, a personality flaw which in 1911 provoked a stinging public rebuke from Prime Minister (and sometime pupil of Charles Bowen) Herbert Asquith (on the occasion of an earlier indiscretion, the Commons had decided not to vote on a motion to remove Grantham from office for misconduct, the first - and last - time since the Judicature Acts that the House had even considered initiating the process for sacking a High Court Judge); and "Judgment" Day was an indifferent judicial performer who, like Hawkins, had acquired a reputation for savage harshness in criminal cases (although some thought that the reputation was rather undeserved, at least in Hawkins's case).
Moreover, the new Lord Chief Justice was both very different in character from his predecessor and an active supporter of proposals to reform his Court's handling of commercial cases. Charles Arthur Russell had started his professional career in the early 1850's as a solicitor in his native Ireland. Discovering both a taste and a talent for advocacy while acting for defendants in riot cases in the local magistrates courts, he moved to London to study for the Bar, before launching his new career in Liverpool. Russell quickly established himself both there and in London, with a significant commercial element to his practice. A Liberal MP, he was twice Attorney-General under Gladstone. In May 1894, he was appointed a Lord of Appeal in Ordinary as Lord Russell of Killowen, filling the vacancy left by the late and much-lamented Bowen. Before he had had time to settle into the Lords, he was transferred to the Lord Chief Justiceship as Coleridge's replacement, becoming the first Roman Catholic Chief Justice since the 18th Century. (Russell’s fourth son, Francis, and Francis's own son, Charles Ritchie, both enjoyed longer careers as Law Lords, both also adopting the Killowen title. The Russell family's triple entry was unique in the history of the judicial House of Lords, although there were two Scottish father-and-son doubles, Lords Watson and Thankerton, and the Lords Keith of Avenholm and of Kinkel. The tenures of the younger Keith and the youngest Russell overlapped in the 1970's and 1980's.)
With his experience of commercial litigation, and an active and a wide-ranging interest in legal matters, it was hardly surprising that Russell was more open than his predecessor to the idea of the Commercial List. As an Irish Catholic and former commercial barrister, he also had much in common with the reform's most prominent judicial proponent, J.C. Mathew, who had been a near contemporary at the Bar. (In time, the Russell and Mathew families would be united in marriage: Mathew's grandson Theobald, Director of Public Prosecutions from 1944-1964, married Russell's granddaughter Phyllis in 1923. Their son, John Charles Mathew QC, disregarding his commercial heritage like his father, became one of the leading criminal barristers of his generation.) The two also shared some personality traits, both being known for their capacities for hard work and their short-tempers, although, by contrast with perceptions of Mathew, no-one appears to have suggested that Russell's more obnoxious tendencies were mitigated by a well-developed sense of humour. (In the event, Russell's demeanour on the Bench came as a pleasant surprise to his former colleagues at the Bar: he was generally regarded as a patient and considerate Judge.) Whether or not influenced by Mathew, Russell quickly became an enthusiastic supporter of the Commercial List.
The new Lord Chief Justice's first thought was that change should be introduced by way of amendment to the Rules of the Supreme Court. Perhaps he was conscious of the queries which had been raised about the status of the Judges' Resolutions of 24th May 1894. But the Rules Committee claimed that it was extremely difficult to define a "commercial case", and it quickly became apparent that any hope that the Committee would implement change quickly was misplaced. Swiftly changing plan, Russell decided simply to bypass both the Committee and the Rules. He summoned a meeting of the Queen's Bench Judges on 24th October 1894 to discuss, among other matters, the constitution of a court for commercial cases. The meeting appointed a committee consisting of Russell and Queen’s Bench Judges Pollock, Mathew, Cave, Charles, and Wills to consider the matter. The committee's report was approved at another meeting on 11th January 1895, and Mathew was selected to sit as the first Judge hearing cases in the Commercial List, beginning on 1st March 1985. Russell and Sir Richard Henn Collins were designated as additional Judges, to deal with Commercial List cases when Mathew was unavailable (or if the innovation proved so successful that he was overwhelmed with work). Since Collins, third son of an Irish QC, had been born in and educated Dublin, the first Judges of the Commercial Court of England & Wales were all Irish by birth and upbringing.
