206 The Legal Families of the World fat volumes of reports, People are expecially surprised to be told that ay industrial state like England with nearly 50 million inhabitants can get su with only afew dozen judges, One sometimes hears the view that this ting Inumber of judges is explained by the fact that lawyers’ fecs and court fee are so exorbitant in England that law is only open to plutocrats, or the view that Bench and Bar conspire to preserve a legal system which has lots of ot world charm but is seriously in need of reform, or the view that young fy lish lawyers ae trained exclusively in offices, on the theory that a univer, calucation in law is not only unnecessary but actually harmful. There may may not bea grain of truth in these views but they certainly give a one-sided and false impression of English justice; inthe following section we shall ty to present a picture, necessarily only in outline, which is rather nearer the truth, nL The English citizen who is involved in civil litigation normally comes into contact not with the High Court in London, much less the Court of Appeal oF the House of Lords, but with the Magistrates’ Courts or the County Courts which are spread throughout the land. 1, Magistrates’ courts ate staffed by without any legal tra 'y “Justices of the Peace’, magistrates ning, three of whom constitute a bench under a chair ‘man chosen by themselves. Only in the larger towns are there professional aid ‘stipendiary magistrates’ who have legal training and who sit alone Justices ofthe Peace, of whom at the moment there are about 30,000 in Eng land, divided between about 1,000 courts, are nominally appointed by the Queen but really chosen by the Lord Chancellor from lists provided by local commissions. The choice is normally made from people who have shown some interest in public affairs by being active in local government, trades unions, professional organizations, chambers of commerce, or in some other way, but party political considerations also play some part in the selection of magistrates. To be a Justice of the Peace is not a full-time job and many of them are retired; itis an honorary position which attracts only a small pay ment for expenses. But the social prestige attaching to the position is cons erable: persons of rank in provincial towns and even tycoons see it as an hoftour (o be a Justice of the Peace and to be able to put the initials JP after their names. The jurisdiction of Magistrates’ Courts is mainly in criminal law, where they deal with all minor offences, especially the vast number of traffic offences. Their procedure is summary, without a jury, and is very swift, espe cially since the defendant in trivial cases often pleads guilty and no evidence need be called, oem Crown C re tied ter oF sok So far principa between issue Se adoptio Altho to follow advise t ‘clerk to fall-time For this determi cost, Ther that ev single j County mal pr Count hanes Cou hear ei the Hi import Purthe whole lew at Count are firs the imtold that an ts can get by that this tiny nd court fee, s, oF the view, 8 lots of old t young Eng (a university There may or a one-sided 1 we shall try cr neater the ¥ comes into utt of Appeal F the County magistrates nder a chair: professional ho sit alone 0,000 in Eng: ninted by the ded by local “have shown yment, trades n some other \¢ selection of and many of -a small pay ion is consid S see it as an is JP after al law, where ber of traffic ry swifl, espe- i no evidence Courts and Lawyers in England 207 sore serious crimes where a jury i called for, there is special court, the For mr Depending om the gravity of he charg, cass in the Cxown Court Crown Cher before a fulltime judge of before ‘Recorder’ an experienced burrs we ractice who is commissioned to serve as judge from ere leit in professional Hoey The Crown Court may also contain up to four Justices of the Peace So far principally between SPO issue separation adoptions, supervise the protection of children 4s privatelaw is concerned, the jurisdiction of Magistrates’ Courts is in matters of family law: they hear claims for maintenance ‘uses and between parents and children, legitimate or illegitimate, wn orders, apply the laws about the care of children, agree (0 guardians, and have extensive competence in matters concerning, Athough for some time Justices of the Peace have been required on nomination to follow courses which introduce them to the most important legal questions likely xo iti nevertheless necessary to have a skilled lawyer constantly at thei side to A ae hem. In the Magistrates’ courts this function is performed by the so-called Kier to the justices’, a solicitor whose task it is, part-time or, in the larger towns, fulltime, to supervise the administration of the court, to see to the procedure in ennd above all to advise the Justices when problems arise during @ sitting 4c may, should the justices so wish, take part in the detiber- For this purpose the clr stions prior to judgment 2. County Courts were introduced in England by statute ‘only’ in 1846. The aim was to provide within easy reach of the parties courts which could determine private law disputes involving relatively low sums at rather small There are about 270 County Courts in England, so situated in the country that everyone is within easy distance of one. The courts are manned by & Single judge, called “Circuit Judges’, There are also “District Judges’ in the County Courts who hear cases involving £5,000 or less in simple and infor mal proceedings. To these Circuit and District Judges, approximately 770 i hiumber at present, must be added the ‘Recorders’ who sometimes sit in the County Court; these are usually practising barristers charged by the Lord Chancellor to take on occasional judicial functions. County Courts deal with civil matters involving £25,000 or less, and may hear eases involving larger sums, for eases of up 10 £50,000 are only heard by the High Court if they are particularly difficult or raise questions of special importance, In equity eases the County Courts’ jurisdiction rises to £30,000. Furthermore, modern social legislation has reserved for the County Courts whole series of very important matters, notably those arising from housing low and legislation protecting tenants, The practical importance of the County Courts is shown by the fact that about 85 per cent of all civil actions ‘re first heard in these courts: “If we consider that from a social point of view ‘he importance ofa court is the number of persons whose affairs it deals with,208 The Legal Families of the World there can be no doubt that County Courts are the most important civ, courts in the country. (JACKSON/SPENCER (above p. 205) 33.) 3, When people abroad or even in England speak of English justice, they think in the frst place of the High Courtof Justice in London. This court cor. sists today of three divisions: the Queen's Bench Division, the Chancery Division, and the Family Division. The number of High Court judges hee risen from only 25 in 1925 to 97 at the present time, and it will probably increase still more. Each judge is attached to one of the three divisions mer tioned. Today there are 63 in the Queen's Bench Division, presided ovey by the Lord Chief Justice, 15 in the Chancery Division under the View Chancellor, and a further 19 in the Family Division under the President Except for appeals from judgments of lower courts and for some proceedings of an administrative nature, all cases in the High Court are decided by's single judg: The division of business in the High Court allocates to t Division th Queen's Bench cases which before 1873 fell within the jurisdiction of the old Common Law courts. These include claims for damages for tort (mainly traffic or industrial accidents) and for breach of contract. The Queen's Bench Division has several specialized subdivisions, the ‘Commercial Court’ whi hears disputes between businessmen and enterprises in commercial matte the ‘Admiralty Court’, concerned with maritime collisions, maritime cred itors’ rights, cargo claims, and arrest of vessels, and the ‘Divisional Cour which applies administrative law. Judges in the Chancery Division hear cases affecting the administration of estates, bankruptcy, and the property of incapable persons, and resolve questions of trust law, company law, and intellectual property; accordingly that division has a strong equity flavour Family matters are dealt with in the Family Division, A number of important judicial tasks in the High Court are performed by the many ‘masters’ and ‘registrars’, who are chosen from barrist tors with a certain professional experience. They perform many varied {asks (see Diamonp, 76 LQ Rev. 504 (1960)) of which the main one is {0 work closely with parties and their legal advisers in the preliminary steps of procedure so that when the matter comes before the judge, it can be decided without delay in a single oral hearing. ‘The master also decides, with appeal to a judge, whether the trial should be referred to a County Cour what security, if any, should be given, and questions regarding expert opit ions and methods of proof. Furthermore, on proper motion of the parties, he Secs to it that before the oral trial begins the parties provide their opponest with full information about the facts they propose to prove and the relevant documents in their possession. The master also tries to get the parties (0 agree as many facts as possible s0 as to reduce the amount that must be proved and thereby lighten the task of the judge. Because the trial is so caf fully prepared and because the parties must fully disclose what positions the? Zealand Sicera{ 6. High Cou Lord Chanelle ears practical "ict judges}: on