Kerry Underwood

Archive for May 2012

Back to the future……

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In these turbulent times for lawyers and their clients, with the Legal Services Act challenging the whole concept of law and the legal profession and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 having largely abolished civil legal aid and the Enterprise and Regulatory Reform Bill, presented to Parliament this week, about to wipe out employment rights, it is salutary to reflect on some of our earliest laws and the history of the institutions now under threat.

Jackson Reforms?  Check out the Commands in Delay of Justice Act 1328 and the Civil Procedure Act 1330.

Think that employment protection is a late 20th Century invention, now being abolished just 50 years later?  Take a look at the Labourers Act 1368, the Labourers’ Wages Act 1389 and the Apprentices’ Fees Act 1530.  True it is that disabled workers had no special protection until the Disabled Soldiers Act 1592, but that is still 403 years earlier than most lawyers realize.

But on gay rights – I am not sure that the Buggery Act 1553, the Sodomy Act 1548 and the Sodomy Act 1562 would have encouraged anyone to come out.

The oldest statute still in force is the Distress Act 1267, although three sections of Magna Carta, originally signed in 1215, are still extant, but they were re-enacted in 1297.  Magna Carta was an agreement between the king and the barons, not an Act of Parliament.  The earliest Act of Parliament was the Coparceners Act 1229, but the second oldest Act is the Attorneys in County Courts Act 1235.  Thus county courts and the concept of paid advocates in those courts, go back nearly 800 years.

Other 13th century statutes include the Limitation of Writs Act 1235, the Inquest Act 1267, Juries Act 1267, Suits of Court Act 1267, Champerty Act 1275, Coroners Act 1275, Maintenance Act 1275, and a forerunner of today’s ASBOs, or the forthcoming CRIMBO’s, the Trespassers in Parks and Ponds Act 1275 (followed in 1331 by the Arrest of Night Walkers Act and in 1388 by the Nuisances in Towns Act).

The Recovery of Damages and Costs Act came in 1278, and if you think that ‘homicide’ is some modern Americanism take a look at the Homicide Act  1278, or that the intestacy rules were a clever Victorian idea, then read paragraph 27 of Magna Carta 1215.

However, it is the Statute of Westminster 1275 which is by far the most important early Act of Parliament and indeed some historians regard 1275 as the true beginning of Parliament in its modern form.

The Statute was a consolidating measure: “A code by itself; it contains 51 clauses and covers the whole ground of legislation.  Its language now recalls that of Canute or Alfred, now anticipates that of our own day; on the one hand common right is to be done to all, as well poor as rich, without respect of persons” says The Constitutional History of England by William Stubbs.

The Statute created the concept of time immemorial, that it time beyond legal memory and the formal beginning of English law, and set it at 3 September 1189, the accession of Richard I.

This was (and is) the earliest date from which evidence in land disputes could be considered because then, in 1275, a living man might be able to testify about what his father had told him existed in 1189 (rights for women were still some way off – 643 years off, actually).  In the alphabetical Dictionary of Legal Terms “Time Immemorial” appears just four places below “Tesco Law”.

The general right to bail was created by the Statute as was the need for fines to be proportionate to the offence.

The court system already existed, but many of the procedures were codified by the statute.  Trial by jury, seemingly under constant threat from recent governments, had existed since at least as early as 1164 when it was ordered by the King, without a Parliament then, that “The sheriff shall make twelve legal from the neighbourhood to swear that they will make known the truth according to their conscience”.

Later Acts insisted that juries try matters “according to the facts” a controversial measure.  Fortunately even today juries will revert to trying matters according to their conscience and, have, in appropriate cases acquitted in the face of apparently overwhelming evidence.

The most significant parts of the Statute for solicitors are those relating to costs.  The Statute established the principle that the loser pays both sides’ costs and also outlawed champerty and maintenance, but see also the Maintenance and Champerty Act 1285.

Other, apparently modern concepts, are, in fact, ancient.

Worried about over-fishing– take a look at the Salmon Preservation Act 1285.  Unsure about the law on representing children – you need the Suit of Infant by Next Friend Act 1285.  Consumer protection – see the Weights and Measures Act 1303 or paragraph 35 of Magna Carta – “Let there be one measure of wine throughout our whole realm; and one measure of ale; and one measure of corn, to wit, “theLondonquarter”.

Legal Aid, virtually abolished by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 as far as civil legal aid is concerned, stems not from 1949, but from 1488 in Scotland, followed in England by the Poor Persons Act 1495, which:

–          exempted the poor from court fees;

–          assigned lawyers to prepare pleadings and represent poor people free of charge.

In 1531 a statute (Hen. 8 C15) removed the liability of poor persons for the costs of a successful opponent, something picked up again 418 years later in the Legal Aid Act 1949.

The 1531 Act remained in place until the 19th Century when the Clarkes and Camerons of the Victorian era held sway.  Throughout the 19th Century the only official assistance was an in forma pauperis procedure codified by the Forma Pauperis Act 1893 and that applied only to the superior courts and indeed remained in force until 1960, as the Legal Aid Act 1949 did not cover appeals to the House of Lords.

The Civil Procedure Act 1883 made provision for Legal Aid to be granted by courts.  In the early 20th Century a poor persons’ procedure was introduced by the Rules of the Supreme Court (Poor Persons) 1914, but it did not cover county court cases.

Thus we are now back to the early 16th Century.

In relation to overlengthy pleading; in Myward v Weldon (1596) Tothill 102([1595] EWHC Ch 1)

the barrister used 120 sheets of paper for submission which the court felt could have been dealt with in 16 sheets.

The court ordered a hole to be cut in the middle of the submissions and for them then to be hung around the advocate’s head and for the advocate to be led around Westminster Hall and shown to the three courts sitting there.

In Caldero Trading v Leibson [2014] EWCA Civ 935

the Court of Appeal regretted that that power “may no longer be available today”.

What goes round comes round.

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Written by kerryunderwood

May 24, 2012 at 3:17 pm

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