THE HAMLYN LECTURES

FOURTEENTH SERIES

LAWYER AND LITIGANT IN ENGLAND

AUSTRALIA

The Law Book Co. of Australasia Pty Ltd.Sydney : Melbourne : Brisbane

CANADA AND U.S.A.

The Carswell Company Ltd.Toronto

INDIA

N. M. Tripathi Private Ltd.Bombay

NEW ZEALAND

Sweet & Maxwell (N.Z.) Ltd.Wellington

PAKISTAN

Pakistan Law HouseKarachi

LAWYER AND LITIGANTIN ENGLAND

By

R. E . M E G A R R Y , Q.C., M.A., LL.D.(Cantab.)of Lincoln's Inn; Boo^ Review Editor of

The Law Quarterly Review; Readerin Equity in the Inns of Court

Published under the auspices of

THE HAMLYN TRUST

LONDON

STEVENS & SONS LIMITED

1962

First published in 1962 byStevens &• Sons Limitedof 11 New Fetter Lane inthe City of London andprinted in Great Britainby The Eastern Press Ltd.of London and Reading

All royalties from this edition go to theBarristers' Benevolent Association

R. E. Megarrv1 9 6 2

CONTENTS

The Hamlyn Trust Page i x

1. INTRODUCTION 1

2. T H E LAWYERS 6

Statistics 6

Distribution 7

The client's choice 8

Specialisation 11

Equalisation 16

Efficiency in research 25

The cab rank 32

Judging professional competence . . . 33

Versatility 44

The contrast 45

Witnesses 46

An honourable code honourably observed . 50

The barrister's clerk 55

The corporate spirit of the bar . . . 69

Lawyers as professional men . . . 72

The returned brief 77

Silk 89

3. LEGAL EDUCATION 94

Examination subjects 94Apprenticeship 99

vi Contents

3.

4.

5.

LEGAL EDUCATION—continued

Education in professional skills .

Paper barristers . . . .

Solicitors

Dining in Hall . . . .

T H E COURTS

Judicial appointment

Qualification for appointment

Judicial qualities . . . .

The moral force of the judge

Decisions based on the merits

A sense of injustice

The short cut . . . .

T h e judicial assertion .

Insularity

The Bench: a summary

Comprehensive orality .Procedural flexibility

Court furniture . . . .

COSTS

The amount of costsComplexityThe English system of costs .

. . 103. 105. 108. 112

. . 117

. . 117. 119

. . 130. 149. 151. 156

. . 157. 160. 161. 166

. . 167. 173

. . 176

. . 179

. 179

. 189

. 199

6. ENVOI 202

HAMLYN LECTURERS

1949 The Right Hon. Sir Alfred Denning

1950 Richard O'Sullivan, Q.C.

1951 F. H . Lawson, D.C.L.

1952 A. L. Goodhart, K.B.E., Q.C, F.B.A.

1953 Sir Carleton Kemp Allen, Q.C, F.B.A.

1954 C. J. Hamson, M.A., LL.M.

1955 Glanville Williams, LL.D.

1956 The Hon. Sir Patrick Devlin

1957 The Right Hon. Lord MacDermott

1958 Sir David Hughes Parry, Q.C, M.A., LL.D., D.C.L.

1959 C. H . S. Fifoot, M.A., F.B.A.

1960 M. C. Setalvad, Padma Vibhufhan

1961 T. B. Smith, Q.C, D.C.L., LL.D., F.B.A.

1962 R. E. Megarry, Q.C, M.A., LL.D.

vn

ACKNOWLEDGMENTS

THE author wishes to acknowledge with grateful thankspermission to quote short extracts from the followingpublications: —Theobald Mathew, For Lawyers andOthers (1937): Methuen & Co.; Professor G. S. A.Wheatcroft, (1962) 7 J.S.P.T.L.: Butterworth & Co.(Publishers) Ltd.; Lord Macmillan, Law and OtherThings (1937): Cambridge University Press; C. P.Harvey, The Advocate's Devil (1958): Stevens & Sons,Ltd.; Holmes-Polloc^ Letters (1941) Vol. 1: HarvardUniversity Press; Calamandrei, Eulogy of Judges (1942):Princeton University Press; The Times; R. M. Jackson,The Machinery of Justice in England (3rd ed.): Cam-bridge University Press; Derrick Bass, (1949) 35A.B.A.J.: American Bar Association; Sir PatrickHastings, Cases in Court: (Pan Books) William Heine-mann, Ltd.; Lord Justice MacKinnon, (1944) 60 L.Q.R.:Stevens & Sons, Ltd.; Sydney C. Schweitzer, TrialGuide (1948), Vol. 3 : Baker, Voorhis & Co.

viu

THE HAMLYN TRUST

THE Hamlyn Trust came into existence under the willof the late Miss Emma Warburton Hamlyn, of Torquay,who died in 1941, aged eighty. She came of an old andwell-known Devon family. Her father, William RussellHamlyn, practised in Torquay as a solicitor for manyyears. She was a woman of dominant character, intelli-gent and cultured, well versed in literature, music andart, and a lover of her country. She inherited a taste forlaw, and studied the subject. She travelled frequentlyon the Continent and about the Mediterranean andgathered impressions of comparative jurisprudence andethnology.

Miss Hamlyn bequeathed the residue of her estate interms which were thought vague. The matter was takento the Chancery Division of the High Court, which onNovember 29, 1948, approved a scheme for the adminis-tration of the Trust. Paragraph 3 of the Scheme is asfollows:

" The object of this charity is the furtherance bylectures or otherwise among the Common People ofthe United Kingdom of Great Britain and NorthernIreland of the knowledge of the Comparative Juris-prudence and the Ethnology of the chief Europeancountries, including the United Kingdom, and thecircumstances of the growth of such jurisprudenceto the intent that die Common People of the UnitedKingdom may realise the privileges which in lawand custom they enjoy in comparison with other

ix

x The Hamlyn Trust

European Peoples and realising and appreciatingsuch privileges may recognise the responsibilities andobligations attaching to them."

The Trustees under the Scheme number eight, viz.:

(a) Mr. S. K. COLERIDGE

(executor of Miss Hamlyn's Will)(i>) Representatives of the Universities of London,

Wales, Leeds, Glasgow and Belfast, viz.:Professor G. W. KEETON

Professor D. J. LI. DAVIES

Professor P. S. JAMES

Professor D. M. WALKER

Professor J. L. MONTROSE

(c) The Vice-Chancellor of the University of Exeter,ex officio (Dr. J. W. COOK).

(d) Dr. JOHN MURRAY (co-opted).

The Trustees decided to organise courses of lecturesof high interest and quality by persons of eminenceunder the auspices of co-operating Universities or otherbodies with a view to the lectures being made availablein book form to a wide public.

The fourteenth series of Hamlyn Lectures wasdelivered in November and December 1962 by Dr. R. E.Megarry, Q.C, at Cambridge University.

JOHN MURRAY,

Chairman of the Trustees.

December 1962.

CHAPTER 1

INTRODUCTION

MAITLAND'S inaugural lecture was entitled " Why theHistory of English Law is not Written." * I confessthat I feel tempted to call these lectures " Why a properappraisal of the value of English lawyers to the publichas not been made." For the subject I have chosen isimpossible. Under the title " Lawyer and Litigant inEngland " the task I have set myself is to examine howgood English lawyers are at their jobs, seen from thepoint of view of their clients; and with this goes acritical appreciation of the system within which theywork.

Nobody can do this properly. The layman does notknow and cannot find out. Even the most persistentlitigant yet unmuzzled lacks the width of experience andbreadth of vision needed for a fair judgment. Perhapsin these days of Consumers' Unions and the like aLitigants' Union may spring into being and make theinquiry; but the cry " Litigants of the World, Unite "has yet to be heard. The lawyer cannot make theinquiry, for he knows too much of the law and toolittle of the layman's heart and head. Yet in my dis-qualification I may timidly peer out of the ChanceryDivision, and remember the doctrine of cy-pres (" asnearly as possible "). " Half a loaf is better than no

1 Collected Papers, 1911, Vol. 1, p. 480.

1

2 Introduction

bread " is not one of the recognised maxims of Equity,but it has a kinship. And so I proffer my half loaf.

Before I do this, however, I must express my pleasureat being allowed to be the first to deliver a series ofHamlyn Lectures in Cambridge. The lightning hasstruck thrice in London, once from Edinburgh toExeter, and once from Belfast to Lincoln's Inn, but notyet at Cambridge. It is over thirty years since one ofmy examiners in Part I of the Law Tripos congratulatedme on the economy of effort demonstrated by the singlemark that stood between me and total disaster; and theyears have not shown me how to improve on that pre-cocious venture in judgment. When my present essayfalls short of the mark, as assuredly it must, there isnowhere that I can hope for greater charity than inCambridge.

Let me make an initial disclaimer. Often in puttingforward the views expressed in these lectures, I speakon behalf of nobody, not even myself. I have listened,I have inquired, I have surmised, and I report; and toreport is not to assert. If a view seems to be generallyand soberly held, then it is right that it should beexpressed. If such a view seems to have its frailties,then it is also right that these should be mentioned.Of course, I have excluded views that appeared to be nomore than idle and ill-informed chatter. But subject tothis, I have tried to capture that elusive and perhapsmythical creature, well-informed public opinion. I agreewith most of what I say; but let not a practising barristerbe said to subscribe to every word of it.

My ultimate goal is to appraise the value of Englishlawyers and the English legal system to the public in

Introduction 3

civil matters; and I hope that nobody whose allegiancelies west of Monmouth will be affronted if for brevity Itreat " English " as including " Welsh," though not, ofcourse, " Scottish." This is indeed a vast field. Eventhough criminal matters are by definition excluded, anexamination of every activity which, for example, dailyengages the attention of solicitors would take far longerthan is at my disposal. Accordingly, in making thesurvey I shall pay special attention to the litigant in civilproceedings, and in particular the defeated litigant. Thesuccessful litigant may have his grumbles. He maycomplain of the time that it has taken him to obtainjustice, and he may be bitter about the amount of thecosts which he has had to pay without being able torecover them from the loser. But ultimately he willprobably be fairly satisfied with the law: for he haswon. His is the gingerbread, and for him the onlyquestion is how much of the gilt has been taken off itby delays, costs and other imperfections.

For my purposes, therefore, what matters far more isthe defeated litigant. I discard the eccentric and themonomaniac. Under any system of justice that thisworld can evolve there will always be those who willrefuse to accept that their defeat was just. What I amconcerned with is the Reasonable Defeated Litigant.Take the Reasonable Man, so long familiar to thecommon law, put him into court, and let him lose:let the Man on the Clapham Omnibus be defeated in,say, the Camberwell County Court. What are histhoughts about what has happened to him? Let him bequestioned not as he walks away from court, for eventsare then too close to him, but a week or a month later.

4 Introduction

How have his lawyers treated him—his solicitor and, ifhe had one, his counsel ? Did they listen to him, under-stand his grievances and advise him fairly and intel-ligibly? What of the trial itself? Did he have whathe felt to be a fair and full hearing, and a decision givenwith impartiality, both real and apparent? Are his com-plaints real grievances, or are they founded on mis-understandings? These are the types of question that Ishall try to explore.

You may well object at this point that no merelawyer, unsupported by the results of informed andintelligent public opinion polls, can hope to answer diesequestions properly. Must not the half loaf that I proffersavour more of a feat of imagination than of a surveyof fact? It would be vain to deny that there is muchforce in this objection: perhaps the half loaf is not morethan a slice, or a few crumbs. Yet, very humbly, Iwould turn to Holt C.J. for comfort. " However thathappen," he once said, " I have stirred these points,which wiser heads in time may settle." 2 If in years tocome others " surcharge and falsify " what I have said,I shall be content: for what matters is that these thingsshould be thought of and spoken of and weighed in thebalance. The importance of a system of law and a raceof lawyers that all can respect and trust has alwaysstood high in the scale of civilised values; and certainlytoday it stands no less high than before.

Almost by definition, the jury stands outside mychosen territory; for today it is rare indeed to find a

2 Coggs v. Bernard (1703) 2 Ld.Raym. 909 at 920; and see Rahim-toola v. Nizam of Hyderabad [1958] A.C. 379 at 424, per LordDenning.

Introduction 5

jury in the civil courts of England. In county courtsthey are virtually unknown; in the High Court theyappear in many defamation cases, and sometimes inother proceedings which concern a litigant's honesty orreputation3; but that is nearly all. For a quarter of acentury and more, " civil action " has meant " trial byjudge " in all save a very small group of High Courtcases. This limitation is, indeed, appropriate; forprevious lectures in this series have explored the jury4

and the criminal process in which the jury flourishes5

with an authority and a thoroughness that I could notmuster.

My material falls into two halves. First, there arethe practising lawyers, the barristers and solicitors whopractise in the courts, the system under which theywork, and the professional atmosphere in which theylive. Secondly, there are the courts and in particular thejudges and the conditions under which they performtheir duties. These divisions are, however, far fromwatertight, and many matters that are relevant to bothmay for convenience be discussed under one head ratherthan the other. But that is the broad division to bemade. To each part there is a pendant. After the law-yers must come some discussion of legal education, forlaw students are the practitioners of the future; and afterthe courts there is of necessity a discussion of costs. Andso let me set out on my survey.

3 See R.S.C., Ord. 36, r. 2.4 Sir Patrick Devlin, Trial by Jury, 1956.5 Dr. Glanville Williams, The Proof of Guilt, 2nd ed. 1958.

CHAPTER 2

THE LAWYERS

THE starting-point of any inquiry must lie in the tacts.No examination, discussion or evaluation can be reallyintelligible to others unless there has first been anadequate exposition. Of necessity, therefore, much ofthese lectures will be geographical; the territory mustbe mapped before it can be considered critically. Someof what I say may well be familiar to you. Yet it maybe that you will not have seen it as a whole before. Itis oddly difficult to find any detailed and connectedaccount of how the legal profession in England func-tions today, although bits and pieces abound, and thereare many summaries. And so I hope that you willexcuse the repetition of the familiar in the expectationthat you will find the unfamiliar just round the corner.

STATISTICS

In England and Wales a population of over 46 millionsis served by rather less than 24,000 practising lawyers(I will not venture across the border into Scotland). Ofthese, a little over 1,900 are barristers (or counsel); therest are solicitors.1 There are, of course, very manymore than 1,900 persons living who have been called to

1 Including some 800 or 900 barristers employed in industry or incentral or local government on work more akin to that of asolicitor than that of a barrister. What seems important is func-tion, not qualification.

6

Statistics 7

the Bar in England. But large numbers of these comefrom overseas and have returned there to practise; andof the remainder many have merely used the Bar as aqualification for some salaried appointment. On theother hand, the great majority of those who becomesolicitors practise as such in this country. The resultis that although each year the number of those called tothe Bar is approximately equal to the number admittedas solicitors (600 to 700 a year in each category), thereare something like ten or eleven solicitors in practicefor every practising barrister. In terms of populationthere is one practising solicitor for every 2,000 personsand one practising barrister for every 23,000. The U.S.A.seems to have one lawyer to every 750 persons,2 so thatby comparison our lawyers do not seem to be undulydense.

DISTRIBUTION

The geographical distribution of the two branches of theprofession is, of course, entirely different. Solicitors arespread throughout the country, though naturally thereare concentrations in the great towns. The Bar, on theother hand, is highly centralised. Three-quarters, in-cluding all the Queen's Counsel (or " silks," as they areoften called, from the silk gowns that they are entitledto wear in court), have their chambers in London. Theremaining quarter is distributed between some twenty ofthe most important provincial towns. Thus Liverpoolhas a local Bar of ninety-five, and Birmingham has

2 A population of over 180 millions is served by over 240,000 lawyers(over 192,000 in private practice, over 22,000 in industry and over25,000 in government service): see (1962) 34 New Yor\ State BarJournal 44.

8 The Lawyers

eighty, while Hull has six and Bournemouth has five.3

Broadly, the main centres of population have local Barswithin convenient reach. A vast amount of the day-to-day work of the Bar in the lower and assize courts isdone by members of the local Bar; and most solicitorsare within easy reach of counsel for urgent conferencesor cases in which it is decided to take in counsel at thelast moment.

T H E CLIENT'S CHOICE

Competition

From the client's point of view, however, what mattersin the first instance is ease of access to a competentsolicitor; and for the most part this is what he has.Towns nearly always offer a choice of solicitors, with awide choice in the larger towns; and as choice meanscompetition, the probability is that they will all be com-petent. Many villages have a firm of solicitors; but herethe position is more difficult. If there is but one firmin the village, that firm has something of a monopoly.Much may depend on how far away the nearest town is,or the nearest rival firm. Sometimes the firm has nocompetition because it is so good at its work that allattempts at competition have failed. Yet partners die,and sometimes Mr. Junior lives for many years on thereputation of Mr. Senior before it begins to be discoveredthat he is not half the man his predecessor was. Nothingin the law encourages (and, indeed, compels) efficiencymore than rivalry, whether friendly or otherwise; andgeography may be an important factor in rivalry.

3 See The Law List, 1962, pp. 900-910.

The Client's Choice 9

Difficulties

The difficulty, of course, for the client is usually notso much one of finding a solicitor, but of discoveringhow good he is. Impressed by a fine chairside mannerand conviction of voice, the client may well not realisehow unsound is the advice that he is being given; dis-quieted by diffident speech and cautious language, theclient may fail to appreciate how valuable is the moni-tion. In this life we are all liable to be influencedovermuch by the trappings and the non-essentials; andin any case appearances may be most deceptive. Someten or fifteen years ago there appeared in an Americanillustrated periodical a double page of numbered photo-graphs, passport style, of a hundred men. The captiondisclosed that fifty were of eminent judges and fifty ofnotorious criminals, many of them (if I remember aright)sentenced to death for multiple murders. The inter-mingling of the two groups of fifty had been achievedwith some skill, and a key was provided on anotherpage. The publication was most instructive; none whosaw it could ever judge much from externals thereafter.

The client's judgment

Apart from this, solicitors are perforce judged byclients who are in the main ignorant of law and thepractice of the law, and often have strange misconcep-tions about it, sometimes more technical than the lawitself. Indeed, it has been well said that one of themain reasons for having a lawyer on every committeeis to prevent the other members from being too legalistic.Of this judging by clients I must say more later on.

10 The Lawyers

Only very slowly does it become possible for a solicitor'sreputation to be based on his skill in the things thatmatter. Mr. Alpha Plus may indeed not become AlphaPlus until he has been many years in the law; andmistakes made (and revealed) while he was, say, BetaMinus, may dog him unfairly for many years.

In the end, it will often happen that a client will goto a solicitor with no real knowledge of that solicitor'sskill in the work that has to be done. It is one of theoutstanding merits of the English legal system that ifthat work is litigation, it usually does not matter verymuch to the client whether the solicitor is Alpha, Betaor Gamma; and the same is true if the work is notlitigious but requires the advice of counsel to beobtained. The reason, of course, is the division of thelegal profession into barristers and solicitors. If Gammais the solicitor, the burden on the barrister who isinstructed will be greater than if Alpha is the solicitor;but usually counsel can redress the unbalance, at anyrate to a large extent.

Before I turn to that, let me dispose of one possiblemisunderstanding. When I speak of solicitors beingAlpha, Beta or Gamma, I do not want anyone to thinkthat Gamma implies a disgraceful lack of care or com-petence. Nobody can become a solicitor without passingformidable examinations and undergoing a period ofapprenticeship.4 These alone guarantee a real degreeof competence. The difficulty is that law, and thepractice of the law, are indeed difficult—difficult andcomplex. " Keeping up to date " is one of the practising

* See post, pp. 96, 99.

The Client's Choice 11

lawyer's heaviest burdens; and some solicitors keepmore up to date than others. Some, too, are born witha nose for the essence of the situation; others are not.Some see the danger round the corner before they reachit; others miss it until they are upon it. So it is not acase of Alpha being a peak 5,000 feet high, Beta beingat sea level, and Gamma a marine crevasse 5,000 feetdeep. Instead, Gamma stands on a plateau 3,000 feethigh, Beta is a minor peak of 4,000 feet and Alphaheads the range at 5,000 feet. From the plateau onecan survey most of the terrain; but for some one mustascend Beta, and for the rest nothing save Alpha will do.

SPECIALISATION

The main advantage of the English system of a dividedprofession lies in the obvious benefits that flow from allspecialisation: each becomes expert in his own field.For the public at large, what is statistically the mostimportant is to be able to consult a good solicitor; whatis often emotionally and financially the most importantis being able to brief good counsel. Most solicitorspractise without the distraction of preparing cases inwhich they will appear as advocates. Correspondingly,the English Bar consists in the main of counsel whoseprofessional life is mainly one of advocacy. The clientin England is virtually assured of a regular and notmerely intermittent advocate. In saying that it is of theessence of the English system that there should bespecialisation, one must distinguish between specialisa-tion of subject and specialisation of function. Speciali-sation of subject is what is ordinarily meant by the

12 The Lawyers

term specialisation; the person concerned has specialknowledge and experience of some branch of the law.It may be property law, or equity, or crime, or divorce,or tax, or patents, or any of dozens of other fields ofknowledge—some narrow, some wide, some self-contained and some overlapping.

Specialisation of function is quite different; it dealswith professional skills and techniques rather than fieldsof knowledge. Advocacy is one of the most obvious,and the chairside manner another. Broadly, this is thegreat distinction between solicitors and barristers; each,when fully trained, become expert in quite differentprofessional skills. These overlap at a number ofpoints, but in substance they are quite distinct. Onehas only to glimpse the daily lives of a solicitor and abarrister, each in full practice, to see the gulf.

The solicitor

Let us look at the solicitor first. He is usually one ofa team, with his partners (or his employers) and theemployees of the firm; and ability to work as part of ateam is at the least a highly desirable quality. He isessentially an office lawyer. Most of the time he will befound in his office. He is in direct contact with hisclients and with many others, whether other firms ofsolicitors or other professional men (estate agents,accountants, bank managers and so on) or business con-cerns. He has a vast mail and a constant flow oftelephone calls. It is for him to make use of all hiscontacts for his clients' good. To his clients he is a

Specialisation 13

combination of an oracle and a comforting shoulder toweep on (and here I do not speak entirely meta-phorically). He will probably specialise in a broaddivision of the law, such as conveyancing, or litigation,or commerce. Nevertheless, he must always be preparedfor any subject to arise, and to deal to some extent withsegments of the law outside his normal fields; for theseare often inseparably enmeshed with his own subjects,or are raised by clients who obstinately refuse even atemporary transfer of their affections to another partner.

A vast part of his practice takes him nowhere nearthe courts; he drafts documents, writes letters andnegotiates. Whatever he is doing, he can never escapefar from the tyranny of letters and the telephone. Heengages in a wide variety of transactions, and carriesthem through from beginning to end; he lives with thecase from start to finish, and sees it whole. He knowssome law—sometimes much law, and always a greatdeal of practice—but the measure of his success is hisknowledge of how and when to use his law. So oftencommon sense, a knowledge of humanity and a flairfor the business-like way of doing things matter far morethan any knowledge of law. Law is always there in thebackground, but so often he must prevent it taking theforeground. He is a lawyer but he is not legalistic.The traditional phrase has yet to be bettered: he is " aman of affairs."

The barrister

Now let me turn to the barrister. From the first tolast he is an individualist. Partnerships are prohibited,

14 The Lawyers

and they are not wanted by the Bar.5 In early years hemay devil (i.e., work) for his seniors, and in later yearshe may employ devils; but the sole responsibility forany written work that has been devilled rests with himwho signs the opinion or pleadings. Often he willappear in a case with a leader or a junior, and to thatextent he will be one of a team of two or occasionallythree; but there are no large teams, nor any long-termteams. A succession of temporary ad hoc " partner-ships " is very different from membership of a firm ofsolicitors. Throughout his life counsel is in essence onhis own.

He is essentially a court-room lawyer. He may do aconsiderable volume of paper work in his chambers, buthe is in no sense an office lawyer. He has no directcontact with the lay client save through a solicitor;and similarly, except through the solicitor, he has nocontact with other solicitors or other professional men.Apart from his personal affairs, he has a very smallmail, and rarely writes a letter on professional matters.His telephone is not altogether idle, yet not muchpenetrates beyond his clerk; certainly the telephone isbut a ghost of the tyrant that it is to solicitors. He hasno responsibility for co-ordinating the forces that willaid his client, though he may advise the solicitor on theprocess. Clients rarely get close enough to his shoulderto weep upon it, whether metaphorically or otherwise.He will probably specialise in a narrower division of thelaw than most solicitors.

He rarely sees a case through from beginning to end.5 See Annual Statement of the General Council of the Bar, 1961,

p. 40.

Specialisation 15

He is brought in at intervals as his advice or his advo-cacy is required, but there are often long periods whenhe hears nothing of the case, even though much maybe happening. He is, of course, not worthy of his robesif he allows his law to override his common sense; yetthe calls upon his law are likely to be far more frequentthan the client's need for law from his solicitor, and hisresearch will be expected to be deeper and morethorough. He is far less a " man of affairs" than abrain and a tongue and a character.

The contrast

You will see that the contrasts are great. From day today and hour to hour the lives of barrister and solicitoroften touch; but this is only tangential. Each leads hisown life: each performs his own function. At someexpense, delay and mental effort (for examinations haveto be passed) a solicitor may become a barrister or abarrister a solicitor; but such changes are relatively un-common, and in any case the two branches of theprofession are mutually exclusive. In England, nobodycan be both a barrister and a solicitor at the same time.True, there are some apparent exceptions to this, butthey are no more than amiable English eccentricities ofnomenclature. Thus the Solicitor-General must be abarrister, and Treasury Solicitor,6 as well as the solicitorto other government departments, may be a barrister ora solicitor. But these are offices or appointments, notprofessional qualifications, and form no true exception

« See the engaging but unsuccessful objection to Treasury Solicitor,a barrister, acting as a solicitor in Brownsea Haven Properties, Ltd.v. Poole Corporation [1958] Ch. 574.

16 The Lawyers

to the rule that " barrister" and " solicitor" aremutually exclusive terms.

EQUALISATION

One important consequence of this division of theprofession lies in its equalising function. This, indeed,is at the bottom of the whole system of representationby lawyers. Let a bricklayer sue a Member of Parlia-ment in the High Court, and let all legal representationbe forbidden; the disparity in forensic talent wouldprobably be striking. Admit representation by solicitors,and at once the gulf is narrowed. Yet if one party isrepresented by one of the most distinguished firms inthe City of London and the other by a one-man firm ina sleepy country town, the gulf, though narrowed, maystill be substantial. If the case were to be fought incourt between the solicitors, one would know how tolay the odds, other things being not wholly unequal.However, the whole of the English Bar is open to eachside; and it may fairly be said that although there aredifficulties in the proposition that all counsel are equal,not many are much more equal than others.

Differentials in advocacy

The point may be made by imagining a scale onwhich skill and experience in advocacy is assessed from0 to 100. Give all lawyers a right of audience, andmany a case may be fought between an advocate in thebottom quarter of the table and one in the top quarter.Such conditions may well be a substantial obstacle to thetriumph of law or justice or both. They may, indeed,

Equalisation 17

be one explanation of some of the remarkable series ofsuccesses of some great advocates who practise underthem. Thus, in twenty-six years one American advo-cate defended just over 400 persons charged withhomicide. Some 43 per cent, were acquitted; 55 percent, received sentences averaging some six years inprison; and only 2 per cent, were executed.7

On the other hand, when in England a case is arguedbetween counsel, in the great majority of cases it isargued between advocates who are each somewhere inthe top third or quarter of the table. No doubt theabsolute range—the gap between Mr. Whitewig, calledyesterday, and Sir Iota Omega, Q.C.—is greater thanthat. But what I am speaking of is what happens infact and not what might theoretically occur. What Ihave in mind is the effective range, the gap betweenthe counsel in fact likely to be briefed by the solicitorson each side in any case. Here the difference tends tobe marginal.

England thus avoids the gulfs that Americans some-times complain of. In the United States many a lawyerin the main leads a life corresponding to that of anEnglish solicitor, save that once or thrice or even adozen times in a year he will appear in court.8 Quiteapart from any question of the effective presentation ofa case, the English practice tends to shorten trials. Theopinion of one well-known American trial lawyer wasthat in making an opening speech the experienced

* See Arthur H. Lewis, The Worlds of Chippy Patterson, 1961,p. 14.

8 See Francis L. Wellman, The Art of Cross-Examination, 4th ed.1936 (1962 reprint), p. 23.

18 The Lawyers

advocate needs at most a quarter of the time requiredby the inexperienced 9; and for the client, as for others,time saved is money saved.

The autonomy of cases

It was against this English background of marginaldifferences in advocacy that Sir Patrick Hastings saidthat he was satisfied tiiat " at least 90 per cent, of allcases win or lose themselves, and that the ultimate resultwould have been the same whatever counsel the partieshad chosen to represent them. But of the remaining 10per cent, it is not so easy to speak with any certainty.Undoubtedly a case can be lost by bad advocacy; anindiscreet question may let in evidence otherwise inad-missible; an omission to appreciate an important factmay prevent the court from ever becoming aware of theexistence of the most vital element in the case; there areendless ways in which a bad advocate can do his clientirreparable harm. But is the antithesis equally true?Can a brilliant advocate ever win a case which withouthis brilliant advocacy would have been lost? I knowthat he can; very seldom, it is true, but just on thoserare occasions which prove the exception to a generalrule." 10 Others have expressed similar views. Theo.Mathew records that Kemp, Q.C. " was fond of quotingthe saying that of every hundred cases, ninety winthemselves, three are won by advocacy, and seven arelost by advocacy." 1X

Probably most lawyers would be in broad agreement

» Ibid.10 Cases in Court, 1949: Pan Books edition, 1953, p. 250.11 Theobald Mathew, For Lawyers and Others, 1937, p. 272.

Equalisation 19

with these views, though some would regard the oddsas being somewhat pessimistic. Many a case lost in alower court has been won on appeal by an argumentbased on some decision never mentioned in the courtbelow but discovered on further research by counselonce the decision has delimited the territory moreclearly, or unearthed by a leader brought in for theappeal. Even if there is no clear-cut event such as thediscovery of some relevant authority, sometimes a per-cipient advocate can detect the importance of some smallpoint that has lain hid in the mass of materials. Ashift of emphasis, a proper setting, and in skilled handsthat point can be made to blaze with a terrible lightthat transforms the case.

Equalisation in lawThis principle of marginal differences applies not only

to skill in advocacy but also to knowledge of substantivelaw. The case may involve some branch of the law inwhich there are perhaps less than a dozen experiencedcounsel; yet they are all equally at the service of eitherside. You may say that the city firm, engaged in scoresof law suits every year, has far more experience andknowledge of counsel, and so will be far better able toselect the best than the country solicitor who may escapewith only an annual case or two.

This is true but misses the point. Nearly everycountry solicitor has a firm of " London Agents."These are firms of London solicitors who, in return fora modest share of the profit costs (some would substitute" immodest," but I must not bring down that irrelevantfire on my head) act on behalf of country solicitors in

20 The Lawyers

all London litigation, and some other matters, too.London Agents of necessity become experts in thespecialities, abilities and fees of counsel, and to themcountry solicitors naturally turn when in doubt ordifficulty. If The Law List were to indicate what typesof work each practising barrister engages in (or hopesto engage in), this might prove useful to solicitors.Quite apart from the rigid restrictions on any form ofadvertising at the Bar, there are obvious difficulties inthis suggestion; yet the advantages in the public interestmight in the end well outweigh the disadvantages.

So in the end the difference between the city firmand the country solicitor in the choice of counsel shrinksto vanishing point. To each the whole Bar is open, andeach is as well able as the other to make a good choice—or a bad. It is by no means unknown for each to goto the same counsel; and then the only question is whogot there first. There are, indeed, elaborate " retainerrules" 12 as to what constitutes a retainer of counsel,and so will prevent him from aiding the other side. Ineed not explore the details, though the main rules maybe mentioned. For the modest fee of two guineas (withanother half-crown for the clerk) a " special retainer "can be delivered to any counsel at any time after thewrit commencing an action has been issued.

Traditionally, payment must be in cash to be effective.Thus where a special retainer was delivered with acheque, and ten minutes later the other solicitors arrivedwith a special retainer and cash, he that was last wasfirst. The actual delivery of a brief also constitutes a

12 See W. W. Boulton, Conduct and Etiquette at the Bar, 3rd ed.1961, pp. 35-41.

Equalisation 21

special retainer, and unless otherwise arranged so doesthe delivery of instructions to counsel to settle a writ orany pleadings in an action, or to advise in the action.

A " general retainer " may also be given. Unlike aspecial retainer, which applies only to one specific action,a general retainer operates for all litigation in anyspecified courts, tribunals or matters; and it costs fiveguineas (with half a guinea to the clerk). A retainernot only prevents counsel from appearing for the otherside, but entitles him to a brief in the proceedings, sothat it would scarcely be open to even the most pluto-cratic litigant in the most highly specialised type oflitigation to hamstring his adversary by deliveringretainers to all counsel competent in that field.

