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Caseflow Management: a Rudimentary Referee Process , 1919-70

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Caseflow Management: a Rudimentary Referee Process , 1919-70 The London School of Economics and Political Science Caseflow Management: A Rudimentary Referee Process , 1919-70 Michael Paul Reynolds A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, July 2008 UMI Number: U615990 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U615990 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 £ ^oi5 ® Library BriDsh Library ot Political and Economic Science \ < t i u Declaration 1 certify that the thesis I have presented for examination for the MPhil/PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work o f others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright o f this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without the prior written consent o f the author. 1 warrant that this authorisation does not, to the best o f my belief, infringe the rights o f any third party. Michael P Reynolds 2 Abstract This thesis discovers that a form of caseflow management was practised by Official Referees in England more than 70 years before the Woolf reforms. It also describes an innovative concept of judicial sponsorship of settlement at an early interlocutory stage. For its time it was revolutionary. Such process created a distinct subordinate judicial culture which promoted economy and expedition in the management of complex technical cases. This culture was facilitated by the referees’ subordinate function as officers of the High Court and the type of casework undertaken. The essential elements of my theory of rudimentary micro caseflow management emerge from a study of the methods used by Sir Francis Newbolt K.C. These are analysed and discussed by way of a literature review, qualitative and quantitative analysis. I conclude that this form of rudimentary caseflow management and judicial settlement process made the court more efficient. This process, identified as Newbolt’s “Scheme,” is traced from its inception through the judicial activities of Newbolt and other referees who followed this approach whether actively or passively. Having traced the origin and reasons for such officers this study considers the senior and subordinate judicial figures involved, their influence and encouragement as to the employment of innovative interlocutory techniques. Contemporaneous records including reports and correspondence are analysed in considering these innovations. The analysis is supported by the results of a quantitative study of Judicial Statistics between 1919 and 1970 and other contemporaneous judicial records including the referees’ notebooks and judicial time records known as Minute Books. A number of conclusions are drawn which suggest a correlation between such techniques and levels of efficiency providing an interesting comparison for those interested in wider questions of civil justice reform. 281 words 3 Acknowledgements This research arose out of an interest in civil litigation and alternative dispute resolution both from practice as a solicitor and an arbitrator, and from a study of these subjects at Master’s level. The interface between these diverse disciplines has always fascinated me and therefore the opportunity of undertaking doctoral research on the court where I practised was particularly inviting. My interest also stems from observations as an arbitration pupil to the last Senior Official Referee, John Newey QC and the business-like and “user friendly” way, in which he and those appearing before him conducted interlocutory proceedings. Further impetus for my research stems from an interest in the Access to Justice Movement and civil justice reform. It seemed to me that many of the recent reforms may have had their origin in what was the Official Referees’ Court and that what they did decades ago has only recently been adopted across the system as a whole. This thesis does not set out to prove that, but certainly demonstrates an undiscovered prototype model which may teach us further lessons and contribute to the literature on this subject. Procedural reform is not necessarily the collective responsibility of judges, lawyers and parties to litigation. Today it goes beyond that to all those eminent academics who have enriched our knowledge of the system and who have an essential role to play within that system. All must strive for greater procedural efficiency and effectiveness as well as economy, learning from the experiences of