First of all, there is no brief history of the rules of court possible since such a history spans thousands of years, many languages, many legal systems and many changes and permutations. What this is, is a brief history of the rules of court in Canada, a fun, dynamic little country just North of the USA on the I-5 and which, we found, and find, to be just perfect for this legal time-travel.
Why Rules of Court?
Rules of court, court rules, simply civil procedure, are essential to law and access to justice. Without court rules, litigants would race into the Court room and stick their hands up like grade-school children to get the judge's attention. "Look at me! Look at me!", would be the refrain.
Actually, not that uncommon from last week in Chambers. Well, we'd better leave that alone for now and get back on topic.
Halsbury Laws of England, 5th Edition, Volume 11 on "Civil Procedure" quotes Henry Brougham:
"Civil procedure law is a necessary legal and social instrument for the attainment of justice between man and man."
Similarly, Maurice Amos at 2 CLJ 340 (1926):
"Procedure lies at the heart of the law."
Halsbury (at p. 20) also proposes the following as the "objectives of civil procedure law":
"(T)he function of the court is not only to decide individual case, but also to ensure that the civil justice system, which is a public service, delivers a satisfactory service which meets public expectations and needs."
In the Beginning...
The mother of rules of court is not, though common law lawyers would want to say otherwise, the English experiments of last century, especially the early judge-dictated ad hoc rules. Later, a single set in 1833 and, even later, the 1883, initiatives widely copied wholesale in the colonies of the United Kingdom (such as Canada). It took the practitioners of the common law a face-to-face encounter with anarchy and procedural chaos before they steeped to codification of court rules.
Elsewhere, for centuries, others were establishing standard rules of court the Romans, and even the Greeks before them.
In Roman times, one did not just walk into the Court, take a number, and when called, state their case. No. Any perusal of Justinian and Tribonian's work in 533 A.D. would quickly prove that the Romans liked their procedure. Specific legal actions had specific Latin names. For those unfamiliar with Roman law, consider these words in Reeves' History of the English Law:
"In nothing was the Roman law more remarkable than in the importance in attached to procedure, the practical part of law, the actual means and processes by which justice is obtained and administered.
"The Roman law provided a remedy for every injury and a proper procedure for every remedy."
Civil procedure, rules of court, were covered in the 448-450 B.C. Twelve Tables of Roman law. In an introduction to Gaius Institutes, the editors wrote of the Twelve Tables:
"With respect to civil procedure (the exclusive knowledge of which has been one of the greatest elements of strength in the patrician government) it is clear that the outlines of the process - such as the rules for the sumons of the parties and witnesses, and for the length of trial - were described."
The "take a number, state your case" simplified process was that of biblical times. King Solomon comes to mind but, frankly, many European monarchs well before and after the demise of the Roman Empire bothered little with civil procedure. The king was final arbiter of all. "Je suis la loi," said one French king (I am the law), and he may as well of added "et la procedure".
- The litigants sought an audience. Often paying for the privilege. No big deal if the other side was not present.
- The king decided.
- End of litigation.
- No appeal.
There was little fussing over form, disclosure, time-limits and all the other little fairness issues with which modern rules are so concerned.
Which take us to 1833. Until 1833, the courts in England as elsewhere in colonial states (later, the Commonwealth), regulated their own procedure from time to time deferring to their inherent jurisdiction to do so. It was largely a judge-to-judge affair. As Ken McEwan wrote:
"From the earliest times, regulation of procedure in the English courts was primarily a judicial function, either through decisions in individual cases or through court rules and orders formally declared... Tidd's Practice (and Tidd's Forms, by William Tidd), published in 1794 (ed. note: actually in two parts, the first part of which was published in 1790 and the 2nd in 1794), discloses the procedure of a common-law courts to have been governed by a series of general rules and orders made by the judges."
In 1833, the English Parliament enacted the Civil Procedure Act 1833, aka An Act for the further Amendment of the Law, and better Advancement of Justice, 3 & 4 Will. 4, Chapter 42, long since repealed but an important step as it formally gave the superior common law courts the power to make their own rules of court. McEwan proposes that this initiative occurred "during the movement led by Jeremy Bentham promoting codification of the law".