The range of the lawThis equalising function of the Bar is important not

only in litigation but also in advising. The solicitor isof necessity something of a jack of all trades. Mostfirms are departmentalised to some extent; one partneris in charge of conveyancing, another is commercial, thethird is litigious and so on. Again, some firms restricttheir activities to certain fields, or exclude certain typesof work; thus some firms will not do divorce work.Nevertheless, it is generally true that the client can goto his solicitor, and expect at the very least first aid inwhatever trouble besets him; almost by definition, asolicitor's shoulder is metaphorically broad, whatever hiscorporeal anatomy.

This, of course, poses problems to the solicitor. Howcan he, alone or with the aid of his partners and staff,possibly profess enough skill over the whole wide canvas

22 The Lawyers

of modern English law? True, his plight is not thatof the attorney in the United States. In England, itwould be physically possible for a solicitor to read anddigest the entire output of Parliament and the lawreporters, and still have some time left for practice; notmuch, but some. Yet physical possibility is one thing,sanity another.

In any case, solicitors professionally lead broken lives.An uninterrupted hour in the office is a rarity. Thetelephone is perhaps the worst tyrant; but there are alsoclients, partners, staff, other solicitors and sometimes theBar. There is also common sense. Why strive for aclear afternoon for research in a strange field when thereis the Bar? Half an hour's dictation, and there willemerge a Case to Counsel for Opinion. Counsel, too,will be chosen from those skilled in the field in question,The problem, or others like it, may have come his waya dozen times before. He may well have at his finger-tips not only any statutes and reported cases, but also(and this is even more important) any practice that hasbeen growing up in the courts or at the Bar in dealingwith this type of problem. By no means all that is acommonplace of practice is to be found in the books.

But it goes farther. Often a problem will involvemore than one field of law. What begins with land-lord and tenant may soon embrace town planning andthen enmesh itself in income tax and death duties. Thedivisions of the law made for the convenience of lec-turers, examiners and textbook writers have no validityin the practice of the law. Yet again, the problems maybe practical rather than legal. An expert valuer is

Equalisation 23

needed; there must be medical or scientific evidence; atown planning consultant must be found.

The Benevolent Spider

I hope the phrase Benevolent Spider will not giveoffence; but that is how the function of a solicitor maybest be represented. He sits in the middle of his web,and pulls each of the radial cords as need dictates.From one counsel comes an opinion on town planninglaw, from another comes an opinion on taxation; fromthe valuer comes a report on the valuation problems,from the planning consultant a draft of the evidencethat he is prepared to give. On the shoulders of thesolicitor rests not only the responsibility of seeing thatexpert advice is obtained when it is needed, but also theburden of finding the right experts. He must know hismen and know their capabilities; and he must knowwhen to take advice on these matters, and where to getit from. He must also know when to make a change.

The solicitor, at the centre of his web, is thus theonly person who at all times sees the case whole. Aseach strand is gathered in, the picture that he sees is adegree more complete. If there is to be litigation, hewill pass on this completed picture to counsel who willargue the case. During the interlocutory proceedingsbefore the case gets into court, counsel will see some-thing like the whole picture for a short while; but thesummons heard, the master's order made, the papersare returned to the solicitor, and counsel once againdisappears from the scene until he is brought in again.Only for the solicitor is there inescapable continuity andwholeness of vision.

M.H.L.—2

24 The Lawyers

Partnership ad hoc

The possible relationships between barrister and solici-tor engaged together on a case cover a wide range,depending upon the skill of each. At its best (and oftenit is), each is complementary to the other. Counselcannot be better than the material with which thesolicitor has supplied him. Behind a " brilliant cross-examination " usually lies much unseen and skilled workby the solicitor, collecting material, investigating possiblelines of attack and following clues. He may from timeto time consult counsel, or he may simply present himwith the results of his labours; but the work is his. Hisdismay if at the trial he sees the fruits of his laboursbeing squandered or ignored by inept advocacy may becontrasted with his pleasure if he sees them being usedto greater effect than he had imagined possible.

In a very special sense each case brings a relationshipof partnership and confidence between counsel andsolicitor. Yet it is a relationship ad hoc, for that casealone; and it rests on a basic inequality. In the back-ground there must always be the realisation that ulti-mately the solicitor is in a sense dominant. Counsel andsolicitor are yoked together for the case; but it is for thesolicitor alone to say whether they will ever worktogether again. Indeed, for the very case itself he mayalways in practice push the barrister from the saddle.To the outside world the barrister may appear as thegovernment, and so he is so long as he is there; but atany time the solicitor may exercise the powers of theHouse of Commons and the electorate and change thegovernment, for reasons that may or may not be

Equalisation 25

adequate or compelling. To change the metaphor, it isthe solicitor who is the husband, able at any time tohand a valid bill of divorcement to his wife, thebarrister.13

EFFICIENCY IN RESEARCH

Let us return, however, to counsel's opinion as part ofthe equalising process. Does this not simply enable thesolicitor to shuffle off, at the expense of the client,the responsibility that he ought to bear? Why cannot thesolicitor himself advise just as well as counsel, and morecheaply? These questions really answer themselves.Counsel's opinion is really remarkably cheap. Many anexcellent opinion is written for 5 guineas; 10 guineasis a fair fee for a well-established junior; for 20 youmay have a leader's opinion. Of course, if you go to aleader of high standing, you will be delighted to escapewith 50 guineas, pleasantly surprised at 75 and not upsetat 100. Much depends on the complexity of the case,the bulk of papers involved, the reputation of counsel,and the amount at stake. But in the ordinary case,counsel's opinion is cheap in relation to the work andskill involved.

Consider the alternative. Let a solicitor somehow findthe time and peace required to do a solid bit of research.How is he to carry it out? First, he must have a well-stocked library available. Many solicitors, of course,have good libraries, or are within easy reach of TheLaw Society's library in London, or a good provincialLaw Society's library; but many solicitors are not in this

13 See, e.g., Har-Shefi v. Har-Shefi (No. 2) [1953] P. 220.

26 The Lawyers

fortunate position. Without books " research " is amockery. No doubt the leading practitioner's book ona subject will usually go somewhere near the point; butoften it will leave untouched some of the fringe-problems, and so often these are of great practical orstrategical importance. And so one needs a really goodlibrary where these points can be pursued, sometimesinto seemingly remote territory, or in old editions orlittle-used books. This, of course, counsel can do; foralmost by definition his chambers are within easy reachof a good law library. This is part of his specialisationof function, just as it is part of the specialisation offunction of the solicitor's branch of the profession to bespread throughout the country, often in places remotefrom a law library.

The pulse of the courts

Suppose, however, a solicitor next door to a lawlibrary. He may be a specialist in the branch of law inwhich the problem lies; he may know more of thesubject than any practising member of the Bar; and hemay well then know the answer, or how to find it. Insuch cases, he will not need counsel's opinion, and willoften not seek it. You will see that I say " will oftennot seek it," not " never." This is because part of thespecialisation of function of the Bar is to have its fingeron the pulse of judicial opinion. The Bar sees andknows more of the Bench, both directly and vicariously,than solicitors can. There is many an unreported judg-ment; often a case is settled after the judicial view hasbecome plain, and of course there is no report of this;and from the lunch and dinner table gossip in the Inns

Efficiency in Research 27

and on the circuits, there is an osmotic permeation ofjudicial comments and decisions.

Sometimes, therefore, even the most confident ofsolicitors, advising in his home territory, will prudentlysend a case to counsel. Quite apart from the sagacity ofobtaining a second opinion on any matter where onefalse step in the reasoning may be disastrous, there isthe danger of a perfectly logical and coherent line ofreasoning being one which the courts just will not accept.It may be logic, but experience will prevail. And theremay be unwelcome side effects; the judge, yielding tothe compulsion of judicial logic, may yet feel constrainedto strictures whmatters such asBar, the intuitio

In this field ofterritory, I say nthe solicitor agaproves wrong. counsel's chambmember, troubletoo easy and conmember of the cof the law, but reaction of experas in life, it is aone stumbles ov

Let me leave turn to the soliwhich he is noteconomy and efon the shoulders

ich may make the victory costly. In these, the specialised experience of then of the wig, may prove invaluable. the giant among solicitors, on his homeothing of counsel's opinion as protectinginst claims for negligence if his adviceWhat is in point is the analogy of

ers, where it is a commonplace for oned by doubts or by a solution that seemsclusive, to " try it ou t" on some other

hambers, often less skilled in that branchbringing to the question the instinctiveience and a sense of the Bench. In lawll too easy to forget the doormat until

er it.the exceptional case, however. Let mecitor faced by a problem in a field in an expert. Is it not of the essence officiency that the burden should be put of him who is an expert in the field,

28 The Lawyers

well equipped both with experience and a good lawlibrary, and who often can start by taking for grantedmuch that others would have to disinter laboriouslyfrom the books? Why spend a day on a problem whenanother can solve it with greater certitude in an hour,and uncover difficulties and dangers invisible to lesspercipient eyes?

Responsibility

You will see that the essence of the English system isthat of leaving the overall direction in the hands of theworldly-wise solicitor who employs independent special-ists, legal and otherwise, as requisite. In relation toeach specialist, the solicitor's skill and knowledge isless than his; he is seeking guidance from an expert.The solicitor in effect has the right to " hire and fire "the experts, but otherwise they are in no way hisservants. So long as the solicitor does not lead the horseaway, it is they and not he who are in that particularsaddle. In high degree they are independent, and theyhave all the strength that independence gives. Counselsays that this point is bad, or that point, though good,will let in the enemy by a side-gate. The solicitor maynot agree, and may convince counsel, or may evenchange counsel; but more often, he accepts his views.The contrast with undivided professions is that there thepartner responsible for a case will as a matter of routineget one or more of his employees to do whateverresearch is necessary, and then make such use of itas he thinks fit. The advice is advice coming from a

Efficiency in Research 29

less-experienced subordinate instead of from a more-experienced independent expert; and such advice mustleave a greater burden resting on the partner's shoulders.

Cunctation

As I wrote these words, a journal arrived and my eyefell on this passage. " Even if he [the solicitor] seeksadvice from the specialist, the present organisation ofboth branches of the legal profession usually means thatfour to six weeks elapses before counsel's opinionreaches his client. Few business problems can wait thatlong for an answer." 14 It is, of course, true that some-times four to six weeks, and at times even more, elapsesbefore counsel's opinion reaches the client. But I wouldquestion the word " usually." The average time takento produce a written opinion no doubt varies greatlyfrom counsel to counsel and from case to case. Theproblem may be complex, the papers voluminous; some-where in the hundreds of pages of typewriting may liethe vital half dozen words on which a difficult legalquestion may turn, and an overpressed member of theBar must find the day or more that may be involvedeven in reading the papers.

One way in which clerks to overworked counsel tryto regulate the flow of work is by telling solicitors thatthere is no hope of Mr. Blank being able to look at thepapers for another six weeks. The solicitor then has todecide whether it is to the best interests of his client towait, or whether he should instruct some less busy

" Professor G. S. A. Wheatcroft (1962) 7 J .S.P.T.L.(N.S.) 7.

30 The Lawyers

member of the Bar. On the other hand, in some cases,half an hour may suffice to appreciate the problem, andfor an expert in that field it may not take as long to findor confirm the answer. With such wide variables it isalmost impossible to generalise, but if I had to, theperiod I should give would be appreciably less than" four to six weeks."

However, my quarrel is not so much with what issaid as with what is not said. The picture that thebusiness man should be given is not of an enforced waitof some four to six weeks for counsel's written opinion,but of counsel being available, in urgent cases, for aconference within twenty-four hours or less. The" urgent conference " is a commonplace of life at theBar. If papers have to be read first, enough time forthis must be allowed; often these are the papers thatcounsel takes home to read overnight so that in themorning he may advise on a problem diat reached himon the afternoon before. Sometimes there is no needfor this, and the conference takes place just as soon asthe solicitor can arrive at the chambers of the firstcounsel he has found who is available. " Conferenceson the telephone " are by no means uncommon, either;and sometimes it is even the transatlantic telephone. Ifcounsel is asked for his views " off the cuff," then offthe cuff they are given, often to be confirmed or modi-fied or added to as soon as counsel can get to the books;and if counsel is expert in the particular field of inquiry,as usually he is, he will not only frequently know theanswer but also know when further research is essential.

Efficiency in Research 31

In short, the picture as I know it is not of a cuncta-tive 15 Bar four to six weeks remote from the client, butof a Bar that is on tap, available quickly, and ready andable to give speedy advice at short notice in any field.Naturally, a written opinion sometimes gives greaterassurance than advice in conference and justifies thelonger time that must elapse before it is available; yetoften counsel is able in conference to give such clear andassured advice that no confirmatory written opinion issought. For the solicitor who uses the Bar wisely (andmost of them do) expert advice on any branch of lawis there for the asking, and speedily, if need be.

No loss of clients

Another advantage of the divided profession is that asolicitor may always consult counsel without any fearthat he may thereby lose his client to counsel. With afew strictly limited exceptions, of very small practicalimportance, no member of the Bar may accept instruc-tions from any member of the public. For the client,the road to counsel's chambers lies through a solicitor'soffice. If the client is consumed with admiration forcounsel's perspicacity (and it is a pardonable failing ofthe Bar to imagine that this is occasionally the case), thesolicitor will bask in the glory of having made so skilleda choice of counsel. His client will be bound the moresecurely to him.

When the profession is undivided, matters are other-wise. A lawyer may feel that in justice to his client he

15 The great Lord Eldon was noted for his long delays in decidingcases. He put it a little differently: " I confess I have somewhatof the Cunctative": Lord Eldon's Anecdote Boo\, I960; p. 131.

32 The Lawyers

must enlist the aid of a specialist in the branch of lawinvolved; and such a specialist there is in another firm.Yet the better the specialist, the greater the fear that theclient will transfer his allegiance to the specialist's firm.Even if there are rules of conduct aimed against suchtransfers, there is the risk or suspicion of such a transfer;and no rules can very well inhibit friends or relations ofthe client. The divided profession makes these risksand suspicions impossible. The difference is betweenspecialists who are available without risk and as a matterof routine and those who are available with risk and byway of exception; and die sense of risk must tend toinfluence judgment whether a specialist ought to bebrought in.

T H E CAB RANK

Let me turn to an allied topic, the choice of an advocate.Surely much of the strength of the English system liesin the concentration and freedom of choice of advocates.In London there are some 1,500 practising members ofthe Bar. In die traditional phrase, they are " on the cabrank." Each is available to any litigant. Provided asuitable fee is offered and counsel has no prior commit-ment, no member of the English Bar may refuse a briefto appear in any class of case within his competence.There is no question of die choice being restricted towhoever are the " trial lawyers" in the particular firmof attorneys that die client has instructed; the choice isnot between, say, five, but between 1,500.

In practice, of course, the range is often not so wide.In specialist matters, there are usually a relatively smallnumber of counsel regularly practising in that field. Are

The Cab Ran\ 33

there more than two dozen in company law, or morethan three dozen in income tax law? But the point isthat the whole field, whatever it is, is open to all, withfree and unfettered choice. Let the client be a wretchwith the most repulsive and unsavoury record, or a tire-some zealot in some unpopular minority group, and theanswer is the same: no member of the Bar will refuseto appear for him, or do less for him than his best.True justice demands this, and the English Bar offersno less.

At times members of the Bar find this rule somethingof a burden; but it is honourably observed, and it doesnot lack its consolations. In particular, questions of thetype " How could you appear for such a blackguard? "tend not to be asked. When appearance in court for aclient is of professional duty and not as of choice, anyidentification of counsel with his client or his client'sinterests lacks reality. The Bar is virtually free fromany political or social reproaches arising from performingits forensic duties. There is no surprise at finding aTory M.P. appearing as counsel for a local authoritywith a Socialist majority on its council, or vice versa, orcounsel with rigid personal moral standards vigorouslydefending drug merchants or blackmailers. The dis-sociation between the man and the advocate is nearlycomplete, even in the public eye.

JUDGING PROFESSIONAL COMPETENCE

I have so far said little about an important feature ofthe English system, that of judging professional com-petence. The proposition is that whereas solicitors are

34 The Lawyers

judged by their clients, the Bar is judged by solicitors.A layman with a legal problem has at the outset thepreliminary difficulty that I have already mentioned " :which solicitors should he go to? He may have regularsolicitors and be happy to go to them; he may haveregular solicitors, and be unhappy about going to them;or he may have no regular solicitors at all, and knowfew or none. All he can do is to ask and guess; askhis neighbours, his friends, his bank manager, anyone,and then make the best choice he can. Much of theadvice that he gets may be pretty wide of die mark.A happy householder may recommend a mainly con-veyancing firm to him for a county court case, or hemay be given die name of a successful magistrates' courtadvocate for his complex conveyancing job. When hesees the solicitor, he may be recommended to anotherfirm, and perhaps feel hurt or suspicious at this rejectionof his custom. And the basis of the recommendationmay rest on shifting sands. So often a skilled manfinds himself appreciated or admired for the wrongthings. What has been singled out for praise is nomore than is the competence of any who profess thelaw; what has passed unremarked is an expertise thatfew—well, not very many—possess.

Judging solicitors

When the advice is given, the job done, the casefought, how does the client appraise his solicitor? Willhe sing his merits, or deplore his failings? How muchof his estimation is based on the things that matter and

16 Ante, p. 9.

fudging Professional Competence 35

how much on the incidentals that do not—a brusquenessof speech, an attractive or an ill-favoured office, or evena blonde typist? I confess that I do not rank the averageclient highly as a judge of solicitors; I would not thinkmyself better as a judge of medical skill. In the wordsof Brandeis J., " Knowledge is essential to understand-ing; and understanding should precede judging."17

The client and I do not know, do not understand, andcannot judge. In the end, no doubt, reputations arebuilt up, and, like most reputations, they rest on some-thing solid. The good solicitor will rise and prosper,the bad droop and decline; but slowly, and often not tothe extreme.

fudging the Bar

How different the Bar! For the whole of his profes-sional life a barrister will be judged and assessed by theskilled and knowledgeable rather than by the unskilledlayman. The process begins in chambers, and laterextends to solicitors. A barrister's world is, indeed, aworld of expanding reputations; but always it is hisreputation with the legal profession and not with thepublic that is decisive. He is judged by those whoknow.

In chambers

Let me take it by stages. First, the barrister is a pupilin chambers; what reputation does he gain with hismaster? The pupil's knowledge of law is frail andpatchy, his knowledge of daily practice non-existent.

" fay Burns Baling Co. v. Bryan, 264 U.S. 504 at 520 (1924).

36 The Lawyers

How does he find out? Does he just ask, or does helook in the books—and the right books—as thoroughlyas may be before asking? Does he perceive what liesunder and beyond the questions asked in the solicitor'sinstructions to his master? Does he state nothing for averity until he knows, or does he " take a chance," or"suppose," or "assume"? Is his Yea, Yea, and hisNay, Nay? Does he make sure of one step, and thentest and confirm it before he takes the next? Does hismaster begin to trust him, within his competence, orremain suspicious? Does he resist the seductions of thenice point of law until he has first made sure of the dullquestions of fact? Are his quotations from statutes orjudgments true quotations, literal and exact to the lastcomma, or are they merely paraphrases? These and adozen other unformed questions are subconsciouslyasked and subconsciously answered; and the pupil'sreputation grows or it withers. If one word were neededfor the manifold qualities a pupil must exhibit, I supposeit would be " thorough." No skaters on the surfaceneed apply, whether the ice be thick or thin.

After the master, the clerk and the other members ofchambers. A pupil may survive an unfavourable verdictfrom his master; but if he does he—or his master—willbe exceptional. Such a verdict will mean that the pupilis unlikely to be invited to remain on in that set ofchambers when his pupillage ends. He may well findother chambers that will take him in, but they mayequally well not be such good chambers; or the verdictmay be such that, after inquiry, no chambers are to befound that will offer him a seat.

Judging Professional Competence 37

In court

Suppose, however, that the verdict is favourable. Theword goes round that the pupil is pretty useful; andthis means that sooner or later he will get his chance.He will be allowed on his feet in court for some formalapplication; or the impossibility of his master being inthree places at once gives him a greater chance, and anagony of mind more acute. Each time he stands onhis feet in court he will be observed by at least twofirms of solicitors, often more; and he now moves intothe second stage, that of being judged by solicitors.

For all practical purposes counsel receives no workexcept from solicitors. If a barrister makes a braveshowing, he may not only keep his own solicitor butalso may tempt die solicitor on the other side for somefuture case. He may lose his case but lose it in a waythat wins the solicitor on the other side from his adver-sary. His clerk by now feels able to recommend himin small cases when solicitors, unable to brief their usualcounsel because he is engaged elsewhere, seek his aid.

The clerk goes carefully. He has his own reputationand the reputation of his chambers to consider. Onefiasco, and an important firm of solicitors may be notonly alienated from the author of the disaster but alsolost to the chambers altogether. It is so easy for solici-tors to transfer their allegiance from one set of chambersto another; it is so easy, and so right that it should beeasy. The fittest survive. One disaster, one case lostnot by inevitability but by a failure to prepare itproperly, or by inability to meet any of the suddendilemmas that present themselves unawares, is more

38 The Lawyers

significant than a dozen cases well won. Solicitors seekcounsel who will not lose the case that ought to be wonrather than counsel who will bring off a brilliant win.Later in life, when his robe is silk and not stuff, counselmay be sought out in the hope of that last ounce ofstrategy that will defeat fearful odds; but in the firstyears, it is soundness that counts.

So the circle of reputation grows, from pupil-masterto clerk and chambers, and then beyond, to an increasingcircle of solicitors. Each new brief is a new risk ofdisaster and a new opportunity for one of the 2,000 toimpress two or more of the 22,000. The court-room isso public. Doctors, the jesters say, bury their mistakes.Many of the mistakes of most other professional menlie unperceived. Only in the law, and especially incourt, does there lie waiting an adversary to pounce onany mistake, real or supposed, that has been made. Inthe full hearing of all, the error will be emphasised andrubbed in; and authority, in the form of the judge, isthere to pronounce upon it. A young but sturdy reputa-tion may receive a shock from which recovery will beslow; several shocks, and life may be extinct.

Does this overdraw the picture? No member of theBar in practice can look back over his career withoutblushing; there are minutes that seemed like hours thatwe all would wish unlived. A mistake is made andproclaimed; how does counsel meet it? Does hecrumple, or does he confess and avoid; and how skilledis his avoidance? Afterwards, does he fall into adecline, or does he grit his teeth, and learn all that canbe learned from his mistake? His clerk and the othermembers of his chambers will do what they can to help

Judging Professional Competence 39

and sustain him, and they can do much; yet ultimatelythe question is what stuff he is made of.

Judging by solicitorsThis, of course, is fully appreciated by solicitors.

They know and understand; and their judgment restson a foundation more solid than foibles and trappings.The solicitor or his managing clerk (I suppose we shallall soon get used to calling them " legal executives ") arethe scarred veterans of hundreds of battles in court.They can distinguish the just deserts of insufficientpreparation from valiant resourcefulness in meeting anunpredictable point; they can discriminate between onewho is inexperienced but basically good and one who isexperienced but incurably bad; and they can judge whentheir client has had 50 guineas' worth on a 15-guineabrief, and when the brief fee, whatever it was, was toodear.

True, there are some 22,000 solicitors: disaster on onebrief leaves one solicitor alienated, but are there not21,999 more? The answer is No : life is not mathe-matical. There was the solicitor on the other side; eachsolicitor may have partners, employers or employees;and the word gets round. One failure does not make adisaster, but not very many more are needed. Duringthe first few years at the Bar, every barrister suffers farmore trials than he ever conducts in court. Hisopinions, his pleadings and his advice in conference areall looked at with critical and discerning eyes. Howmuch use is he? Is he worth persevering with? Shallwe try him again? Appearances in court matter most,of course. They are more public, more spontaneous and

40 The Lawyers

less retrievable. They also are tests of the ultimate atthe Bar. A solicitor wants to go to counsel whom hecan trust to see the case through to the end. Counselmay be able to advise with the infallibility of an oracleand draft pleadings like an angel; but what use if hecannot be relied upon to be as a lion in strife before themaster and the judge? Sometimes, it is true, solicitorsinstruct such a barrister, and then take in a leader whenthe case comes to court; and leaders are grateful. Butnone can hope for the highest rewards of the Bar if onhis feet he is deserted by the skill that clothes him in hischair.

The animus revertendi

The test, in the end, is in the solicitors who comeback for more. A beginner at the Bar will get a littlework from one source or another, and all will be warmlyreceived by him and his clerk. But what gladdens theclerk's fatherly eye more than anything is to see anotherset of papers arriving from solicitors whom the beginnerhas already advised. When half a dozen firms havereturned more than once, the clerk begins to feel—andrightly—that the beginner will at least stay the course.That beginner will sooner or later get a real chance.On the other hand, many solicitors may sample and fewreturn; and then the clerk will wonder how long it willbe before the attractions of a round salary and anassured position in industry or the civil service willtriumph over the beginner's fading hopes.

Throughout a barrister's professional life, he is judgedby solicitors. The spur of percipient appraisal is alwaysthere. He can hope to build a reputation, maintain it,

Judging Professional Competence 41

and perhaps enhance it; but under a discerning profes-sional gaze he can never safely rest on his reputation.There is also a point in his career when the judgmentof solicitors becomes of special importance: that is whenhe takes silk, i.e., becomes a Queen's Counsel.

La Gazza Ladra

Of silk itself, I shall have more to say later.18 HereI am concerned only witJh the judging of the Bar bysolicitors. A barrister who takes silk cuts himself offfrom much of the old life that he led as a junior. Hecan no longer draft pleadings, a wearisome but respon-sible task that provided much of his bread and butter.He can no longer draft conveyances, contracts or otherdocuments. Work such as this is reserved for the juniorBar, either alone or in conjunction with a silk. He canno longer appear in court in a case unless he has a juniorbriefed with him. His life changes greatly. Gone areroutine work and petty cases. His is now a life withthe heavier work, the bigger cases, the larger fees: butif, and only if, he succeeds. He is allowed to finish offall the work he has undertaken as a junior, and see toan end the cases he has begun, just as if he had nottaken silk; and this will often tide him over the transi-tion. But what he and his clerk are watching is thenew work, silk's work. How soon will this flow, andhow freely? And this depends on solicitors. Is hethought silkworthy? He has moved into a new worldwith higher standards, and with more pay for less work,but far more formidable competition.

18 See post, pp. 89 et seq.

42 The Lawyers

Lucrum cessans

Many make the grade, and go from success to success,with increasing fees and sometimes a restriction of theclass of work to be undertaken as the means of keepingthe volume of work within bounds. Many otherssucceed, though more modestly. Their income falters,dips a little, then steadily climbs above their juniorincome, and flattens out to a secure and comfortablebut unexciting increase above their junior fees, perhapsto the level of the salary of a High Court judge. Others—too many—fail. The qualities that assured themsuccess as a junior prove unequal to the front row, orso solicitors think. Fees of £4,000 or £6,000 a yeardwindle to a mere £1,000 or £2,000, and out of thatexpenses have to be paid.19

My object, however, is not to dwell on this, but togive point to my comment that the Bar is judged bysolicitors. Judgment is continuous, but it comes twicewith especial force; during the first five years in practiceand during the first three years of silk. He who emergesfrom these periods with a practice may regard him-self as established, to be maintained only by eternalvigilance, but likely to be maintained. He who findshimself with no more than a trickle need not abandonhope, but it is hope rather than confidence that fills thefuture. The tide may turn; a senior in his chambersmay die, or retire, or take silk, or go on the Bench. Hisrivals on circuit or in his particular field may do like-wise. Better the shoes of others than no shoes at all.But within these limits, the Bar is a career which rests

19 For professional incomes, see post, pp. 179 et seq.

Judging Professional Competence 43

on the judgments of solicitors, and few would have itotherwise. For, by and large, solicitors do not makemistakes in this territory. Few of the truly worthyremain undiscovered for very long, and the prospects ofsurvival for the incompetent are justly bleak.

Lest this sounds smug, I hasten to add that many ofthose who have " failed" at the Bar have amplydemonstrated that in other fields they have qualities asgreat or greater than any at the Bar. To those withtalents for administration, for example, the Bar offersnothing, and their especial skills would be wasted inchambers. Failure at the Bar is not precisely a stepping-stone to success as an administrator; but if it is not thecausa causans, it is often the causa sine qua non. Thehigher ranks of the Civil Service and industry havecause to be grateful to the rigours of the Bar.

TLarnings

The difference between the judging of solicitors andthe judging of barristers contributes to the financialcontrasts. Once a solicitor has qualified, he is virtuallyassured of at least a living wage for the rest of his life.A newly qualified barrister has the virtual assurance ofno income at all for at least a year, and then only apallid ghost of an income for another year or more.He cannot become a salaried employee and continue topractise at the Bar. His career is essentially personaland not vicarious. If he is unsuited to the Bar, hispractice will grow very slowly and never prosper much;and in time it may well wither away altogether. He isjudged by himself and by a relatively narrow circle ofthose who know. The solicitor who is unsuited to his

44 The Lawyers

profession has always the cover and aid of his employers,his partners and his employees; and he can turn to theBar for help. He is judged more as a unit in a team,and by the unknowledgeable public at large. The Baris a garden which is weeded more intensively and moreskilfully than the Roll of Solicitors. Survival at the Baris tough, and in the public interest justly so.

VERSATILITY

Freedom of choice has another consequence. It tendsto prevent counsel from becoming " typed " as to theparty. He does not, for example, spend all his timeappearing for defendant insurance companies, or forplaintiffs in accident cases. Success in a given field oflaw may well lead to counsel becoming more andmore frequently involved in a particular type of case;but equally that success will lead to his appearingindifferently for plaintiff or defendant. Let counselbecome noted for his skill in highway accident cases,and he will find himself appearing for claimants as wellas insurance companies, for insurance companies as wellas claimants. Success as a poacher is often the bestqualification for a gamekeeper, et e converso.

This must not be taken too far, however; a busyinsurance company may have so much work for afavourite counsel that he has little time for rivalclaimants; but broadly the principle is true. It is aidedby self-interest; counsel who lets too much of his workcome from one source may find himself very cold if thatsun ceases to shine upon him. At least there can be

Versatility 45

no question of counsel being a servant of a litigant; no" tame lawyer," employed at a salary, may argue casesin court as counsel. Counsel are of necessity indepen-dent, and in broad terms it is right to say that they donot become identified in outlook with any particularinterest or set of interests. Even only occasionalappearances for " the other side" can serve as awonderful corrective to myopia.

THE CONTRAST

It is, I suppose, possible for there to be two views onalmost anything; yet on the merits of the English systemof a divided profession, I find it hard to think that therecan be much doubt. Let me put it in die form of aquestion:

A client has a legal problem, and does not knowwhether it is easy or difficult. He consults a firm oflawyers. Under which of the following two systemsis he likely to get the better service ?

(a) If the resources of the firm are available to him,but it is unlikely that any aid outside those re-sources will be available even if the problem isdifficult: the normal limits are the limits of theskill, experience and expertise of the firm; or

(b) If the resources of the firm are available to him,but if the problem is difficult, all the specialistskill, experience and expertise of the Bar are alsoavailable to him at reasonable cost: the only limitsare the limits of the learning and capabilities of theentire Bar.

46 The Lawyers

WITNESSES

A further advantage of the English system of a dividedprofession, often little understood, lies in the field ofuntrue evidence. The starting-point is the rule ofetiquette which forbids any barrister, save in exceptionalcircumstances, to interview or discuss the case with anywitnesses or permit them to be present at any consul-tations or conferences with him. To this rule there aretwo exceptions.

First, if the client himself is to give evidence, thatdoes not prevent counsel from seeing him and discussingthe case with him; his status as a witness does not over-ride his rights as a client. Secondly, counsel may discussthe case with expert witnesses, such as doctors or valuersor scientists. This exception is essential in the interestsof efficiency. Often counsel could not make a lucidopening speech or effectively cross-examine the oppos-ing witnesses without having first seen his own expertand obtaining from him explanations and examples ofthe technicalities involved. The exception also recog-nises the integrity of professional experts. An expert'sopinion within his field of skill, too, is less frail andliable to change in discussion than human recollectionof facts.

The unknown witnessWith these exceptions, the rule operates strictly.

When counsel calls one of his witnesses, he usually hasnever even seen him before. With the others in courthe will watch with interest to see who will answer to thewords " I call Mr. Brown." Naturally, counsel knows

Witnesses 47

what evidence Mr. Brown is expected to give. Theinstructing solicitor will have interviewed Mr. Brown,sometimes more than once, and will have prepared a" Proof of Evidence " which sets out what Mr. Brownsays he will say. This proof will be with counsel's brief,and counsel will use it for his examination-in-chief.Often Mr. Brown says in evidence just what he has saidin his proof; but it is far from rare for him to leave outsome points, add new points, and often state the pointsset out in the proof in different—and sometimessignificantly different—language.

But what, you may ask, is the advantage of thissystem, especially in the field of untrue evidence? Ifthere is any question of persuading a witness to givefalse evidence, or to suppress awkward facts, would itnot be possible for the solicitor to arrange matters? Forhe interviews the witness, and could easily make theattempt.