Lord Russell was both more vigorous than Lord Coleridge and more forward-looking. Once he lent his support to the proposal for a Commercial Court, it could not be stopped.
An Important Notice
“At the meeting of the Judges the other day, it is understood that the new Commercial Court was, in effect, formed... It will not be necessary to wait for the framing of rules before the Judge begins to sit. For the present there are to be no new rules. The Judge will make use of the large powers - some of them dormant - which already exist.”
The Times, 17th January 1895
“When the Judges of the Queen's Bench Division resolved to attempt to provide the remedy demanded at their hands without waiting for the assistance of the legislature... it became necessary to endeavour to extract a new system from the existing Orders and Rules. The [Notice] was accordingly issued.” Introduction to (1900) 1 Reports of Commercial Cases, by Theo Mathew
The long-awaited creation of a special list for commercial cases was finally announced in a Notice which was printed on the back of the Queen's Bench Cause List for 6th February 1895 and published in the legal and broadsheet press around the same time.
HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
____________________
COMMERCIAL CAUSES
___________________
NOTICE
The Judges of the Queen's Bench Division desire to make, in accordance with the existing rules and orders, further provision for the dispatch of commercial business as herein provided:-
1. Commercial causes include causes arising out of the ordinary transactions of merchants and traders; amongst others, those relating to the construction of mercantile documents, export or import of merchandise, affreightment, insurance, banking, and mercantile agency and mercantile usages.
2. A separate list of summonses in commercial causes will be kept at chambers. A separate list will also be kept for the entry of such causes for trial, but no cause shall be entered in such list which has not been dealt with by a Judge charged with commercial business, upon application by either party for that purpose or upon summons for directions or otherwise.
Commercial causes may be transferred from the Chancery Division to the Queen's Bench Division in accordance with the existing practice.
3. With respect to town commercial causes it is considered desirable, with a view to dispatch and the saving of expense, that all applications shall be made direct to the Judge charged with commercial business, and with respect to country commercial causes applications may by consent of the parties be made to him in like manner.
4. As to commercial causes already entered for trial, application may be made to such Judge by either party to enter the same in the commercial cause list.
5. Applications in commercial causes under Order 14 shall be made as heretofore, but where leave to defend has been given, such causes may be dealt with like other commercial causes.
6. Application may be made to such Judge under the provisions of the Judicature Act 1894, and the rules thereunder, or by consent, to dispense with the technical rules of evidence for the avoidance of expense and delay which might arise from commissions to take evidence and otherwise.
7. Application may also be made to such Judge, after writ or originating summons, for his judgment on any point of law.
8. Such Judge may at any time after appearance and without pleadings make such order as he thinks fit for the speedy determination, in accordance with existing rules, of the questions really in controversy between the parties.
9. Parties may, if they so desire, agree that the judgment or decision of such Judge in any cause or matter shall be final.
10. Application may be made to such Judge in urgent cases to fix an early date for the hearing of any cause or matter.
11. Summonses may be entered in the list of commercial summonses on and after Wednesday the 20th day of February next; these will be heard by Mr Justice Mathew, who, on Friday the 1st day of March next will sit, and thenceforward will, until further notice, and as far as practicable, continue to sit de die in diem for the dispatch of commercial business. Where necessary, other Judges of the Queen's Bench Division will assist in the disposal of commercial business.
12. County commercial causes will be tried as usual at the Assizes.
By Order.
The Commercial List
"The published 'Notice' with respect to commercial causes pretty well gives the go-by to the White Book. The Judge is to get seisin of his causes at the outset, may decide points of law straight away, may dispense with technical rules of evidence, and go without pleadings direct to the question in controversy between the parties, who may agree to accept his decision as final. This, we know, is the beginning of a great change."
(1894-95) 98 Law Times, 342
"The instructions do not profess to interfere with any existing rules or orders. They contain, however, sundry hints to litigants as to the possible procedure where a speedy settlement of the matter in dispute is desired... To the experienced practitioner, of course, these hints are useless. To the inexperienced practitioner and the public, they are delusive. They suggest an easy and rapid procedure specially applicable to commercial cases, although no such procedure is proposed. If the Judges of the Queen's Bench Division have any general guidance to give as to the conduct of litigation under the existing rules, we might, perhaps, suggest that it should be given in regard to litigation generally."
