16. 1938 changes: Law Times. Commenting on the changes made by the Rules of the Supreme Court which were passed December 17, 1937, and which came into force January 11, 1938, it was said in 185 Law Times 40: "Other important features are: (i) the extension of the powers of the masters on the hearing of the summons for directions. . . By virtue of Order XXX, r. 2 (in its new form) a master on the return to the summons may exercise all the powers he has heretofore been able to exercise, and, further, order that (subject to certain limitations) any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the trial on such conditions as he may think reasonable. He may also direct that no more than a specified number of ex pert witnesses may be called at the trial, and he may record any consent of the parties to limit the right of appeal. In short, the master may now exercise many of the powers formerly conferred upon а New Procedure judge." Commenting further, with reference to the report of the Royal Commissioners, it was said (p. 41): "It is to be observed, however, that in their summary the Commissioners merely recommend that: 'A wider character should be given to the summons for directions, in order to reach the essentials of the dispute and arrange for proof, in the shortest and cheapest manner.' They do not suggest that the master should exercise his powers on his own initiative, nor is any such duty imposed upon him by the new rules. It would hardly be reasonable for the master at that stage of the action to call upon either party to make an admission of fact, or to agree to admit evidence by affidavit, without a very close examination of all the circumstances. Admissions of facts will, no doubt, continue to be asked for and made, but it is obvious that no party to a complicated action can be expected to admit facts unless and until the case is virtually ready for trial." tion must be paid by litigants and it would be out of line with American ideas to compel the litigants to pay the compensation of a master conducting pre-trial proceedings." 23 A. B. A. Jour. 966, 970. 18. "New Procedure"-Abolished in 1938: Law Times comment. By the Rules of the Supreme Court which were passed December 17, 1937, and which came into force January 11, 1938, the "New Procedure," initiated in 1932, was abolished. Commenting on this, it is said in 185 Law Times 40: "Many of those who gave evidence before, or otherwise expressed their opinions for the benefit of the Royal Commissioners, expressed their disapproval of that innovation. In particular, Mr. Justice Goddard pointed out that its success was obtained at the expense of the non-jury list." The fact that the "New Procedure" has been abolished, for reasons best understood by the English bar, does not detract from the pertinency of its theory in the present connection. Hence the provisions which formerly governed such procedure will be outlined. 19. -Law Journal comment. In The Law Journal (Vol. LXXXV, p. 84) it was said: "The Rules of the Supreme Court (No. 3) 1937, published in the Law Journal last week, created some fairly drastic changes in High Court Practice, with which all members of the legal profession will have to become familiar. Perhaps the most surprising change was the abolition of the New Procedure (Ord. XXXVIII a), although a few of the principles have been retained. At first sight this may be regretted by members of the profession, who remember the despatch with which cases in the New Procedure List were dealt. But it must be remembered that this procedure was optional, and that this advantage was only available for a certain class of case; actions for libel, slander, malicious. prosecution, false imprisonment, seduction, breach of promise, and actions in which fraud was alleged by the plaintiff were all excluded from the benefit of Ord. XXXVIII a, and on the whole it may have been a clog on the general smooth running of the business of the Courts, and an unfair advantage to a certain class of case. In order to fill the breach created by the abolition of New Procedure, and to expedite the hearing of those cases which hitherto would have been in the New Procedure List, the Non-Jury List in London has been divided into the Long Non-Jury List and the Short Non-Jury List, and this has been done without interfering with the present Jury Lists (Common and Special), the Short Cause List, or the Commercial List. Some of the innovations which, as has been stated, were only applicable to the New Procedure List, have been retained and incorporated in the general body of the High Court Rules; for instance the Rule that the Court or Judge can limit the number of expert witnesses to be called has been kept. The power of the Court to appoint a Court expert was originally in the New Procedure Rules and had subsequently been bodied in Ord. XXXVII a; the object of this rule was to reduce costs, and its retention here is to be appreciated. Also the rule by which parties could record their consent to exclude the right of appeal, or limit it to the Court of Appeal or to questions of law has been inserted in Ord. XXX." 20. em -Former orders provisions. The New Procedure Rules (Order 38a) came into force on May 24, 1932. Save for certain excepted actions The New Procedure could be adopted by plaintiffs and defendants who commenced or defended actions in London, or in the District Registries of Liverpool and Manchester, or by defendants in actions commenced in any District Registry who entered appearance in London. Actions commenced in the ordinary list could not be transferred to the new procedure list. The writ of summons was marked "New Procedure." At the time of serving the writ, or within seven days of defendant's entry of appearance plaintiff should deliver a statement of claim with all proper particulars. Within seven days of the delivery of the statement of claim or within four days of defendant's entry of appearance, whichever last expired, the defendant should, without asking for further particulars, deliver a defence, with all proper particulars, and with it might set up a counterclaim with all proper particulars. If a counterclaim was set up, within seven days of the delivery thereof plaintiff should deliver a reply. Within four days of the delivery of the defence plaintiff should take out a summons for directions returnable not less than four days before one of the judges taking the new procedure list. If within twenty-eight days of entry of appearance no summons for direction had been issued, it was the duty of plaintiff's solicitor to inform the court of the reason. On the hearing of the summons for directions the judge might in his discretion do various things. He might make an order for further and better particulars, directing each party to write forthwith to the other for any particulars he might require, such particulars to be given on the same, or the following day, or within two days. He might make such order for discovery and inspection of documents or with regard to admissions of fact, as he might think necessary or desirable. He might