Theoretically the answer is Yes; in practice it is nearlyalways No. The crucial point is that the person askingdie questions is different from the person who interviewedthe witness; and this is a powerful brake on dishonesty.If die advocate and the witness conspire together, nodoubt they could manufacture false evidence diat mightoften succeed in its evil purpose. But it is anothermatter for A to arrange a story with the witness insuch a way that when B asks the witness questionsabout it, often in quite different language from thatused by A, a flawless tale will emerge. The questioneris different, his language and arrangement are different,and the circumstances are different; what is likely toemerge is eidier the truth, or lies that are detectable as

48 The Lawyers

such. Quite apart from the high standard of honouramong solicitors, the knowledge of the risks created bythis system is a powerful deterrent to dishonesty.

Coaching witnesses

The result is that the " coaching " of witnesses is rare,and, when it happens, it is usually inefficient andineffective. Perjury, of course, is by no means un-known; but when it occurs it is most unlikely to havebeen organised by any member of the legal profession.Since any form of " payment by results," or " contin-gent fees" (i.e., fees depending on the result of thecase) is strictly forbidden, there will also normally be nofinancial incentive either to counsel or solicitor toattempt to ensure success by procuring perjury. InEngland such perjury as occurs is nearly always amateurand unorganised. An intelligent witness who has beencarefully coached and rehearsed by a skilled advocatewould probably be very difficult to break down in cross-examination; but fortunately such a creature is almostunknown in England.

The witness parade

Let me take a defeated litigant under other systems.How may he feel when he learns of the advice that isgiven and doubtless acted upon? I shall quote somepassages written by an American author and selectedfor inclusion in an Indian book.20

20 R. K. Soonavala, Advocacy : Its Principles and Practice, 2nd ed.1960, pp. 505-507, quoting from Sydney C. Schweitzer, TrialGuide, 1948, Vol. 3, pp. 1157-1175, 1185-1192, 1345-1346.

Witnesses 49

" A few days before the trial it is well to go over witheach witness the testimony that he will give at the trial.Put him through the direct examination. Make sure hisrecollection is not vague or in error as to dates, distances,descriptions, etc. Those points that you feel will formthe decisive phases of cross-examination, should bereviewed in great detail with the witness, and everyeffort made to see that he will take the stand with thestory firmly fixed in his mind. . . .

" Counsel should repeatedly make clear to thenervous, excitable witness the necessity for self-controlat all times. The questions to be asked him upon directexamination, and likely points of cross-examination,should be gone over carefully before the trial, and anymatters likely to cause him confusion should beexplained in detail.

" The timid witness is easily identified. Write out forsuch witness the questions and answers upon the vitalpoint in his testimony, and let him read it a few daysbefore the trial. This will give the witness a certainassurance when he takes the stand at the trial. Cautionsuch a witness against accepting any changes in his storyduring cross-examination. . . .

" It is a wise precaution for counsel, before the trial,to reconstruct the accident in the presence of all thewitnesses. This practice will help materially in securinga consistent and logical story of the occurrence. Eachwitness should be made to repeat what he heard orsaw in connection with the accident. The participantsin the actual occurrence should relate their version ofdie accident, detailing all that they saw or heard, in

50 The Lawyers

each other's presence. Any discrepancies can then becarefully discussed."

Under a system which permits such discussions, nodoubt such advice is admirable. Given such carefulinstruction, how could a witness, either individually oras one of a team, go " wrong "? The English practicemust seem oddly haphazard and amateurish. Yet is notthe object of a trial to elicit the truth? In the end,excluding all questions of deliberate fabrication, thequestion is how do you like the truth—unvarnished orvarnished ?

I am not for one moment criticising the authors orpractitioners under these other systems. Each practi-tioner must do the best he properly can for his client.What the system regards as proper he must do; andauthors must advise practitioners. What I do venture toassert is that under the English system a defeated liti-gant is likely to have less to complain of and less tosuspect; and that I count for merit.

A N HONOURABLE CODE HONOURABLY OBSERVED

This brings me to one of the layman's deepest suspi-cions. " Granted," he says, " that there are these andother highly ethical rules of conduct. But who is toknow if you break them? Surely it is easy enough tokeep quiet about it." The answer is simple enough:the Bar is a small and honourable profession, and withvery rare exceptions the rules are honourably and loyallyobserved. Often a breach of the rules would involvesomething like a conspiracy with a member of another

An Honourable Code Honourably Observed 51

honourable profession, the solicitors'; and the coinci-dence of dishonourable barrister and dishonourablesolicitor is likely to be rare indeed. In any case, theword gets round. Exactly how, I cannot say; but itdoes.

Once the word gets round (and the practising Bar issmall and concentrated), the Bar is watchful, and soonerrather than later consequences are likely to follow.Above all, there is the atmosphere of chambers, of halland of the circuit mess. The newest recruit soon seesmany instances of counsel unhesitatingly rejecting theeasy half-truth or equivocation that would help him orhis client, of scrupulous respect outside the four walls ofchambers for the professional secrets in his care (oftenfinancially valuable or socially interesting), and, in short,of honourable and responsible conduct which fullymatches the demands made by the long traditions ofthe Bar. This is not mere theory, or words, or a pioushope; it is real. With very few reservations, I wouldaccept the word of a practising barrister or solicitor asreadily as that of a bishop. This is the climate in whichthe Bar lives and works, and the neophyte takes colourfrom his surroundings. He can soon see why it is thatthe Bench will at once accept the word of counsel fromhis place in court without the sanction of the oath.

Assertion and argument

That points a distinction. What counsel assert fortruth, the court accepts; but what counsel argues thecourt judges. Most of what counsel says in court is,indeed, mere argument; only occasionally does he speakas to fact. Suppose in a county court a question arises

52 The Lawyers

about what a witness said in evidence on a previous day,and only the plaintiff's counsel has a note of thatparticular part of the evidence. His note will unques-tioningly be accepted by both the judge and thedefendant's counsel; and it is unthinkable that he shouldhave altered in any way what he took down. But theweight to be attached to the evidence and its effect onthe matter in issue are mere matters of argument; andthe rejection of his argument casts not the slightest sluron counsel.

The bad cause

Similarly, counsel is in no way dishonoured by hiscause, however unfounded it proves in the event. In hiswell-known paper entitled " The Ethics of Advocacy," 21

Lord Macmillan points out that by arguing whatultimately turns out to be a bad case an advocate is notthereby shown to be dishonest. He does not assert hisown opinions or judge the merits of his client's case,but merely presents to the court " all that his clientwould have said for himself if he had possessed therequisite skill and knowledge."22 This echoes Dr.Johnson: " A lawyer is not to tell what he knows to bea lie: he is not to produce what he knows to be a falsedeed; but he is not to usurp the province of the juryand of the judge, and determine what shall be theeffect of evidence—what shall be the result of legal

21 Lord Macmillan, Law and Other Things, 1937, pp. 171-199." Ibid, at p. 181.

An Honourable Code Honourably Observed 53

argument. . . . A lawyer is to do for his client all thathis client might fairly23 do for himself, if he could." 24

It has been said " Do advocates actually live up tothe standard that Lord Macmillan describes? Un-happily the answer is no. I do not suppose that thereis one of us who has been in practice for as much astwenty years who can lay his hand on his heart and saythat he has never transgressed the code of honour andconduct which he knows he ought to have observed." 25

If this means that after twenty years' practice at the Barthere are none who can assert that they have neverconsciously acted dishonourably, I would vigorouslydissent.

Mistakes are another matter. There can be very fewat the Bar who have no recollection of occasions whenthey have erred, either by omission or commission, andfailed to do the best that could properly be done fortheir client. Indeed, it is just those occasions, mostlybut not exclusively in the first years of practice, that arelikely to have burned most deeply into the memory ofany successful practitioner who has learned even morefrom his own mistakes than from the mistakes of others.In that sense, memory brings a blush to the advocate'scheek. But conscious wrongdoing is entirely different.The point is hardly susceptible of proof, and man isfrail. Nevertheless, a record of universal (even thoughoccasional) conscious wrongdoing is surely the last thingthat would be associated with the English Bar.

2 3 The " fairly " is no doubt implicit in Lord Macmillan's statement;nevertheless, it is right that it should be explicit.

2 4 James Boswell, A Journal of a Tour to the Hebrides (ed. P . Fitz-gerald, 1888), p. 212.

2 5 C. P. Harvey, The Advocate's Devil, 1958, p. 13.

54 The Lawyers

Discipline

I have said nothing about disciplinary proceedings.For the solicitor there is the Disciplinary Committeeunder the Solicitors Act, 1957, composed of eminentsolicitors, with power to fine, suspend or strike off therolls. For the barrister, there are the benchers of hisInn, with power to suspend or disbar. One must discardthe transatlantic whimsy which proclaims that in Eng-land " disciplinary control of barristers is exercised verystrictly by the Bar Council, of which the president isthe Lord Chancellor. . . . The Bar Council would nothesitate to strike off any member of the Bar who mightbring it into the slightest malrespect." 26 In truth, theBar Council has never had any disciplinary powers,although it often exercises the valuable function of pre-liminary investigation and, where necessary, report tothe appropriate benchers. Nor, I may add, is the LordChancellor the president or even a member of the BarCouncil; as head of the judiciary he would be whollyout of place in an elected body of practising barristers,with a few non-practising members.

The powers of the Disciplinary Committee and of thebenchers are, of course, important in the last resort; thetwo branches of the profession must have adequatepowers to purify their membership.27 But what inmany ways is more important is the existence of strongand effective professional opinion. This not only dis-suades from conduct that would fall within the ambit

26 Derrick Bass (1949) 35 A.B.A.J. 995 at 996, reprinted in TheLawyer's Treasury, 1956, p . 122 at p . 125.

2 7 The phrase is Cardozo J . ' s : Matter of Rouss, 221 N.Y. 81 at 91(1917).

An Honourable Code Honourably Observed 55

of disciplinary proceedings but also checks much con-duct which, though outside that ambit, is undesirable.Most important of all, this professional opinion is notmerely a deterrent to misconduct but also encouragesand sustains all that is best. The existence of such a bodyof opinion in England is neither mirage nor aspiration,but solid reality; and for that all must be grateful.

T H E BARRISTER'S CLERK

I must now turn to an important part of the Englishlegal scene, the barrister's clerk. You will find littleabout him in the books. Nevertheless, he makes animportant contribution to the efficient practice of thelaw and so to the interests of the public.

He is one of the most remarkable institutions of theEnglish legal system. Even his name is something of amisnomer. He is normally a clerk to no one barrister,but to a number of barristers; and yet he is clerk to nonecollectively but to each individually. In general terms,he is a complicated cross between a theatrical agent, abusiness manager, an accountant and a trainer. Let uslook at the organisation of a set of chambers, and thepart played by the clerk.

All chambers great and small

Every set of barrister's chambers houses a barrister'sclerk. Occasionally there may be two clerks in partner-ship, as it were, but the general rule is one clerk foreach set of chambers. Under him there will usually bea staff of two or three; sometimes less, occasionallymore. There will be a junior clerk and a typist or a

M.H.L.—3

56 The Lawyers

boy, or both; much depends on the size of chambers.At the beginning of 1961, of a little over 1,900 practisingbarristers, some eighty were in chambers of three orless, and some 210 in chambers of fourteen to seventeeninclusive. Some 85 per cent, of the Bar accordinglypractise in chambers of not less than four nor more thanthirteen, with seven as the most popular number.28

Although in recent years there has been something of atendency towards the amalgamation of two small setsof chambers into one, there are still forty-six sets withthree barristers or less.

Do not judge the size of chambers by the lists ofnames to be seen painted outside the door. Some ofthose names are of former members of the chamberswho have since become judges. Their names are keptup for old times' sake and, I suppose, for the warmingglory of the judicial robe. Other names are of thosedead or retired; their names must be kept up so thatthe postman may know where to deliver their letters.As some of these letters will contain cheques in pay-ment of outstanding fees, and as occasionally fees mayoutstand for five or even ten years, the names maystay up for a long time.

Other names may be of those who have forsaken thepractice of law for other activities, but for whom thereis some advantage in retaining a notional foothold inchambers. The names of many a teacher of law, securein the unhurried calm and comfort of a university life(or so it seems from the Bar), are to be found in thiscategory. A display of fifteen names outside a set of

2 8 See Annual Statement of the General Council of the Bar, 1960,p. 45.

The Barrister's Cler\ 57

chambers may thus mean that only eight are, from timeto time, to be found bodily within. The other sevenare traceable (if still on earth) but no more.

In recent years two convenient practices have gaineda foothold. The first is to put the name of the clerkat the foot of the list of names, usually in italics andpreceded by the word " Clerk." The second is to havethe names of only the active members of chamberspainted in the usual size of lettering, with the names ofthe inactive grouped at the foot of the list in smallerlettering. You will see no more than names and titles("Sir John Smith: Mr. A. B. Jones" and the like);neither " Q.C." nor any other advertisement of distinc-tion will appear. Nor, incidentally, do practisingbarristers have visiting cards or notepaper which disclosetheir status.

Depending on the number of effective members of thechambers, the staff under the clerk will be small or verysmall. But the supervision of staff is the least of theclerk's duties. His two main functions can be put underthe broad headings of management and money. Theformer is broadly the more important, but exposition iseasier if I begin with money; and so I will, for once,put money first.

Fixing fees

The starting-point is the rigid rule of etiquette thatforbids a practising barrister to discuss any question offees with a solicitor or solicitor's clerk. Only in casesof " special difficulty" is there any exception to this

58 The Lawyers

rule, and then only as regards silks,29 who are presum-ably in a stronger position than juniors. The result ofthe rule is that all discussions take place between thesolicitor or his clerk, on the one hand, and the barrister'sclerk, on the other hand.

Many types of work tend to have fees that are moreor less stereotyped, and leave little room for argument.Much written work is in practice the subject of noprevious agreement as to fees: counsel writes hisopinion, his clerk notes in his books what he considersto be the appropriate fee, and then in due course sendsin an account for this fee. If the solicitor thinks it toomuch, he will usually ring up the clerk and discuss it;and in most cases agreement will be reached withoutmuch difficulty. The clerk has in mind future work tocome from the solicitor and how much or how little diebarrister needs that work, and the solicitor knows howvaluable the opinion was, the probability of his wantingto return again to that particular counsel or hischambers, and so on. If there are special circumstancesin the case that call for lower fees than usual (e.g., thatthe client is poor but deserving), usually the solicitorwill have a word widi counsel's clerk before deliveringthe papers; and, of course, the solicitor can always havethe fee agreed or estimated in advance, if he wishes.Within these limits, many of the fees charged for paperwork are largely a matter of routine.

That, however, is far from being the whole picture.For all except the small and routine cases, counsel'sbrief fee—his fee for preparing the case and for the

29 -\v_ w . Boulton, Conduct and Etiquette at the Bar, 3rd ed. 1961,p. 46.

The Barrister's Cler\ 59

first five hours of the actual hearing (if the case takes solong)—is essentially a matter of discretion and argu-ment. In normal cases the solicitor naturally tries to getcounsel for the lowest proper fee; the barrister's clerktries for the highest proper fee. Note the word" proper," and the scope for argument that it offers.To the question " What is the proper fee for a countycourt brief? " there can be no answer. How long willthe case last? How far is the county court fromchambers (for the brief fee must cover all travelling andother expenses)? How much is at stake? What is thestanding of counsel and the demand for his services?Ten guineas may be a fair fee or ludicrously inadequate;fifty may be greatly excessive or barely enough.

At times the fortunate are privileged to hear snatchesof a clerk at work, settling a brief fee with solicitors.The offer and counter-offer, the clerk's generous estima-tions of counsel's standing and experience and thesolicitor's confident statements of highly economicalcompetition, are all conducted in words of indignationand assurance uttered in, fundamentally, the most good-natured tones. Skill, judgment and a knowledge ofhumanity are vital in a clerk. He knows no law, orvery little; but he knows men. A good clerk may beworth a fortune to his principals; a bad clerk may costthousands, or even spell disaster.

AccountancyThere is another, more routine, side to money. It is

the clerk who records in his books all fees due to eachof his principals. If briefs or other papers are delivered,the clerk will record the fact in his books; when the

60 The Lawyers

work has been done, the appropriate fee will berecorded; and periodically, usually at every quarter-day,a note of the fees outstanding will be sent to all thesolicitors concerned. When cheques are received, theclerk will give them to counsel, or pay them into hisbank, and get counsel to sign a receipt for the fees,which is then sent to the solicitor.

This stage is usually the only contact counsel haswith fees. Brief fees must be marked on die brief beforecounsel goes into court (with the exception of legal aidcases and briefs for government departments), and socounsel knows what he is being paid for the brief. But" refreshers " {i.e., fees on a brief to cover each periodof five hours in excess of the initial five hours) areusually not marked, though they may be. Again, feesfor opinions are usually not marked, though again theymay be. Thus it often happens that counsel first dis-covers what he has earned for a particular piece of workwhen he signs a receipt for it, months or even yearslater. Fees are clerk's business, and counsel gratefullyand trustingly leaves it to him.

Of course there are variations. Some counsel discussmost or all of their fees with dieir clerks; others discussonly die larger or more difficult fees. Some exclaimwith horror at the fee which their clerks have agreedwith solicitors and marked on their briefs. But thehorror is varied: sometimes it is at the smallness of diefee, but sometimes it is at its magnitude. " That'srobbery " is a cry from counsel to clerk that is by nomeans unknown. But broadly it is true to say that dietime and anxiety expended by counsel on fees isnegligible. Fees are clerk's business.

The Barrister's Cler{ 61

Clerks feesThis phrase is true in more senses than one; for a

barrister's clerk is remunerated in a way different fromany other occupants of chambers. The starting-point isan explanation of " clerk's fees." Suppose a solicitorhas had a conference with junior counsel lasting notmore than twenty minutes or half an hour. For this,the standard fee is two guineas When, however,counsel's fee note is sent to the solicitor, it will be for£2 7s. Od., not £2 2s. Od.; and for double time it isdouble these figures. Again, if counsel writes a shortopinion for which the fee is three or five guineas, thefee note will be for £3 5s. 6d. or £5 10s. Od. Thereason is that there is an accepted scale of clerk's feeswhich are payable in addition to counsel's fees. Thesefees are not a fixed percentage: five shillings on twoguineas bears no obvious relationship to half a crown onthree guineas or five shillings on five guineas. In fact,it is the two latter which are in line with the generalscale and the first which is exceptional.

The explanation is quaint. It has nothing to do withthe amount of two guineas, but is due to the workbeing a conference. Conferences are often held in thelate afternoons, when the courts have risen for the day;in the winter months, this will usually be after dark.A century ago, it was the clerk's duty to provide andpay for the candles for conferences; and so the clerk'sfee on a conference, instead of being an orthodox halfcrown ex candles, was double that but cum candles.So goes the legend, which may well be true. Howeverthat may be, there is a fixed scale of costs which will beallowed by the Taxing Masters in litigation; and apart

62 The Lawyers

from conferences, these are at a rate of 2*4 per cent,on each fee of fifty guineas or more, and between 2l/zand 5 per cent, on all smaller fees.30

Time was when a barrister's clerk subsisted on clerk'sfees alone. As a matter of mechanics, his fees are paidin one mass with counsel's fees into counsel's bank, butperiodically counsel gives his clerk a cheque for theclerk's fees. As counsel prospered, his clerk would hopeto be given " the shillings on the guineas " as well, sothat his total remuneration would come to somethinglike 8 per cent, of his principal's fees. Today, mostclerks have made good their claim either to a uniform" clerk's fees plus shillings on the guineas," or, quitecommonly, to a flat 10 per cent, on the total payments,counsel's fees and clerk's fees together, received by eachof his principals.

The happy cler\T h e resul t can be easily i l lustrated. T a k e this sample

of a hypothe t ica l set of c h a m b e r s ; the fees are all gross,i.e., before pay ing chamber s a n d other expenses.

£One flourishing silk 15,000One so far unlucky silk . . . . 3,000One flourishing junior . . . . 6,000„ , . . r 4,000lwo sound juniors < , ennOne rising junior 2,500One fading junior 1,000One neophitic junior 500

£35,500One clerk at 10 per cent £3,550

30 Supreme Court Costs Rules, 1959, Appendix 2, Part X, r. 3.

The Barrister's Cler\ 63

This clerk is fortunate. All his trees are bearingfruit. But he is at risk. Suppose his flourishing silkdies, or retires, or becomes a judge. At a blow overone-third of the clerk's income has vanished. Theflourishing junior may then take silk unwisely andhalve his fees. An income of £1,750 for the clerk isindeed not to be despised; but to have an income halvedwould come as a blow to most. Other clerks are lessfortunate. There are chambers with no silks, or silksor juniors who do not flourish, or who flourish butlittle. Per contra, some chambers house two flourishingsilks; and some have specialist juniors who commandvery high fees. But whatever the chambers, the prin-ciple is the same; apart from all other ties, the fortunesof the clerk and his principals are linked by a strongfinancial link. As they prosper, so does he; their ill-fortune is his also. Only at one point do their interestsdiverge: promotion to the Bench may mean a financialsacrifice or a financial advantage to the principal, but interms of money it means only loss to the clerk. Theculmination of a successful career at the Bar which theclerk may have nursed skilfully for twenty or thirtyyears or more may literally cost him dear.

Trainer and manager

From these financial considerations much of the otherfunctions of a clerk may be discerned. He must notonly be skilled in dealing with outside humanity, butalso have a sure touch within his chambers. He is clerknot to one barrister but to six or nine or a dozen. He

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is not only Mr. Alpha's clerk, but also Mr. Beta's, Mr.Gamma's and so on. Outside films and novels, he willnever answer the 'phone by saying " Mr. Delta's clerkspeaking," for he cannot tell whether his caller wantsthe clerk to Mr. Delta or the clerk to any of the othercounsel in his charge.

There will be occasions when he will be in the happybut delicate position of being clerk to each of the adver-saries in a case: Mr. Beta is for the plaintiffs, Mr.Epsilon for the defendant. Needless to say, confidenceswill be as safe with him as they are with counsel. Mr.Beta's Advice on Evidence for the plaintiff, with manya shrewd tactical thrust, may be typed by the samehands as typed Mr. Epsilon's Advice on Evidence forthe defendant, with wise advice on how to meet theplaintiff's expected alternative lines of attack; yet all inthe clerk's room will be as scrupulous as the two counselthemselves in keeping apart all that should be keptapart. A leakage is unthinkable. In court, Beta andEpsilon will assail each other with all the addedvehemence of old and close acquaintances, knowingeach other's points of weakness and strength in advo-cacy; for Beta may be as strong on his law as Epsilonis skilled in his handling of witnesses.

In chambers as in court, Beta and Epsilon are twodifferent men; each is known to his clerk. Beta may bebrilliant but idle; Epsilon may be dogged and tendingto work harder than his health allows. For one theclerk has the spur and for the other the rein. A goodclerk can do much—very much—to help a barrister toget the best out of himself.

The Barrister's Cler\ 65

One facet of this is the regulation of the flow of work.Some work comes and is accepted with inevitability; itis of such importance that there is no question of refus-ing it. Other work is marginal: it can be taken, orobtained, or discouraged, or rejected. If a willing horseis overworking, the clerk can say to the solicitor: " I'mafraid Mr. Delta won't be able to look at this for threeweeks," and often the solicitor will seek other counsel;with luck, the solicitor can be persuaded to divert thepapers to another member of the same chambers whomay be as able as he is under-employed. Such papersare then not " lost to the chambers," which, inter alia,means that the clerk's fee is not lost to the clerk.

Again, an overpressed member of chambers may beshielded by his clerk asking a higher fee than is likelyto be paid. This is more delicate: it is one thing toraise the general level of the fees charged by Mr.Gamma, another to charge more than his usual feesin particular cases. The levels of variation, indeed, aremuch less flexible with a junior than with a silk.Ultimately, if Gamma is chronically overworked despitethe raising of fees and delays in his paper work, theonly remedy is for him to take silk, with all the riskthat that entails.

The clerkly reputation

Lest it be thought too easy for the clerk to divertwork from the overpressed Gamma to the underpressedDelta, let me add this. No clerk will make such asuggestion to a solicitor unless he feels confident thatDelta will do the work well. It is not only counsel that

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have their reputation; clerks have theirs. A solicitorwill ring up a clerk whom he trusts and ask him if hehas a young junior in chambers who can do a smallcase for him—too small for Mr. Gamma—on Thursdaynext. If on the clerk's recommendation the brief goesto Zeta in his chambers, and he mishandles the case,not only is Zeta certain to get no more briefs from thatfirm of solicitors, but the clerk has also lost his reputa-tion with the firm. Indeed, that firm may even desertthe chambers altogether and transfer its allegiance else-where; Zeta's fiasco may have been the last cut thatsevered an already weakened attachment. So no clerkwill knowingly sell a pup.

From this you will see how tender and how beautifulis the flower of confidence that the beginner at the Barmust seek to implant in the breast of his clerk. It ishere that his career must begin, if it is ever to begin atall. The clerk will do all he can for the beginner, butnot at the risk of his reputation. It is here that theclerk needs all his wisdom. Zeta is rash, impetuous,lacking in thoroughness; if this cannot be curbed, is theBar the place for him? Eta is slow and thorough butnervous and over-sensitive; he must be encouraged andfortified if he is to endure. When the spark has turnedinto a small flame, a gentle breath will make it glow,but a gale will extinguish it; it must be built up slowlyand not overtaxed. " Softly, softly catchee monkey " istrue at the Bar, as in many other fields.

The adjusterLet me return to the busy Gamma. Again and again

he will have the problem of being in two or more places

The Barrister's Cler\ 67

at once; and here is a field of heroic endeavour for hisclerk. Sometimes something can be done; often nothingis possible save to return a brief: and of this I shall saymore later. Here I am concerned only to point out thatif anything is to be done, it is the clerk who must do it.He and the judges' clerks speak a common language,for most of the judges' clerks were once barristers'clerks. By being present in the Law Courts when thelists for the next day are being made up, by talking tothe clerk to counsel on the other side and sometimesmaking common cause with him, by talking to instruct-ing solicitors and obtaining their agreement to the casebeing postponed a day or so, the clerk can sometimesachieve the seemingly impossible. There is also preven-tive work; when a date is being fixed for a particularcase, the clerk can often steer the case away fromdangerous groups of other dates.

The insulator

By now you may well be saying: " Let all this be so;yet how does it affect the efficiency of the legal profes-sion? " The answer is simple; it plays a major part insetting the barrister free to work with the very minimumof interruption and extraneous worry. It is all parcel oftliat specialisation of function which is one of the majorachievements of the English system. No telephonerings in counsel's room unless his clerk is satisfied thatcounsel must deal with it himself, or would want to doso. None of die problems of fees detain counsel formore than a few minutes several times a year.

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All that counsel has to do is to do the work his clerkarranges for him. If Gamma's clerk comes intoGamma's room on a Monday and tells him that he hasa twenty-guinea brief in Clerkenwell County Court onFriday next, all Gamma has to do is to get up the casein time and fight it. He may never have heard of thecase or the client or the solicitor before, and he maynever hear of them again. The negotiations over thebrief may have been protracted and difficult, or theymay have been short and satisfactory; of this Gammamay know nothing. If a case is far out of London, itis Gamma's clerk who will see that a room is bookedfor him at an hotel and that he catches a suitable train.Gamma has nothing to do except his work; and he isset free of all clerkly worries so that he may do thatwork well. The barrister's clerk is his shield and hisbuffer.

You will see from this how important the barrister'sclerk is in the English legal system. His is a positionof much responsibility. To all in his chambers he is ofvital importance; and to the beginner at the Bar he isthe most important of all. As with all the other personsand institutions that I describe, he is not always perfect.Mistakes are sometimes made; human frailties havesometimes appeared; and complaints are occasionallyheard of a clerk who is said to have become too domi-nant for the proper health of his chambers. If there are anumber of beginners at the Bar in the chambers, the clerkmay see to it that one prospers while another does not;and personalities rather than a just estimation of abilitiesare sometimes said to govern the choice. Yet in theultimates of judging human abilities, who can speak

The Barrister's Cler\ 69

with certainty? Is Omega really the equal of Alphathat he thinks himself to be?

There are indeed possibilities of abuse, and not evenbarristers' clerks are angels. Yet members of the Bardo not lack tongues with which to complain, nor arethe senior members of the chambers without ears. Inthe end, I would doubt whether there is more than anoccasional outcropping that demonstrates the need forvigilance. Certainly the great majority of barristers'clerks fully justify the confidence and affection whichtheir principals feel for them.

THE CORPORATE SPIRIT OF THE BAR

I turn from the human and physical to the abstract andmetaphysical. An understanding of the corporate spiritof the Bar is essential to any appreciation of the Englishlegal system. There are many things, some of themsmall and even trivial, which foster this spirit. I havealready mentioned the importance of communal food.Of the 1,500 members of the Bar who practise inLondon, perhaps 200 or 300 will be engaged on casesout of London on any given day. Of the remainder,an inspection of the luncheon tables in the halls of thefour Inns of Court and in the refreshment room in theLaw Courts (" the crypt") would probably reveal 70 or80 per cent, of them.

Across the table flows the professional gossip. Someconcerns the law, though detailed individual problemsare discouraged; what is discussed is generalised law andlegal ideas. Much of the talk is personal, and some ofthis concerns those not present: someone had X against

70 The Lawyers

him the other day, and found him a dangerous cross-examiner; someone else thought that Y was not veryfair in the way that he put the case in his concludingspeech; and others contribute their experiences with Yor contrast him with Z. Thus are professional reputa-tions made or sullied, and bodies of informed opiniongrow up. Association fosters integrity. The Bar worksin public, and it is proper that it should be astute todetect and check deviations from propriety.

The bonds of convention

The sense of community which springs from dailycontact in hall and crypt is fostered in many other ways.The inveterate custom is that, save in court or in othercircumstances of formality, every member of the Barshould address any other member of the Bar by hissurname alone, without any prefix of " Mr.," unless,indeed, he knows him well enough to call him by hisChristian name. The rawest recruit to the Bar, calledten minutes ago, must address the most senior leaderthus. To him, the Attorney-General himself is " Hob-son " and not " Sir John "; all are brothers at the Bar.Within any set of chambers and on the Bench of anInn the normal rule is that of Christian names; andthere is something of a similar convention as betweensilk and silk. Again, the Bar does not shake hands withthe Bar. Let there be a consultation in a leader'schambers, and you will find him shaking hands withthe solicitor and the client and everyone else save hisjunior; to him there will be a friendly nod and " Gladto see you, Charles " or " Hello, Jones," as the case maybe; it matters not that he has never seen him before.

The Corporate Spirit of the Bar 71

Counsel are brothers, living and working in one com-munity; would you shake hands with your brother whenyou meet him at breakfast?

Is this trivial? I think not. So often it is the littlethings that count. There is a very real sense of friend-ship at the English Bar. None would deny that thebonds of friendship bind less strongly with some thanwith others. The Bar has its bores and even its boors;but fewer, far fewer, than its share, for the courts donot provide the soil in which they can flourish best.There is a strong and healthy climate of respect forability and appreciation of integrity that does much tofoster these qualities. The schizophrenic mind thathappily prosecutes one day and defends the next findsno difficulty in attacking in court a luncheon companionor friend in chambers who is on the other side; indeed,the closeness of association often gives an added zest totlie attack.

There are other customs, too, that help to mark offthe Bar from the rest of the world. The wearing ofrobes, of course, does that, and so does the treatment ofjudges out of court. In court a judge is " My Lord ";but outside, a barrister in conversation with him willcall him " Judge," and address him in the same way ifhe writes to him. Again, it is tlie custom for counselto raise their hats to judges if they meet them out ofdoors, and the judges return the compliment. Yetagain, the formula for describing one's adversary incourt is " My learned friend " or " My friend." Thereis a political group which in comparatively recent timeshas found merit in the appellation " Comrade," nodoubt as an aid to thoughts of comradeship. I do not

72 The Lawyers

know whether the idea was a conscious derivative from" My learned friend "; but I think the English Bar canclaim substantial priority. You may be professionallyor personally angry with your friend; but he is still yourfriend.

LAWYERS AS PROFESSIONAL MEN

A further point that I would emphasise is how trulyprofessional English lawyers are. No doubt " profes-sion " means many things to many people. For mypurpose the element that I want to emphasise is not somuch the intellectual skill but the selflessness and integ-rity of English lawyers. Comparisons are bodi odiousand impossible: yet I find it difficult to envisage anycalling in which so much advice is given which is in thetrue interests of the client and against the immediateinterests of the professional man himself.

Discouraging litigationI am thinking in particular of litigation. Look into

a solicitor's office or counsel's chambers and as like asnot you will find the lawyers trying to dissuade theclient from litigating. No doubt the English fall someway behind the great litigating nations of the world.Whether Ireland today is as Ireland was I cannot say:but the Irishman certainly had a litigious record that theEnglishman could only marvel at. Nevertheless, theEnglishman is no mean litigant, and in some parts ofthe country (which I prudently refrain from specifying)he is less mean than in others. The old picture of thelawyer pushing the reluctant client into unnecessarylitigation is today as false as a picture well could be.