(1894-95) 34 Solicitors' Journal, 243
Reaction to the news of what was immediately and universally called the "Commercial Court", notwithstanding that the Notice itself spoke only of a "List", was mixed. National publications as diverse as The Times and The Drapers' Record were optimistic that the new arrangements would bring a fresh energy to the trial of commercial cases, and drive out delay. The legal press was more guarded. The Law Times was enthusiastic about the Commercial List in principle, but cautioned against expectations that the Commercial Court would be flooded with business, warning that "it is not by any means certain that there is a supply of the old class of causes, either in arbitration or elsewhere". John Charles Bigham QC, one of the leading commercial practitioners of the day and a future Commercial Court Judge, expressed similar views in an interview with The Law Journal: he believed that the Commercial List would improve things in those commercial cases which were still left in the Queen's Bench, but that it would take "many years" to attract commercial litigants back to the Division in significant numbers. The editors of The Law Journal agreed, concluding that arbitration clauses were now so common that the Commercial Court was unlikely to be greatly burdened with work. But they applauded the thinking behind the changes, and hoped that they would at least be given "a long and patient trial".
John Bigham was initially sceptical about the Commercial Court. He would later be one of its Judges for a dozen years.
By contrast, The Solicitors' Journal doubted whether the debased state of commercial (or any other) litigation could be improved without significant changes to the Rules of the Supreme Court. This was understandable. After all, Lord Chief Justice Russell himself had initially seen amendment of the Rules as the best basis for the introduction of the Commercial List. The obvious potential weakness in the scheme as it had actually been implemented was that the that the Queen's Bench Judges were effectively trying to create a new and specialist court without any new and specialist rules to match, and, in fact, without any new procedure at all. As the Journal rhetorically asked, if it really was possible for cases to be managed more effectively without changing the existing Rules at all, why had things been so bad for so long? The Journal also suggested that it was wrong that commercial cases should be singled out for special treatment: if claims on bills of lading or policies of marine insurance were to be speeded up, then why not also actions for personal injuries or libel? This complaint, while principled, was impractical. It amounted, in effect, to saying that nothing should be done at all short of a wholesale reorganisation of the Queen's Bench and its procedure. But the fate of the Resolutions of the Council of Judges in 1892 demonstrated that root and branch reform was not going to happen any time soon.
The Solicitors' Journal also criticised the text of the Notice, complaining that it was "by no means as lucid as might have been desired". This was another fair comment. Moreover, quite aside from the occasional lack of clarity, there was an obvious tension between the reformist ambitions behind the Notice and the actual text. The creation of a special list had been presented as the most achievable way to improve the Queen's Bench's handling of commercial cases ever since the first report of the Joint Committee of the Bar and the Law Society back in 1888. More recently, the burst of judicial activity since Russell's appointment as Lord Chief Justice, which had been keenly followed by the legal professions and press, had raised expectations of significant and effective reform. Now, the long-awaited Commercial List had finally arrived, launched, as one solicitor put it, with "a loud flourish of trumpets". Yet the most striking thing about the wording of this much-anticipated document was the extent to which it placed stress on continuity rather than change.
The very opening words set the tone: they emphasised that everything which followed in the Notice was "in accordance with the existing rules and orders" which already applied to every Queen's Bench action. The Notice was promoted as creating a new Commercial Court, yet there were to be no special rules for commercial actions. Paragraphs 2, 5, 8 and 12 repeatedly made the point that existing rules and procedures would continue to apply. To anyone unfamiliar with the Rules of the Supreme Court, the references in Paragraphs 6 and 8 to dispensing with "the technical rules of evidence" and to the "speedy determination... of the questions really in controversy between the parties" without pleadings may have sounded like innovations. But practitioners knew that these Paragraphs merely referred to existing provisions. Specifically, Order 30 Rule 7, empowered the Judge on the hearing of a summons for directions to order that particular facts might be proved at trial by the production of documents or in some other appropriate manner, rather than by the evidence on oath of a witness; Order 18A permitted a plaintff to dispense with a statement of claim if the nature of the claim was sufficiently clear from the Writ; Order 34 Rule 9 permitted the parties to dispense with pleadings altogether if they could agree the form and scope of the questions of fact to be tried at trial; and Order 34 Rule 2 empowered the Judge to order a question of law to be determined before any evidence was heard - and even without any pleadings - if the answer to that question had the potential to determine the case. Similarly, Paragraph 7's reference to the Judge giving judgment on any point of law simply re-stated the substance of the existing Order 25 Rule 2, by which the Judge could order the decision, as a preliminary point, of any question of law arising on the pleadings.
