Law Reform After The War
| Published date | 01 December 1942 |
| DOI | http://doi.org/10.1111/j.1468-2230.1942.tb02864.x |
| Author | C. P. Harvey |
| Date | 01 December 1942 |
LAW
REFORM
AFTER
THE
WAR
39
LAW REFORM AFTER THE WAR
ROF.
KEETON has invited discussion of this subject in an interesting
article which he contributed to the April issue of the
Law
Quarterly
Review.
I
venture, therefore,
as
one who carried
on
a
common law
practice
at
the Bar until
1939
and who hopes to resume it after the war,
to express
a
view upon an important aspect of the matfer which is touched
upon, but not developed, by
Prof.
Keeton. He remarks that before the
war the “machinery of justice was
.
. .
exceedingly costly and slow in
operation
”
;
so
much
so
that
“
the superior Courts of Justice had practically
ceased to be the tribunals of the ordinary citizen, or even of the citizen
of some means.” This is an appalling statement, which is nevertheless
absolutely true.
Any fair-minded barrister or solicitor who was in regular practice
between the two wars must admit that in five cases out of six it was not
worth while to fight
a
disputed action for
L250
in the High Court, or one
for
L40
in the County Court.
To
lose such an action might be disastrous
for
a
man of modest means, and even to win was almost always uneconomic.
An
instance which came very recently to my notice is typical of many.
The defendant was sued in the County Court for approximately
k13,
the
last instalment of the price of
a
machine costing
L400.
Since the machine
contained defective parts he refused to pay and counterclaimed damages
for breach of warranty. His counterclaim was upheld and he was awarded
L25
damages, against which the judge directed the
A13
unpaid to
be
set
off.
He
also directed the plaintiff to pay the defendant’s costs of the claim
and counterclaim. The defendant was thus left in effect with
a
judgment
in his favour for
LIZ
and the whole of his costs
as
between party and
party against
a
plaintiff who, happily, was able to pay. The net result
of
this was to leave the defendant, when he had settled with his own solicitor,
30s.
out of pocket. What
it
cost the plaintiff
I
do not know, but
it
can
hardly have been less than
A75.
Over and over again
I
have seen results
of this sort in County Court and High Court cases.
It
is
as
well for the
legal profession that the published law reports contain
so
little information
about the practical economics of the proceedings- they record. Once in
a
while, however, the veil is lifted. See, for instance,
Kasler
v.
Slavouski
(1928,
I
K.B.
78).
This case arose out of
a
sale of dyed rabbit skins,
intended to be made up into collars for ladies’ coats, from the defendant
to the plaintiffs. The plaintiffs resold them to
A,
who resold them to
B,
who resold them to
C,
who attached them to
a
coat which he sold to Miss
W,
who contracted dermatitis through wearing it. Miss
W
brought an
action against C in the Court of Session in Edinburgh, and was awarded
k67
damages and her costs, which amounted to
L248.
C then made
a
claim against
€3
for
L643,
being
i315
(the amount of his liability to Miss
W) plus
L328,
his own costs of the action.
B
paid this claim ana issued
a
writ in the High Court for the same sum against A. A did not defend the
action but paid
i643
plus
,&I
costs and issued
a
writ against the plaintiffs
for
A654
(this may be
a
reporter’s mistake for
L664).
The plaintiffs settled
this action for
i654
and
A45
costs and claimed
L699
damages from the
defendant. They were awarded slightly less.
It
will be observed that the
costs of both parties to the original action in Edinburgh amounted to
nearly nine times the amount of the damages awarded, and one can sax
with confidence that the result would have been much the same
if
the
action had been fought in London.
I
do not know whether the English
P
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