Lawyers as Professional Men 73

When the doubts are real or the difficulties palpable itis the lawyers who seek to restrain the client fromputting money into their pockets by litigating.

Do not think that I am suggesting that the legalprofession is one vast conspiracy to prevent litigation;if it were, it would be one of the most unsuccessfulconspiracies of all time. Of course there are many casesin which the lawyer's advice must be to sue, unless theclient prefers to grin and bear it. But if it were possibleto examine the advice given in all the actions that failed,I believe that those in which the client sued despite theadvice of his lawyers would greatly outweigh those inwhich the lawyers urged a reluctant client to sue.

The point is illustrated, perhaps (or perhaps not), bythe story of the client fifty years ago who laid histroubles before his solicitor, and was told that there wasnothing that he could do. Nevertheless, the clientinsisted that a writ should be issued, and persisted inthis even when leading counsel advised that the case washopeless. The case was duly lost, and as they walkedaway from court, the client said: " Where do we gofrom here? " The solicitor said: " Well, you can go tothe Court of Appeal, but I don't advise it." The clientsimply said " Appeal," and in due course promptly paidthe solicitor's bill without demur. The appeal was dulylost, and in a similar way the bill was paid and anappeal to the House of Lords was lost. As they walkedaway from the House of Lords, the client said: " Wheredo we go from here? " The solicitor said: " You can'tgo anywhere; the Lords are final. Only a private Actof Parliament could alter the result." Whereupon theclient said: " Commence proceedings for a private Act."

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The solicitor stopped dead in his tracks, and looked athis client with admiration. " My dear Sir," he said, " Ishould like to breed from you."

Generosity

I have given but one instance of the general approach,that the best interests of the client come first. There aremany others. There are many instances in most law-yers' recollection of cases that have "gone wrong"; aninjustice has been done, yet the client lacks the means toappeal (the Legal Aid Scheme has not cured all evils).There are other cases where the hearing has becomeprotracted beyond expectation, and the funds availablehave become exhausted before the end. Sometimes thereis injustice outside the help of legal aid; and before thewar there were many Poor Man's Lawyers, served bylawyers who received no payment for their work. Howmany lawyers are content to leave injustice unrightedunless they get their fees? Nobody can practise law forvery long without encountering many, many instancesof fees waived or reduced to a mere token, of workdone for nothing save the knowledge that it would bewrong to leave it undone. I suppose that as a class theEnglish lawyer may be described as calculating, in thesense that he usually knows and deliberates on what heis doing; but I hope never to hear him described asungenerous. It is the client, the law and ultimately afeeling that justice has been done that matter. Is itsurprising that the daily practice of the law should fostera preoccupation with what is right and fitting andproper?

Lawyers as Professional Men 75

CraftsmanshipThe lawyer's sense of profession also makes him a

craftsman in a rather unusual sense. In many of theprofessions there is no enemy, or a common enemy. Theaccountant usually works to achieve that which isaccurate and right; the doctor fights, often with hisbrethren, against common enemies such as disease andinjury. It is given to the lawyer, and especially thebarrister, to live in strife. Each daily uses his skill andcunning to defeat his brethren. Yet it is among lawyersthat one perhaps most often hears open expressions ofadmiration for the achievements of another. Thejunior, drafting a defence, admires the skill displayedby the statement of claim that he has to meet. The silk,preparing for the morrow, reflects with admiration onthe ingenuity of his adversary's contentions in the Courtof Appeal that day. Lawyers live and work in strife;yet strife does not stifle admiration, but instead givespoint to it. With the spur not merely of rivalry but ofactual contest, the lawyer is quick to see the good inwhat it will be his duty to contend is bad. To thelayman, all that comes from the enemy must of necessitybe bad. The lawyer knows a truer reckoning.

Self-effacementFinally, let me mention self-effacement. It often falls

to the lawyer to advance views contrary to those that heholds himself. His client's cause may be opposed to hisviews in politics, in religion or in ethics. The lawyerwill not put forward contentions that are illegal orimmoral, but subject to that, so long as he acts for hisclient, he will do the best he can for his client in

76 The Lawyers

accordance with his client's instructions. If a solicitoris instructed to advance contentions so repugnant to hisown views that he feels he cannot properly do so, hemay decline to act for his client any further, and leavehim to find another solicitor; but so long as he acts, it ishis client's views and not his that will be urged. Hemay advise, and attempt to dissuade, but once thedecision is taken, he will not seek to evade its conse-quences by any lack of zeal. He plays fair with hisclient.

Sometimes a family solicitor will lose his client ratherthan draft what he considers to be an unjust will forhim; and I do not speak only of flagrant cases of atestator who seeks to leave all to his mistress and noneto his family. Naturally, the solicitor will first attemptto guide and persuade his client. But if these attemptsfail he may have to choose between his self-respect andhis client; and I do not doubt his choice.

For counsel, the position is somewhat different, owingto the " cab-rank " principle 31: counsel cannot refuse aproper brief. Nevertheless, the position of counsel issuch that his views will usually carry much weight, andthis weight is sometimes used to great effect. Not manyclients feel happy about pressing counsel to take a coursewhich he has strongly advised against; but if thishappens, then counsel will, as in duty bound, pursuethat course with as much vigour as is proper. However,the insistent client is more likely, if time permits, toseek other counsel; and his first choice will gladly releasehim. Though the hand that severs the bond differs in

3 1 See ante, p. 32.

Lawyers as Professional Men 77

the two cases, with both barrister and solicitor it is trueto say that while the bond endures the lawyer will do allthat he properly can to carry out his client's instructions,whatever his own views may be.

THE RETURNED BRIEF

I do not, of course, suggest that the English legal rosehas no thorn. Quite apart from failings of the indi-vidual, some defects spring from the system itself. Oneof the litigant's most just grievances is that of thereturned brief. The client has accompanied his solicitorto numerous conferences with counsel as the case hasdeveloped. Counsel has settled all the pleadings, foughtall the interlocutory proceedings in chambers, and hasgenerally nursed the case through its childhood. Then,forty-eight hours before the case is due to begin, counselreturns his brief. Another case in which he is deeplyengaged has lasted far longer than could have beenexpected; or some other case to which he is bound togive precedence has suddenly come into the list forhearing. At short notice another counsel has to preparefor battle and fight the case; and all the understandingand confidence that had grown up between the clientand counsel has gone for naught. Is it to be wonderedthat the client feels bitter about the system, howeverable the substitute?

Of course, there are many cases in which a returnedbrief causes little distress. Sometimes the solicitor hascarried through all the preliminary stages of the casehimself, and counsel has come into the picture onlywhen the brief was delivered to him a week or so before

78 The Lawyers

the hearing. In such cases the transfer of the brief afew days later may cause little or no concern. But often—too often—a returned brief is an anxious matter forthe solicitor. A good substitute has to be found at shortnotice, which may not be easy; and a worried client,querulous and suspicious, must be comforted. Thesolicitor cannot do much more; least of all can he justifythe system.

" Counsel's convenience "

The causes are not hard to find: the remedy isanother matter. Broadly, the foundation is the rule ofpractice that no hearing of a case will be postponedmerely for " counsel's convenience." The phrase itselfis damning; if it were merely " counsel's convenience,"then few would question the rule. But substitute " thelitigant's right to representation by counsel of hischoosing," which is what it really is, and the rule wearsa different aspect. " Continuances," so freely obtainablein most American jurisdictions, do not run in England.If an adjournment is sought merely on the ground ofcounsel's inability to be in two places at once, diejudge's answer will be courteous but firm. He willexpress his regret that he will not have the pleasure ofhearing Mr. X, but add that he is confident that thereare other members of the Bar fully qualified to presentthe case to the court; and there is no adjournment.

Exceptions

The rule is not absolute. All courts bow to the Houseof Lords, and if counsel will be engaged there, any caseof his in a lower court will be adjourned until he is free

The Returned Brief 79

to return from the Lords. By judicial comity, a similarrule is applied to the Judicial Committee of the PrivyCouncil. But there the main exceptions stop. Usually,it is possible to have a case stood out of the list ifwritten consents by all parties are handed in to thecourt; but often delay is inconvenient to the other side,and their agreement cannot be obtained. In marginalcases, too, it is sometimes possible for counsel's clerk toachieve some concession from the clerk in charge of theparticular list; a case that must appear in the list maynevertheless be marked " Not before 2 p.m." and soallow counsel time to get back from some other case inthe country. Yet with these qualifications the rule isinexorable. " Counsel's convenience " is no ground foradjourning a case.

Fixed datesNow it is true that there are fixed dates for many

types of proceedings. Witness actions in the HighCourt usually have fixed dates, and that of course isoften most valuable to the witnesses. There are fixeddates in county courts and for town planning and otherministerial inquiries. As between such proceedings,counsel and his clerk usually do not have much diffi-culty in avoiding conflicts. Such trouble as there isusually arises from duration: will the witness actionend within the forecast of four days, or may it drag oninto a sixth and so collide with a planning inquiry?

The rub comes hardest with the impact of fixed datesupon unfixed, or as between two or more with unfixeddates. An appeal in the list of Chancery Final Appealsbefore Court of Appeal I is working its way to the top

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of the list and should be on and over by the end of nextweek, comfortably in time for a Queen's Bench Non-jury the week after; but then, before the case is reached,Court of Appeal I drops the Chancery Finals and turnsto County Court Appeals. Six weeks later, the courtreturns to Chancery Finals, and the case is near the topof the list, while counsel is in the middle of a planninginquiry good for another fortnight; and so the briefmust be returned.

Even if the list continues without interruption, itsprogress may depart widely from the forecast. Anappeal estimated at two days may be settled before it isbegun; the next appeal, estimated at three days, may bebroken up by the court during the first day; and theconsequent acceleration of four days may wreak havocfurther down the list. Briefs are returned by counsel towhom acceleration means collision. Then, perhaps,the case at the head of the list, estimated at one day,runs into deep waters and takes nearly four, so thatnone of the returning need have been; and yet the clientsare left with counsel not of their solicitors' first choice.

Counsel of his own choosingDo I labour the point over-much ? After all, it merely

concerns the tedious but necessary work of keeping thecases in ordered flow. But I think it matters, andmatters greatly. There is a failure of the machinery ofjustice if a litigant is needlessly deprived of the advocatein whom he has put his trust. Yet it is difficult to seeany clear remedy. Allow adjournments to suit " coun-sel's convenience," and the road to delay opens wide.If each side is represented by two busy counsel, it may

The Returned Brief 81

be months before a date can be found when each iscertainly free. After all, one of the virtues of theEnglish system is that the brief should contain all thatis necessary to fight the case effectively, and so shouldbe readily transferable.

Sometimes, too, counsel or his clerk may be persuadedor tempted to accept more briefs than at first sight itseems possible to fit in together. This may be justified.Not infrequently cases are settled as the litigant getsnearer to the doors of the court, and for the first timethe frailties in his case and the possibilities of having tomeet a heavy bill of costs begin to loom larger than hisgrievance. Many an instance of an apparently insolubleclash of two or three cases has resolved itself for counselso that in the end he has only one to fight. With thispossibility as an ever-present reality it is often hard tocondemn counsel for accepting too many briefs. " Itwill all come out in the wash " is a maxim of practice.Provided a brief to be returned is returned in ample timefor other counsel to be found and get the case up (amost important proviso), the acceptance of probablyoverlapping briefs can, within limits, be justified.

The sanctity of judicial time

Perhaps the greatest difficulty lies in the unspokenmaxim that no minute of judicial time may be wasted.A division of the Court of Appeal has a case before it,Case No. 1, that is coming to its end when the list forthe next day is being made up at 2.30 p.m.; perhapsthere will be an hour left in it die next day. The nextcase, Case No. 2, is estimated at five hours, and togetherthey should more than fill the judicial day of just under

82 The Lawyers

five hours. But that case might not run the full fivehours. After hearing the appellant, the court might notcall on the respondent, and might dismiss the appeal;and so, to be safe, Case No. 3 is put into the list, marked" Not before 2 p.m." Counsel in Case No. 3 is then ina dilemma; he has another case for that day, sure tofinish within the day, but by no means sure to releasehim by 2 p.m. One brief or die other must be returned.He returns the brief in the Court of Appeal, does hisother case, and on his return finds mat Case No. 1 tookthe Court of Appeal the whole morning to finish, andat the end of the day Case No. 2 was firmly under way,but no more. In the end Case No. 2 absorbs the wholeof the next day, and Case No. 3 finally comes on atthe head of the list for the next day, the third after itwas first in the list for hearing.

In one sense, no harm was done. The delay gave thesubstitute counsel all the more time to prepare the case.Yet the precautionary insertion of Case No. 3 haswasted the time and care that the original counsel gavein preparing the case; it wasted his background know-ledge, particularly if it was he who argued the case inthe court below; it has given the solicitor the anxietyand responsibility of finding a suitable substitute counsel,and of " explaining " the system and its results to trieclient; and it has added another layman to die notinconsiderable list of those suspicious and critical of thelaw and lawyers. The only good it has done is to pro-vide an insurance against some two hours of judicialtime being wasted, and the progress of the lists beingdelayed to that extent.

The Returned Brief 83

The swollen county court list

Other instances are provided by some county courts,where, of course, the system is for all cases to have afixed day, and for any unfinished case to be adjournedto another fixed day, very rarely the next day. Counselwith a case likely to last for three hours who travels fiftyor a hundred miles to a county court and finds his caseat the bottom of a list containing, say, thirty or fiftyjudgment summonses and four ordinary cases may wellbe dismayed. To do this case he has had to returnanother brief; and yet the chances of his case being evenbegun are remote. The judge finishes the judgmentsummonses by 3 p.m., and rises at 5.30 with two out ofthe four cases decided, but the rest of the list untouched.In the train back, counsel may be left musing on thebrief that he so inevitably and yet so needlessly returned.Let us hope the client never hears that counsel aban-doned his cause for the scant pleasure of sitting in courtwith a settled, hopeless expectation of not being reached.

I take these two instances because both are drawnfrom life in 1962. They are very far from standingalone. In particular, Assizes and Quarter Sessions yieldaccounts as deplorable, and sometimes more so. Theamount of good that, on balance, would be done byjudges risking little temporary unemployment is, Ithink, quite remarkable. One can well see that withcrowded lists and not enough judges, there was a verynatural tendency to conserve judicial time. But this is1962; there have been changes.

At the county court level important improvementshave been made in the last six years; conditions are not

84 The Lawyers

now as they once were. By the Landlord and TenantAct, 1954,32 county courts were given jurisdiction inproceedings for the compulsory grant of new tenanciesof shops, offices and other business premises of a rate-able value not exceeding £500. This, of course, includesthe great majority of what one may call ordinary shopsand offices; and some of these cases last days and evenweeks. By the County Courts Act, 1955, the jurisdictionof county courts in claims for damages for breach ofcontract and tort was extended from £200 to £40033;and again this resulted in the lists being swollen byheavier cases than before.

This advent of new and longer cases worked havocin the county court lists. The natural tendency was toput the heavier cases at the bottom of the list, so thatby disposing of the shorter cases the greater number oflitigants might be satisfied. The " heavy case," whichwould probably be barely reached, would then be givena fixed day or days, and usually the promise that noother case would be in the list before it. This muchcounsel would achieve by sitting in court for the bestpart of a day. If at the end of the fixed day or daysthe case was still not finished, other fixed days wouldbe arranged; but owing to the crowded state of thelist, the earliest open days would usually be some twomonths later. Counsel would then have to drop thecase and pick it up again; and often the first half hour

3 2 s. 63 (2).3 3 County Courts Act, 1955, s. 1 (1). Under the County Courts

Act, 1888, s. 56, the limit was £50. This was doubled by theCounty Courts Act, 1903, s. 3, and doubled again by theAdministration of Justice Act, 1938, s. 16 (1).

The Returned Brief 85

or so of the resumed hearing would be occupied byreminding the judge of how the case stood thus far.

The remedy

The remedy was simple and effective. There hadlong been a power for a county court judge to appointa deputy to act for him if he was ill or unavoidablyabsent, and a power in other cases with the approvalof the Lord Chancellor to appoint a deputy for not morethan two months in any twelve.34 In 1956, Parliamentsupplemented these powers by providing that if itappeared to the Lord Chancellor, on representationsmade to him by a county court judge, that it wasexpedient so to do in order to avoid delays in theadministration of justice, the Lord Chancellor mightappoint a properly qualified person as a judge to acttemporarily.35

A county court judge who finds his lists swollen bycases likely to take more than a day can now withcomparative ease arrange for the appointment of atemporary judge, and allocate the heavier cases and hisordinary list between himself and the temporary judgeas he thinks fit. This power is for the most part freelyused; and where it is, the old abuses vanish. No longeris there attendance for a blank day in order to get afixed date; no more are there gaps of two months ormore between each leg of a long case.

There have also been substantial changes in the judicialarrangements in county courts. Let me summarise

3* County Courts Act, 1934, s. 11 (1), (2).3 5 Administration of Justice Act, 1956, s. 22.

86 The Lawyers

certain of the facts that can b<Lists of the

NumberNumberCircuitsCircuitsCircuits

years mentioned:

of judgesof circuits

with one judgewith two judges .with three judges .

; discovered

19375955478

nil

1948

62544381

from

1956

655640142

TheLc

196276584018nil

You will observe that the figures do not always appearto add up correctly. Thus if in 1956 there were fortycircuits with one judge, fourteen with two and two withthree, this mathematically presupposes seventy-fourjudges; but in fact there were only sixty-five. Theexplanation is that many of the circuits shown withtwo or three judges had but one full-time judge, andonly part of the time of another judge or judges, whowere attached to two circuits. A " two-judge circuit"might in fact be only a one-and-a-quarter-judge circuit.But by 1962 this system had come to an end. Not onlyhas there been an appreciable increase in two-judgecircuits, but they are now all truly two-judge circuits.

Flexibility of judicial manpowerThe point, of course, is that in the last twenty-five

years, and especially in the last fifteen, county courtshave become far more flexible in judicial power. Withonly one judge and a restricted system of deputy judges,litigants were tied to one man and to the changes thatcould be rung on the time of one. With a basic ration oftwo judges on the circuits that need them most, andalways a bisque there for the taking (if with decorum atemporary judge can be so described), the picture is

The Returned Brief %1

quite different. Wasted attendances by clients, wit-nesses, counsel and solicitors ought to be things of thepast. Yet they needlessly linger on. Old habits of minddie hard. In some courts—probably a small minority—the list packed beyond reason is still to be seen.

The remedy lies with solicitors and the Bar. Thehuman failing of readiness to grumble yet reluctance toact is not sloughed off on call to the Bar or admissionas a solicitor. Without reliable information the LordChancellor's office cannot act. If solicitors wouldinform The Law Society and counsel would inform theBar Council, suitably depersonalised representationswould soon enough be made to the Lord Chancellor'soffice. Before long, encouragement from on high torisk an occasional blank judicial hour would make itselffelt where it is needed.

More judges

The Court of Appeal, too, has had its changes. In1937 it normally consisted of the Master of the Rolls andfive Lords Justices of Appeal, sitting in two divisions ofthree. Since the beginning of 1961 it has been twicethat size36; the Master of the Rolls and eleven LordsJustices sit in four divisions of three. True, there has alsobeen a marked increase in the number of judges fromwhom appeal lies to the Court of Appeal. The eighteenjudges of the King's Bench Division have now becomethirty-two. Yet here the increase is more apparent thanreal; much of the time of the Queen's Bench judges isspent on crime, and with this the Court of Appeal has

36 In October 1938 the five became eight.

M.H.L.—4

88 The Lawyers

no concern. The Chancery Division, fruitful of com-plex appeals, has remained pretty constant at six, thoughtoday there is one additional judge who is mainlyoccupied with special work. The Probate, Divorce andAdmiralty Division has swelled from three to elevenjudges; but here again much of the increase is due todivorce business of a type not productive of appeals.The number of county court judges has risen fromfifty-nine in 1937 to seventy-six, to say nodiing of deputyand temporary judges. New bodies such as the LandsTribunal, set up in 1949, now make substantial contri-butions to the list; and of course the law has not grownsimpler, nor has Parliament failed to create brave newfields for endeavour.

Making every allowance for the increase in work, hasnot the time come when the Court of Appeal can affordto run the risk of an occasional wasted hour? Nothingneed be changed except an attitude of mind. Thechange would not be so great as the recent and mostvalued change in practice which made it unnecessaryfor counsel to go down to court and wait during theconcluding stages of the argument in the case precedingtheirs because of the risk that judgment would bereserved and so immediately the arguments ended theircase would be called on. The new practice, which inmost cases provides for an adjournment of ten minutesif counsel in the next case are not in court,37 has savedmany a harassed member of the Bar from wasting thebest part of a morning or afternoon that he could illafford. This crack in the principle of the sanctity of

37 See Annual Statements of the General Council of the Bar, 1958,p. 21; 1961, p. 17.

The Returned Brief 89

judicial time need not be enlarged into a gulf. All thatis needed is the death of the cant phrase " counsel'sconvenience " and some recognition that a client's desireto have counsel of his choosing is a proper desire thatshould if possible be translated " counsel of his firstchoosing," and not counsel of the last minute faute demieux choosing.

SILK

Next, let me turn to what is variously known as " silk,"" the front row," " leading counsel " or " Q.C.s." Asan institution, silk has a number of merits for the client.It is a generally recognised guarantee of competence asan advocate and of experience in the law. Silks also cangive more time to difficult problems than is usuallypossible for busy juniors. In most cases " leadingcounsel's opinion " is (very properly) accorded greaterrespect than a junior's opinion, even if the junior is verysenior. For the Bar, however, silk has its disadvantages;but first I must briefly put the institution in perspective.

Until the reign of William IV there were rarely morethan two or three new silks a year. In the seven yearsof his reign an average of nine were created each year,and this continued in the reign of Victoria. By the turnof the century the flow was eleven or twelve a year.The two of 1889 and the twenty-three of 1895 seem tobe the low and die high. In recent years the eleven of1956 and the thirty-four of 1961 are the extremes, withthe average somewhere under twenty. The total num-ber of silks today is some 300, though if one deductsthose who have retired from practice or who hold someofficial post incompatible with practice, die number

90 The Lawyers

comes down to some 200 or less.38 Probably three-quarters of the work is done by not much over 100 ofthese.

The reality of sil^

These numbers may perhaps give some idea of thereality of silk in England. In Canada, for example,bitter complaint is heard of silk being given for politicalreasons, and in over-generous quantities. A populationof some eighteen millions supports many more silksthan England's forty-six millions. But then Canadiansilk imposes no professional disadvantages; the lawyercontinues to practise as he always has done, unchangedsave for the honour. Not for him are there any of therequirements that oblige his English brother to give updrafting pleadings and other documents except in con-junction with a junior, and not to go into court withouta junior.

If the lists of English silks are examined it will beseen that in every 100, perhaps half a dozen are seniorlawyers in the government service, another two or threeare distinguished academic lawyers, and all the rest areor have been practising barristers. Over 90 per cent., inother words, are those to whom silk will be a greatadventure, with much to gain and much to lose. InEngland, silk as an honour without risk is containedwithin narrow bounds, and professional opinion isstrong that it should be so; indeed, even the modest

3 8 For the year 1960-61, 173 practising members of the Bar paidsubscriptions to the Bar Council at the rate of 10 guineas appro-priate to silks: Annual Statement of the General Council of theBar, 1961, p. 50.

Sil\ 91

quotas of official and academic silks attract some mildcriticism.

Waste

Is not the English system wasteful? Is it not cruel?Nobody can know the detailed figures, but probably outof a batch of fifteen silks, the results five years later maybe that one has risen to great heights, four have donereally well, six are firmly established without being over-worked, and the remaining four have never really gotgoing in the front row. For the last four, there is nogoing back to the junior Bar. There is always hope;but for a man in his forties or fifties with family respon-sibilities hope is a poor substitute for half his income.Sometimes the trouble is self-misjudgment; for who cantruly see himself as others see him? Good friends cangive good advice, but sometimes their vision is faulty ortheir advice too frail to override the lure of the frontrow. Sometimes the difficulty is that of supply anddemand; there is too little suitable work for the numberof competent silks available. But whatever the reason,is not the system wasteful and cruel ?

It is difficult to do otherwise than answer Yes. Almostby definition a man must be a successful junior to begiven silk at all. The disappointment and anxiety offinding that honour has thrust out success need nocomment; and is it not wasteful for some four goodjuniors to be lost each year to so small a Bar as wehave in England? Yet there seems no easy solution.Abolish the rules that distinguish silks from juniors, andyou extinguish the reality of silk. What is more, you

92 The Lawyers

abolish much of the specialisation of function. In anycase, the edge is taken off the problems, and rathermore, by the opportunities that open with silk. Thereare many full-time and important part-time legalappointments short of the High Court Bench to whicha silk may aspire, and in which he will find full scopefor his abilities. Nor are the letters " Q.C." any dis-qualification for many positions outside the law. In theend, although disappointment may be inescapable, realtragedy is rare. There is a price to pay for our system,but it is not exorbitant.

A shift in function

The years have brought changes not only in thenumbers of silks but also in their functions. Theclassical picture is of giants like Edward Clarke, RufusIsaacs and F. E. Smith darting from one court toanother, and sandwiching a devastating cross-examina-tion in Case A between a pellucid opening in Case Band a brilliant closing speech in Case C. In each courta devoted junior would keep the case going as best hecould, never knowing when his leader would be presentin the flesh as well as in the spirit.

Today the picture is often just the opposite. A leaderis expected to be there virtually throughout the case;absences are the exception, to be provided for, ratherthan the rule. Instead, a junior may contentedly amblefrom court to court, listening to one of his leaders cross-examining in Case A, as a change from the tedium ofhearing another of his leaders open Case B, and thenarriving for the end of his third leader's closing speech inCase C. Maybe I overdraw the picture a little; but the

Sil{ 93

tendency is there. An absent junior will, of course, pro-vide some other junior to sit in his place during theabsences, and often the substitute will know a good dealabout the case. But today a silk earns his fee by hispresence rather than his absence; and few would denythat the change is for the better.

CHAPTER 3

LEGAL EDUCATION

THUS far, I have been discussing practising barristersand solicitors, but I have said little about legal educationand law students. The students of today are the prac-titioners of tomorrow, and this is Cambridge University,so that it is right that I should say something of them.Legal education and training for the law is by itself alarge subject, large enough, indeed, to form the subjectof a series of Hamlyn Lectures in itself. I cannot beginto explore it in full, but equally I cannot omit it alto-gether. One conclusion that I think most practisinglawyers would readily accept is that a barrister who hasjust been called to the Bar is far less qualified forpractice as a barrister than a newly admitted solicitor isfitted for practice as a solicitor. Two main factors areresponsible for this disparity, namely, the subjects of theexaminations, and die systems of apprenticeship. Letme take these in turn.

EXAMINATION SUBJECTS

Taught law

Taught law is tough law. It is astonishing how, inlater life, when two or three decades have passed since asubject was learned for some examination, a lawyer willfind himself able to recollect some of the basic principlesand, in so doing, be able to find his way about a text-book on the subject and use it to some purpose. It is

94

Examination Subjects 95

remarkable how often an analogy or idea from someother branch of law will prove valuable in the lawyer'schosen field of endeavour. Student days are days ofreading and of the comprehensive view of a subject. Apractitioner will frequently consult law books, but hewill very rarely read any. The index and perhaps thetable of cases or table of statutes will guide the practi-tioner to the passages in point for his particular problem,and he will read these and a little round and about themfor safety's sake: but he will not read the book as awhole, for he has neither the need nor the time. Indeed,it is probably true to say that few except the author oreditor have ever read any practitioner's book frombeginning to end.

The danger, of course, is that unless die practitioner'sbook is unusually well cross-referenced, there is alwaysthe risk that what is so clearly set out on, say, pp. 741,742, is in the particular case in question vitiated bysome general qualifying doctrine to be found on p. 344.If the subject is one which the practitioner has beentaught, almost certainly he will retain some recollectionof that doctrine, and all will be well. But if the subjectis one which he has never been taught, disaster lurks.To have covered the whole of a subject, even if onlyin outline, with the intensity required by the prospectof facing the examiners is the best guarantee I knowthat in later years it will be possible to use a full-scale practitioner's book on the subject with skill andassurance.

Students' boo\sPerhaps, too, I may add this: that he who passes his

96 Legal Education

law examinations would be well advised to pause beforedisposing of his books. They are likely to be the lastlaw books that he will ever read from cover to coverand that he will really know; and it is astonishing howmuch that is half-recollected from student days willprove as hard to unearth in the bigger books as it is easyto turn up in the old enemies that, strangely, havebecome old friends. Again, the lecturer's vivid phraseor the supervisor's apt illustration so often continue toflash their warning signals a quarter of a century on.

The range of subjects

From this exordium you will perhaps observe that Iam an enthusiast for taught law. Good teachingendures. Under modern conditions, it is the examina-tion that is the master of both the teacher and theauthor. If there are examinations on a subject, it willbe taught, and books will be written for it; if there areno examinations on a subject, then probably, thoughnot inevitably, there will be neither teaching norstudents' books. And so, when one contrasts the sub-jects for the Bar examination with those for thesolicitors' examinations,1 one perforce reaches the con-clusion that the newly called barrister is likely to besomewhat less well stocked with tough law than therecently admitted solicitor. In particular, there is astriking contrast in taxation. The solicitor, very pro-perly, must know something of income tax and deathduties; the barrister need not.

i For summaries, see (1961) 14 J.Leg.Ed. 23, 24; Cmnd. 1255 (1961:the " Denning Report"), pp. 12, 13; J. C. Hall (1962) 7 J.S.P.T.L.(N.S.) 25.

Examination Subjects 97

Overseas students

The Bar, of course, has a special problem on its hands.For, unlike The Law Society, the Council of LegalEducation is catering for students of whom some three-quarters are domiciled overseas.2 Quite apart fromgiving options for subjects suited to the needs of suchstudents, such as Hindu Law, Mohamedan Law andAfrican Law, the Council's examinations cater for themby stressing the more general and traditional subjects,such as contract and tort, which run through thecommon law world, and by abstaining from statutorysubjects of more local English interest.

On a broad view this may well be right; and thepicture may change when the activities of newly foundedlocal law schools, especially in Africa, reduce the over-seas influx. Yet meantime the English Bar studentsuffers—no doubt with fortitude—a syllabus which in1962 seems to many to be somewhat narrow and tradi-tional. Of the law which is going to occupy the Englishbarrister's attentions daily, too little—some would saymuch too little—has ever been taught to him for hisexaminations. Ought a change in this situation to awaitevents in Africa and elsewhere? Is not the Englishbarrister important enough to us (whatever his numericalinferiority) for some re-examination of the syllabus to bemade now? I confess to little doubt as to the answersto these questions.

2 Of those called to the Bar in 1959-60 (thus excluding the un-successful student) 68 per cent, were domiciled overseas (459 outof 676): Annual Statement of the General Council of the Bar, 1961,p. 47. For the previous year, the figures were nearly 72 per cent.(490 out of 682): ibid. See also post, p. 180.

98 Legal Education

A test

A practical test (though now a little dated) may beoffered. Consider the case of the secretary of a PoorMan's Lawyer shortly before the outbreak of war in1939. Hard-pressed to find enough advisers, he isoffered a newly called barrister and a recently admittedsolicitor. He will be polite about the first, enthusiasticabout the second. Matrimonial law, the Rent Acts andworkmen's compensation together make up over three-quarters of the work. Of these, the barrister hasnormally been taught nothing, whereas the solicitor hasbeen examined on all three. He may not have devotedmuch time to all of them. Before the war, a singlelecture of an hour and a half to meet the customaryRent Acts question in the Conveyancing paper wasusually all the solicitor would get; but it is remarkablehow much ground could be usefully covered in thatperiod.

Times have changed. The Rent Acts have lost someof their importance. Workmen's compensation is nolonger with us as such. Divorce is included in the Barexaminations and is much favoured by Bar students asa means of avoiding the travail of conveyancing, anoption not open to solicitors. But the principle remainsunaltered. The need, perhaps, is not so much for com-plete new subjects which will provide a whole paper inthe examination, or half a paper, but for the broadeningof existing subjects, or for the provision of an inescap-able question or two on a particular sub-subject. " TheRent Acts question" of the pre-war solicitors' finalexamination has much merit in principle.

Apprenticeship 99

APPRENTICESHIP

Articled clerks and Bar pupils

I turn to the other main factor, apprenticeship. Hereagain there is a sharp contrast. For long the broadpicture has been that none could become a solicitorwithout having served an apprenticeship under " Articlesof Clerkship " to a practising solicitor for five years, orthree years for a university graduate. On the odierhand, a Bar student could be called to the Bar andcommence practice without having served any appren-ticeship at all. True, a pupillage of a year with apractising barrister was traditional, but it was not obliga-tory, nor did the existence of a pupillage precludepractice while in statu pupillaris. It came as somethingof a surprise to many members of the Bar to discoverthat in post-war years over a third of those starting topractise at the Bar did so without serving a pupillage3;to this extent practice had ceased to accord withtradition.

