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Comparative law and the reform of civil procedure1

Published online by Cambridge University Press:  02 January 2018

J. A. Jolowicz
J. A. Jolowicz*
Affiliation:
University of Cambridge
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Extract

      I keep six honest serving men
      (They taught me all I knew);
      Their names are What and Why and When
      And How and Where and Who.
      I send them over land and sea,
      I send them East and West;
      But after they have worked for me
      I give them all a rest.
      I let them rest from nine till five,
      For I am busy then,
      As well as breakfast, lunch and tea,
      For they are hungry men;
      But different folk have different views;
      I know a person small -
      She keeps ten million serving men,
      Who get no rest at all!
      She sends ’em abroad on her own affairs,
      From the second she opens her eyes -
      One million HOWSt,w o million Wheres,
      And seven million Whys!

Type
Research Article
Information
Legal Studies , Volume 8 , Issue 1 , March 1988 , pp. 1 - 13
Copyright
Copyright © Society of Legal Scholars 1988

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Footnotes

1

A revised version of the Presidential Address delivered to the Annual Meeting of the Society of Public Teachers of Law, Cambridge, 17 September 1987.

References

2. Lord Chancellor's Department, Civil Justice Review, Consultation Paper No 6, General Issues (1987), hereafter cited as ‘General Issues’.

3. Ibid, para 55.

4. This is even accepted judicially. See D v NSPCC (1977) AC 171 at 230, per Lord Simon of Glaisdale.

5. ‘The Nature of Judicial Process’ (1950) 25 Tulane LR I at 7.

6. Jolowicz, “‘General Ideas” and the Reform of civil Procedure’ (1983) 3 LS 295 at 298.

7. See, eg, Goldsmith v Sperrings Ltd (1977) 1 WLR 478; and Yates, ‘English National Report for the XIIth Congress of the International Academy ofcomparative law 1986’ in UK Law in the 1980s: Comparative and Common Law Studies for the XIIth International Congress of Comparative Law (forthcoming).

8. Norwich Pharmacal Co v Customs and Excise (1974) AC 133.

9. Ibid at 174.

10. Air Canada v Secretary of State for Trade (1983) 2 AC 394 at 438.

11. Dauies v Eli Lilly & Co (1987) I WLR 428 at 431–432.

12. His Lordship appears to have overlooked the rules such as those of French law (ncpc arts 132-137) which require that a party communicate to his opponent the documents of which he proposes to make use. Documents in the possession of a third party may also, subject to certain conditions, be obtained under order from the court: ibid, arts 138–141.

13. The emphasis is that of the Master of the Rolls.

14. The juge de la mise en étal: ncpc arts 763–781.

15. Ibid, art 147.

16. Ibid, art 143.

17. Only in the administrative jurisdiction can French procedure be accurately described as inquisitorial and even there it is not entirely so: see, eg, Debbasch, Contentieux Administratif (3rd edn), Pt 4.

18. General Issues, para 203.

19. RSC, Ord 38, Pt III.

20. RSC, Ord 38, Pt IV.

21. RSC, Ord 38, r 2A.

22. Proceedings in the Chancery Division, the Commercial and Admiralty Courts and before Official Refcrees.

23. General Issues, para 200.

24. Ibid, para 202.

25. ‘In Court in two Countries: Civil Procedure in England and France’, Times, 15 November 1949.

26. ‘Accelerating the Process of Law’ in Jacob, The Reform of Civil Procedural Law and other Essays in Civil Procedure, p 91 at 95.

27. Times, 1 September 1987.

28. Statistics for Italy, a country whose population is not so different in size from our own, are available to the writer thanks to Professor Romano Vaccarella's National Report prepared for the 8th World Conference on Procedural Law, ‘Justice and Efficiency’, Utrecht, August 1987. For England, see Judicial Statistics for 1985.

29. Loc cit, supra, n 26 at 100.

30. See, in particular, Practice Note (1982) 1 WLR 1312 and the explanation of Sir John Donaldson MR. One of the most important innovations is the creation of the office of Registrar of the Court of Appeal: Supreme Court Act 1981, s 89 and Sch 2. See also Van Stillevoldt BV v EL Carriers Inc (1983) 1 WLR 207at 212 per Griffiths LJ and Practice Direction (Appeals Documentation) (1986) 1 WLR 1318.

31. Italian Constitution, art 111.

32. Supra, n 28.

33. See Jolowicz, General Report on ‘Western’ countries and Németh, General Report on European Socialist countries (forthcoming). See also, Jolowicz, ‘Appeal and Review in Comparative Law: Similarities, Differences and Purposes’ (1986) 15 Melbourne University Law Review 618.

34. Tunc, ‘La Cour de cassation en crise’ (1985) 30 Archives de Philosophie de Droit 157 at 162. In Italy the Court of cassation delivers some 9,000 decisions annually and, at the beginning of the year 1985-1986, had a backlog of more than 30,000 cases pending: supra, n 28.

35. Figure supplied by Mr Registrar Adams for the Conference referred to supra, n 28.

36. Esmein, Histoire du droit français, (1901, 4th edn) 257.

37. In practice the distinction has become less clear than in the past. See, eg, Jolowicz, loc cit, supra, n 33, 626-638 and Jolowicz, ‘Appeal, Cassation, Amparo and All That’ in Libro homenaje Hétor Fix Zamudio (forthcoming).

38. Note also that exclusion of the right of appeal as, eg, in France where the amount at stake in the litigation is less than a certain amount (Code de l'organisation judiciuire, art R 321-6), does not carry with it exclusion of the right to bring the case before the Court of cassation.

39. See, eg, Gilles, ‘Die Berufung in Zivilsachen und die zivilgerichtliche Instanzordnung’ in Gilles (ed) Humane Justiz.

40. Orders for ‘provisional execution’ are possible and in certain classes ofcase may even be required by law. See, eg, for France, ncpc arts 514-526 and, more generally Jolowicz, ‘Appellate Proceedings’ in Storme and Casman (ed) Towards a Justice with a Human Face, 127 at 160-162. See also Jolowicz, General Report, supra, n 33.

41. Eg, for France, ncpc art 618-1.

42. La Cassazione Civile, II, cap 6, no 64 in Piero Calamandrei, Opere Giuridiche (ed Capelletti) VII, 133.

43. Coldunell Ltd v Gallon (1986) QB 1184.

44. Loc cit, supra, n 30.

45. The complexity of appellate processes is well set out in the Table at pp 130–131 of Volume III of the Law Commission's Paper, Civil Procedure Seminar 1984.

46. The writings of Sir Jack Jacob provide a notable exception, eg, op cit, supra, n 26 and The Fabric of English Civil Jutice.

47. (1906) 40Am LR 729.

48. Jolowicz, loc cit, supra, n 6 at 298.