PLEADING : A SUBJECT FOR SCIENTIFIC STUDY ?

I HAVE recently had the pleasure of reading a leading American textbook on the Law of Code Pleading' and this has led me to some rather dismal reflections on the lack of interest in the vital subject of pleading which has been displayed in this country almost since the time of the Judicature Act, 1878. Under the old strict system of pleading at common law the slightest mistake might prove fatal to the pleader's case, and the art of pleading was developed to a very high standard. It produced a race of lawyers like Parke B. who even if they could on occasion properly be described as ' pedants ' by their more liberal brethren did much to develop the common law on sound lines. The art was of course learned in chambers and while it did not stimulate any great theoretical text- book it did bring forth that masterpiece of practical wisdom and profound legal scholarship BdZrn~!+ Leake, the third and best edition of which is still highly prized. The special pleader was for long an esteemed member of an important subbranch of the legal profes- sion, and even after the first world war the names of several special pleaders still appeared in the Larw List.

The price paid by litigants for the maintenance of this system could not, however, be justified, and after some unsuccessful experimentation a the Judicature Act, 1878, introduced an entirely new system, called in America ' code pleading ' from the fact that the requirements are laid down in detail in a practice code. Under this the courts are given complete discretion to cure mistakes in pleading by allowing amendments. This has been very liberally exercised, and has undoubtedly resulted in a pronounced lowering of standards. In my day at the Bar the number of junior barristers in the Temple who were spoken of as really eminent pleaders could have been counted on the fingers of one hand, and I have reason to suppose the figure has not swollen. The result of this liberal allowance of amendments is an occasional adjournment with consequent expense, but more often it leads only to some embarrass- ment of counsel, and the case proceeds without too much extra dif3culty. It might, therefore, be said with some show of justice that apart from a certain loss of artistry in pleading the present system works adequately, that there is no need for concern about the underlying principles, if any, and that the absence of discussion need not call for comment.

1 Code Pleading, 2 Charles E. Clark, U.S. Circuit Judge: and ed., West

2 See Holdsworth: 1 &mb.L.J. (1993) aB1. 819

Publishing Co., t . Peul, Minn., 1947.

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I do not myself think that this is a healthy reaction. It is only within the last few years that we have passed entirely out of the personal influence of those trained under the old system, and with a few outstanding exceptions the present generation of judges do not seem to me to compare for either accuracy of expression or broad grasp of principle with their predecessors of Victorian times or of the, earlier years of the present century. Certainly many of the outstanding names in the common law have over the last generation been found in America, and it is perhaps, not without signiflcance that in that country there is a vivid and enthusiastic interest in all matters of evidence and practice, and perhaps particularly in pleading.

In no English university is there a chair in either Evidence or Procedure; none of our academic lawyers appear to take more than a tepid interest in the subject; and the literature is almost non- existent. Apart from one good students' textbook' there is really nothing to which one dare call attention, and the periodical literature is only noteworthy by its absence. In America all the leading university law schools have their chairs, and such men as Professors Clark (when dean of the Yale Law School), Edson Sunder- land, and Eddie Morgan, are well known as specialists in this field, while in the narrower arena of pleading proper, Williston, Clark, Pomeroy, McCaskill, are among the names that immediately leap to the mind for contributions of outstanding importance. A number of textbooks have a recognised place in the legal library and the columns of the reviews and journals continually bear witness to the close interest which the profession takes in the subject.

It seems to be high time that this unfortunate situation was rectified. It is not right that the country of Bentham, whose work undoubtedly stimulated the reforms which in America are particularly associated with the name of David Dudley Field and which led in 1848 to the passing by the New York State Legislature of the first code of civil procedure to receive enactment in any common law country, should be without a chair in this important branch of law. Field's work, which was celebrated last year in a centenary celebration held by the enterprising New York University Law School, led to the establishment of code pleading in a number of the other States in the U.S.A. and was undoubtedly a factor in the movement which culminated in our own modern system of pleading, 'which again reacted upon American opinion and helped to produce the new American Federal Code which has admittedly been much influenced by the Rules of the Supreme Court and which on a comparatively short experience of its working i s generally regarded by American lawyers as a real success.

3 Pleading and Practice, by the late W. Blake Odgere K.C.

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A consideration of the history and purpose of the methods of pleading adopted in common law countries opens up some funda- mental problems of jurisprudence with which it is not within my competence to deal. Judge Clark’s book does, however, bring out some points which should be of interest to those English lawyers whose education and practice has not taken them into this field. I propose here to touch upon only a very few of them.

In the first place, the valuable historical and comparative survey with which the book opens brings out quite clearly that the elaborate system of formal pleading which was developed at common law is characteristic of a middle stage in the development of a procedural system. Roman law went through a similar development, gradually tending to dispense with written pleadings and to rely upon oral statements made at the time. Most, if not all, Continental countries have reached the same stage, documentary statements being kept to a minimum. The tendency in both England and America over the last century has clearly been to attach less importance to the pleadings, and it is an interesting speculation whether we are moving on the same line of development as the civil law countries.