Pupillage a requisite for practice

In the result, all those called to the Bar after April 7,1959, have been required by their Inns of Court to givean undertaking on call not to practise at the EnglishBar without embarking on a twelve months' pupillage;and the Inn may permit attendance at one of theCouncil of Legal Education's Post-Final Courses as analternative to six months of this period.4 (Of these

3 See the statistics for 1949-54 in the Annual Statement of theGeneral Council of the Bar, 1957, p. 36.

4 See Consolidated Regulations of the Inns of Court, reg. 41.

100 Legal Education

courses, I shall have more to say.5) This change isclearly for the better; but some have questioned whetherit has gone far enough. First, the undertaking in effectrelates merely to the commencement of the pupillage,not its completion.6 A pupil may appear in court orotherwise practise on the very day upon which his pupil-lage begins, when ex hypothesi his pupillage can havehad no effect upon him. Secondly, the undertakingdoes not affect call to the Bar; it is a restriction uponmaking use of the qualification as a barrister, not onobtaining that qualification. Each of these pointsdeserves some consideration.

Advocacy

The first point is undoubtedly a serious matter. Itmeans that the barrister's robes offer no assurancethat the barrister has ever received any instructionor assistance on the technique of appearing in court;they guarantee no more than that he has eaten hisdinners, passed his examinations and embarked on apupillage. Of any knowledge or experience of advocacyhe may be wholly innocent. Can this be right? True,the wearing of his robes is a guarantee that he has beeninstructed by a solicitor in the usual way; and thesolicitor, it may be said, ought first to have assured

5 See post, p. 103.6 The Report o£ the Committee on Legal Education for Students

from Africa (Cmnd. 1255 (1961: the "Denning Report")) statesthat the undertaking is not to practise " until he has done twelvemonths' pupillage" (p. 14). In fact, the words of reg. 41 are" until I have satisfied [my Benchers] that I have completed orhave commenced and intend to complete a period of not less thantwelve months pupilage. . . . " The difference is vital.

Apprenticeship 101

himself of the competence of the barrister. Yet theEnglish system of refusing adjournments for the " con-venience of counsel" 7 may mean that briefs have beenreturned, and the solicitor has understandably seizedupon the barrister in question as a qualified barristerwho is undoubtedly available.

The point is that he ought not to be qualified.Advocacy in even the simplest of cases is a skilled andhighly responsible matter, and it is not to the credit ofthe English Bar that the law accepts as qualified topractise as advocates those who are not in substance soqualified. Regarded from the client's point of view, thepresent position is indefensible: and it is from his pointof view that the position ought to be considered.

Is not the remedy simple? Why not prohibit practiceat the Bar until the completion of a twelve-months'pupillage? Yet how effective would this be? Just howgood is a pupillage in teaching the techniques of practiceat the Bar in general, and advocacy in particular?

Value of pupillage

Pupillages vary infinitely in their efficacy. At theirworst they can be deplorable; at their best they may beadmirable. Yet however good or bad the pupillage,there is an important distinction between two categoriesof legal skills. First, there are those skills which apupillage can teach in the best way in which any skillcan be taught, namely, by the pupil making his en-deavour, and then observing what his master does withhis prentice effort. The pupil drafts a statement of

7 See ante, p. 78.

102 Legal Education

claim, and his master uses only the first two paragraphsof it; the pupil, having wrestled widi the problem byhimself, can see from his master's solution what waswrong with his own, and often the master will explainand amplify.

Opinions, contracts and, indeed, all written work canbe dealt with thus. But when it comes to oral work,how different is the picture. The pupil sees the papersbeforehand, he can appreciate some at least of the prob-lems, and his master may discuss the matter with him:but once the conference begins, or the case is called onin court, the pupil can do little save listen and admirehis master's easy lucidity and ready resource. When hischance comes the ex-pupil can attempt to imitate hismaster's fluency; yet here lies peril. For Alpha's stylein advocacy may ill suit Beta. Alpha's style is rock-likesolidity and assurance; in later years Beta will realisehow little this style suits his natural abilities of subtleanalysis. Each advocate must find and develop hisnatural abilities; simple imitation of his master in thelaw will rarely be the answer.

In advocacy, a pupillage can provide discussion,precept and example; it cannot provide practice and criti-cism. Yet practice and criticism are precisely what aremost needed. At present, the pupil is likely to get somepractice in advocacy. He may hold a brief for hismaster in some minor matter when his master isengaged in some more important case. The pupil trieshis hand and makes his mistakes; but ex hypothesi hismaster is not there to guide him and criticise his per-formance, and the mistakes are made at the expense ofthe client. Surely what is needed is some scheme

Apprenticeship 103

whereby the tyro is given practice in advocacy insimulated cases and has his efforts subjected to skilledconstructive criticism.

EDUCATION IN PROFESSIONAL SKILLS

Such a scheme has in fact been in operation since 1949.In that year the Council of Legal Education started the" Post-Final Courses " that have proved so valuable. Iwill not describe these courses in detail.8 Broadly, theyessay in some three months or so to teach the skillsrequired for practice at the Bar, as distinct from sub-stantive law; and advocacy is first among those skills.The tacit keynote is " Do it yourself, be criticised andthen do it again"; and although most is learned fromone's own mistakes, much can be learned from themistakes of others when they are pointed out anddiscussed by the tutor. And, of course, there is noquestion of die interests of any client being prejudiced,for the advocates appear in simulated cases beforeimitation courts.

Is not such a course of instruction in advocacy better,both for the instructed and the public, than anythingthat a pupillage can offer? It is difficult to avoidanswering Yes. Yet the courses have been little patro-nised by those intending to practise at the English Bar.The courses were instituted mainly in order to meet thedifficulties encountered by overseas students in under-taking the six months' pupillage required as a conditionof call to their overseas Bar; and to this day the courseshave remained predominantly courses for overseas

s I have done this elsewhere: see (1961) 14 J.Leg.Ed. 21.

104 Legal Education

students, adapted to their needs.9 There have beencriticisms, too, that the pace is too leisurely, and thatthe truly industrious student could do all the workrequired in half the time, or less; better still, that doublethe amount of practice in advocacy should be given.But despite the criticisms, the basic idea is soundenough and, given some encouragement, there seems noreason why the courses, or some modification of them,should not serve the English Bar as well as they havealready served the overseas Bars.

An addition to pupillage

Let me make it plain that I am suggesting diesecourses not as a substitute for pupillage, but as an addi-tion to it. No imitation of life can take the place of lifeitself. What I would urge is that nobody should bepermitted to practise at the English Bar until he hasdiligently and successfully completed a somewhat inten-sified version of these courses and has commenced apupillage. It remains for dispute whether the courseshould be in addition to a pupillage of twelve months'duration, or whether the course might take the place ofthree months or so out of the twelve. But at least sucha scheme would offer a guarantee against advocacy atthe client's expense by advocates who lack any experi-ence or training under court-like conditions. And is notsuch a proposal modesty itself?

9 For proposed extensions to these courses for overseas students, seethe Report of the Committee on Legal Education for Students fromAfrica (Cmnd. 1255 (1961: the "Denning Report")), p. 14.

Education in Professional Skills 105

Call to the Bar not affected

I turn to the second aspect of the undertaking, thatit does not affect call to the Bar, as distinct from practiceat the Bar. The Bar Council has committed itself to theview that nobody should be called to the Bar until hehas served a six-months' pupillage with an approvedpupil master, or alternatively, with his Inn's permission,attended one of the Post-Final Courses.10 I am delightedto see that three of the four Inns have rejected this pro-posal " ; for surely it would do little to protect the publicand at the same time it would virtually put an end tothe creation of " paper barristers."

PAPER BARRISTERS

As regards the public, restrictions on practising at theEnglish Bar are quite sufficient to protect clients; themischief is not of the unskilled advocate becoming abarrister but of his practising as such. In any case, amere six months' pupillage is a poor guarantee of evenminimum skill as an advocate. The " paper barrister "is another matter. The term is used as a convenientdescription of one who is a barrister but who lacks anyexperience of practice at the Bar. For very many yearsit has been common for those employed in governmentdepartments, by local authorities or in other salariedpositions to join an Inn, eat their dinners, pass theirexaminations and then be called to the Bar. All thiscan be done in their spare time, without affecting theiremployment.

1 0 Annual Statement of the General Council of the Bar, 1961, p. 40.1 1 Ibid.

106 Legal Education

Such a qualification often proves a most valuable aidin obtaining promotion or new appointments. No doubtit is thought to be no bad thing to have a barrister onthe staff; and of course the effort required is a sign ofzeal. Others, too, get called to the Bar without anyintention of practising. No doubt today fewer of thecountry gentry get called in order to help them in per-forming their functions as justices of the peace; butsome still do, and so do many teachers of law andothers, including some medical practitioners who aspireto become coroners. Doubtless a few of all these couldarrange the absence from their other duties that a six-months' pupillage would entail; but the great majoritycould not, and so could not seek call to the Bar at all.

Injurious publicity

" That would be no loss," say some. " The paperbarristers do no good. Indeed, they do some harm, forso often when there is some newspaper account of dis-creditable activities by a ' barrister,' it will be found thathe is not a practising barrister at all; yet the public doesnot know the difference, or notice it, and so the Bar isdiscredited in the eyes of the public." There is, ofcourse, some truth in this: "barrister" is a word withpress-power. A man may earn his living as a civilservant or a company secretary, he may hold the degreeof PH.D., he may be Chairman of his club or his localpolitical party; yet if he has also been called to the Bar,the word " barrister " is of all his descriptions the mostnewsworthy, or so it seems. There is also die minorirritation which some practising barristers suffer whenthey are told that they are going to meet a barrister, or

Paper Barristers 107

that something was done on the advice of a barrister,and then they find that the barrister has not looked at alaw book since he passed his Bar examinations a quarterof a century earlier.

Is not the Bar big enough to endure pin-pricks suchas these? Is there not enough faith in the value of lawand training for the Bar to outweigh them? Is it notgood for the Bar that civil servants in high office, andmany other influential men, should retain the feelingsof kinship and a common language that inevitablyfollow from call to the Bar, even though faded with theyears? And if there are to be changes, ought they not tobe in the direction of giving a greater force and realityto the existing training for the Bar (and not least diningin hall) instead of making a change that must virtuallyquench the flow of paper barristers? In short, is notthe paper barrister valuable and to be encouraged? Norwould the change achieve the result of equating" barrister " with " practising barrister," either in factor in the public's view, for there would remain the largebody of barristers whose pupillage had convinced themthat the practice of the law was not for them, or whohad given up practice after a year or two. And theoverseas student would require special consideration.

Reforms

So in the end the answer seems relatively simple. Inprinciple the present system of the undertaking on callachieves all that is really needed in the interests of boththe public and the Bar itself. In detail, the undertakingshould be strengthened by prohibiting practice until at

108 Legal Education

least the successful completion of an intensified post-final course in professional skills. This, coupled with arevised and broadened examination syllabus and, ifpossible, a real heightening of the value of dining inhall,12 would do what is needed to make training for theBar meet the needs of the day. Surely this much needsdoing; not enough is being done; and some of what isproposed takes the wrong turning.

SOLICITORS

Further education

Let me turn to solicitors. It would not be rightto end even a brief mention of legal education withoutan appreciative reference to the steps which The LawSociety has taken in recent years to provide furthereducation for solicitors after they have qualified. Therehave been regular annual lectures on the year's develop-ments in particular branches of the law, and week-endcourses have also been provided on specialised topics.These lectures and courses have proved justly popular.Even though the lectures (or notes of them) havesubsequently appeared in printed form, attendance atthe lectures themselves has paid tribute to the impactof the spoken word, as distinct from the dead level ofthe millions of printed and typewritten words which arethe annual fare of all solicitors. This further educationhas no counterpart at the Bar, though with so small aBar and such a high degree of specialisation this is notunexpected. For the solicitor, however, it is provinginvaluable, and may well be expected to develop further.

12 See post, pp. 112 et seq.

Solicitors 109

Articles of clerkship

That said, let me ask whether all is well with thesystem of articles of clerkship for intending solicitors.As with pupillage at the Bar, service under articles mayvary almost infinitely in its efficacy. The principal maytake care and trouble to see that his articled clerk hasexperience of most types of work, and the principal'sfirm may engage in a wide range of legal activities.Per contra, the principal may be too harassed or tooindifferent to give any real time to his articled clerk;and the firm may be highly specialised and cover onlya small segment of the legal field.

Principals vary greatly, too, in the degree of respon-sibility that they are willing to give to their articledclerks; a Cambridge graduate has been heard tocomplain of spending most of her time watching herprincipal write letters and of having her pleas for workdisregarded.13 A principal may find it quicker andsafer to do the work himself than to supervise itsexecution by his articled clerk. An articled clerkship,however, has at least the advantage, as compared witha pupillage for the Bar, that many solicitors' offices aredepartmentalised, and so it is easy (and normal) for thearticled clerk to spend, say, nine months in the convey-ancing department, six months in the litigation depart-ment and so on. The articled clerk is less dependentupon the personality and width of activities of hisprincipal than the Bar pupil is, and he is more likely tosample a fair range of life in the profession. Never-theless, there are many " one-man firms," and so, with

is The Times, May 3, 1962.

110 Legal Education

some qualifications, it may be said that articles of clerk-ship run the gamut from B to Y.

Service under articles is in substance the only way inwhich the prospective solicitor can acquire professionalskills. Those skills mainly fall into the two categoriesset out above in relation to the Bar.14 With writtenwork, what the student learns is limited only by hisown intelligence and the skills of his principal and othermembers of the firm. With oral work, however, andparticularly with advocacy (usually in county courts andmagistrates' courts and at public inquiries) he laboursunder the same difficulties as the tyro at the Bar: he canwatch and listen, but he gets no opportunity of practis-ing under instruction. Advocacy, of course, is far lessimportant for solicitors than for the Bar; probably themajority of solicitors do not practise as advocates. Butmost of them have had their ventures in advocacy,usually in their early years, and some have becomehighly skilled advocates with large practices in thecourts.

Courses on legal skills for articled clerks

You can, of course, see what I am suggesting.14* Isthere not a place for practical courses which teach legalskills to articled clerks, on lines parallel to the " Post-Final Courses " run by the Council of Legal Educationfor the Bar? Could not such courses at least ensure aminimum standard of instruction for articled clerks whoare unfortunate in their articles? Would not suchcourses help both articled clerks and their principals?

" Ante, p. 101.14a As in (1961) 14 J.Leg.Ed. 33.

Solicitors 111

The articled clerk so often does not know what toexpect—indeed, what he is entitled to require—from hisprincipal: he has no standards to go by. A course oflegal skills would not only provide some standards, butshould tend to raise standards where they need raising.Glimpses of the best usually speed the eviction of theinferior.

Training in such a course ought to make an articledclerk more valuable to his principal, too. In an hour orso a skilled lecturer can teach a class the basic elementsof drafting deeds and other formal documents; in life,the articled clerk is too often left to a process of gradualrealisation from many months of drafting work thatcommon principles lie behind most of the myriads ofsingle instances to be found in the twenty-volumeEncyclopaedia of Forms and Precedents. In short, suchcourses could achieve much that is not well done atpresent, and much that is not done at all. Solicitorswho are of the first rank in their profession may be ill-equipped by training and temperament to act as teachers,even if they can spare the time. In any case there areobvious advantages in one skilled lecturer or tutor teach-ing thirty or forty articled clerks simultaneously insteadof the work being done in widely differing styles bythirty or forty solicitors seriatim.

No doubt the difficulties are considerable. Thusgeographically, in contrast with Bar pupils, articledclerks are widely distributed. Yet The Law Society hastriumphantly solved problems far greater than this.The real question is whether the experiment is worthtrying. I have as little doubt about the answer as I have

112 Legal Education

about the ability of The Law Society to make theventure successful.

No substitute for articles

Once again, let me make it clear that I do not suggestthese courses as an alternative to articles of clerkship.For real life there can be no substitute. Nor am Isuggesting any further diversion of time spent underarticles from practical to academic activities. What I dosuggest is that, say, three months spent at one of thesecourses would teach 90 per cent, of the class much moreabout the techniques of practising as a solicitor thanthey would have learned by serving under articles forthose three months; and those three months would makethe subsequent period of service under articles morefruitful for articled clerk and principal alike. This, ofcourse, also poses one of the problems involved, namely,at what stage of articles the courses should be taken.The later this happens, the less value will the courseshave during articles; yet take them too early, and thearticled clerk has too little knowledge of substantive lawto make the courses really fruitful. But problems aremade to be overcome.

DINING IN HALL

Let me turn to the dining in hall required of all Barstudents. Broadly, for call to the Bar a student mustdine thrice a term for twelve terms; until last month,six dinners a term were required of those who were notmembers of a university.

Dining in Hall 113

The ancient values

More than a century ago a student who was diningin Lincoln's Inn for the first time was asked by a brotherstudent, after a long silence, " Pray, Sir, what is youropinion of the scintilla juris} " l s Each was to becomeLord Chancellor, the questioned as Lord Campbell andthe questioner as Lord St. Leonards; and it was thelatter who was to procure the passing of the Act16

which abolished the doctrine of scintilla juris. Who candoubt that the conversation so auspiciously begun con-tinued at this exalted level throughout the meal, or thatall within earshot avidly joined in? Yet today, what ofconversation at the students' table? Does the routine ofdining in hall any longer serve any real purpose?

In theory and in other days there was much to com-mend die rule. Predominantly, any Bar students whowere intending to practise were intending to do so atthe English Bar. Numbers were relatively small, andthere was some reality in the theory that in this wayfuture adversaries would get to know each other andwould pick up something of professional ideas andatmosphere. Dining in hall made some contribution tothe concept of a corporate Bar.

The modern reality

Today, much has changed. Numbers have greatlyincreased. With over 600 a year being called to theBar, the student population of each Inn is twice and

15 Campbell's Lives of the Lord Chancellors, 5th ed. 1868, Vol. 9,p. 142. For the esoteric doctrine itself, see Megarry & Wade's RealProperty, 2nd ed. 1959, p. 199.

16 Law of Property Amendment Act, 1860, s. 7.

114 Legal Education

three times what it was. The students themselves havegreatly changed. As recently as 1948 less than one-thirdof the students came from overseas. Today three-quarters of them are overseas students; and for many ofthem English is not their native tongue. An institutionfor a small number of mainly English students nowdoes duty for a large number of mainly overseasstudents; and of course there are changes. Conversa-tion at the students' tables tends towards the personal,the trivial and the political. How far have you got inyour exams? Which lecturers are any good? What arethe best exam books ? And so on.

Is it to be wondered that what had some real valuesfor one purpose now has little value for another ? Thereare some institutions that work for the few and burstfor the many. Today it is difficult to find any studentwho can see any value or utility in the ritual of diningin hall. The food, it is said, is poor or scanty or both,and the conversation does no more than pass the time;but the Inn requires it, and so one must go through thepointless ceremony.

Barristers at the students' tablesTo their credit, in recent years the Inns have made

some efforts. The obvious instrument of hope is thepractising barrister; if he will dine at the students' tablehe can do much, by his presence and his conversation,to lift the dinner out of the trough towards the stars.He can lead the conversation away from the trivial andtowards die professional. He may well be surprised athow little the students seem to know of the Bench andthe Bar, of etiquette and professional life, and, indeed,

Dining in Hall 115

how little they seem to care; for them, the world isdominated by the towering heights of the examinations.Yet once curiosity is stimulated, once the rich com-plexities of the Bar and the courts are glimpsed, thebarrister will find an avid audience and eager ques-tioners; and often good discussions will begin or can beprompted. In such surroundings the practising barristeris highly catalytic.

The Inns have varied in activity. In recent years, oneInn has sought volunteers from the Bar to dine withthe students on one night in each term; and there hasbeen a fair response, with one barrister to every eight orten students. Yet what is one night in a dining termof three weeks? Another Inn has arranged a rosterwhich ensures much the same distribution of barristerson every night of the dining term; and this, of course,is of great value. Do odds of 20 to 1 really reflect thedifference between the Inns? Is there nothing morethat can be done ?

Maying the overseas student welcome

The last thing I would suggest is anything to dis-courage the overseas student. If one believes in thevalue of English law and the English legal system, thenthe overseas student must receive a true welcome, andnot mere toleration or discouragement. Not only musthe be made welcome, but such modifications ought to bemade in the system as will permit both him and hisEnglish cousin to profit to the maximum extent fromthat system. This, indeed, is the inarticulate major

116 Legal Education

premise on which rests the Report of the strong com-mittee under Lord Denning on Legal Education forStudents from Africa.17

The task is not easy; but it is inescapable if educationfor the Bar is to be what it ought to be. The BarCouncil (and, of course, members of the Bar) have donewonders in recent years in making arrangements whichhave enabled overseas students to enter chambers aspupils if they wish, and this is most valuable. One ortwo overseas pupils among ten or a dozen practisingbarristers will quickly perceive the standards and tech-niques of the English Bar; the indigenous are notswamped by the transient. Yet valuable diough this is,it is not enough. Either some way must be found ofrestoring the value of dining in hall, or else the institu-tion should be abolished and replaced by something thatwill do what it did a century ago. I have little doubtthat the former alternative, though difficult, is not onlypossible but also much to be preferred.

Cmnd. 1255 (1961).

CHAPTER 4

THE COURTS

JUDICIAL APPOINTMENT

Politics

The system of appointment to judicial office inEngland is about as English as it could be: theoreticallyit is open to great abuse, but in practice it worksextremely well. The Great Judicial Appointer is theLord Chancellor; for it is he who selects all High Courtjudges and county court judges. Appointment to theCourt of Appeal and House of Lords lies with thePrime Minister, who naturally may be expected at leastto consult the Lord Chancellor.1 As both the LordChancellor and the Prime Minister are political officers,might not the result be expected to be that appointmentsto the Bench would wear a strongly political flavour?

Time was when the answer would have been Yes.But this is 1962, and today few would answer anythingbut No. Examples of political opponents being appointedto high judicial office may be found in the nineteenthcentury, when many appointments were undoubtedlycoloured by politics. But today a seat in Parliament isno longer the road to the Bench that it once was. Percontra, such a seat does not actually disqualify; andsome hold that politics and the House of Commonsbroaden the outlook of the future judge. Nevertheless,

1 See Sir George Coldstream (1959) 43 J.Am.Jud.Soc. 43.

117

118 The Courts

it has been becoming increasingly rare for a person to beappointed to the Bench for parliamentary distinctionrather than forensic ability, or as a reward for politicalservices.

Even the great offices of the law such as the LordChief Justiceship seem to have risen above politics. InIreland the complaint has been heard in recent yearsthat none could hope for appointment to the Benchexcept the Attorney-General of the day; die Bench wasclosed to political opponents and non-political lawyers,however eminent. Such a cry would never be heard inEngland. Indeed, the record of each of the majorpolitical parties in judicial appointments since the 1939-45 war has by common consent been outstandingly good.The great majority of appointments have been non-political (in the sense tiiat the person appointed has notbeen active in politics); and where a Member of Parlia-ment has been appointed, as often as not (or so it seems)he has sat on the Opposition rather than the Govern-ment Benches. The Great Judicial Appointer has, in thissense, also become the Great Schizophrenic.

CorruptionAs for judicial corruption, no breath of it has stirred

for longer than any practitioner can remember. Thismay be taken in the widest sense. It extends not merelyto simple bribery but also to the indirect approach by afriend of a litigant to the judge. Whatever the defeatedlitigant may suspect, any lawyer will tell him that it isunthinkable that the reason why he lost is that somefriend of the winner told the judge beforehand that thewinner was a decent chap and ought to win. Judges

Judicial Appointment 119

are most scrupulous, too, about revealing to litigants anypossible connection that they have with either party toan action, whether by holding some shares in a litigantcompany or by having in the past been lulled intounconsciousness by a litigant anaesthetist; and if eitherside objects, the case will be heard by another judge.

QUALIFICATION FOR APPOINTMENT

Academic lawyers

The rule that only practising barristers are appointedas judges is another safeguard for the litigant, thoughless obviously so. From time to time there have beensuggestions that the Bench would be improved if itincluded some academic lawyers. Would not theirknowledge and learning help to ensure a more consis-tent code of case law, a deeper appreciation of principle?Why should England deny herself the advantages thatthe United States has found in appointing an outstandingProfessor of Law to the Supreme Court Bench? Intheory and in the abstract, there is much to be said forthis course: but examination in detail shows anotherpicture.

Law and the facts

A fundamental distinction between academic law andthe practice of the law is, paradoxically enough, shownby considering questions of fact. In a phrase, inacademic law the facts are clear whereas the law is oftenuncertain; in the practice of the law, usually the factsare uncertain but the law is clear. A large part of thepractice of the law lies in the handling and ascertaining

M.H.L. 5

120 The Courts

of the facts; for until the facts are established, there isnothing to which the law can be applied. For thepractising barrister, much of his life in the law is lifeamong the facts: he examines his witnesses-in-chief, hecross-examines his adversary's witnesses, and he tries topersuade the judge of the probability of his version ofthe facts and the implausibility of his adversary's case.

The academic lawyer escapes all this. For him, thefacts are duly found by the judge; they are neatly andconcisely stated to be the facts in an early part of thejudgment. The great majority of decided cases, ofcourse, never reach the law reports, for they involve noreportable point of law: the only question is, forexample, which of two motor-cars, each stationary at themoment of impact, was the more blameworthy. Thesecases have given counsel and the judges engaged furtherpractice in the handling of facts, but for the academiclawyer they do not exist.

Experience of advocacy

Each member of the Bar involved in the case has hadfurther experience, too, of advocacy, both his own andhis adversary's. When an experienced advocate becomesa judge, he has experienced so much advocacy that hehas it in his bones to make suitable discounts, todetect and check any undesirable practices, and to comeas close to the truth as is likely to be possible for anyhuman tribunal. The admission in cross-examinationthat was obtained in reply to a loaded question, theanswer that was begotten of confusion rather than con-fession, the moment of truth, all these he has learned torecognise and evaluate: of all these, and of a mass of

Qualification for Appointment 121

practical and procedural detail, the academic lawyer isinnocent.

Appellate judges

An academic lawyer as a trial judge would thus beunthinkable. But what of the Court of Appeal or Houseof Lords? Would not one voice in three or one in fivebe capable of doing much good and little harm? Thisargument is more persuasive, yet not persuasive enough.The didactic life of a lecturer and author is far removedfrom the strife of debate and contention. The tempoof life is quite different. It is one thing for ideas andtheories to evolve and be tested over the years in thestudy and the lecture-room, and another thing to judgecompeting theories in the hot-house of the court-room.True, judgments can be reserved, and some commendthe practice. Mr. Justice Holmes had the answer: " Ifa man keeps a case six months it is supposed to bedecided on ' great consideration.' It seems to me thatintensity is the only thing. A day's impact is betterthan a month of dead pull." 2 A life at the Bar is alife of intensity, and that is no bad prelude to the Bench.

I have said nothing of quality. For myself, I wouldreadily assume that the academic world housed intellectsand characters fully equal to the demands of the Bench.For myself, I would be happy to see the experiment tried.But in the end I would not be unduly astonished if whatseems to be the predominant view at the Bar wereproved to be right. I would also harbour the suspicionthat the academic mind, accustomed to contemplating

a Holmes-Pollock Letters, 1941, Vol. 1, p. 154.

122 The Courts

the great verities of the law, might recoil from the greatbulk of the humdrum work, devoid of academic interestand ranging over territory little honoured in the aca-demic world, which forms the daily fare of evenappellate courts. Daily practice in the courts strengthensand develops not only the innate qualities of intellectand character but also those of patience, temper andresilience which are so important in the practice of thelaw. The fire purifies those whom it does not destroy.And, some practitioners would say, it also smokes outany bees that there may be in the bonnet.

Nevertheless, a case might well be made for givingpower to the Court of Appeal to sit with an assessorfrom the academic world, to assist the court in caseswhere an important point of law arises. Yet no sooneris this suggested than one realises that something of thesame result is already informally achieved. Food isagain the answer. The great case is being argued, diejudges lunch in their Inns, they discuss the point inissue with some distinguished academic lawyer that theyare likely to find there, and they have the benefit of hisviews. This, of course, falls far short of having anassessor in court who can follow and perhaps take partin the argument as it develops and grows; but it doesdo much to ensure that no important idea is overlooked.Nor is the academic pen idle; and in books and com-ments in legal periodicals most of the valuable fruits ofthe academic world (with some others) can be found.In the end, is there much wrong with things as theyare?

Qualification for Appointment 123

Solicitors as judges

These difficulties do not arise with solicitors; for theylive their professional lives among the facts. From timeto time the cry is accordingly raised that they, likebarristers, ought to be eligible for appointment to anyjudicial office. Is it not an unfair discrimination againstsolicitors that they can hope for no higher full-timeappointments than those such as Chancery Masters,Taxing Masters, County Court Registrars and, since1949,3 stipendiary magistrates? Are there not to befound among the 22,000 practising solicitors men asgood as those to be found among the 2,000 practisingbarristers ?

The answers, surely, are No and Yes, respectively: itis no unfair discrimination, even though there are manysolicitors who doubtless are " as good as " many barris-ters. These questions miss the point. The real questionis what sort of professional lives have they led ? Successon the Bench depends not only on the quality of theman but also on the richness of his experiences in court.The barrister is essentially a creature of the courts, thesolicitor a denizen of the office. True, there are somesolicitors who do much advocacy: to them the magis-trates' court and the county court rather than the officeare their natural habitat. Why not appoint them? Theanswer is that their curial experiences are unduly circum-scribed. In the appellate courts (except for some quartersessions) they have no audience; if there is an appeal,counsel will have to be briefed, and so the solicitors of

3 Justices of the Peace Act, 1949, ss. 29 (1), 31 (1). For a list ofappointments open to solicitors, see 36 Halsbury's Laws of England,3rd ed. 1961, pp. 52-54.

124 The Courts

necessity lack the experience of striving with the Benchin the superior courts. Should a man be appointed tothe Bench of the High Court when he has never argueda case there? The question answers itself. Nor, indeed,are the giants of the solicitor's branch usually to befound practising as advocates in the lower courts.

The solicitor's right of audience

Yet is this not another example of prejudice andtradition? Why should not solicitors be entitled toappear as advocates in any court? This question goesto the root of the English system. Grant such a rightof audience and the whole English system, as such,collapses. One man can practise as office lawyer andas advocate in any court; the profession is no longerdivided. With the resulting fusion of the two branchesinto one would go the whole English system of speciali-sation of function; and that would be an intolerablyheavy price to pay.

Whether a successful silk or High Court judge wouldbe worse as an office lawyer than a successful solicitorwould be as a silk or High Court judge is impossibleto say; the mind boggles at each flight of fancy, and Iwill not attempt to equate the incommensurable. Catchthe same man young enough, and he may become asuccess in either branch, depending on his talents, hisinclinations and his opportunities. But let him not livehis professional life as one and then yearn for the other.He would not want a dentist as his doctor, or his doctoras his dentist. The question is not one of the " seniorbranch " and the " lower branch " of the profession,nor of social standing, nor yet of qualities of character

Qualification for Appointment 125

and personality; it is a matter of training, of experienceand of skills. Practice at the Bar does something to aman that the office and the library cannot do.

Career judges

An alternative system, to be found on the Continent,is that of career judges. Under such a system an earlyelection must be made between practising law andbecoming a judge; and there are regular ranks in thehierarchy through which the successful progress with theyears, rising from magistrate to appellate judge. Wouldnot such a system be valuable in England, with itsemphasis on specialisation of function? After all, hewho has been judging for twenty years ought to make abetter judge than a mere beginner, appointed to theBench after twenty-five years in practice.

Difficulties

There are serious difficulties. The English legalsystem has no convenient hierarchy of judicial office athand. Posts suitable for junior officers in the JudicialCivil Service (as it might be called) could be createdonly by a drastic revision of, say, magistrates' courts;and the English public has become so accustomed to itsjudges looking mature that confidence in the new magis-trate might be slow to grow. Furthermore, promotionwithin a unified system might well strike against (or bethought to strike against) true judicial independence; ajunior magistrate who decided cases against the policeor the government might find, or suspect, that his per-sonal file at the Ministry would contain entries ensuringthat his promotion would be retarded.

126 The Courts

At present, magistrates, whether stipendiary or other-wise, have no hope or fear of accelerated or retardedpromotion; for there is none. With a few exceptions,county court judges have not been promoted to the HighCourt. Masters, Registrars, and (with one exception)Official Referees similarly have not been promoted. Onlyin the higher judiciary is promotion regular and normal,and even then translation from the High Court to theCourt of Appeal brings no increase of salary to com-pensate for the wide new range of work4 to becomprehended and done. There have been grumbles,too, that at times the judiciary is not sufficiently proofagainst being executive-minded; and the creation of aregular hierarchy of judicial offices with appropriategradations of salary is not the best way to remedy this.

Yet again, there are the problems of selection. A mandoes not make a good judge just because he thinks hewould like to be one; nor are there any known testsfor determining judicial ability at an early age. Underthe English system appointment to the Bench beforethe age of fifty is unusual, though not unknown; LordHodson and Lord Devlin were each forty-two whenappointed to the High Court, not long before and notlong after the last war respectively. By the age of fiftya man will have served a quarter of a century of practiceat the Bar before many judges and against manyadversaries; and by then his qualities of heart and headand spirit ought to have become both fixed and manifest.Life at the Bar does the winnowing, and the Benchshould reap the benefit.

