date

19 June 1807 (4) Letter V
19 June 1807

(4)

Letter V

II. Litigation

In these cases

1. denial of justice is such

2 Which for advantage of [...?] [...?] [...?] by the lawyer

Would Your Lordship wish to see expressed in figures the effective force of these two illusions put together, and at the same time the degree of success with which the astutia expended on this head has been crowned? The problem would not be insoluble.

In the Common Law Courts of Westminster Hall call for the total number of verdicts given in favour of the Plff in the course of the year in actions by which money is demanded with the respective sums. Call at the same time for such accounts as would furnish the means of ascertaining the average difference between costs received from the Defendant by the Plff. by way of reimbursement for money disbursed on his side, and the money actually disbursed by him: in a word the unreimbursed expences on the plaintiff's side.

My expectation would be to find the number of instances in which the plaintiff having a verdict on his side is a gainer by the suit less numerous than those in which he is a loser.

Suppose, for argument's sake, the numbers equal: reference being made to the ends of justice, what in this case is the result? - that, of the whole number of cases in which justice is pretended and supposed to be administered, and the engagements taken by the main body of the law fulfilled, in one half not simply denial of justice is the result, but denial of justice to the injured, aggravated by a load of positive injustice heaped upon him, that though the part in the wrong is oppressed, yet the party in the right, instead of being relieved in oppressed along with him: and that both parties are plundered by Judge and C o in pretence of relieving that one of them to whom relief is due.
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  • Title: [25 June 1807 + (1) Letter V]
    Description: 25 June 1807

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    Letter V

    II. Litigation

    Concluding Observations

    {Among the evils which constitute at one time the modifications of injustice, at another or the same time the instruments employed for the production of it, there is one, that is more particularly useful in the hand of the Defendant, another to that of the Plff., the party being in malâ fide in both cases.}

    The instrument more particularly adapted to the Defendant's (the malâ fide Defendant's) use is delay.

    The instrument more particularly adapted to the Plff.'s (the malâ fide Plff.'s) use is expence.

    Of expence the most obvious effect in regard to expence litigation is that of restraining it, and rendering to number of suits less than it would be otherwise.

    1. Such accordingly it is in fact in regard to those suits in which supposing them to take place the right would be matter of doubt, each party supposing it to be on his side. On the number of suits of this description there can be no doubt of its operating in the character of a restraint thereby producing in the mind of him who, could he have afforded, would have been Plaintiff, besides the damage

    directly issuing from the wrong, the opinion and affliction of a denial of justice.

    2. Very different is its effect upon the number of suits in which the matter of right is out of doubt. In the case where the Defendant, including him who should have been Defendant, is in malâ fide, if its tendency is on the one hand to lessen the number of suits, on the other hand its tendency is to encrease the number of suits, or if not the number of suits the number of unremedied wrongs, which is still worse.
  • Title: [11 Feb y 1807 Letter IV Resolut]
    Description: 11 Feb y 1807

    Letter IV

    Resolut 6.7.8.9

    Juries

    3. Denial of justice

    Assuming the value of justice to be the same in one district as in another, if the whole number of inhabitants in England and Wales had Courts of Conscience to resort to the number of causes of 40' value and under in this would bear the same proportion to the number of inhabitants districts which have not the benefit of the Courts of Conscience as those which have.

    Say there are 2,193,299 + 73,670 = 2,266,969 the number of inhabitants in the districts to which civil justice is granted to any extent is to 193,429 = 200,029 annual number of cases that may be supposed to be actually decided in these districts, so is 6,607,011 │ the number of inhabitants to whom it is not granted to this extent to the number of causes of that description that would have had place in these same years had justice to this extent been granted to them

    193,429 x 6,607,011  │ │ = 583,338

    Which gives the number of instances in which in the course of a year, in England and Wales denial of justice takes place, so far as concerns causes of debt to a value of under 40'.

    Lawyer - But the Westminster Hall Courts being open for causes down to any the smallest value, and 1' being no uncommon quantum for the amount of damages given by a verdict, an allowance must be made on that score, and a deduction made from your number of 583,338 denials of justice on the causes under 40'.

    Non Lawyer. If the whole number of the causes of all values tried or from these Courts Sittings and Assizes included viz. 3 or 4,000 or so were to be comprized in the deduction it would be hardly worth regarding. But as often as a verdict for not more than 40' is obtained in any of these Courts, though the result is not strictly speaking denial of justice, it is a great worse[?]: it is depredation, and to a great amount on pretence of justice. The Plff[?] supposing him to turn a verdict for 40' and with costs, pays for that verdict no costs out of pocket and not allowed something which is never so little as 40' but rises to ,5, ,10, ,20 an so on without any certain limit: which the defendant procure for the Plff this means ,3, ,7, ,17 or ,17 + χ │ defendant is made to pay a sum of which, (as above) ,60 is the minimum, maximum without limit.
  • Title: [6 Mar 1808 L d Eldons Bill]
    Description: 6 Mar 1808

    L d Eldons Bill

    Letter V

    §.6. Reasons

    Ends of Justice

    6. Expence

    6. Expence. Of a stock of litigation, vexation, is under every System an inseparable concomitant: Under the fee-gathering system so in an indefinitely variable but always large proportion, so is expence: even under the natural system, in some proportion or other, nearly so.

    To every man to whom his time and labour are in any shape a source of profit, much more if of subsistence - that is in every country to all but comparatively a very few, the time consumed in attendances and other ways by litigation is, over and above the vexation in effect so much expence.

    The sum being given whether being received it is disbursed, or whether the receipt of it be forgone makes in this respect no difference.

    Where neither ability nor resolution to defray it are wanting, expence attached to litigation is expence (with its vexation) and nothing more. Where from the outset of the cause either are wanting, the evil changes its nature: on the plaintiff's side it is denial of justice: on the defendant's side it is misdecision to the prejudice of that side.

    If at any intervening period between the commencement and the conclusion of the cause, the burthen of the expence becomes on either side intolerable and the party sinks under it, a load of expence and that a ruinous one is thus added, in the one case to denial of justice, in the other to misdecision to the prejudice of the defendant's side: that is either to extortion, or to oppression in some other of the many shapes in which oppression, that is the power of inflicting it, is to be purchased by every one who will pay the price, of the sworn ministers of justice. See misdecision to the prejudice of the defendants side.