The present Anglo-American system of pleading has a number of obvious advantages which were well brought out in a report by a committee of the American Bar Association, whichi Judge Clark summarises as follows :-‘ (1) to serve as a formal basis for the judgment to be entered ; (2) to separate issues of fact from questiom of law; (8) to give the litigants the advantage of the plea of res adjudicata if again molested ; (4) to notify the parties of the claims, defences and cross demands of their adversaries’. It is difficult for a lawyer brought up entirely in the common law procedure to see how justice can effectively be administered without a fairly detailed insistence on point (4) above, a t any rate in the com- plicated litigation arising from modern commercial and indus- trial transactions. It may be that the rather simpler nature of the transactions entered into in Roman times combined with the high expertise acquired by Roman magistrates made formal plead- ings less needful than they are in modern England. The tendency in civil law countries is always to follow the Roman exemplar, but it is significant that in Germany in particular the litigants are required not only to state the nature of and the grounds on which their case is based, but to set forth the names of their witnesses and the evidence which they will give. It would be interesting to know whether these requirements, which in some respects go so much further than our own, mark a development arising from ‘the felt needs of the times ’.

The German rule about witnesses and evidence is not, of course, compatible with the strict ‘ adversary ’ principle of litigation which has been so basic to the conception of judicial procedure in com- mon law countries. This is not the place to develop a discussion

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on that important topic, which requires instant and careful atten- tion in this country now that the State is prepared to foot a heavy bill for the assistance of poor litigants, for if the taxpayers’ money is to be used i t must clearly be used to secure that justice is done, and not merely to ensure that the arena is cleared and each party to the dispute is given a fair fight and no favour. The whole system of common law pleading developed in relation to an ‘ adversary ’ conception of litigation, and while the reforms of 1878 went some distance towards giving the judge effective control over the litigation he is still handicapped in many ways, the most spectacular of which is his inability to insist that a particular wib ness should be called to give evidence when neither of the parties to the litigation is prepared to put him in the box because it is not sure whether his testimony will turn out to be damaging. Even if the adversary principle be retained, and there is much to be said in its favour in that its essentially dialectical approach to the prob- lem of ascertaining the truth is in harmony with important currents of modern thought, it should be clear that much can be done to improve its working, and discussions about these ought to be more intense and more continuous than they have been in the past.

Judge Clark thinks that the most fundamental reform of code pleading was the substitution of the form of action for the various forms of action a t law and for the suit in equity ’. He goes on to observe how practitioners steeped in their own particular expertise have done much to stultify this reform in the belief that ‘ the ancient forms rested on distinctions inherent in the law ’. A similar phe- nomenon is observable in England where Chancery pleadings remain very different from those found in the King’s Bench Division, though the differences are rather of style and method than of sub- stance. In divorce cases, however, the procedure has never been brought into line with that initiated by the Judicature Act, 1878, and despite the numerous reforms suggested recently by the Den- ning Committee, few of which incidentally seem to have been put into operation, the practice of the Divorce Court still smacks all too obviously of the ecclesiastical courts in which it had its origin.

One of the most interesting chapters in Judge Clark’s book is that dealing with the cause of action. It is obviously a matter of great practical importance to be able to say exactly how much of the existing daerences between two people can or should be brought before a court for adjudication in the same proceedings. The pre- cise method of reaching this decision is open to much argument, and depends up to a point on considerations of a theoretical juristic character. In this country the problem has not given rise to any- thing like the same difference of opinion and controversy which it has occbsioned in the United States, both in the courts and atnong the professors in the law schools. Judge Clark’s own solution, which has been much discussed, both in court and class room, is essentially empirical and practical, looking rather to what can be

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conveniently handled at the trial than to hard and fast rules of practice based on so called logical distinctions: in other words, he adopts the equity as opposed to the common law approach. This, though strongly criticised by such eminent scholars as Pomeroy and McCaskill, has met with much support and seems to me to be in accord with the best lines of Anglo-American legal development.

Since so much of the development of American code pleading has been influenced by or run parallel with the growth of our own modern system of pleading what Judge Clark has to say on, for example, such intractable problems as joinder of parties and joinder of causes of action cannot fail to be of interest, and indeed, of profit to English lawyers.

I am tempted to close this brief article, in which I have not attempted to do more than open up the subject, by entering a plea for the establishment of at least one chair in Procedure or in Evidence and Procedure in this country. The extensive and inter- esting case law which Judge Clark’s work shows to exist in America is certainly paralleled in England, and would certainly provide a field of study, not only interesting in itself, but from which fruits would certainly be obtained of high value to the administration of our justice.

CRORLEY.