the past. As Professor Marc Galanter wrote: Lawyers and judges have a joint responsibility with the academic community to foster and support the development of a cumulative body of reliable knowledge about the working of legal institutions, and they have a heavy stake in its development.1 It is fitting that this study was undertaken at the London School of Economics part of whose expanding modem complex now inhabits the former referees’ chambers in Portugal Street and one of whose founders, Lord Haldane, Lord Chancellor of England, was a strong supporter of the referee’s office. It was Haldane who in the military field had said that “economy and efficiency were not incompatible,” a 1 How to Improve Civil Justice Policy, 77 JUDICATURE 185 (1994). 4 theme which finds much in empathy in an entirely different context with the hero of this story Sir Francis Newbolt K.C. This study and its completion would not have been possible without the inspiration, patience and encouragement of Professor Simon Roberts my supervisor. For many years he has been a leading exponent of a more enlightened and efficient resolution process. In that endeavour he was joined by Professor Michael Zander, my second supervisor, who in the field of civil justice reform must be regarded as a legend in his own time. Neither would such study and research have been feasible without the facilities extended to me by the LSE Law Department, the LSE library, the National Archive, and Lambeth Palace Library. I would like to thank Mr Justice Jackson, Mr Justice Dyson (as he then was), Judge Anthony Thornton QC, and Judge Edgar Faye QC who were kind enough to discuss aspects of the Official Referees’ role. To my family I owe a debt of enormous forbearance. 5 Abstract 3 Acknowledgements 4 Table of Contents 6 Table of Contents Chapter 1 A Study in Rudimentary Caseflow Management 1.1. Incipient micro-caseflow management 23 1.2. Caseflow management theory 24 1.3. Purpose of research study 24 1.4. Importance and interest 25 1.5. Hypothesis 27 1.6. Research questions 28 1.7. Use of research 28 1.8. Evolution of the referee 29 1.9 Limitations on research 33 1.10 Methodology 34 1.11 Organisation of study 37 1.12 Contribution to research in civil justice and dispute resolution 38 Chapter 2 In Chancery: The Inception of Micro Caseflow Management 2.1 Macro-management problems in the civil justice system 39 2.2 Judicial overload and backlog 39 2.3 First Report of the Commissioners 1869 42 2.4 The Official Referee: reasons for creation 42 2.4.1 Chancery and Common Law practice 42 2.4.2 Experts 44 2.4.3 Juries 45 2.4.4 Arbitrators 45 2.5 The Judicature reforms 46 (a) Administrative reform 47 (b) Procedural reform 47 2.6 Pioneers of caseflow management: Selboume and Cairns 49 2.6.1 Lord Selboume 49 2.6.2 Selboume’s macro and micro objectives 49 6 2.6.3 A judge without jurisdiction 51 2.6.4 Rules o f the Supreme Court 52 2.6.5 Lord Cairns 1874-80 54 2.7. Importance of chambers business 57 2.8. Legacy of the Commission 58 2.9 The growth in referral business 59 2.10 Conclusions at macro-level-general 64 2.11 Conclusions at macro-level-specific 65 2.12 Conclusions at micro-level 66 Chapter 3 Rudimentary Prototypes in Caseflow Management Techniques (1919-1949) 3.1. A beginning 68 3.1.1 Sir Francis Newbolt 68 3.1.2 Lord Birkenhead 69 3.1.3 Sir Edward Pollock 69 3.1.4 Sir Tom Eastham 70 3.1.5 William Hansell 70 3.1.6 George Scott K.C 71 3.2. Definition of theory 71 3.3. Micro caseflow management 71 3.4. Events leading to the invention of caseflow management and judicial settlement 72 3.5. Explanation of theory 74 3.6 Against the theory 75 3.7 Exposition of the basis for a theory: Newbolt’s first report to the Lord Chancellor 75 3.8 Discussion and analysis of elements of rudimentary caseflow management 3.8.1 Early procedural evaluation and rudimentary informal referee resolution 84 3.8.2 Judicial intervention promoting expedition and economy 90 3.8.3 Experts 90 (a) Use of single joint expert/court expert 90 (b) Expert determination and investigators of fact 92 (c) Experts and settlement 93 3.9 Application of proportionality on costs 94 7 3.10 Invention of special pleadings 97 3.11 Preliminary issues and questions for the court 97 3.12 Geographic and more economic location for the parties 98 3.13 Conclusions 100 Chapter 4 From Rudimentary Prototypes to an Early Model Form of Micro-Caseflow Management 4.1 In search of Newbolt’s “Scheme” 102 4.2 The Eastham Memorandum 102 4.2.1 Acting as a jury 106 4.2.2 Acting as an arbitrator 107 4.3.
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