Member oF the often Po part in theost important ) 33:) English justice, they om This cour sion, the Chana h Court judges hay nd it will probabiy robab) hres divisions ma sion, presided ove, m under the Vj nder the President F some proceedings t are decided by 2 civ the Queen's Bench sdiction of the old 5 for tort (mainly The Queen's Bench cial Court’ which ymmercial matters, ns, maritime ered: Divisional Court Division hear cases J the property of ompany law, and ng equity flavour are performed by arristers or solic bm many varied he main one is (© Preliminary steps judge, it can be also decides, with a County Court ding expert opin. of the parties, he fe their opponet! and the relevant get the parties (© unt that must he trial is so care vat positions they Courts and Lawyers in England 209 ceo adopt, many sis are terminated by compromise, admission o am before the orl tsal ever starts. seat dppeal hears appeals from judgments ofthe High Court, Ta ce imation, appeals from the County Courts as wel. I sal it Toe Chancellor presides but in practic his role is performed 2 Hedge, called the "Master of the Rola tle Bore since the oy aati entry by the Chancellor’ senior subordinate in Chancery ‘esiaon to the Master of the Rols the Court of Appeal consists of 29 nace af Appeal’, who st in divisions of three or occasionally st Court of Appel fviws every point of aw on which the judgment i but often fess itself bound by trial judge's findings of fact, ave teal consequences. Thus the Court of Appeal does not at the trial and new evidence is admitted p areal | my, The Cow below was even if the} hear again the evidence presented coy within very strict limits. The House of Lords is the highest court, not only for England, but also for Scotland (except for criminal eases) and Northern Ireland, which in other fespects have their own system of courts. Decisions are made by a special judicial committee which contains, apart from the present Lord Chancellor tind predecessors who have demitted office on a change of government, ten judges who bear the title ‘Lord of Appeal in Ordinary’, called ‘Law Lords’ for short. The committee is normally composed of five judges and hears appeals from judgments of the Court of Appeal provided that, in view of the importance of the case, leave to appeal has been granted either by the Court of Appeal or by the House of Lords itself. Brief mention must finally be made of the Judicial Committee ofthe Privy Council. The Privy Council is an advisory body which developed out of the olf Curia Regis and the task of its judicial committer is to give the Queen advice. which is invariably followed. on petition made to her as the fount of justice by parties who have unsuc ‘essfully exhausted the legal procedures in the national courts of Commonwealth ountries. Appeal to the Privy Council has been abolished by many important mem bets of the Commonwealth: Canada, India, Pakistan, and, in 1982, Australia have all ‘declared that the decisions of their own highest courts are final. But even today itis. ot uncommon for the Privy Council to hear cases from countries as diverse as New Zealand, Sie 3 Zealund, Serra Leone, Bermuda, Gibraltar, and Mauri, an impressive indication world-wide spread of the Common Law tradition, 18, High Court judges are nominated by the Queen on the proposal ofthe Lord Chancellor who selects them from among barristers with atleast ten Yeats practical experience (the same poo! as provides most Cireut and Dis- tudes. on appointment they recive the accolade ofa knighthood. Asa Bambee of the government, the Lord Chancellor is @ politician who has Tare many years in the House of Commons but it must be sid tha © last fifty years at least political considerations have played next to Tn the narrow and familiar circle of Part in the nomination of judg210 The Legal Families of the World barristers a communisopinio readily determines which of their number are fi for judicial office and a Lord Chancellor would quickly incur Publig reproach or, worse still, public ridicule if he proposed for a Judgeship ; barrister who was politically committed but professionally incapable Once Sree didees are wholly independent. Under the formula of the Ag 2 Settlement 17a, which is stl in foree today, a judge holds his office on “luring good behaviour subject to a power of removal by His Majesty oon” Address presented to His Majesty by both Houses of Parliament’, bur Enalish Judge has ever been removed from office since that date and 2 gne in England is quite sure how exactly one would set about it (se Jace Son/Srinces, above p. 205, pp. 368 IT). Even desire for promotion, whey sau emper the independence of judges on the Continent, plays no great ing in England. High Court judges have already reached a peak position and pe any of them a further move up to the Court of Appeal or the House cy Lords would