CHAPTER IX.

183

THE COMMERCIAL COURT.

TRIBUNALS of Commerce are well established in several European countries, but in England they have never been more than suggested. At the present time, however, something in the nature of a Tribunal of Commerce is to be found in the form of what is popularly called the Commercial Court, which, however, strictly speaking, is but one of the Courts of the King's Bench Division, in which what is termed the Commercial List of Causes is tried by a judge to whom this particular class of legal work is assigned for a definite though short period, and who, contrary to the ordinary practice of the High Court, himself deals with all the preliminary interlocutory proceedings. This unsymmetrical arrangement is typical of English ways, but it is one which, as a phase in the growth of English procedure, is remarkably interesting and important. In effect it has resulted in the existence of a special Court for the trial of a special class of legal business. Theoretically, there is no more reason why, for example, a merchant and a shipowner who have a dispute over a charter-party should have a particular Court. set apart for the decision of their litigation, than two rival patentees who, however technical is the subject-matter of the disagreement, still have to take their place among ordinary litigants.

Yet after all this new tribunal is a return to medieval procedure, for in seaport towns from very early times there were Port or Marine Courts, presided over by municipal officials who were assisted by merchants or mariners, for the trial of disputes relating to mercantile or maritime matters; and the Fair Courts and the Staple Courts had a similar jurisdiction in inland towns. These Courts long ago fell into abeyance, though in more modern times the sittings held at the Guildhall, in the City of London, for the trial of actions by jury, to some extent preserved ancient traditions. But these sittings were ended by the passing of the Judicature Act of 1873; the creation of a Commercial Court revived them to some degree, and was in principle a return to an even older system, of which the expeditious trial of commercial disputes in the place where they arose was the essential characteristic.

Let us first of all see how this Court, as we shall now call it, came into existence.

The mercantile community is in many respects an organised body; it has not only its special organs of opinion in the press, it has its Chambers of Commerce and its representatives in Parliament, who can safeguard its interests. It has thus an actual and definite force, which cannot altogether be ignored. But it is doubtful if even this organised force would in itself have been sufficient to introduce a change in the judicial system which would meet the wants of men of business. Something in the nature of an accident must be regarded as the efficient cause of the creation of a Commercial Court. At the end

of 1892, Lord Gorell (then Mr. Justice Barnes) became a judge of the Probate, Divorce and Admiralty Division, on the appointment of Sir Francis Jeune to the place of President of the Division, left vacant by the death of Sir Charles Butt. The new judge was thoroughly acquainted with mercantile law, and was equally cognisant of the demands of the commercial community, whilst the President cordially agreed with any plans to increase the usefulness of the Division over which he presided. So in the course of 1893 it was made known that commercial causes arising out of disputes in some way connected with shipping, but in no sense purely Admiralty actions, would be entertained in the Admiralty Court at such times as the Court could spare from its special work. At once several actions were entered to decide points arising out of contracts of marine insurance. The number of commercial cases increased, and it became clear that if the judicial strength of the Division would have permitted it, the commercial community would have gladly resorted to it as a Commercial Court. It was obvious, however, that this was impossible without an addition to the number of judges attached to the Division, for two judges were only sufficient to cope with the regular flow of business, whether probate, divorce, or admiralty; the commercial work, with the existing strength of the Bench of the Division, could, therefore, only be dealt with in a fragmentary manner, and sometimes at the risk of dislocating the arrangements for the trial of admiralty actions. With the Queen's Bench Division fully equipped for work it was obviously impossible to place an additional judge at the service of the Admiralty Division, to do work proper for another Division, and for a time it appeared as if the mercantile body

would have to remain satisfied with the odd moments of the Admiralty judge. It was plainly, however, more than ridiculous that commercial men should be unable to have their legal business satisfactorily transacted by the Queen's Bench Division, to which it properly belonged; it would have shown a total incapacity to recognise a public demand had the lead given by the Admiralty Court not been followed. The result was that at the beginning of 1895 it was announced that commercial causes commenced in the Queen's Bench Division were assigned to Mr. Justice Mathew, not only for trial, but in order that he might have control over them from their commencement. This was, as we have already pointed out, in reality the establishment of a Commercial Court. Nor did Mr. Justice Mathew allow the opportunity thus given to him to re-establish the confidence of the mercantile community in the Common Law Courts of England to pass by. He disapproved of dilatory interlocutory proceedings, and by the exercise of sound common sense, and from a contempt for mere legal technicalities, he put an end to the interlocutory applications which in many cases caused so much expense and had so little effect on the result of the litigation.

The Court has continued on the same lines, though it has to some extent lost its early judicial individuality, and its scope has been enlarged. It is now a general Commercial Court instead of one which had jurisdiction over a limited class of cases arising out of shipping and insurance contracts. Finally, it must be regarded as fixed in English procedure-a remarkable instance of the haphazard and yet on the whole effective manner in which legal changes have occurred in this country in all times.

It is worth while, however, to take note of this Court from another point of view-as emphasising a change which has occurred in procedure in the last fifty years. The Commercial Court is the most emphatic illustration which can be given of what may be called business procedure as distinguished from legal procedure of the desire of the judiciary that litigation should be as little technical as possible. There are still some useless technicalities visible, not comparable, however, to those which were to be seen before the Common Law Procedure Act of 1854, and the Judicature Act of 1873, and several other modern measures. The changes introduced in the Commercial Court would startle a practitioner under the old régime (a); pleadings are not necessary, points of claim and defence being frequently ordered in place of formal claims and defences, documents which are not strictly proved are admitted in evidence, as are written statements containing hearsay matter. These and other details emphasise a popular revolt against legal technicality, and a desire to have disputes settled quickly and without formalities. The Commercial Court, in fact, responds to popular opinion, and it marks the culminating point of the reaction against technicality in procedure which has been visible for more than half a century, and the first step of which in regard to the Common Law Courts was the passing of the Common Law Procedure Act, 1854. It has influenced the procedure of other

(a) In the case of Biddell v. Clemens, Hirst & Co. (27 T. L. R. p. 47), Mr. Justice Hamilton decided a case on his personal knowledge of the meaning of a mercantile term. This decision was reversed by the Court of Appeal, on the ground that a commercial custom must be proved as a fact by evidence.