order the action to be removed from the New Procedure list. He might order the action or any issue therein to be tried with a jury or without a jury, as, in his discretion, he might think fit. He might order that no more than a specified number of expert witnesses may be called, and that any particular fact or facts might be proved by affidavit, or that any witness whose attendance in court ought to be dispensed with be examined before a commissioner or examiner. He might record any consent of the parties excluding or limiting their right of appeal. He might order that any question involving expert knowledge should be referred to a special referee for inquiry and report, and might, on certain terms, refer to a special referee for inquiry and report any question arising as to the nature, extent and permanence of any injury caused by negligence. Such judge had all the powers which a court had in respect of an action on the ordinary list. There was no appeal from his decision without leave of the judge or Court of Appeal. He fixed a date for the trial of the action, which was, as far as possible, tried by the judge who heard the summons for directions. If fraud was alleged in any of the pleadings, the action might be transferred to the ordinary list, and if the party against whom the fraud was alleged so desired, must be so transferred. Where an action was transferred to the New Procedure list at a defendant's instance, the provisions of Order 38a applied so far as applicable unless the judge otherwise directed. The Annual Practice (1936), p. 705 et (1932). The advocate must be prepared to say whether he wants any, and if so what, particulars of his opponent's pleading; whether discovery of documents is required, or whether a list of documents will suffice. He must also be prepared to assent to an order to give discovery in a very short time. He may be called upon to admit certain facts, or to consent to their being proved by affidavit. Either side may be called upon by the judge to say whether any part of his opponent's case is admitted, e. g., the allegation of negligence in an action for negligence. The advocate must be ready to say whether or not he wants a jury. Being a New Procedure action his absolute right to a jury has gone. He must also be ready to say whether or not he reserves his right of appeal. Both sides must be ready to consent to the hearing taking place on a certain day. If an issue of fraud is raised in the defence or counterclaim it is the absolute right of the party charged with fraud to have the case transferred to the ordinary list, if application is made at this time. It is further pointed out that there is nothing in the new rules giving a solicitor any lead as to what kind of case should be sent to the New Procedure list, and that cases of all kinds have found their way into the list. It was said in 175 L. T. 42 (1933) that the following is a type of order frequently made on the New Procedure Summons for Directions: "Particulars of claim to be delivered the same or the following day. Particulars of defense four days after. List (or affidavits) of documents in four days. Inspection two days after. Amend pleadings in one to seven days. Reply two days after counterclaim. Doctor's report to be agreed if possible, otherwise one medical witness on each side. Plan to be agreed if possible. Set down within two days. Summons to stand adjourned subject to notice to the court and to the other side." It is said in comment on the New Procedure Rules in operation, 175 L. T. 41 (1933) that in one case Mr. Justice Swift expressly stated that he imposed no limit as to the number of expert witnesses, but as a general rule the number to be called by either side is limited. In 81 Sol. Jour. 24 (1937) it is said: "Order 38a-itself a very recent Order has become one of the most important orders in the last year or two. "The New Procedure List' bids fair to outrun the other lists, and by reason of its very popularity tends to increase one of the evils it came to cure-delay through the congestion of its list. It is often said that it is easier to obtain an earlier trial in the other lists." In 81 Sol. Jour. 109, 110 (1937) it is said: "New Procedure (Ord. 38a) was a vigorous reform in the right direction, viz., the shortening and simplification of civil procedure; its future lies entirely with the judges who take the New Procedure summonses." In 81 Sol. Jour. 148 (1937) there is quoted the following statement of Greer, L. J., in a communication to the Times on October 8, 1935: "The most useful feature of the New Procedure List is that it enables a judge to fix a date of trial." 24. Chesnut's comment. In "The English Courts-Recent Proposals for Better Despatch of Business," 1 Maryland L. Rev. 277, 285, Judge W. Calvin Chesnut said: "The New Procedure List is a specialized non-jury list with fixed dates of trial. It has two novel features. For it the judges 'sit in court as chambers' each morning for about half an hour to deal with interlocutory matters which in special jury, common jury, and non-jury actions are still dealt with by the masters. Its other distinguishing feature is the fixing of a definite and particular date for trial. That is what has given the list its popularity. Only comparatively short and simple cases are assigned to this List. It requires the time of two judges continuously, and sometimes more. It is in effect a preferred trial list." In "The New Procedure' of the English Rules," 27 Ill. L. Rev. 363, 373, Robert W. Millar said: "To us in America, it must be said, the innovation, in so far as it substitutes the Judge for the Master on the hearing of the summons for directions, comes with something of a shock. Upon this very function of the Master's office we have turned longing eyes and have keenly regretted the inelasticity of our constitutional provisions which have impeded a following of the English example in this regard. Now to be told, as we are by the new rules, that the interests of dispatch require that the judge and not the master deal with the matter, is something that rudely jars our preconceived notions." From information for which the author is indebted to Judge Joseph A. Moynihan and Frank E. Cooper of Detroit, it appears that the pretrial system was introduced in Los Angeles in March, 1937. During October sixteen cases, estimated to take ten and one-half days for trial, were disposed of at pre-trial hearings, and in November twenty-nine cases, estimated to take seventeen and one-half trial days, were disposed of. In December the number of cases so disposed of was increased to thirty-one, estimated to take for trial nineteen and one-half days. After discussing the development of pre-trial procedure in England, through the advent of the "New Procedure," Prof. Sunderland, addressing the Judicial Section of the American Bar Association and the National Conference of Judicial Councils at Kansas City, said: "It is evident from this glance at the development of pre-trial procedure in England that for half a century there has been a continuous expan |