not be very attractive. Alll judges, even Circuit Judges ‘are chosen from among the group of sue cessful and well-regarded barristers (See p, 213). This ensures that the highs Courts are manned by judges who are extremely competent and very expen Gheed in practice, able to command the respect of the whole legal profession, But in the view of many people, this restricted principle of choice has the di, advantage that the English judges tend to be of an exte temperament: a person whi hardly be disposed to critic ly conservative has enjoyed a brilliant professional career will ize and reform the very circumstances which ‘ade it possible. This tendency to stability may also be reinforced by the fat {hat a judge is never appointed before he is 4o, and usually not until he ast 50; he retires at age 70. To be more specific, the charge has occasionally been mace that the marked individualism of English judges led them, espe ally until the marked individualism of English judges led them, especially until the Second World War, to adopt a perverse attitude to modern social {cgislation and give an unduly restrictive construction to many of their pt: visions contrary to the clearly discernible will of Parliament (see JACKSON Srunctr (above p, 205) 377 ff., and ABEI-Swrru/STEVENS (above p. 205) 166 fT), 7 rat arliament itself has reacted to this, According to many write ‘attempt to render modern statutes or and lindiord and tenant ‘judge-proot was in a deli mn social security, tax, agricultural holdin’ ‘that Parliament referred disputes in the ‘reas not to the ordinary courts but to special ‘tribunals’, of which there 4 an enormous number: their procedure is relatively simple and cheap, they ate staffed by laymen, and they are often closely linked with relevant governmea! spat Faring Met of appeal to the Court of Appeal in these ares is sl a diminishing. This very fact helps us to understand how England gets by with 80! tively small a number of judges, especially when one considers that Geral) nstance, has three levels of separate courts for ‘administrative andl social matte Whatever one m cems clear that Eny ily critical of 1 demanded the “nati nunca Bt “6 etal juris fea of drastic re mie and i mens (985)).T Sze At 999, Sr aatantve law fremember Law ¢ foal them inthe lained 4 plan to codil The advantages and many rocent articles 0 example, ScaRMan, Law Rest in Peace the Law of Contract Law Systems’, 47 Aus LO Rev. 515 (940), yy Rates? 46 «ayka ftom the point of vie Seriously, 50 Mod 1 In recent years va Sone under investg that London's imp Financial jueisdictio Sise8 are heard by Skperiments with 1 Privste law. fn now teen provided not ¢ Advice Bureaux’. § SRerEIses on the Ciare ckly incur pug for a judgeship ly incapable, gy la Of the Ae ds his office onl His Majesty got lament, but that date and ng bout it (see Jacy promotion, Which lays no great role ‘ Position and fap or the House gf the group of sue °s that the higher and very experi legal profession hoice has the dis ily conservative ional career will IMSLANCES Which orced by the fact y not until he i has ovcasionally led them, espe them, especially » modern soci ny of their pro H (sce JACKSON (above p. 209 it was in a deh ultural lsputes in the h there are no ns they are of? ernment de cas ix stall by with so 1 Germany: Courts and Lawyers in England wver one may think of the conservatism of the English judges, it Whate rr that England has never been readier for reform or more energet msltical of the existing system than today. Some radicals have Jed the ‘nationalization’ of all professional lawyers, much as doctors seman tonalized inthe National Health were ts stem untouched. In present circumstances these proposals may the coMealistc but it must be granted that an increasing number of leading se ental urs soe the law of procedure and the courts system asia and it drastic reform (see Jacos, The Fabric of English Justice (1987) seed ts and in particular Zane, A Mater of Justice, The Legal System in siren: (989). The process was started off by the Courts and Legal Eihjes Act 1990, and further reforms are awaited. So far as the reform Sr substantive law is concerned, England and Scotland have each had a feember “Law Contmission” since 1965, They have a well-equipped staff to hulp them in their demanding task ically vice, and would leave no part of take and keep under review all the law... with a view to its systematic devel pment and reform, including in particular the codification of such law, the elimin aibn af anomalies, the repeal of obsolete and unnecessary enactments, the reduction iV'the number of separate enactments and generally the simplification and modern, Issn of the law’ (Law Commissions Act 1965 s. 3). Many of the Law Commission's poposals have resuled in legislation which has modernized and improved English Iaa'an important topics. The Law Commission's programme of work originally eon: tained a plan to codify the whole law of contract, This project has been abandones The advantages and disadvantages of the codification of English law ate discussed in many recent articles of great interest to anyone from a Civil Law jurisdiction: se. for sample, SCARMAN, A Code of English Law? (1966); HAM.0, ‘Here lies the Common Law Rest in Peace’, 30 Mod. Rev 241 (1967): DiaMoND, ‘Codification of the Law of Contract, 31 Mod. L. Rex 361 (1968); DONALD, “Codification in Common aw Systems’, 47 Austr LI 60 (4973); KeRR, ‘Law and Reform in Changing Times % LORev. sis (i980); NoxtH, ‘Problems of Codification in a Common Law Coun: RabelsZ 46 (1982) 94; ANTON, “Obstacles to Codification’, 1982 Jur Rev 15. Also, from the point ew of a continental observer, K6rz, “Taking Civil Codes Less ously’, 30 Mod. L. Rev. (1987) ln recent years various aspects of the English legal system have repeatedly ™ under investigation by Committee and criticism by writers. It mi be Eat London's importance as a legal centre will diminish as the limits on the san it! jurisdiction of the County Courts are raised and more criminal Traatt heard by the Crown Courts, Noteworthy, too, are the English ls with novel forms of ‘informal’ resolution of minor disputes in tron a. In non-ltigious matters advice to the relatively deprived has vice “vised not only by solicitors but also, most successfully, by "Citizens rie Wet. Such fascination as the English system of justice still “Ses on the Continental observer depends now not so much on thea2 The Legal Families of the World admittedly astonishing position of the English judge as on the interes question how in the years to come England will manage to effect a comy® mise between its tendency to cling tenaciously to traditional legal institut and the need which exists in all modem societies 1o provide effective jue for every citizen ' mm Professional lawyers in England are divided into solicitors and barristers. Thy distinction, which has cropped up several times in the preceding pages, ig farther peculiar characteristic of Eoglsh legal fe which must now be Wiget considered. 1. The typical English soliior is an independent lawyer who gives ipa) advice to a client on personal and business affairs. In practice on his ow, or in partnership with other solicitors, he carries through transactions invo, ving land, drafts contracts and wills, undertakes the administration of estates, and advises his client on tax, commercial, insurance, and company law matters. Solicitors alone are empowered to take the necessary steps prior to trial. They may also act in the name of their client in the procedure which precedes the oral hearing before the judge. In the trial itself they have a right of audience only in the Magistrates’ Courts and the County Court Although solicitors have for years been campaigning against this restriction, which they regard as unjustified, the bitter resistance of the Bar saw toi that the door was opened only very slightly by the Courts and Legal Services Act 1990: the conditions attached to a solicitor’s ‘right of audience’ are so strin gent that no significant change in practice is likely in the foreseeable future Most solicitors’ offices are naturally not so much concerned in the pre paration, initiation, or conduct of trials as with transactions concerning land. Registers of land cxist in most areas of the country, but they are nol as sophisticated as in Germany. If the title is not registered, the title of vendor or mortgagor must be investigated carefully by any purchasct 0 mortgagee. Even if it is registered, most people who are buying and sellin houses wish their interests to be protected from the contractual stage (© the completion of the transaction. Tis business, called ‘conveyancing’, fall mainly to solicitors (who had, indeed, a legal monopoly of it until veo recently), and the fees for the conveyancing of houses constitute neatly ball of the profession's income In 1989 there were about 60,000 registered solicitors in England. About 1300 these were employed by local authorities or in business. Of the 9,00 solicitor’ A about 80 per cent have four partners of less, 14 per cent have between i " ‘and the rest more than ten. There is normally one salaried assistant solicitor 10 «6 three partners, in large firms one to every two. In 1991 th than 500 solicitors. snurement fOr weer to hy Peper leading ye Law Soci Bp being disci indepen ate wai 2 yon complain tne preparation tur Here ba indeed some b penton bee for a solicitor i islet, many of extremely deta sirking (act is the client, Thu oF to obiain a 4 conference b thus brought | stiquette to he own chambers the solicitor sit a burrister's st solisitors ven today Aitery occupy often specializ Ate situated i Meeped int 8 of chamb and the barri about the ind Solicitor on th