Even the summons for directions, which, under Paragraph 2, was expected to be the usual route of entry into the Commercial List, was already embedded in the Rules of the Supreme Court. However, the Notice did break new ground here. Under Order 30, the summons for directions was voluntary, at the option of the parties. Paragraph 2 effectively it compulsory in commercial cases. This was achieved, not directly, by changing the Rules, but by the backdoor method of making any litigant who wanted a case transferred into the Commercial List take out a summons. This was one of the most critical features of the entire scheme. The key to improved management of commercial actions was the imposition of a directions timetable designed to promote a speedy, efficient, and economic trial of the issues. This could only happen if each case came before the Commercial Judge for a directions hearing at an early stage, and the summons for directions was to be the mechanism for achieving this. This explains why the Notice did not adopt the method of entry to the Commercial List which had been proposed by the Judges' Resolutions of 1892. If the decision whether to allow a case into the List was left to an associate, who was a purely administrative officer with no judicial authority, there would be no opportunity for the Court to impose an appropriate timetable. (Strictly speaking, Paragraph 2 did not actually oblige a party seeking entry to the Commercial Court to take out a summons for directions: a summons for an order transferring the case into the Commercial List would be sufficient. But this made no difference in practice. The important point was that, whatever the form of the application, there would be an early hearing before the Commercial Judge, who would actively manage the case. Commercial Court litigants quickly got the message, and it soon became settled practice for an application to transfer to be made by way of summons for directions.)
This aside, the Notice's only true innovations were the creation of a special list and the allocation of interlocutory applications in commercial cases to a Judge rather than a Master. The minor modification to the Queen's Bench's listing arrangements was a purely administrative matter, which was well within the Judges' competence under Section 16 of the Supreme Court of Judicature Act 1873. Eliminating the Master in commercial cases (and, by doing so, bypassing one level of appeal) simply restored the procedure which had applied in all Queen's Bench actions before the Judges' Chambers Act 1867. This too was merely a question of administration (the 1867 Act permitted Masters to hear interlocutory applications at first instance, but did not abolish the Judges' jurisdiction to do the same).
Conspicuously, the Notice did not mention new arrangements to increase the qualifications for jurors in commercial actions tried by jury, or a special Taxing Master to deal with costs in commercial cases. Both ideas had been proposed during the deliberations of the Committee which had been appointed in October 1894. Presumably they were not implemented because the Judges were not confident that they had the authority to make such changes on their own initiative, without amendments to the Rules of the Supreme Court.
James Charles Mathew in 1883, two years before he became the first Commercial Court Judge.
The importance of being seen to stay within the limits of judicial authority surely also explains the muted wording of the Notice: by highlighting the fact that their reforms affected only the administrative arrangements of their Court, the Queen's Bench Judges were building a line of defence against any critics who argued that the creation of a Commercial Court required new Rules of the Supreme Court, or even new legislation. The fact that the new Court would have to work within the confines of existing rules and procedures was not necessarily a fatal weakness. But it did mean that success would depend upon a more imaginative use of those procedures than the Queen's Bench Judges had previously displayed in commercial (or other) cases. Much was therefore resting on the character and creativity of the Judges who would be responsible for the Commercial List, and, in particular of the Judge who, under Paragraph 11, was to take charge of the List from the beginning of March. Sir James Charles Mathew had been restless for reform for years. He entered into his new role as the first Commercial Judge with boundless energy. On Friday 1st March 1895, he heard 32 summonses on the Commercial Court’s first day of sitting. He tried the Court’s first case, Burney v Elliman, the following Friday, and delivered judgment on Monday 11th March. After years of effort in the face of opposition and resistance, the Commercial Court had become a reality.