4 See the characteristically witty and illuminating paper by AsquithL.J. at (1950) 1 J .S .P.T.L.(N.S.) 350.

Qualification for Appointment 127

Irreversible mistakes

Nevertheless, is there not a contrast, to England'sdisadvantage, in the " once for all t ime" system ofappointment? Instead of regular consideration for pro-motion, after trial and error, there is the single act ofappointment; and if a mistake is made (and mistakesthere have been 5) it cannot be rectified. Does not theEnglish system stake too much upon a single throwbased on surmises of how the advocate will succeed inthe quite different life of the Bench?

Experience

There is, indeed, much truth in this; yet the pictureis not so stark as these words might suggest. At thecommon law Bar, most silks and many juniors withcriminal practices are appointed as recorders or as chair-men or deputy chairmen of quarter sessions, and receivejudicial experience in this way. Further, at the HighCourt level judicial strength at assizes is often supple-mented by the appointment of a silk as a commissionerof assize for part or all of a circuit; and such experienceoften proves a prelude to appointment—or non-appoint-ment—as a High Court judge. But it is true that thereis no going back once a mistake has been made. Hewho was a silk yesterday is a High Court judge today;and however unsuitable he proves, in all probability hewill remain a High Court judge until he voluntarilyretires or reaches the age of seventy-five.6

5 See post, p. 129.6 See Judicial Pensions Act, 1959, s. 2.

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The Chancery Division

It is in the Chancery Division that appointments mustbe made with the least help; for there will be norecorderships or any of the other aids to judgment.Yet it is of the Chancery Division that the fewest com-plaints will be found. I, of course, would assert thatthis is due to Chancery lawyers being better than com-mon lawyers—and no damned nonsense about " otherthings being equal." 7 If there are other explanations,I do not know them. But certainly it would be hard tocollect more than one or two Chancery candidates fortwentieth-century badges labelled " It was a mistake toappoint him; he lacked the judicial quality." For thatmatter, so specialised and esoteric is the work in theChancery Division that it is impossible to envisage aChancery judge who had spent his formative years as ajunior magistrate in a Judicial Civil Service; for bothin method and in subject-matter there are almost nopoints of contact.

Merits in practice

In the end, one may well be doubtful of the merits,and convinced of the disadvantages, of altering thepresent English system of judicial appointment, so longas it is operated as well as it has been in recent years;for that is the crux of the matter. Theoretically,appointment to judicial office may seem to be an un-democratic leap in the dark; in practice, the leap is madewith assurance, the darkness is at most twilight, and theappointment is in the best interests of the public.

7 I have adapted Lord Birkenhead's dictum about Gray's Inn.

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Failures

There have, of course, been failures. In 1944, LordJustice MacKinnon wrote that Mr. Justice J. C. Law-rance was " a stupid man, a very ill-equipped lawyer,and a bad judge. He was not the worst judge I haveappeared before: that distinction I would assign toMr. Justice Ridley. Ridley had much better brains thanLawrance, but he had a perverse instinct for unfairnessthat Lawrance could never approach." 8 In 1958, CyrilHarvey, Q.C, wrote: " In my time at the Bar there havebeen some dreadfully bad judges. None was worse thanLord Hewart C.J. Here was a man marvellously quick-witted, with a superb command of the English language,with a vast knowledge of public affairs and with a flairfor advocacy which had brought him to the front rankin law and politics. He lacked only the one qualitywhich should distinguish a judge: that of being judicial.He remained the perpetual advocate. The opening of acase had only to last for five minutes before one couldfeel—and sometimes actually see—which side he hadtaken; thereafter the other side had no chance. . . .Another real shocker was Mr. Justice Darling. Hewould lie back in his chair staring at the ceiling withthe back of his head cupped in his hands paying scantattention to any argument but waiting until somefootling little joke occurred to his mind. When thishappened he would make the joke, the court would echofor about thirty seconds with sycophantic laughter, andthen the process would start over again." 9

8 (1944) 60 L.Q.R. 324.9 C. P. Harvey, The Advocate's Devil, 1958, pp. 32, 33.

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JUDICIAL QUALITIES

That, of course, brings me to the subject of judicialqualities. What is it that a litigant expects of a judge?A sufficient knowledge of law he takes for granted. Tocounsel, of course, much may turn on whether the judgeis essentially a good lawyer or whether he is primarilya man of character with merely a sufficiency of law.But the litigant, I think, is concerned far less with ques-tions such as this than with the way in which the judgebehaves while his case is being heard; and what happensin previous cases in progress while the litigant is incourt is usually regarded as a portent of things to come.

Quickness of apprehension

One of the qualities most highly regarded by thelitigant is that of understanding, of quickness on theuptake, of ability to grasp the facts and see the pointwithout it having to be explained to him several times.This, of course, is only part of the picture; quickness ofapprehension by the judge must be matched by clarityof exposition in the advocate. The question, in short,is one of the efficacy and accuracy of communication.

Few things I know of reduce litigants closer toimpotent fury than a patent misapprehension of the factsby the judge. If counsel gets something wrong, thelitigant can see that it is put right: a word with hissolicitor, a scribbled note from the solicitor to counsel,a glance by counsel, and all will be well. But aboutjudicial misapprehension the litigant can do nothinghimself; it must be done by counsel. It matters little

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to the litigant that the fact misunderstood, or not under-stood at all, is in reality of little or no relevance. Thelitigant often has little appreciation of what facts are orare not really relevant, apart from the great central factsof the case. Often in the litigant's mind there seemsto be some feeling that to demonstrate the obloquy of hisopponent on another occasion is to demonstrate theinfamy of his cause on this. The maxim which begins" Give a dog a bad name " seems to run deep in humannature as truth and not irony; and the litigant oftenseems puzzled and disgusted by the perverse and wilfulrefusal of the law to give effect to it.

Whether for this reason, or some other, failures ofthis kind seem to cloud die whole of a litigant's appre-ciation of the judicial process. After the seeminglyinterminable process of preparing for trial, the taking ofproofs of evidence from the witnesses, the conferenceswith counsel, and waiting and waiting, surely there hasbeen time enough, and money too, to get the facts right.Are not the courts the dwelling-places of the verities?Above all, if the judge gets this point wrong, how do Iknow that he has not gone wrong also on other—andperhaps more important—points? Questions of thiskind loom large in many a litigant's consciousness,especially if he has been defeated.

RelevanceIn a sense he is both right and wrong. The courts

ought to get all the facts right. There is, of course, aright of appeal, and if need be a new trial can beordered. But these truths do not alter the fact that atrial is usually a final process, not to be repeated: and

132 I'he Courts

finality ought to be recognisably final and free fromerror.

Nevertheless, the litigant with these views overlooksmuch. Any lawyer, and any layman on reflection, willclassify facts into facts of identification or explanationand facts of relevance. Names, places, documents,events and many other matters have to be given inevidence and referred in judgments so that the case maybe intelligible and so that it may be known by all pre-cisely what matter is being dealt with. In most cases,none of them matter. Change all the names and places,alter all the dates (though not their sequence), replaceone event by another, and the legal issues would usuallyremain entirely unaltered. All these are facts of identi-fication or explanation—narrative facts—and to a lawyera mistake in any of these is of very little consequence.Any that survive into the formal order of the court willhave to be put right in drafting that order; but thatis all.

Lawyers, it has often been said,10 are experts in rele-vance. Their attention and their efforts are concentratedso fiercely on the facts which really are relevant that oftenthere is some impatience with other facts. What to thelayman appears as a sign of inattention is in fact usuallya sign of concentration: in his anxiety to reach the factsthat really matter the judge may be giving less than hisfull attention to die dull but necessary recital of theother facts. I am not saying that judicial mistakes as toirrelevant facts are to be commended; a judgment thatmisnamed the parties, transposed the witnesses and

i° See, e.g., per Frankfurter J. (1948) 34 A.B.A.J. 656 at 747.

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misdated all the documents would, by so gross a collo-cation, at least arouse the suspicion that all was not wellon the Bench. Nor, of course, am I speaking of thosedeplorable rarities, cases in which a reserved judgmentin a divorce case, Jones v. Jones, is based on the factsfound to have existed in another case, Smith v. Smith,heard on the same day; for here the error is error as torelevant facts. But I am saying that mistakes of factwhich fall short of these categories ought not to affectthe litigant's mind; yet they do.

Vocabulary

Sometimes the difficulty is merely one of vocabulary." Last week the landlord rose my rent" will puzzle few.But " He came just as I was having dinner " must beunderstood according to the speaker; a supplementaryquestion referring to the early evening may well bafflea witness to whom " dinner " is at noon. " It's not thatI minded him going," says the deserted wife, " but hetook the home with him." The lawyer must not lookbewildered but must understand—and must makeexplicit—that to this wife " the home " means the furni-ture that goes to the making of a home, and not thebricks and mortar (or, for that matter, the caravan) thathouse it. A highly respectable middle-aged woman mayseek a divorce on the grounds of what appears to be nomore than an innocent flirtation of her husband, andrepeated questions may fail to elicit any other " mis-behaviour " or " misconduct" by her husband; yet achance question at the end of a long interview maybring out an occasion when her husband was " foolingaround," and, on examination, this occasion may emerge

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as one of astonishing and ingenious depravity. Somewords in the English language, too, offer powerfulemotional barriers to communication. But Bench, Barand solicitors alike all become skilled in detecting anduncovering such traps; and they rarely lead to more thana momentary hesitation.

Effective communicationWords, then, are not the trouble: but what of the

rest? What is the overall picture? How far does theEnglish legal profession meet the demands upon it forskill in communication? The question is one for alllawyers, for the Bench cannot apprehend speedily andcorrectly if the Bar does not inform clearly and accur-ately; and the Bar cannot play its part unless thesolicitors give plain and precise instructions. From timeto time there are, of course, unhappy exceptions. Butthe general answer must, I think, be that the litigantgets an exceptionally good service. Again and againlitigants may be heard to speak with glowing admira-tion of the way in which their case has been put bycounsel, and in particular of the clarity with which theircontentions have been expressed; and this says much forthe joint efforts of solicitors and the Bar. Quickness onthe uptake and scrupulous accuracy as to the facts arebadges that nearly all lawyers may wear with pride.

Of course, there are differences in degree. Speed onthe uptake is not so necessary for solicitors as it is forthe Bench or Bar, though by experience and training itwill nearly always be higher than the average existingin most other callings of life, and it will almost inevit-ably be supported by exceptional thoroughness as to the

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facts. There are times when the Bench is not seen toadvantage: a judge nearing his retiring age, at the endof a long day near the end of a long term, may be facedwith complicated facts in an unfamiliar field of law,and may try the patience both of counsel and of allothers in court. But it must be remembered how highthe standards are. Judges may get confused,11 but theyare living in regions of complexity, and they are judgedby the professionally lucid.

In the sphere of communication, then, the litigant haslittle to fear. There may be some temporary failures,though these are usually quickly put right; only veryoccasionally is there anything more serious. TheEnglish practice of the judge delivering an oral judg-ment with a full explanation of his reasoning is at theheart of the matter. Such a judgment will nearly alwaysnot only give the defeated litigant the reasons for acced-ing to the arguments advanced by the other side butalso explain why the arguments to the contrary couldnot prevail. In the statement of these latter argumentsthe judge will, in effect, be demonstrating to thedefeated litigant that he really understood and appre-ciated what his case was. It is difficult to over-estimatethe importance of this. To be condemned withoutbeing understood is as bad as to be condemned unheard.A sense of injustice may well flourish if a litigant thinksor suspects that the judge has not really understood hiscase. It is very hard for it to exist at all if the judgehas demonstrated that this is not so.

11 See, e.g., the example given in C. P. Harvey's The Advocate'sDevil, 1958, pp. 36, 37.

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Exclusion of the extraneous

A second quality in a judge that litigants hope for isthe exclusion of the extraneous. This arises in variousforms, but mainly in the form of the litigant's hope thathe will not be unnecessarily held up to public criticismor ridicule, and that he will emerge from the case withhis dignity impaired as little as possible. I do not sug-gest that litigants often express themselves thus, for Iam generalising from the fear of appearing foolish, thefear of doing something wrong, the fear of the unkindword spoken in public. Sometimes the litigant says thathe hopes that the judge will not make jokes; sometimesthere is a fear of unkind comment on some side issue,such as the existence of unwedded bliss enjoyed by acouple occupying a rent-restricted house; sometimesthere is the fear of " being made a fool of" in thewitness-box.

On this score it is difficult to give an unqualifiedanswer. In general, judges are careful to say no morein their judgments than is necessary for the decision ofthe case. In general, judges restrain themselves frommaking comments during the course of a hearing thatare hurtful but unnecessary. But some say that thereare too many exceptions to the rule. Some of theseexceptions are debatable: is it very wrong that a judgeshould castigate immorality where he finds it?

No General Eyre

As always, I leave criminal cases on one side. Incivil litigation, one of the parties concerned has broughtthe dispute to the court for determination. It is that

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dispute, and that alone, which the judge must deter-mine. Go back some seven centuries, and you will findjudges sent out all over the country under Commissionsof General Eyre, to uncover whatever wrongdoing ormismanagement there may have been. Today thejudge's function is far more closely circumscribed. Isthere not much to be said for the view that judicialself-restraint ought to prevail, and that, so far ashumanly possible, the judge ought to say nothing morethan is necessary for his decision either during thehearing or in his judgment? One of the parties to theproceedings, or one of the witnesses, may have behavedstupidly or greedily or immorally or revengefully: thejudge certainly is not called upon to express approval,but equally ought he not to refrain from any condem-nation unless that is necessary to his decision? Litigantsought not to be compelled to risk their reputation inorder to enforce their rights; and a fortiori as to theirwitnesses.

Not long ago, a High Court judge began to take astrong line about a case while the plaintiffs' counselwas opening it; he frequently interrupted counsel'sspeech, with comments critical either of the plaintiff orof counsel. When the plaintiff came to the Book to besworn before giving evidence, he said: " I am anatheist," whereupon the judge commented: " And nomorals either "; and the plaintiff was affirmed instead ofbeing sworn. This comment by the judge formed partof the grounds upon which a new trial was sought. Indelivering the judgment of the Court of Appeal, LordJustice Denning said: " We are a Christian country.The denial of God is no commendation in a witness;

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but it is not to be taken against him. Believer andunbeliever are each alike entitled to justice in our courts.If the thought flashed through the judge's mind, ' andno morals either,' he ought to have put it aside as un-worthy and not to have given voice to it. Once it hadbeen spoken, no one could regard the trial as fair, atany rate not after what had taken place before. Like-wise with the other interventions. Whatever theprovocation, the atmosphere at the trial was so stormythat it was impossible for the judge to bring to die casethe calm and unprejudiced outlook which is the essen-tial foundation of a sound judgment. The court has noalternative but to order a new trial." I2

Wounding irrelevancies

I say nothing at this point of a topic which in somerespects is closely allied, namely, that of decisions beingreached on moral rather than legal grounds, nor yet onjudicial comments being made on moral questions whichnecessarily arise as part of the case itself. Each of thesematters is dealt with elsewhere.13 Here I am concernedwith incidental comments which do not affect the resultof the case yet which may be deeply wounding. Per-haps it has emerged that someone connected with thecase has changed his name or nationality or both;perhaps he has been bankrupt, or a patient in a mentalhospital. These facts may have no possible bearing onthe result of the case, and yet the judge may more than

12 Bunting v. Thome R. D. C. [1957] The Times, March 26.I have changed the oratio obliqua of the report into oratio recta.See also Jones v. National Coal Board fl957) 2 Q.B. 55.

i» See post, pp. 149, 150; 151 et seq.

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once refer slightingly to them. To the judge theseremarks may be of little moment, to be forgotten soonafter the case is over; yet the litigant or his witness hasbeen seared.

Judicial humour

Judicial humour is—or may be—closely allied. Thereis humour and humour. One type produces a laugh atsomeone's expense; and if the someone is a litigant or awitness, the evil is closely allied to the moral commentsthat I have just been discussing. It ought to be un-thinkable that a person in the position of power of ajudge should make one of the laymen before him a buttfor his humour; and today this very rarely occurs.Counsel are another matter: within limits (in which Iinclude Mr. White-Wig) they can stand up for them-selves.

Quite apart from humour of a personal nature, thereis the humour of the situation. To this, none couldobject. For example, earlier this year, in a case aboutwhether certain decorative repairs had been carried outto a sufficiently high standard, counsel for the tenantasked one of his witnesses what a representative of thelandlord had said when the witness had told him thathe proposed to have the decorations carried out by aparticular firm of decorators. The point of the questionwas to elicit the expected answer that the landlord'srepresentative had expressed his satisfaction with thehigh standing of the firm of decorators. Before thequestion could be answered, counsel for the landlordhad objected to it on various grounds, and a spiritedargument followed. Finally, it was ruled that the

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evidence was admissible, and on the tenant's counseltriumphantly repeating the question, the witnessanswered: " He didn't say anything." This substantialrepetition in fact of a similar barren victory in fiction 14

naturally amused all concerned, including the judge,who said to the tenant's counsel: " There's your answer,Mr. Blank."

Yet even though none can very well object to suchinnocent merriment, nor to the wit or verbal dexteritythat often enlivens an otherwise tedious case (" Thecourt," said Erie C.J., " is very much obliged to anylearned gentleman who beguiles the tedium of a legalargument with a little honest hilarity " 15), there is muchtruth in the saying that Englishmen like their law dull.To the anxious litigant the whole thing is serious. Withthe final result of the case still in doubt, and with theprospect of perhaps having to pay for every minute ofthe hearing, and much more besides, how can judgeand counsel be so insensitive as to fritter away valuabletime in idle jesting? How can so serious a matter asthis action be a fit subject for humour? Are judge andcounsel who amuse themselves in this way to be trustedto treat the case with the earnestness that it deserves?Counsel, indeed, may be recognised as having littlechoice, for he must humour the judge; and so ultimatelyit is the judge who is judged.

It is not easy to generalise on this subject, for witand humour among judges vary greatly. " Humour "

14 See Forensic Fables (Complete Edition, 1961), p. 341 ("TheErudite Judge and the Question of Doubtful Admissibility ") .

15 See my Miscellany-at-Law, 1955, p. 48.

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of the type so often displayed by Mr. Justice Darling16

is now fortunately almost dead; so often it was cheap,or contrived, or both. Tastes change, and today fewenjoy such joking. Wit and verbal felicity, which are,of course, very much another matter, continue to flourishin varying degrees; and some of the examples are soesoteric and referential, and are conducted with suchstraight faces, that even the sternest of litigants canhardly detect that anything is amiss. On the whole,apart from a few unhappy outcroppings, there is prob-ably very little that litigants can justly complain oftoday on this score. Proceedings are nearly alwaysconducted with a dignity and decorum that could giveoffence to none save the hypersensitive.

Talkativeness

One of the most easy of judicial vices is that of talka-tiveness. In one divorce case—and maybe in others—Mr. Justice Wallington put to the witnesses many morequestions than all the counsel in the case together. Inthe classic words of Lord Greene M.R.: " A judge whoobserves the demeanour of the witnesses while they arebeing examined by counsel has from his detached posi-tion a much more favourable opportunity of forming ajust appreciation than a judge who himself conducts theexamination. If he takes the latter course he, so tospeak, descends into the arena and is liable to have hisvision clouded by the dust of the conflict." 17 Asked toestimate the length of a case, many a junior has been

i« See ante, p. 129.17 Yuill v. Yuill [1945] P. 15 at 20.

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tempted to say: " Two days; but four before Mr. JusticeBlank."

SilenceSilence, however, can be nearly as bad as talkativeness,

or worse. Counsel is left without any indication ofwhat to press and develop, of when he is pushing at anopen door, and on what he must confess and avoid.He may sit down and find that the judgment turns ona point that he thought too clear for argument, or onan imperfect appreciation of one of his main conten-tions which he would have developed more fully if hehad not feared to seem to be belabouring it. It is oftenfar from easy for the advocate, zealous that each of hispoints should be appreciated in its full beauty, to dothis and yet sustain interest. Without help from theBench it is often impossible. Let the judge but say at asuitable point of rest: " As I see it, your argument, Mr.X, is that . . . ," and counsel will know the best, orworst; the argument, for what it is worth, is home, orelse it is not, and it must be put again in differentlanguage.

The balance is nice: too much stifles, too little baffles.The general opinion at the Bar seems to be that, withfew exceptions, that balance is achieved. The HighCourt Bench and Court of Appeal today exhibit few ofthe vices that I have mentioned; we are fortunate andgrateful. There are few complaints from the client thatthe judge was partisan, or stupid, or facetious. Certainlythere is no place in England at present for the celebrateddenunciation that the future Lord Kennedy unleashedin 1896 against the Second Division of the Court of

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Session, a court of four judges which broadly corre-sponds to a division of the Court of Appeal in England.The first two counts in the indictment were:

" 1. That by a system of constant interruption fromand conversation upon the Bench, the arguments ofcounsel are torn to tatters; that it is frequently therebyrendered impossible to state an argument with intelli-gence or connection, and sometimes counsel who have astrong case are hunted to earth without any opportunityof stating it.

" 2. That as the judges will not listen with patience tostatements which do not at the very outset make clearthe nature of the dispute, or to the reading of any con-siderable portion of the evidence, they form hastyimpressions, which dominate them throughout the hear-ing, and prevent their giving attention to arguments orevidence which tend in a contrary direction." 18

In giving particulars of the complaints, the authorwrote: " The most experienced practitioner cannotform any confident opinion as to how the SecondDivision will decide any case whatever. He cannotpredict what argument they will listen to, or whetherthey will listen at all. . . . How can counsel performtheir duty if argument is turned into dialogue in whichthey play the part of targets or occasional interlocutors?If counsel is stating the facts, the court are instantlycurious to put legal conundrums; if he is citing prece-dents, nothing will serve them but the exact age of themost unimportant witness. One often sees an unfor-tunate counsel trying to face four questions at once, all

18 (1896) 8 Jur.Rev. 269; and see Lord Macmillan, A Man of Law'sTale, 1952, p. 46.

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on different points, like the early Christian exposed inthe arena to fight simultaneously with an elephant, atiger, a leopard, and a bear. But even when the Divisionhas ' amiable intervals,' a counsel is often reduced tothe dilemma of either leaving important points unstatedand leading cases uncited, or of drawing down thunderand lightning on his devoted head." 19 The articleended by stating that " it is written in The Mirror ofJustice, a work of didactic excellence but doubtfulaccuracy, that Alfred, ' England's darling,' in one yearhanged forty-four judges for having vexed the people byunrighteous decisions.20 That method was effective, ifbarbaric; and some of us, in our more indignantmoments, are inclined to cry, ' Oh, for one hour ofAlfred!

Perhaps we are not the men our ancestors or ourScottish cousins were; but most lawyers would, I think,ascribe it to judicial excellence rather than softness ofliving that there has been no such outcry in recent yearsin England. The suggestion has, indeed, been made,though not very seriously, that the Bar should have theprivilege of from time to time electing a judge forappointment to a position of great eminence and nopower; and enough candidates have been proposed tomake such an election a contested one. There was alsoonce a proposal, again not very serious, that three judgeswho were not silent (one in each Division of the HighCourt) should be banded together to form a mixed

1 9 8 Jur.Rev. at p . 273.2 0 See The Mirror of Justices, Book 5, Chap. 1, para. 108; 7 S.S.

p . 166; but cf. p . xxvi.2 1 (1896) 8 Jur.Rev. 277.

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Divisional Court which could " hear " one case a term,with counsel occasionally looking in to see whether therewas any opportunity to speak.

The Bench, indeed, has not shown itself to be uncon-scious of this failing. In 1927 Lord Justice Scruttonwryly observed of a court consisting of Lord HanworthM.R., himself, and Mr. Justice Romer, that " the court,with occasional assistance from counsel, took more thana day in discussing the case." 22 A year or two later inAustralia, Mr. Justice Starke began a judgment bysaying: "This is an appeal from the Chief Justice,which was argued by this court over nine days, withsome occasional assistance from the learned and experi-enced counsel who appeared for the parties. Theevidence was taken and the matter argued before theChief Justice in two days. This case involves twoquestions, of no transcendent importance, which arecapable of brief statement, and could have been exhaus-tively argued by the learned counsel in a few hours." 23

It is unlikely that the Bar would dissent.

The fact that the subject is one for gentle jesting,albeit a trifle rueful, shows, I think, that the mischief isnot great. If for two decades judicial appointment hadbeen subject to renewal every five years on a vote ofthe Bar, few would suggest that there would have beengaps to be filled. If the Bar is strong enough and theappellate courts sufficiently percipient and vigorous, themischief ought to be kept within bounds. It is, after all,a small price to pay for a truly independent judiciary.

2 2 Elliott v. Duchess Mill, Ltd. [1927] 1 K.B. 182 at 201.2 3 Federal Commissioner of Taxation v. S. Hoffnung & Co., Ltd.

(1928) 42 C.L.R. 39 at 62.

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Every judicial appointment is a leap in the dark, andthe wonder is that we do not more often fall into acrevasse. As Lord Coleridge C.J. wrote in 1891, " It isone of the curious things about our profession that youcan never tell what sort of a judge a man will be. Oneof the very worst judges I ever recollect was Crompton,yet, I am sure, if it had gone by election the professionwould have elected him when he was made; and Black-burn, of whom no one thought anything, made, withsome grave defects, one of the very best judges of mytime." 2i It is no different today.

The judicial quality

In the layman's eyes, a judge is almost by definition aprofound lawyer. Like so many lay views of the law,this is far from universally true. None save good law-yers can hope to sit in the Court of Appeal or in theChancery Division. But elsewhere, though an extensiveknowledge of law may be no handicap, it certainly isnot an essential. In crime, law plays a smaller part;the question is nearly always " Did he do it? " with diemeaning of " i t " taken for granted by all. For themost part the knowledge of evidence and procedure thatcomes from a lifetime of practice suffices for crime.

What is needed is die indefinable judicial quality. Isthe man big enough, sure enough, balanced and broadenough? Has he zeal without passion, tolerance with-out laxity, and an infinity of patience? Will he sit inthe middle of his chair, neither poised nervously on the

24 E. H. Coleridge, Life and Correspondence of John Dulfe LordColeridge, 1904, Vol. 2, p. 370.

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front of the seat nor reclining carelessly at the back?Let me quote Italian words. " A judge does not needsuperior intelligence. It is enough that he be possessedof an average intellect so that he can understand quodomnes intellegunt. He must, however, be a man ofsuperior moral attainments in order to be able to forgivethe lawyer for being more intelligent than he." 25 Per-haps the words " average intellect" go a little too far;but subject to this, it is in England much as in Italy.

Social contacts

Doubtless the judicial Bench, as well as the Benchesof the Inns, are excellent incubators of the judicialquality; but of course an incubator avails only the fertileegg. The appointments of recent years are no smalltriumph in judicial selection. There is, however, anespecial difficulty for those appointed to judicial officesnot based on London. Judges of county courts andother courts outside London are denied the undeniablebenefit of regular social contacts on equal terms withtheir brethren and the Bar; and isolation or seclusionare enemies of the best judicial qualities.

Every High Court judge is a Bencher of his Inn, andthe majority regularly lunch in their Inn. There theymingle on terms of relative equality with their superiorsin the Court of Appeal, and with those silks and seniorjuniors who are Benchers. A junior sitting behind asilk in a case before Mr. Justice A may sit next to thejudge at lunch and call him by his Christian name.Needless to say, this association is not abused. Indeed,

25 Calamandrei, Eulogy of Judges, 1942, p. 28.

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it is most valuable. " Men who make their way to theBench sometimes exhibit vanity, irascibility, narrowness,arrogance, and other weaknesses to which human fleshis heir." 26 Weaknesses such as these flourish the lesswhen the observers or victims may be one's lunch-timecompanions or may be seen talking (about what?) toone's colleagues at the other end of the table. Com-munal food is at the heart of good justice—or do Imistake the organ ?

Judges outside London

Judges of county courts and other courts outsideLondon miss nearly all this. The convention seems tohave grown up that a county court judge is not electeda Bencher of his Inn even though his seniority wouldotherwise carry him there. A few become Benchersbefore they are appointed county court judges, and theyof course remain Benchers. But most county courtjudges are appointed when they are only a few years insilk, or are senior juniors though not senior enough tobe Benchers. Except in Gray's Inn, where promotionis more rapid, few silks become Benchers until theyhave been six years or more in silk, and few juniors areelected before they have been well over twenty-five yearsat the Bar.

This relative isolation of provincial judges is at leastin some part geographical and inescapable. A judgewhose circuit is in Northumberland or Cornwall couldnot hope to play his full share in life on the Bench of hisInn. A few of the London county court judges lunch

™ Sacher v. United States, 343 U.S. 1 at 12 (1952), per Jackson J.

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in their Inns from time to time, often when they havebeen sitting as Divorce Commissioners at the LawCourts; and they are most welcome. But most of themescape even the gentle comments and decorous questionsof their fellows and juniors that show the way that thewinds of opinion are blowing. Occasional dinners withlocal law societies and with the circuit are doubtlesspleasant, but any impact must be small. It cannot bemerely a coincidence that it is mainly from outsideLondon that most of the anxieties for the cause ofjustice have come. Few—very few—on the Bench areinvolved; the pity is that there are any. I am not alonein believing that there would be even less to complainof if in some way provincial judges were less insulatedfrom professional opinion.

THE MORAL FORCE OF THE JUDGE

I turn to one feature of the law as administered by thecourts which is little known by the public and littleunderstood by the student; yet it is of vital importance.I can only call it the moral force of the judge.

Let me take a simple illustration, drawn from life,though with some variation of the facts. Shortly afterthe war a professional man bought a leasehold house.That is, he paid some £4,000 for the grant of a ninety-nine years' lease at a rent of £50 a year. The rent wasjust under two-thirds of the rateable value of the house,so that the Rent Acts did not apply to it; or so it wasmistakenly believed by all concerned. After a year orso the purchaser discovered that the rateable value was

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a few pounds less than he had believed. This trans-formed the situation at law. The Rent Acts applied,and so the £4,000 was an illegal premium which thepurchaser was in law entitled to recover from thevendors. The vendors offered to reduce the rent by fivepounds or so and so make all as it had been believed tobe, with a small advantage to the purchaser; but insteadthe purchaser demanded the return of the £4,000, andultimately issued a writ for it.

With two qualifications, the law seemed clear: theplaintiff must win. The first qualification was the possi-bility of the defendants having the transaction rectifiedso as to make it accord with the common intention ofthe parties. This possibility existed, and involved argu-ments of law that would have made a pretty examinationquestion. The second qualification was the moral forceof the judge. Would he permit the plaintiff to keep hislease for ninety-nine years at a rent of £50 a year andyet recover his £4,000? It early became plain whatchoice lay before the plaintiff. He would probablysucceed if he insisted on the case proceeding to its bitterend; but a bitter end it would be. The rectificationpoint might well make the case into a reported case;and there would be the judge's views of the plaintiff,for all posterity to read. Before the case had gone aday, the plaintiff had accepted advice that previously hehad rejected, and had taken the proffered reductions inrent and an indemnity against costs as the price ofdiscontinuing his action.

The rules of law must inevitably be generalisations.In the great majority of cases the fair application ofthese rules produces justice. In the inevitable minority

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they will produce injustice, or a disproportionate penaltyfor a venial error. In this minority of cases, the judgewill sometimes use his high office and moral authorityto drive the unworthy from the judgment seat. One ofthe most unhappy roles that counsel may have to play isto assert a claim sound in law but ethically deplorablein the face of the moral indignation of the judge.Clients may be advised, but only some accept the advice;and the others, like all citizens, are entitled to theirrights according to law, whatever counsel may think ofthem. With such clients it is counsel's duty to becourteous, though diere is no obligation to show enthu-siasm. Indeed, if in the example I have just given theclient had not been a professional man, it may be thatthe case would have been fought to a finish, and the lawreports enriched by a further authority on the law ofrectification.

Within such limits, the moral force of the judge iswholly for the good; one would not have it otherwise.The litigant will be given his legal rights, but he willhave to pay for them. The only fault is that the lowerthe ethical standards of the litigant, or the less vulnerableto public opinion his occupation, the more frail is thejudge's influence.

DECISIONS BASED ON THE MERITS

Perhaps it is this which has led, particularly in recentyears, to what has been a striking application of themoral force of the judge; and there are some who wouldregard this as a misapplication. In bald terms, it lies inyielding to the temptation to decide a case on the

M.H.L.—6

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" merits," and to fit the law to those merits. Amonglawyers, " merits" in this context is a word that is wellunderstood but ill-defined. Broadly, the merits of a caseare said to lie with the party who is the more morallydeserving, not only in regard to the facts of the caseitself but also generally.

The range is immense. For example, sometimessympathy is the mainspring; an impoverished widowwith young children is suing a wealthy and impersonalcompany. Sometimes the balance of social values is allone way; the tenant of a house, with nowhere else togo, is being evicted by a landlord who has no real needfor the possession that he is legally entitled to. Some-times the approach is " there but for the grace of"; theplaintiff has acted rashly and on human impulseswhereas the defendant has been correct but ungenerous.Sometimes there is a smell of sharp practice; one partyhas deliberately taken advantage of one of the manytechnicalities of the law, and a rule made to protect themany has been used to entrap the individual. In allcases, the " merits" mean elements that would not bementioned if the problem before the court were to be setout with the chaste brevity of an examination question.The merits tend to be human and individual, the lawintellectual and general.

Let me give an illustration. One day several yearsago a member of the Bar heard accounts of two decisionsof different divisions of the Court of Appeal. In thefirst he had been puzzled by several aspects of the lawappearing in the report. The explanation, it seems, wasthat the activities of one party were an elaborate butbarely provable fraud. It was right that he should be

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frustrated in his purpose, and the law laid down did justthat. In the second case a friend of his at the Bar hadjust been defeated; and out of court one of thejudges, meeting him, had said: " Ah, it was thoseletters, you know "; and this referred to some ill-advisedcorrespondence of the client.

I do not know whether the second case was everreported; but the first was. Not a word about thesuspected fraud appeared in the judgment in that case,and little was said about the letters in the second case.The true ratio decidendi in each case thus lies hid, andeach judgment is something of a concealed trap.

Dangers

None would deny that virtue ought to triumph overvice, or that the courts are no bad places for this tohappen. But is there not something to be said for thetriumph being open instead of covert? Ought the lawon an undecided point to depend on how the meritshappen to lie in the first case that raises it? What ifin the abstract the better rule seems to be in favour ofthe plaintiff, but in the first case to raise the point theplaintiff be devoid of merit and the defendant the soulof reasonableness and patience? A court that followsthe merits and lays the law down in favour of thedefendant may a year later be faced with the same point,but this time with an innocent and guileless plaintiffand a defendant as black as sin. The earlier decision isbinding, so that there is no escape save by the " dis-covery " of some fine " distinction " between the cases;and behind this distinction in law will lie, perhaps con-cealed, a moral rather than a legal judgment. Is it not

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the true path of the judge to free the law from theshackles of individual events and seek the rule that, onequal merits, will be the most just?

When I speak of merits, I am not, of course, speakingof those merits which properly enter into the res gestae,as it were. If the plaintiff by fraud entrapped the defen-dant into signing the contract, or if with unclean handshe seeks to enforce his equitable rights, his moral guiltis parcel of the law. By law the fraud will vitiate thecontract, in equity the unclean hands will bar him fromrelief. What I have in mind particularly is the un-generous attitude, the insistence on the letter of the law,the attempts at " cleverness," evinced after the cause ofaction has arisen, and so in most cases legally irrelevant.I have also in mind past history in previous transactionsbetween the parties. Perhaps in a more perfect worldsome doctrine of justice could be founded on matterssuch as these; but here below they only divert andconfuse. And they lead to mischief.

Difficulties

I say this because counsel, well knowing the powerfuleffect that the " merits" may have, must at the trialstrain to drag in as many as he can to aid him bothbefore the judge, and later, if need be, on appeal; andapart from this lengthening the proceedings and perhapsadding to the costs, the English legal system is notequipped for a general trial on merits. The trial judgemay have some chance of getting at some of the truthas to the general merits, especially if the parties giveevidence before him; but on appeal it is a differentmatter. The Court of Appeal has before it at most the

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still life of the transcript of evidence, and such of themerits as have filtered through the system. A completehearing of competing merits it cannot be. If neighboursues neighbour, and the plaintiff has written some veryunneighbourly letters, it may be that the defendant'sdeplorable conduct on nine previous occasions on othermatters has at last stung the plaintiff out of his mildand courteous self; or it may be that this is the plain-tiff's tenth wanton attack on the peace-loving andreasonable defendant; or it may be six of one and halfa dozen of the other.

Perfect justice would demand an inquisition into thewhole life and behaviour of each party that would leaveeach crippled financially and the court exhausted.Perfect law would rigorously exclude all save the subject-matter of the suit. What tends to happen in practiceis that the side with most of the merits manages tosmuggle some of them past the other side, and that theparty who was incautious enough to commit himself inwriting is most smuggled against, via the inevitablebundle of correspondence. A good bundle of corre-spondence may be worth half a dozen witnesses; and bya " good bundle of correspondence " I mean a bundlethat shows your client exhibiting the patience of Job andthe reasonableness of an archangel, and reveals the otherside as descended from Cain.

Moral arbitrations

Perhaps the picture is overdrawn; but few would denythat the tendency is there. If the parties want a moralarbitration, they can, I suppose, have one. Indeed,within the last decade one of the Church Commissioners

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actually sat as a moral arbitrator to determine on ethicalprinciples, and not according to law, whether an eccle-siastical body was entitled to retain a profit that it hadfortuitously made. Counsel on each side were under-standably a little puzzled to know what authorities tocite; and I do not suggest that such a jurisdiction isoften invoked. But at least let a decision which insubstance is based on the " merits," or is materiallyinfluenced by them, be based on all the merits and notmerely the haphazard selection which have survived ajudicial process not ordained for such an investigation.If, as is usual, this is not practicable, let the law to belaid down be mass-produced for the millions and nothand-tailored to die incomplete moral shapes of theindividual litigants. The danger of yearning after themerits in a court of law is that what emerges tends tobe neither true law nor true justice; and the Greekswere not alone in having a word for this.

A SENSE OF INJUSTICE

Apart from the law and the merits, diere is the conductof the hearing. This, of course, is of great importanceto what in many ways is the most important duty of anycourt, namely, to prevent the parties to any litigationfrom departing with any justifiable sense of injustice.The crank and the fanatic can never be satisfied; butwith most ordinary litigants in England there seems tobe a remarkable attitude of philosophical acceptance ofan adverse decision if only they feel that they have hada full and fair hearing. They are disappointed at losing;

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but if they feel that their case has been fully and effec-tively put and that they have had a fair and receptivehearing, they will often accept the result more philo-sophically than counsel. Indeed, for a defeated client toconsole his disconsolate counsel is no mere figure offiction.

One likes to think that in the great majority of casesin the English courts defeated litigants have such afeeling of acceptance; and broadly it seems to be so.But there are two judicial vices, still occasionallyexhibited, which do more harm to the law as seen bythe layman than perhaps is generally realised by lawyers.These may briefly be labelled as the Short Cut and theJudicial Assertion. Let us look at them in turn.

THE SHORT CUT

The Short Cut may conveniently be illustrated by ahypothetical example derived, with variations, from anactual case. A business man was a tenant of propertyunder a lease which gave him an option to renew oncertain conditions. He duly sent the landlord's agentsa letter exercising the option, as he thought. When thetime came, the landlord refused to renew the lease; andultimately the tenant sued the landlord for specific per-formance of the agreement constituted by the optionand his exercise of it. The landlord's defence wasthreefold:

(1) Even if the letter had been sent, the agentshad never received it.

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(2) In any case, even if the agents had receivedthe letter they were mere rent collectors and hadno authority to deal with renewals of the lease.

(3) Even if the letter had been received by dulyauthorised agents, it was a mere inquiry aboutrenewal and was not worded so as to exercise theoption.

The tenant was duly advised by counsel on his prospectsof success under each of these heads. As the judgelater held, the letter was quite hopeless as an effectiveexercise of the option; it inquired but did not exercise.A decision to this effect would dispose of the wholecase, and the temptation to the judge to take this shortcut must have been great. The question was purely oneof construing the document; if the decision went againstthe tenant, none of the evidence on the other two issuesneed be heard at all, for it could not matter whether theuseless bit of paper had been received, or what was theambit of the recipient's authority.

In fact, the judge resisted temptation. He patientlyheard the whole case through, found in the tenant'sfavour on the first two points but against him on thethird, and accordingly dismissed his claim. Probablythe evidence and argument on the first two points addedtwo or three hours to the hearing; but it was time wellspent. The tenant came into court with a burning senseof grievance on the first two points. It was bad enoughto be told by counsel that the letter was ineffective andthat there was virtually no chance of obtaining a re-newal; but it was past endurance for it to be said thatthe letter had never been posted, or if it had, that it

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had never arrived. And it was utter nonsense to saythat the agents, who in the fullest sense had beenmanaging the property for many years, were no morethan rent collectors. The tenant, it will be seen, was aman of strong feelings; but men of strong feelings areas much entitled to justice as those who are moreequable, and they probably need it more. In the upshot,the result of the judge's conduct of the case was that thetenant accepted that justice had been done.

Judicial time

This was a case where the temptation to take a shortcut was resisted. It is not so always. The heavier thelists, the greater the pressure on judicial time, thestronger the temptation. Remove the pressure, and evenfewer judges would yield. In the end, almost the wholeof the answer lies in having enough judges, and inceasing to treat every available minute of judicial timeas if it were spun of gold.

From the litigant's point of view, a judicial short cutis often extremely wasteful. The litigant has assembledthe whole apparatus of litigation; counsel, solicitors andwitnesses are all there, and the chance of having thepoint decided will never occur again. With all thisinitial expenditure of time and money, why begrudgethe extra hour or two needed to wipe the slate clean?Would not a refusal to do so be as wasteful as therefusal of travellers to make a detour of a few miles tosee some splendid view or beautiful cathedral when theyhave journeyed thousands of miles to the country andare unlikely ever to return? Is it not worth an extrahour or two to prevent a litigant harbouring a grievance

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against law and lawyers for the rest of his life? Theremust, of course, be limits; and there are times whenattempts to drag in side issues are beyond reason. Butwhen in doubt, include.

THE JUDICIAL ASSERTION

Let me turn to the Judicial Assertion. This is lessdefinable. Broadly, the vice is the use of words by thejudge during the argument in such a way as to lead thelitigant to feel that his cause is lost before he has beenfully heard. Once this has happened, the litigant isvery slow to believe that from that point onwards he isgetting a fair hearing. The difficulty is that on thispoint lawyers and laymen talk a different language, inmore ways than one; for the problem is merelylinguistic.

Nobody would suggest that the judge should be pre-cluded from testing the strength of an argument byputting questions to counsel; but let them be questionsand not assertions. The type of statement that does thedamage is: " Mr. Smith, you won't persuade me that. . ." It may be that this particular point would notbe fatal to the case of Mr. Smith's client, and lies onlyon the edge of the issue; but Mr. Smith's client may alltoo readily at this stage assume that the judge is " setagainst him." Let the judge rephrase his comment, andsay: " Mr. Smith, are there not difficulties in contend-ing that . . . ? " and the effect is quite different. Eventhe greenest of litigants observes how the judge ques-tions counsel on each side, and tests their arguments;but questioning is one thing, assertion another.

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True, the point in one sense is small; it is but a matterof phrasing, and sometimes only a question of the toneof voice. Did the litigants not observe the question-mark implied in each and every assertion? Surprisinglyoften the answer would be No. It matters so much tothe litigant that it should be made plain and clearbeyond a peradventure that the judicial mind stayedopen until all argument had ended.

INSULARITY

It is an old complaint that the English are insular, andan even older complaint that lawyers are conservative.Do these complaints run as to the Bench? One particu-lar aspect of this matter is of especial importance, andthat is the attitude to decisions of the other courts inthe Commonwealth, and particularly those of Australia,Canada, Ireland, New Zealand, Northern Ireland andScodand (the order, you will observe, is strictly alpha-betical); and similarly as to the U.S.A. In thesecountries there are courts of high repute deciding pointsof law which on many matters are common to all. InScotland, die link is mainly that of statute law, whereasin the others the common law is the great bond.

The attitude of English judges to the citation ofrelevant decisions from such jurisdictions varies in highdegree. Some judges seem indifferent to them; othersattempt to brush them aside or distinguish them; andyet others welcome them warmly. It is pleasant torecord that it is this last attitude which seems to be in

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the ascendant.27 Nevertheless, such decisions are stillnot cited by counsel as often as they should be; and thisis at least in part due to the failure of so many of thecurrent English practitioners' textbooks to refer to them,either at all, or at least at all adequately.

Surely this is very much to be regretted. It cannot beright to allow an English judge to decide a point of lawone way in ignorance of the fact that, say, the HighCourt of Australia or the Supreme Court of Canada hasrecently decided just the opposite. What, for example,will the defeated litigant think when a year or two latersome article in a legal periodical points this out? Putat the lowest, such decisions at the very least crystallisethe point of law involved, and give a point of departure.Australian and New Zealand decisions in particular areusually mines of information, in the sense that quiteapart from the process of reasoning displayed in thejudgment, the report is likely to have collected togetherreferences to all the English and other common lawauthorities bearing on the point. To English counsel,the industry of his brethren at the various Australianand New Zealand Bars is indeed a matter of awe. Ifa brash generalisation is permissible, it could be saidthat English judgments tend to be stronger on principleand reasoning than they are exhaustive of the autho-rities, whereas Commonwealth judgments devote more

27 See, e.g., Scruttons, Ltd. v. Midland Silicones, Ltd. [1962] 2W.L.R. 186 (Australia and the U.S.A.); R. v. Patents Appeal Tri-bunal, ex p. Swift & Co. [1962] 2 W.L.R. 897 (Australia andNew Zealand); Abbott v. Philbin [1960] Ch. 27; [1961] A.C. 352(where the Court of Appeal doubted but followed a Scottishdecision, and the House of Lords preferred the doubts to thedecision).

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space to the authorities. On this footing, what couldbe more admirable than a marriage of the two?

The remedy must be a combined operation. It isdifficult for the Bar to cite what is not to be found inthe books, and pointless to do so if it will be ill-receivedby the Bench. Let authors and editors be moreindustrious, let the Bar be more comprehensive, andlet the Bench be more uniformly receptive: all threecontributions must be made.

Sabbatical years

Divided responsibility so often means that what allought to do none in fact does. Could an initial impulsein the right direction be given by means of a judicialsabbatical year? As a modest beginning, could not eachmember of the Court of Appeal be given leave of absencefor every seventh or tenth year, with encouragement(both financial and social) to spend at least a substantialpart of mat time in other Commonwealth jurisdictionsand in the United States of America? No doubt suchan arrangement could be stigmatised as a busman'sholiday; but lawyers are incorrigible busmen.

Of the welcome that the sabbatical judges wouldreceive no lawyers who have visited these countries couldfor an instant doubt. Nor could there be any questionof the value that the inevitable links of personal friend-ship would have. But the real value of such visits wouldlie in the freshening of approach and arousing of interestthat would result. Indeed, such a sabbatical year mightbe at its most valuable if it came when the judge hadsat in the Court of Appeal for three years or so—longenough to become seised of the work and also, after

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probably many years as a trial judge, more than longenough to have earned the relief. The presence of suchjudges in the Court of Appeal would, almost of neces-sity, affect the outlook of trial judges on such matters;for if in the Court of Appeal it became a matter ofcourse for the citation of Commonwealth decisions to bewelcomed, judges at first instance would surely be slowto discourage it. In any case, quite apart from anyquestion of citing authorities, ten years or more on theBench deserves a sabbatical year in its own right; andsuccess with the Court of Appeal would probably justifyextending the practice to all on the Bench.

It is true that in recent years English judges have beenmaking more frequent trips abroad to legal conferencesand conventions than they did, say, thirty or fifty yearsago. But it is one thing to make a short trip, probablyduring the Long Vacation, deliver a few set speeches,make many brief social contacts, and return; it is verymuch another thing to go and live in a country forseveral weeks or months at a time, to take part in itsdaily round, and, above all, to get the feel of its legaland professional life. It is also true that sabbatical yearswould cost something. To sabbaticise the Court ofAppeal (if the word does not exist it ought to) mightrequire the appointment of one or two supernumeraryLords Justices of Appeal, at a cost to the Treasury(gross) of £8,000 a year each. But would not the nationreceive value for money?

Availability of law reportsLet me make one further requisition on the Treasury.

Is it not astonishing that if in the Law Courts counsel

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cites (say) an Australian or Canadian decision, the judgewill in all probability not have any copy of the reportbefore him? The Law Courts have an adequate officiallibrary of all the English law reports for use by thejudges; but there seem to be few, if any, of the Common-wealth reports in this library. Even more remarkableis the fact that, at any rate a few years ago, the officiallibrary of the Judicial Committee of the Privy Council,though adequately provided with Commonwealthreports, lacked any complete set of Scottish reports.

These deficiencies have at least two disadvantages.First, the impact made by a decision is always far greaterif judge and counsel can each read a copy when the caseis cited. The combination of counsel's voice with theprinted word (which can be underlined), and the abilityof the judge to see at a glance that the passages whichcounsel omits are not relevant, together enhance thejudge's appreciation of the case. For counsel to havehis borrowed copy of the report handed to the judgeafter he has read from it is not the same. Secondly,any individual research by the judge is hampered. Per-haps the case cited refers to another Commonwealthcase. If that case is in the official library in the LawCourts, the judge can easily refer to it; if not, thenthere is the inconvenience of having to find whichInn of Court has the report, and borrowing it: andinconvenience is often a powerful deterrent to action.

Is it, then, too much to ask that these deficienciesshould be met? To do so might cost £10,000, or evenmore: but after all I speak of the Supreme Court of

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Judicature. Ought a court with its world-wide reputa-tion to be open to this possible reproach? Surely thisis a question that needs no answer.

T H E BENCH: A SUMMARY

You will observe that I am beginning to turn from thejudges themselves to the system within which theyoperate. In this, as in many things, it is scarcely possible(and certainly not profitable) to attempt to maintainwatertight compartments. Yet before I go further, letme attempt a brief summary.

I believe the consensus of professional opinion to rankthe English Supreme Court Bench as high as traditionwould put it; and that is very high. By common con-sent the standard of the county court Bench has risenin a striking way over the last thirty years or so. Thereare well-authenticated stories of some occupants of thecounty court Bench in the 1920s that seem scarcelycredible today; and the removal of the great pressureof work on individual judges has carried with it some ofthe less satisfactory progeny of zeal out of pressure oftime. Favouritism among counsel, sometimes com-plained of in Victorian days, seems nearly as dead as thedodo; and antipathy towards a particular barrister isalmost in like case. True, Erie CJ . once said: " It iseasy for a judge to be impartial between plaintiff anddefendant, indeed, he is almost always so; it is difficultto be impartial between counsel and counsel." 2S Buttoday most judges seem to surmount this difficulty.

2 8 N. W. Senior, Conversations with Distinguished Persons Duringthe Second Empire, 1880, Vol. 1, p. 321.

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When counsel and solicitor can assure the client thathe will get a fair hearing by a patient, courteous andable judge, and feel little apprehension that their pro-phecy may be falsified in the event, diere cannot bemuch to complain of. Any traces of prejudice whetherracial, religious, social or otherwise, are now of greatrarity; and when they appear, they are not taken forgranted but are the subject of publicity and criticism.In particular, coloured litigants often fear that they willnot be treated fairly; yet it is very rare for their fears tosurvive the actual hearing. England has good cause forpride in its judicial Bench.

COMPREHENSIVE ORALITY

From the Bench I must turn to the courts and the legalprocess. One of the most striking features of proceed-ings in an English court, whether original or appellate,is its comprehensive orality.29 The whole of the case,from beginning to end, is conducted by word of mouth.The judge or judges do not come into court andannounce that counsel can take certain documents inthe case as read, and continue from that point. Thereare no pauses while Bench and Bar silently read thewritten word; a copy of the document is handed to thejudge, and counsel reads out the relevant passages. If acase is cited, counsel gives the name and reference ofthe case, the usher hands the judge a copy of the report(a list of reports to be cited will have been given to theusher before the case begins) and counsel reads out all

29 See C. J. Hamson (1950) 10 C.L.J. 417.

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that he relies upon. An affidavit does not becomeevidence before counsel has read it to the court. Whenjudgment is given, it is given by the judge's spokenword, and not by handing down a typewritten orprinted document. From beginning to end, the intelli-gent listener can follow everything. Proceedings arepublic in the fullest sense of that word.

Certainty of judicial apprehension

Yet what is the advantage of this to the defeatedlitigant? Does he not suffer the public discussion of hisprivate affairs without any countervailing advantage?The answer, I think, is that he has two very greatadvantages. First, he has the reasonable certitude thatthe judge really has heard and applied his mind to allthat is relevant to his case. It is one thing to set out anargument or a statement of facts in a typewritten docu-ment, and be told that the judge has read it; it isanother to observe the judge, and to see and hear hisreactions, while that argument or those facts are orallyset before him. Justice is not only done: it is seen inthe doing. A judge may indeed conscientiously read adocument in solitude, missing no word throughout: buthas he fully appreciated the force of this argument orthe significance of that fact? He may well have donethis: yet from the litigant's point of view, he has notbeen seen to do it. Deep and perhaps quite unjustifiedsuspicions may be harboured.

The orality of the English judicial process does allthat human skill can do to make these suspicionsimpossible. True, counsel may be so devious, or thejudge so lacking in percipience, that the point may not

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be taken. No process can escape the human element.But within the bounds of reason and of the frailty ofman, no defeated litigant should leave an English courtwith the feeling that the judge has failed to appreciatehis case. This view is reinforced by the fact that underthe common law system the judgment is no mere formaldocument, but a reasoned speech, often of considerablelength, explaining just what are the facts, the issues, therival contentions and the reasons for the result.

Certainty as to the adversary's caseThe second advantage of comprehensive orality is in a

sense complementary. It is that of knowing that noargument or statement of facts advanced by the adver-sary has had a greater effect than it has been seen tohave. The litigant will be as anxious to see that hisadversary's case has not been over-valued as he is to seediat his own case has not been under-valued. Given areasonably responsive judge and not a block of stone,the litigant and his counsel can perceive which counter-thrusts were hits and which were not. Above all, thelitigant knows that all is there. He has seen and heardeverything that has been put before the judge and onwhich his decision will be based.

PetitionsFor the great majority of cases these propositions are

true: and for most English lawyers they are part of theessence of English justice. But especially in recent yearsthere have been some qualifications to these propositions.First, it has for some while been common on thehearing of petitions for leave to appeal (as distinct from

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actual appeals) to the House of Lords or to the JudicialCommittee of the Privy Council for counsel to be in-formed at the outset that their lordships have read thedocuments in the case, and to be asked whether there isanything that they wish to add.

This, of course, effects a very considerable saving ofjudicial time. Yet sometimes the effect on counsel (andat times on the litigants) is somewhat unhappy. Theirlordships, thinks counsel, have read the papers, andmust have come to some sort of conclusion, howevertentative; how far shall I be pushing at an open door,and boring their lordships with my arguments, and howfar will I be straining against a door already tentativelyclosed? They have read all the documents, yet do theyreally appreciate the importance of, say, the secondground of decision in the court below? And so on.The problems of technique are akin to those of tryingto tell a long but funny story to an audience which hasannounced that it has already heard some, if not all, ofit, but politely inquires whether you wish to make surethat they have seen the point.

The Court of Appeal

Secondly, the Court of Appeal has recently, as anexperimental step, announced that on the hearing ofappeals the members of the court will previously haveread the pleadings and formal documents and the judg-ment under appeal.30 This presents similar difficulties.Counsel for the appellant does not know how far thecourt is provisionally with or against him, and on what

•10 See [1962] 1 W.L.R. 395.

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points, and, above all, how far these provisional viewsare based on a correct appreciation of the facts or therelevant law. If a storyteller writes on a blank sheet,he can see that all is told, fully and comprehensibly,and that misunderstandings are removed as they arise;if he seeks to write on a sheet on which there is alreadyconcealed writing, he does not know how much of thenew writing must be corrective, how much expositoryand how much sheer repetition. True, exchangesbetween Bench and Bar do much to remove the diffi-culties; any misunderstandings in the end stand revealed;and ultimately all is well. But to the onlooker thedifference between this sort of referential argument,often unintelligible to anyone not in possession of thedocuments in question, and the ordinary case in whichevery relevant word is spoken, must be striking.

Uncited authorities

Thirdly, there are judgments which refer to argu-ments or authorities which were never put before thecourt in argument. A good law report, almost bydefinition, refers to every authority that has been putbefore the court; and it has long been a commonplacefor reports to contain a list of authorities which werecited in argument but were not referred to in the judg-ment. Understandably, not all that counsel thought tobe of possible relevance has appealed to the judge asbeing truly in point. However, in recent years reportsof cases have occasionally carried a second list of autho-rities, namely, of those referred to in a judgment but notcited in argument.

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The objection, so far as counsel and the litigants areconcerned, is that a decision has been made, or viewshave been expressed, upon the basis of authorities whichwere never put to counsel. Given the opportunity ofcomment, he might object that there were valid reasonsfor distinguishing the cases, or that some of them hadbeen adversely commented upon in other cases, or thatsome statute deprived them of force, or that they boreupon a point never taken by the other side. Yet fromthe judge's point of view it must indeed be disturbing,especially on an appeal to the House of Lords, to findthat counsel had failed to cite cases apparently in point.Future generations might well wonder whether the deci-sion would have been the same had those cases beenreferred to; and so to resolve the doubt, let them bementioned.

DifficultiesThe problem is the familiar one of a choice of evils.

Doubtless the counsel of perfection is to notify counselof the uncited cases and restore the case for furtherargument, if need be, on those cases. If the cases indeedbear on the essence of the decision, then this, indeed,seems to be the only really satisfactory course to adopt.The expense and delays of doing this would in them-selves be an evil, though sometimes, no doubt, counselon each side would agree to rest on their existing argu-ments with, perhaps, a brief written comment on thecases in question.

If, on the other hand, the cases are only marginal intheir bearing, then it may be best to omit any referenceto them from the judgment, or at all events to make it

Comprehensive Orality 173

explicit that, although no argument on them had beenheard, they could not affect the result of the case in anyway. Such a caveat would remove the sting. Much ofthe strength of the common law has lain in it havingfoundations which consist of law laid down in actualcases decided after hearing arguments on each side,rather than it being based on the writings of authors,however eminent, whose views have in the main beenevolved from the abstract and the unargued. The samemust apply to the dicta of judges, as has been consciouslyrecognised in many a judgment referring with greatcaution to points unargued.31

Professional opinion has been critical of all three ofthese qualifications to the principle of comprehensiveorality. The inroads are not great; the principle remainspredominant: but let the existing qualifications benarrowly watched, and all new incursions criticallytested. In a sense, many of die objections may be dis-missed as merely constituting problems of technique forcounsel. Yet that misses the point: difficulties forcounsel may result in a less effective presentation of thecase that in turn produces a justifiably disgruntleddefeated litigant. Short cuts often save time: but istime worth saving in nine cases if in the tenth the shortcut leads to a bog?

PROCEDURAL FLEXIBILITY

A further point worthy of consideration is that ofachieving a greater flexibility in procedural matters.Let me give an example. The ordinary course of a civil3 1 See generally Rahimtoola v. Nizam of Hyderabad [1958] A.C. 379.

174 The Courts

trial is that the plaintiff's counsel makes his openingspeech, and outlines not only the facts he hopes to proveby his evidence but also the law that supports his case.After this, he calls his evidence, and then the defendant'scounsel calls his evidence and makes his speech, dealingwith the law and facts of the case. Plaintiff's counselthen has a final speech, and judgment is given.

Sometimes it happens that when the defendant hasheard the plaintiff's opening speech he realises that thelaw and the facts are more strongly against him thanhe had realised, and that he would be well advised toseek a settlement; and the plaintiff, aware of some ofthe frailties in his own evidence, may well agree to thesettlement. But as the present English procedure stands,there is no corresponding possibility of achieving a settle-ment on the unrevealed strength of the defendant's caseuntil late in the proceedings, perhaps after evidence hasbeen given for days, and the bill of costs is becomingformidable; for it is not for the defendant to speak untilthe plaintiff's case has closed. Furthermore, if the caseis of any public importance or notoriety, the publichears the whole of the plaintiff's side of the case beforeit has any inkling of the defendant's; and often recollec-tions of reading the coherent tale of villainy in theplaintiff's opening speech outlive the defendant'sconclusive answer, given many days later.

Is there not, then, some advantage to be found inpermitting, or encouraging, the defendant to make, inaddition, an opening speech immediately after theplaintiff's opening speech, and before any evidence hasbeen heard? Such a procedure might pave the way tosettlements, give the public a more balanced picture of

Procedural Flexibility 175

the case, and define and narrow the issues, to the advan-tage of all concerned. True, the formal pleadings inthe action ought to have defined the issues; but oftenmany a point that has been pleaded has to be abandonedbefore or at the trial, and the real issues in the case arefrequently not only narrower but also more detailed thanare suggested by the pleadings.

Such a procedure obtains, I believe, in at least somejurisdictions in the United States. I have met it butonce in England, where a county court judge suggestedit, counsel agreed, and after the defendant's openingspeech had been made, the case was by consentadjourned sine die for a settlement to be worked out.Hidden strengths in the defendant's evidence, revealedat an early stage, thus reduced a probable three-day caseto half a day, to the ultimate satisfaction of all concerned.

This is but a single instance; but change is in the air,and today a spirit is abroad which shows lawyers asbeing more ready to make innovations, whether tenta-tive or firm, than were their grandfathers. The FinalReport of the Committee on Supreme Court Practiceand Procedure (" the Evershed Report") appeared in1953,32 with many recommendations in its 380 pages.Since then, there have been reciprocal visits betweenEnglish and American appellate judges and others inorder to study appellate procedure in England and theUnited States of America33; and experimental changeshave followed in England.34 Such changes may succeed

32 Cmd. 8878.•« See Delmar Karlen (1962) 78 L.Q.R. 371.a* See [1962] 1 W.L.R. 395; ante, p. 170.

176 The Courts

or they may fail; but at least there is the willingnessto try.

COURT FURNITURE

This brings me to a rather different type of change.Recent increases in the number of judges have madeinescapable the building of much-needed additionalcourt-rooms at the Law Courts; and outside London anumber of new courts have been erected in the lastthirty years. Has not the time come for somethingbetter to be provided for counsel in the way of courtfurniture?

Line Astern

At present the standard arrangement at the LawCourts is Line Astern: the leader sits in the front row,his junior behind him, and behind the junior (or moreoften in front of the leader) sits the solicitor, perhapswith his client. If the solicitor sits in front of theleader, he has a table of reasonable dimensions on whichto put his papers; but with this exception, the only spaceprovided for all the books and papers that must be incourt is a desk in front of each seat, not much over afoot in depth and (until recently) gently sloping towardsthe seat.

The slope, of course, meant that the smoother booksor documents from time to time fell to the floor. Theinadequate depth makes an ordnance survey map orarchitect's plans a nuisance not only to counsel but alsoto all within reach. Adequate space laterally is nocompensation for hopelessly inadequate space fore andaft. The management of bulky books and papers in a

Court Furniture 177

confined space is one of the techniques of practice atthe Bar. For if it is not learned, and some documentcannot at once be found, or books crash to the floor,counsel may well become flustered, or seem to be so.Whether in fact he consequently fails to do himselfjustice, or whether his client merely imagines that thisis so, the mischief is there: the client, with reason,thinks that his cause has suffered.

Within the last few years most, if not all, of thedesks at the Law Courts have been made flat; and forthis the Bar is grateful. In any new or refitted courtsno doubt the same course will be followed. Doublingthe depth of the desks sounds equally easy: but if thiswere done, it would become correspondingly awkwardfor the leader to have a word with his junior, or foreither to consult the solicitor, while the case was inprogress.

The American model

Would it be beyond the bounds of possibility for thispart of the court furniture to be based on the Americanmodel, made so familiar to us by film and television,of a large table for each side? True, there would nolonger be a front row for leaders and a second row forjuniors: but leaders and juniors have long been inuredto sitting side by side in county courts, before the LandsTribunal or Official Referees, often at Assizes, andbefore the House of Lords.35 Moreover, the LandsTribunal and the Official Referees have long provided

3 5 Save for the rare occasions on which a case is heard in the Houseitself instead of in a Committee room: in the House there is acramped line astern.

178 The Courts

tables of generous dimensions. No doubt token frontrows and second rows could be provided for ceremonialoccasions and for the many short and often formalapplications that have to be made to the court. But forthe serious business of trying an action or hearing anappeal, the case for the table seems to be unanswerable.So, too, is the plea for less vertiginous public galleries.

As an aside, I may perhaps add a word of gratitudefor the rubber padding that has quite recently found itsway on to most, if not all, of the seats in counsel's rowsat the Law Courts. In my junior days another of thetechniques of the Bar was learning how to endure aplain wooden seat for two daily sessions of nearly twoand a half hours each. Nature has not endowed allcounsel equally in this respect, and although the yearsbrought their ischial callosities, psychologically if notphysiologically, prevention is better than endurance.

CHAPTER 5

COSTS

I HAVE left until the end the important subject of costs.This is large and complex, and I cannot attempt acomprehensive survey. The complaints of litigants fallunder two heads. First, the costs are too large, andsecondly, the English system works unfairly.

THE AMOUNT OF COSTS

Lawyers' earnings

As to quantum, the complaints are basically twofold.First, lawyers are paid too much; secondly, legal pro-ceedings are too complex. In essence, the answer to thefirst point is simple: if lawyers are in fact over-paid,why is the profession not swamped with new entrants,all eager to graze the lush pastures? The facts aresimple enough. Earlier this year, the appointmentsbureau of The Law Society had " about ten vacanciesfor each solicitor looking for a job. . . . The professionhas failed to expand fast enough. In 1912 there werealmost 17,000 solicitors in England and Wales withpractising certificates; today, half a century later, thenumber has increased by only 3,000. But in this timethe solicitor's importance has increased out of allrecognition; " 1 and the population has increased by wellover 25 per cent.

i The Times, May 3, 1962, p. 15.

179

180 Costs

The Bar

As for the Bar, the picture is complicated by thenumbers of those seeking call to the Bar with the objectof practising not in England but overseas, and of thosewho do not intend to practise at all. Whereas the greatmajority of those admitted as solicitors intend to practiseas such in England, the Bar not only lacks any corre-sponding picture but also displays many changes withthe years. During the legal year 1947-48, 481 werecalled to the English Bar, and of these 33 per cent, weredomiciled outside the United Kingdom. By 1954-55,the total was 601, and of these 52 per cent, had anoverseas domicile. In 1959-60, the total had risen to682, with nearly 72 per cent, domiciled abroad. Withoverseas calls leaping from 159 in 1947-48 to 490 in1959-60, and United Kingdom calls dropping from322 in 1947-48 to 192 in 1959-60, it is not surprising tofind a small but persistent decrease in the numberspractising at the English Bar.

With some fluctuation, over the period 1954-59 thepicture has been fairly constant. On an average 113have left the Bar each year as against ninety-eight whohave started in practice. Of those who have left, justover half had been called less than ten years; broadly,they were those who, having tried to practise at the Bar,had found brighter prospects elsewhere. The other halfwere those of over ten years' standing at the Bar. Manyof these were no doubt counsel who retired by reason ofage; but some were probably those in their thirties orforties who had taken longer than others to becomeconvinced that the Bar was not for them, or who

The Amount of Costs 181

had received some unexpectedly good offer of otheremployment.

Not until 1960-61 was there any change in thesetrends. In that year there was a slight reduction in thepredominance of the overseas domicile. This fell froma little under 72 per cent, to 68 per cent., with thenumbers of those of United Kingdom domicile calledto the Bar rising from 192 to 217. For the first time forsome years, more started to practise at the Bar than leftit: the number in practice rose by sixteen (from 1919 to1935).2 Again, during the legal years 1954 to 1959 {i.e.,beginning on October 1 in each year) the number start-ing in practice each year steadily decreased from 114 in1954 to eighty-five in 1959; not until 1960 was there aleap to 108,3 and by then recent increases in the numberof judges were emphasising the shortage of counsel.

For new entrants to either branch of the legal pro-fession, probably no time within living memory hasbeen more propitious than the present. Even at theBar, where " waiting to get a start" is traditional, thereis now often difficulty in finding a sufficiently under-employed member of the Bar to do any of the less-well-paid incidental work in connection with the editing oflaw books and the delivery of lectures which used to bethe staple fare of those that waited. Rich though theupper meadows of silk may be, neither they nor thegreater prospects of present employment are provingstrong enough to lure the young away from other

2 See Annual Statement of the General Council of the Bar, 1961,p. 47; and see ante, p. 97.

s Annual Statements of the General Council of the Bar, 1960, p. 44;1961, p. 47.

182 Costs

careers. Indeed, the standard of earnings in early yearsat the Bar is such that commerce and industry havecome to regard the Bar as one of the best sources ofrelatively cheap but skilled recruits. In these mattersstandards are comparative rather than absolute, and withthe freedom of choice which post-war educationalarrangements provide, the ultimate test of the adequacyof professional remuneration must largely lie in thatprofession's power to attract.

As for the large earnings of fashionable silks, taxationprogressively makes the higher slices of income littlemore than paper figures. There are no expense accountsor entertainment allowances for the Bar, nor any of thebenefits in kind or in amenities which commerce canprovide for its employees. All that the barrister enjoysmust be paid for out of his taxed income. A jump inincome from £15,000 to £30,000 a year sounds magni-ficent but means little. In such regions high fees aremainly a means of preventing the burdened becominghopelessly overburdened, though of course the clerksconcerned also see an additional advantage. In any case,this is the stratosphere of the Bar, and few move in it.Newspaper gossip columns vary from a generous round-ing up of reality to wild flights of fiction. Much of themoney is paid not by private individuals out of theirprivate purses, but by companies for which such pay-ments are a proper revenue expense; they mind littlewhether they pay the money to the tax gatherer director via counsel, and it makes little difference to counsel.

The Amount of Costs 183

The broad pictureIn the end, the broad picture seems to be that, judged

by the standards of other occupations today, a few law-yers are overpaid, though it does them little good. Themajority are paid adequately, or a little more; and quitea number are under-paid. In this last category I wouldinclude not only members of the Bar who are slow inmaking a real start but also many skilled solicitors ofmuch experience who, because of the districts in whichthey practise, or by reason of the conditions under whichthey work, do not receive an income commensurate withtheir value to the community.

StatisticsThis general impression is supported by the detailed

figures. Oddly enough, the best modern survey of netearnings in the law is to be found in the Report of theRoyal Commission on Doctors' and Dentists' Remunera-tion,* published in I960.5 The figures are in generalthose for 1955, and no doubt adjustments must be madefor changes since then. Nevertheless, the survey prob-ably remains substantially valid today. Let me give yousome extracts from these figures, rearranged so as tobring out the salient points for my present purposes.By way of comparison with barristers and solicitors, wemay take medicine (divided into general practitioners andconsultants), dentists (" general dental practitioners")and accountants.

Four positions in the scale of earnings are given ineach case. Mr. (or Dr.) Lower Quartile stands a quarter

* Cmnd. 939 (1960).s See pp. 3CM0.

M.H.L.—7

184 Costs

of the way up the scale of earnings, with 25 per cent, ofhis brethren earning less than him and 75 per cent,more. Median is half way up the scale, and UpperQuartile is only a quarter from the top. Finally, thereis the very successful Highest Decile, whose earnings aremore than those of 90 per cent, of his brethren, and lesstlian those of only 10 per cent.

Lower Quartile does much worse at the Bar thananywhere else. Arranged according to age groups, andin order of overall earnings, the figures are as follows:

LOWER QUARTILE

Age group

1. Consultant2. G.P.3. Dentist4. Solicitor5. Accountant6. Barrister

Overall(30-65)

£2,5601,6201,5301,2101,020

720

30-34

£1,8901,2501,740

870790400

35-39

£2,1901,6501,8501,090

910790

40-44

£2,7101,7801,9401,3801,1801,300

45-54

£2,8901,9001,7501,6101,3001,160

55-64

£3,0001,600

9501,8501,230

680

You will notice that the barrister is at the bottom ofthe table, and that after the shallow peak at age 40-44his earnings droop sadly, whereas the solicitor climbsfrom strength to strength. This illustrates the extent towhich a barrister's practice is personal, whereas thesolicitor has the security given by a senior position in apartnership. Both absolutely and relatively the not-very-successful barrister has little to congratulate himself on.

Now let me turn to Median. Here barristers havemoved up one place in the table, and the droop in

The Amount of Costs 185

earnings is both ten years later in time and substantiallyless severe in amount.

MEDIAN

Age group

1. Consultant2. Dentist3. G.P.4. Solicitor5. Barrister6. Accountant

Overall(30-65)

£3,1302,1902,1601,8501,6201,490

30-34

£2,1002,2701,7101,120

780980

35-39

£2,4602,5002,1201,3901,3101,250

40-44

£3,1102,5402,2601,9802,3001,580

45-54

£3,4402,3002,4602,2902,3401,950

55-64

£3,6001,6002,1802,7701,9901,900

For Upper Quartile, the solicitor remains in fourthplace, and continues, in even more striking form, theincrease of income with the years. The barrister movesup to second place, and although there is a markeddroop after he is fifty-four, a substantial income remains.

UPPER QUARTILE

Age group

1. Consultant2. Barrister3. Dentist4. Solicitor5. G.P.6. Accountant

Overall(30-65)

£3,8203,1302,9402,8702,7002,280

30-34

£2,2901,4503,0401,6202,1601,240

35-39

£2,8202,6303,3302,1302,6101,750

40-44

£3,6704,7203,3202,7602,7302,120

45-54

£4,2904,9403,1103,5602,9603,000

55-64

£4,7403,3102,3104,3102,7302,860

Finally, there is Highest Decile. Here the barristermoves to the top of the table, though unfortunately thereseems to be no information as to his earnings by age

186 Casts

groups. The solicitor moves up a place, and maintainshis steady increase of earnings with age.

HIGHEST DECILE

Age group

1. Barrister2. Consultant3. Solicitor4. Dentist5. Accountant6. G.P.

Overall(30-65)

£5,8005,0104,3403,9603,4363,190

30-34

1£_

2,5902,4003,8701,7102,620

35-39

£-

3,4603,0404,4302,3502,990

40-44

£-

4,5003,6004,4102,8603,180

45-54

£-

5,3505,0604,3804,8403,440

55-M

£-

5,8805,5603,0503,8403,240

The moralThe financial moral, I suppose, is that if you are

going to be really successful in your career, go to theBar; but if in the severe competition of that professionyou are going to be Mr. Median, or less, you will dobetter—much better—as a solicitor. Of all professions,the Bar has the greatest range of earnings; it offers bothmore and less than any odier. Some emphasis to this isgiven by considering the percentages of each professionwho achieve high earnings. The figures are as follows:

PERCENTAGE EARNING HIGH INCOMES

1. Barristers2. Consultants3. Solicitors4. Accountants5. Dentists6. G.P.s

At least£6,000

/ o7-33-83-52-51-30-1

At least£10,000

/ o1-40-40-50-40 1Nil

The Amount of Costs 187

Hours of earning

There are two side-issues that I should mention.First, it has been said of barristers' earnings that " thelengthy law vacations mean that fees have to be earnedin a little more than half the year." 6 With respect, thisis right neither in fact nor in substance. Subtract the" lengthy law vacations," and there remain nearly ninemonths of the year. During those vacations the superiorcivil courts do not sit, save for urgent business; but thecounty courts and criminal courts are in session for anappreciable part of the vacations. Further, any idea thatbecause the High Court is not sitting barristers are notworking is far removed from fact. The long vacation{i.e., the months of August and September) is tradi-tionally the time when the more junior members of theBar remain in chambers in the hope of getting workwhich cannot await the return of more senior memberswho are on holiday. For all busy members of the Bar,the vacations represent a reservoir of time when, freedfrom appearance in the superior courts, they cancatch up with some of their arrears of writing opinions,drafting pleadings and other paper work.

In truth, a picture of counsel earning their fees in alitde more than half a year, and presumably recliningat ease for the rest of the year, bears no relation to thefacts. A more realistic picture is of the Bar earning itsfees during ten and a half or eleven months of the year,and during that time working not only during" ordinary office hours" but also for long hours in the

6 R. M. Jackson, The Machinery of Justice in England, 3rd ed. 1960,p. 274.

M.H.L.—7*

188 Costs

evenings and at week-ends. The Bar is no place for theidle or the frail.

Let me hasten to add that much the same is true ofsolicitors. Both the press of office work, and crisesduring the hearing of a case, often mean that solicitorsgo home with loaded brief-cases or stay late in theiroffices. The Bar certainly holds no monopoly of hardwork among lawyers. It is one of the unwritten rulesof the law that social and family commitments repeatedlyhave to bow to the claims of office and chambers; a newdevelopment or an unexpected argument in a case mayimperiously brush aside theatres, dinner parties andsometimes even bed. What I say will be no news tolawyers' wives; but fiancees beware, for if your espousedsucceeds in the law as you hope, you will find yourselfno more than a residuary legatee of what is left after thelaw has taken what it demands.

Proposed restrictions on fees

Secondly, in a symposium by some two dozen contri-butors published in 1951 under the title The Reform ofthe Law, it was said 7 that " the fees payable to barristersand solicitors for their services require strict regulation.Certain limits should be set. . . . The limits should bereasonably elastic, and variation within those limitsshould depend on the complexity of the case, the suminvolved and the wealth of the client. As an instancefor a brief fee in a defended civil case in the High Court,we would suggest lower and upper limits of ten guineasand thirty guineas."

•> A t p . 3 1 .

The Amount of Costs 189

A brief fee covers all work done by counsel in pre-paring the case, together with the first five hours of theactual hearing. Probably the contributors would agreethat a case for a millionaire or for some wealthy com-pany, involving, say, half a million pounds and takingthree weeks to prepare, should command the maximumpermitted brief fee. Counsel often spends more time ingetting up a case than he takes in arguing it, especiallywhere the facts are complicated or the law difficult, orboth. A man at the top of his profession could thusexpect payment at the rate of less than ten guineas aweek, out of which, of course, he must pay rent andother expenses. These would certainly exceed this sum,and so he would be out of pocket. Even if the " thirty "is altered to " fifty," just for luck and because this is1962 and not 1951, it can be seen what remarkable ideascan achieve print under the title " Reform." Let sucha proposal be put into operation, and within a decadethe practising Bar would virtually cease to exist.

COMPLEXITY

High Court and county court

I turn now to the complexity of legal proceedings.This subject, of course, is itself complex. The cost ofthe actual hearing of an action is something which theclient can well understand; but what happens before thecase comes into court is another matter. The maincriticisms centre round the interlocutory proceedings,that is, the various proceedings which are incidental orancillary to the actual hearing. Thus the litigants in aHigh Court action will sometimes wonder what is the

190 Costs

real value of the summons for directions, a summonsfor summary judgment, applications for particulars, anddiscovery of documents. For these, as well as for thestatement of claim, defence and other written pleadings,the litigants must pay.

The litigants will probably wonder still more if theycompare a High Court action with a county court action.In the county court there will be the Particulars of Claimand (often but not necessarily) a Defence, and these willhelp to define what is in issue. Usually nothing furtherhappens until the trial takes place. If the county courtcan work efficiently without a cluster of interlocutoryproceedings, why cannot the High Court? Is there nota case for simplifying High Court procedure?

There is indeed some justification for this view, thoughprobably not as much as might at first be thought. TheEvershed Committee,8 which included distinguishedlaymen as well as distinguished lawyers, spent six yearsin making a searching examination of procedure in theHigh Court and Court of Appeal, with the object of" reducing the cost of litigation and securing greaterefficiency and expedition in the dispatch of business." *Many of the Committee's recommendations have beenput into force, and more reforms are on their way9a;undoubtedly there has been an appreciable improvement.Yet a substantial contrast between High Court andcounty court remains.

DelayThe point is emphasised by the time that will elapse

s See ante, p. 175. 9 Cmd. 8878 (1953), p. 4.9a See R.S.C. (Revision), 1962 (S.I. 1962, No. 2145).

Complexity 191

between the commencement of proceedings and thehearing of the action. Ask a solicitor " How long will itbe before the case is heard? " and his answer will varygreatly with the court. If the case is in the county court,he will look at the summons, and find there the datefixed for hearing. That date will usually be six weeksor two months ahead. He will warn you that there maybe an adjournment, or that the hearing of the case maynot be completed on the day named because other caseswill be ahead of it in the list. But subject to this hewill tell you that you can expect a decision within twomonths or so.

If the case is in the High Court, the answer will bevery different. In witness actions, a date for the trialwill usually be fixed, though this will be done notinitially but only when the interlocutory proceedingsare at an end. Other proceedings will usually have nofixed date for hearing. Naturally the time it takes foran action to come on for trial depends on many vari-ables, not least on the number of other cases waiting tobe heard. But a solicitor will often have to advise hisclient that there is little prospect of the case being heardwithin six months of the commencement of proceed-ings, that he should be grateful if it is heard within ninemonths, and not surprised if it takes twelve months ormore to come on.10 Quite apart from shortages ofjudges and delays by hard-pressed solicitors andcounsel, the greater richness of interlocutory life in the

10 There are, of course, exceptions: see, e.g., British Imex Industries,Ltd. v. Midland Bank,, Ltd. [1958] 1 Q.B. 542 (writ issuedDecember 11, 1957; case argued December 19, 1957; judgmentgiven December 20, 1957); and see Harper v. Home Secretary[1955] Ch. 238.

192 Costs

High Court is plainly responsible for much of thisdifference.

I am not for one moment suggesting the abolition ofinterlocutory proceedings. For example, discovery ofdocuments is sometimes essential for justice. Many aman writes letters without keeping copies. An order fordiscovery of documents means that each litigant will becompelled to reveal to the other all the relevant docu-ments under his control, so that there will be littleopportunity for documentary surprises at the trial. Oncethe adversary's documents have been inspected, it cansometimes be seen that die cause is better—or worse—than had been supposed. Sometimes in the county courtdiscovery is sought and ordered. Nevertheless, diegeneral picture is that discovery is the rule in the HighCourt and the exception in the county court.

Procedural ris\s

In short, procedural risks are taken in the countycourt that are regarded as rash in the High Court. Thewhole atmosphere is different. If at the hearing in thecounty court the risks that have been taken seem likelyto cause real difficulty to one side or the other, the cureis simple; the case is adjourned to enable matters to beput right. This occurs only infrequently; there is notemptation for advocates to magnify difficulties when todo so will involve the inconvenience of an adjournment,and so only if there is true and serious difficulty is anadjournment likely. By comparison, the hearing of aHigh Court action is a juggernaut, proceeding relent-lessly from beginning to end, on the assumption that allwill have been done impeccably before the case comes

Complexity 193

into court to make such a progress possible; the countycourt assumes a flexibility which allows for imperfectionsof procedure and human weaknesses.

For the great, important and difficult cases in theHigh Court, such a contrast may well be fully justified.The rub comes with the lesser cases. The county courthas jurisdiction in most claims of up to £400, and incertain specified spheres (especially in some landlord andtenant cases) its jurisdiction is much wider than that.But suppose a case which is a little outside the countycourt jurisdiction, as where the claim is for £500.Usually the parties can, if they wish, agree to give thecounty court jurisdiction. But litigants, and sometimestheir lawyers, tend to be contra-suggestible as regardsproposals made by their adversaries, so that jurisdictionby consent does not in practice often seem to be given tocounty courts, even though it would save both time andmoney. Sometimes, too, one or both of the litigantswant their case to be heard by a High Court judge.Yet the action for £500 will be conducted accordingto the same procedure as if the claim had been for£500,000.

Of course, sometimes the most difficult and importantquestions of law arise in cases where the amount atstake is small. In 1878, a railway company sued apassenger in the county court for twopence, but obtainedjudgment for only one penny. The company appealedto a Queen's Bench Divisional Court in respect of thatpenny, and after reserving judgment for over a month,the court dismissed the appeal. The company appealedagain, and once more judgment was reserved for over a

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month; and again the appeal was dismissed.11 Despitethe importance of the point of law involved, the com-pany, alas, forbore to carry its penny appeal from theCourt of Appeal to the House of Lords. But as ageneral rule, large sums usually go with complicatedfacts or difficult law, and also with litigants who willbrook no stone being left unturned.

Differentiation

The High Court thus caters for a very wide range ofcases; yet there is little to distinguish the procedure in arelatively small and simple case from that in one that islarge and complex. The procedure is tailored to theultimate. It has been said to be the Rolls-Royce ofprocedures: perfect, but damned expensive. Are therenot grounds for at least considering whether every casein the High Court should not be conducted substantiallyaccording to county court procedure unless there is goodcause for giving it the full treatment of the presentHigh Court process? Are there not enough cases in theHigh Court in which the saving of time and money ofsuch a procedure would justify taking the risks in-volved? Obviously there are many difficulties, not leastthat of classifying the cases. It would be important tomake the simplified procedure apply automatically to allcases except those which, for good cause, are taken outof it: there must be contracting out rather than con-tracting in if the proposal is to work at all well.Ultimately, the question is one of weighing the risks

" London and Brighton Ry. v. Watson (1878) 3 C.P.D. 429; (1879)4 C.P.D. 118.

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involved against the time and money that would besaved. This must be largely a matter of impression;but at least a case for the proposal could be made out.

FusionOne other aspect of complexity lies in the division of

the profession into solicitors and barristers. This, it issaid, substantially increases the expense of litigation;the client must pay for two lawyers to do what couldperfectly well be done by one. Subject to some qualifi-cations, I do not think that this is right. If less than£400 is involved, the county court usually has jurisdic-tion, and solicitors have audience in that court. Everyyear the county courts decide thousands of cases whichhave been argued by solicitors and not counsel. Yetcounsel are often briefed in county courts; the solicitorprefers to entrust the case to an expert in the particularbranch of the law involved, or simply to one who is anexpert in advocacy. The solicitor is then freed of theburden of preparing the arguments and authorities, andof arguing the case in person. Often he will not attendthe hearing himself, but can do other work while one ofhis staff sits in court behind counsel.12

Advocacy by solicitors

On the subject of solicitors arguing cases themselves,it has been said that " a solicitor with a case at hisfingertips is adequately prepared if he has the originalpapers and perhaps a few manuscript notes." 13 The

12 Pace R. M. Jackson, The Machinery of Justice in England, 3rd ed.1960, p. 229.

13 Loc. cit.

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Bar, I think, conscious of its own practice, will admirenot only the nonchalance of the " perhaps," but also therestraint of the " few." However, the real difficulty inthis view is that it appears to envisage a hearing inwhich the solicitor has merely the original papers andno copies. When he cross-examines a witness about aletter, the sole copy of the letter will have to be handedround the court, from him to the witness, thence to thejudge, then to his adversary and finally back to him.Few hearings can be expeditious and effective if con-ducted on the principle of the three Graiae, who betweenthem had but one eye and one tooth.

For myself I would have doubted whether manysolicitors would attempt to conduct such a case withoutthe customary bundles of copies of the correspondenceand copies of other material documents. If the docu-ments are few, the burden of copying them is small; ifthey are many, copies are almost essential: and if copiesare to be made in any event, the additional cost of anextra carbon copy so that counsel may be briefed is small.

In the end, much of the cost of briefing counsel islikely to be offset by corresponding reductions in thesolicitor's fees. In the county court, the client has freechoice between one lawyer and two: and when he hasdiscovered the relative modesty of the additional cost ofhaving two, he often chooses to do so. I do not thinkthat is just for the pleasure of seeing counsel's wig. AsDr. R. M. Jackson has said, " If the Bar and thesolicitors were amalgamated, it is probable that therewould be a slight reduction in cost. I doubt if thesaving would be as drastic as some people think.

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Specialisation would still be needed." 14 Let the twobranches of the profession be fused, and there would stillbe the expense of employing two lawyers in every casewhich called for the services of one of the trial lawyersin the firm.

Solicitors' audience in the High Court

In the High Court and above, solicitors in generalhave no right of audience, and so the litigant has nooption: counsel must be briefed. The litigant who doesnot want two lawyers has to be told that he must havethem. In most cases the amount at stake fully justifiesthe employment of counsel; but it is sometimes said thatroutine work such as undefended divorces could per-fectly well be done by solicitors, and that confining theright of audience to the Bar compels litigants to spendmore than they need.

There is, of course, force in this. Some solicitors areas skilled in divorce work and practice as members ofthe Divorce Bar. Yet it is at this point that difficultiesbreak in. Give the right of audience to all solicitors,and many who are unfamiliar with divorce practice willexercise their right of audience because their clientsrequire it; confine the right of audience to solicitorsexperienced in divorce work, and at once a species ofsub-Bar is created. Again, although the great majorityof undefended divorce cases present no difficulties, thereis always the occasional problem case. At present, inmost cases of difficulty the Bench is able to rely on asmall Bar with specialised knowledge. Yet again, it is

14 The Machinery of Justice in England, 3rd ed. 1960, p. 229.

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said that the public interest requires that divorce workshould be conducted with the full solemnities of the law.

Arguments such as these have their force, though theymay not convince you. It may well be that some smallsaving might be made in some classes of case by extend-ing the right of audience of solicitors. But surely thereal question is whether the saving would, in the publicinterest, be worth it. If the result of the change wouldbe that the economical client tended to press his solicitorto appear for him even though the solicitor lackedexperience of that type of work, the solicitor and thecourt might well be placed in a difficult situation. Atpresent, all solicitors are under an equal disability asregards appearing in the High Court; they cannotappear, and counsel must be briefed. Remove that dis-ability, either in whole or in part, and at a blow much ofthe advantage which flows from a divided professiondisappears.

In any case, in recent years proposals of this naturehave been investigated and rejected by committees ofhigh standing. In 1947 the Committee on Procedure inMatrimonial Causes specifically rejected the proposal togive audience to solicitors in undefended divorce cases,15

and in 1956 the Royal Commission on Marriage andDivorce, although divided on many other issues, unani-mously rejected proposals to confer divorce jurisdictionon county courts, magistrates' courts or " Family

15 Final Report, Cmd. 7024 (1947: the "Denning Committee"),p. 26. There is a reservation for towns where divorce work isdone if barristers are not available in sufficient numbers onreasonable terms.

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Courts " set up for the purpose.16 The views of com-mittees, however distinguished, are not, of course,conclusive; but they are strongly persuasive.

T H E ENGLISH SYSTEM OF COSTS

Let me turn to the second main complaint, that theEnglish system of costs works unfairly. The broadprinciple is that a successful litigant is entided to recoverhis " taxed costs" from the other side. The process oftaxing costs means that a Taxing Master, who is anofficer of the Supreme Court, has examined the costsincurred by the winner (including die court fees, feespaid to counsel, and fees charged by the solicitor forhis work), and has " taxed " them by deleting unneces-sary items and reducing excessive sums. The generalbasis is one of allowing only those sums which a prudentand careful solicitor would have paid, and of disallowingitems which represent excessive caution.

Complaints

The sort of complaints that are made are these. Asuccessful plaintiff will say: " I sued the defendant for£550 and won my case. My solicitor's bill came to£220, but £60 was taxed off, so the plaintiff had to payme only £710 in all. Now I find that I have to pay myown solicitor the amount taxed off, so that instead ofputting into my pocket die £550 which all the time wasrightfully due to me, I get only £490 and I have wasteda great deal of time. Is that English justice? " The

« Report, Cmd, 9678 (1956: the "Morton Committee"), pp. 197-199.

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defendant, on the other hand, may well say: "As thejudge pointed out, the case was not at all clear. Myliability to pay anything at all depended on someevidence that was not available to me, and on an un-settled point of law: I only just lost. Now I must paynot only the £550 claimed by the plaintiff, but also£160 toward his costs, and £210 for my own solicitor'scosts—£920 in all in a case where only £550 was claimedand my lawyers advised me that I was probably notliable at all. Is that English justice? "

To sympathise with each is not enough: where doesthe truth lie? Certainly I think most English practi-tioners would prefer the English system to the systemwhich prevails in the United States, where the costsawarded to the winner include little besides the courtfees. To burden the winner with, say, £200 in costs ifhe seeks to recover £550 seems to be somethingconsiderably less than justice.

Differentiation

Yet is there not something in the complaints of eachof my imaginary litigants? Is there not a case fordifferentiation ? Sometimes it will become clear that thewinner has been obviously right from the start, and thatthere has been no real justification for the loser's oppo-sition. In such cases, why should not the costs awardedafford the winner a true and complete indemnity,including both items which proved unnecessary andsums which were excessive? No doubt deliberate orwanton excesses should still be taxed off; but the burdencould be made to rest on the loser to demonstrate thatthis was the case. The difficulty is so often that with

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the hindsight of the concluded proceedings an item mayappear unnecessary or an amount excessive in quantumwhen at the time, with all the uncertainties of a futuretrial ahead, they seemed prudent or reasonable. " Don'tspoil the ship for a ha'porth of tar " is an adage whichmany a litigant has acted upon and afterwards rued.

On the other hand, there are many cases in whichliability may remain in doubt until a late stage. Winnerand loser have each acted perfectly reasonably in liti-gating the case. Here the solution is more difficult.The case for disturbing the present system is weak. Theremission of the court fees would not come amiss, butotherwise the present system seems the best that ispossible, short of the taxpayer assuming the burden. Adecision that settled an unsettled point of law, and bymaking the law more certain brought benefit to thecommunity, might also qualify for an award towardsthe costs out of surplus court fees. In all these cases itwould, of course, be for the judge to certify into whichcategory the case should fall.

CHAPTER 6

ENVOI

I HAVE reached the end of my survey. I readily acceptthat it has been imperfect and incomplete; and I havetaken much for granted. Virtually nothing, for example,has been said about the great system of legal aid. Accessto the courts has been opened to those with slendermeans without any loss of independence by the legalprofession and without opening the floodgates of un-meritorious litigation: is that not a great achievement?Again, occasionally a solicitor misappropriates some ofthe large sums of money which his clients have entrustedto him; but if he cannot repay, a fund controlled byThe Law Society and fed by the whole solicitors' pro-fession will see that the clients suffer no loss. Havelawyers the world over matched English solicitors insuch mutual assurance of their clients? Each of thesefruits of the last quarter century * deserves far more thanthe bare mention that I can give it here; and diere ismuch else besides that I could (and perhaps should)have included if time would but stand still.

Yet have I not said enough to play my part in satisfy-ing the intent of the founder of these lectures, MissEmma Warburton Hamlyn? The lectures are for thefurtherance of certain forms of knowledge " to the intent

i Legal Aid and Advice Act, 1949; Solicitors Act, 1941, s. 2.

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Envoi 203

that the Common People of the United Kingdom mayrealise the privileges which in law and custom they enjoyin comparison with other European Peoples and realisingand appreciating such privileges may recognise theresponsibilities and obligations attaching to them."Neither the English system itself nor every member ofthe legal profession is in every particular beyond criti-cism. I do not doubt that most practitioners will beable to recollect single instances which, taken alone,falsify much of what I have said. Neither admissionas a solicitor nor call to the Bar, nor even elevation tothe Bench, transforms a man and divests him of everyhuman frailty. Solicitors have been known to be negli-gent or dishonest; barristers have been found to beinefficient or unworthy; and appellate courts have heldjudges not merely to be wrong in law but unfair.No system can be better than the men who workunder it.

As for the system itself, I hope that I have put beforeyou most of its more noteworthy imperfections. One atleast I have not discussed, namely, the need to make iteasier than it is for a barrister to become a solicitor andvice versa. It is good for nobody that a lawyer shouldbe unnecessarily discouraged from changing to thatbranch of the profession which experience has shownwill suit him best. At the root of this lies the need forexaminations which so far as possible are either commonto each branch of the profession or at least conferreciprocal exemptions. Given this, common education,which has its problems as well as its advantages, is notessential. No doubt there is much to make it desirable

204 Envoi

that Bar students and articled clerks should each under-go the same tuition for the same subjects; but practicaldifficulties in achieving this need not stand in the wayof progress. In any case, many law students today holduniversity law degrees which confer exemption fromsubstantial parts of the examination for each branch ofthe profession, so that by a side-wind something hasalready been accomplished. But much more remainsto be done, and progress seems slow.

There are other omissions, too. There is the circuitsystem, under which no barrister may belong to morethan one of die seven circuits, and extra fees must bepaid to any barrister who " goes special," i.e., appearsin a case at assizes or (usually) quarter sessions outsidehis own circuit. There are the rules which require thata silk shall not appear in court without a junior, andthat the junior's brief fee shall be not less than three-fifths or two-thirds of the silk's, up to 150 guineas forthe silk and 100 guineas for the junior. These rulesare confined to courts and do not apply to odier bodiessuch as tribunals, inspectors or arbitrators. Both thecircuit system and the two-thirds rule are highly contro-versial. In some ways there is much to commend them,and in others there is much to condemn them. But Iforbear from any discussion of them, for these arelectures and not a filibuster, and there must be somelimit to your patience.

Admit all die shortcomings of my exposition, and therestill remains die question of what the broad picture is." To generalise is to omi t" 2 ; and so, leaving out die

2 Donnell v. Herring-Hall-Marvin Safe Co., 208 U.S. 267 at 273(1908), per Holmes J.

Envoi 205

exceptional, the minor and the unimportant, is not thepicture one of great achievement? Does the world holda system which, not merely in theory but in actual dailyoperation, does more for the public?

It is so easy to be complacent, to stand contentedlyin the ancient ways and to elevate the known against theunknown; and one must never forget that the price thathas to be paid is that of eternal vigilance. On the otherhand, lawyers are neither uncritical nor impercipient;indeed, their whole training and experience teaches themto accept nothing blindly but to question all things.Some of die criticisms I have tried to set before you;others I have not. No doubt for some of the omissionsI am culpable. Some criticisms were just, but not worththeir place, and yet others—many others—are deliber-ately omitted as being misconceived. It is easy enoughto criticise what one does not fully understand; andmany critics have not fully understood. If I have helpedlaymen, and lawyers abroad (not least in the U.S.A.),towards a just appreciation of the English legal profes-sion at work, I have not wholly failed Miss Hamlyn. Atthe end of the day, when all doubts and reservationshave been weighed, I for one would say that Englandhas just cause for being very proud of its judges, itsbarristers, its solicitors, and its legal system. And, insaying this, I would humbly echo that great Master ofthe Rolls, Sir George Jessel, and add: " I may be wrongbut I have no doubts."