And so were created the first set of English, common law court rules, the Regulae Generales of Hilary Term 1834.
Still, even with the much-heralded Regles Generales of 1833, "technicalities of civil procedure often destroyed a man's rights... Men were liable to, lose and did lose their rights, owing to mistakes made by pleaders."2 This was reminisced by Harry Poland to his biographer Ernest Bowen-Rowlands,
Poland then points to Crogate's Case (1840) as a case which shows that technicalities mattered even back then and an error in procedure could kill an otherwise valid claim. In Crogate, a:
"... man lost his case because his Pleader, instead of replying to the defence 'on the case', made his replication 'de injuria', that is, he pleaded as top the defence that he denied the defence and generally asserted that he had been wronged, whereas he should have replied that he specifically denied a particular allegation in the defence."
In many regards, the works of William Tidds (1760-1847) were also followed as to procedure as explanatory notes to the Regles Generales. In 1849, Charles Dickens published David Copperfield in which his character Uriah Heap mentions William Tidd. Dickens had been a law clerk in 1828 and must of been quite familiar with Tidd's Practice. The conversation in the novel:
I found Uriah reading a great fat book, with such demonstrative attention, that his lank forefinger followed up every line as he read, and make timely tracts along the page (or so I fully believed) like a snail.
"You are working late tonight, Uriah", says I.
"Yes, Master Copperfield.... I am improving my legal knowledge.... I am going to Ted's practice. Oh, what a writer Mr. Tidd is, Master Copperfield."
William Tidd was not, originally, a lawyer. He was a special pleader, though he was called to the bar in 1782 and then published Tidd's Practice. Ellison Kahn descibed it as follows:
"For long it (Tidd's Practice) was the only authority on common-law practice".
In 1873, and again in 1875, new sets of rules of court were part of the Supreme Court Judicature Act 1873 and of 1875.
A Rules Committee
Then, in 1876, a novelty. For the first time, a dedicated rules committee was created in England made up of six judges to focus on the function of supervision and the consideration of changes to the court rules a practice since borrowed by most courts in the common law world.3
The rules of court were again replaced by a new set of rules in 1883 which, according to Halsbury, were developed by this dedicated rules committee. This tradition of sterwardship of rules of court given to a rules committee continues. Generally, it is formed of judges of the court but now includes membership extended to government lawyers and practising lawyers, now. For example, the Rules Committee of the Federal Court of Canada circa 2013:
"The mandate of the Rules Committee is to review the Rules and to suggest any amendments or additions....
"The Rules Committee is composed of the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court; three judges designated by the Chief Justice of the Federal Court of Appeal and five judges designated by the Chief Justice of the Federal Court; the Chief Administrator of the Courts Administration Service, a representative of the Attorney General of Canada and five members of the bar of any province designated by the Attorney General of Canada...."
One of the consistent criticisms of modern Rules of Court is that they are so complex that the man on the Clapman bus would have every chance of getting tripped up as he or she tried to assert a claim in justice. One recent report on the issue stated:
"To self-represented litigants trying to comply, the rules often seem to be a collection of legalese arranged in a baffling order."
In an interview he gave the Ottawa Citizen, Chief Justice Paul Crampton of the Federal Court described the present state of Rules of Court as a "difficult but urgent problem".4
This is both an extremely important but also exciting time for the old, thick and weathered package of Rules of Court as they are measured against access to justice and an eciting but novel concept of proportionality.
- Civil Procedure Act 1833, aka An Act for the further Amendment of the Law, and better Advancement of Justice, 3 & 4 Will. 4, Chapter 42
- Kahn, Ellison, A Trimestrial Potpourri, 99 S. African L.J. 145 (1982)
- Finlayson, W. F., editor, Reeves' History of the English Law From The Times of the Romans to the Reign of Elizabeth (Philadeplhia: M. Murphy, