REGISTRARS

Appointment

The 1846 Act required each court to have its clerk, but it empowered the Lord Chancellor to sanction a joint appointment where business was unusually heavy and allowed a judge to appoint the same man to several of his courts, with assistant clerks to look after the less important ones. Many judges found this convenient. Pluralism became widespread and could also be lucrative; Burrows was clerk both to Brompton and Brentford and to Marylebone, and apparently continued to run a flourishing private practice as well. But it quickly fell out of favour with officialdom, perhaps because of doubts whether the registrar's supervision could really be effective where, as in West Wales, he controlled ten courts, nine of which he visited only on court days from his base at Carmarthen. The County Courts Further Extension Act 1852 restricted it to exceptional cases authorised by the Lord Chancellor, and gradually the pluralists died out.

The rule of one court, one registrar led to a rapid growth in numbers. There were 498 in 1874, and this remained practically unchanged until the Great War. However, the principle had been adopted without full consideration of its implications. The small courts could not yield enough to induce a respectable solicitor to abandon his practice, so part-time registrars were common, yet the desire to make the registrar into a judicial officer sat uncomfortably with his being a local practitioner.

THE GREAT WAR

Britain had not experienced war on such a scale and so close to home since Napoleon was on the rampage across Europe, and the immediate dislocation of international trade and finance found the government hopelessly underprepared. All was improvisation and expedients: the courts were kept closed for a few days while the first expedient, a moratorium on the enforcement of commercial debts above £5, was arranged and when they reopened the judges were without usable guidance in how to interpret it; in the county courts each made up his own directions and Selfe's attempt to bring consistency only made for more confusion. Rules were promised but before they materialised the moratorium was largely superseded by the more wide-ranging Courts (Emergency Powers) Act and a torrent of rules flowed from that.

Under this Act and its successors judges were ‘endowed with a new and vast responsibility affecting the whole range of social and economic conditions throughout the country’, acquiring a broad discretion over the enforcement of all judgments where the debt or debts were caused by the war. The measure was not given the widest publicity however, and there were those who believed, or affected to believe, that the moratorium was a comprehensive and continuing absolution from liabilities. Nevertheless applications flooded in at first – 270,121 orders were made in 1915 – and while the high court judges, accustomed to ordering payment in full without delay, found their new powers disturbing, they were nothing unfamiliar to county courts.

THE LORD CHANCELLOR'S DEPARTMENT

Although three departments initially shared the duties involved in running the new courts, the Home Office had the lion's share, handling accommodation and sittings, prison facilities for debtors, complaints by and about judges and, in conjunction with the Treasury, fees and salaries. Most initiatives came from outside however, and the Home Secretaries of the period do not seem to have been very enthusiastic about their new charge.

The Home Office of the 1840s was a small unit organised along old-fashioned lines with particular clerks holding expertise in the several branches of its work within their own heads. New areas of responsibility were invariably treated by the clerks as inferior and, although one of them was given an extra allowance for the correspondence generated by the County Courts Act, it is unlikely that anyone took much interest in it. The Home Secretary's need to offer economies in the clerical organisation and the fact that no patronage went with his responsibilities probably explain why he willingly surrendered them to the Lord Chancellor, a curiously timed change, with major inquiries into the organisation of legal services imminent.

In June 1868 three bags of Home Office papers arrived, unaccompanied by any clerks.

In the scheme for a nationwide network of county courts there was one glaring omission – the City of London. Evidently the corporation had used its formidable political influence to secure the right to make its own arrangements.

Apart from the Palace Court, which was soon to be abolished, there were two ancient but active courts in the City, the Mayor's Court and the Sheriffs' Court. The Sheriffs' Court had jurisdiction over debt and personal actions at common law arising within the City and its liberties and adopted the pleadings and procedures of the superior courts. In 1835 the City had also submitted to the fashion for courts of requests and in 1846 substituted a small debts court modelled on the new county courts. In 1852, through a further local Act, this became the City of London Small Debts Court, presided over by the judge of the Sheriffs' Court, which remained in existence but ceased to perform any functions. The Small Debts Court obtained the same enlarged jurisdiction as the county courts and, perhaps due to the lack of effective scrutiny of local bills, it also obtained some powers which they did not possess.

The judge was elected by the corporation and William Arabin, celebrated for his legal malapropisms, was followed first by the highly esteemed Russell Gurney and then by the mediocre Michael Prendergast. On Prendergast's death in 1859 there was a stirring contest, finally won by Robert Malcolm Kerr on a vote of 102 to 100.

THE NEW COURTS AND THE NEW JUDGES

The government moved to implement the Small Debts Act with unexpected speed and thoroughness. Instead of the gradual and piecemeal creation of courts which opponents claimed the Act envisaged, the Lord Chancellor instructed Drinkwater Bethune to draw up a nationwide scheme for immediate operation and within months it was ready to be put into place.

There were to be sixty districts and no fewer than 491 courts. Even in a rural county like Suffolk no-one would be far from a county court town, since they included Beccles, Bury St Edmunds, Eye, Framlingham, Halesworth, Haverhill, Ipswich, Lowestoft, Mildenhall, Stowmarket, Sudbury and Woodbridge.

In contrast to the courts of requests, each of which had its own part-time judge, the county courts were to share a judge who was appointed for the whole district and who would arrange his own pattern of work, sitting in each of his courts at least once a month; in the metropolitan area and in Liverpool, however, the judge had only a single court in his district and would sit there as often as he felt necessary.

Restrictions on the judges' outside activities were originally confined to those which might put into question their impartiality, but the spectacle of a metropolitan judge practising at Westminster Hall and the announcement that another intended to stand for Parliament soon obliged the government to extend them. Even so, for some years judges could supplement their income by arbitrations and were allowed to retain recorderships.

TINKERING WITH THE MACHINERY OF JUSTICE

Reform of the courts was in the air again at the end of the war, with a lively correspondence in The Times in 1944 and a continuing debate on legal aid, but it was not a high priority for Attlee's government, which preferred for the most part to create tribunals to deal with new entitlements and disputes.

Tribunals were a familiar feature of wartime emergency legislation and now even the courts' role in deciding purely private disputes was being questioned. The Uthwatt Committee on Tenure and Rents of Business Premises, for example, while reluctantly giving jurisdiction over its scheme to the county court, had wished to find a way of ‘avoiding as far as possible the atmosphere of litigation associated with its normal procedure’. Another committee was able to keep the fixing of ‘fair rents’ for controlled housing away from the courts, though most county court judges were happy to lose that, having quite enough to do with possession cases. Still, the lack of confidence in their capacity was worrying, especially when it also deprived them of workmen's compensation, felt by the Solicitor to be the harbinger of ‘a process [which], if allowed to continue indefinitely, would eventually lead to the Courts becoming quiet backwaters, like Doctors' Commons at the beginning of the 19th century’. It did not happen, but the anxiety was understandable.

THE TURNING POINT

The work of the Judicature Commission recast the courts of law in a shape which endured substantially unaltered for almost a hundred years. From the various common law, equity and civilian courts, which were collectively the ‘superior courts’, was created the Supreme Court of Judicature (SCJ), whose judges possessed the jurisdiction of all the old courts and the power to administer their doctrines and remedies in the same action; in addition the procedure in the divisions of the new high court was to be largely governed by a common set of rules. Although the provisions for appeals, already complicated by the retention of divisional courts, were further elaborated when political considerations led to the preservation of the House of Lords, the SCJ was an excellent foundation for a durable structure of civil justice.

A foundation, however, is all it was. What should have been the first stage in a complete reconstruction remained the only one, ‘a terminus rather than a staging post’. The other stages should have been the re-ordering of justice in the provinces and of the relationship between the high court and the inferior courts, in particular the county courts. This had been outside the remit of the original commissioners and only Ayrton had disturbed their impressive unanimity by urging his colleagues to consider whether all actions should be started in the county courts.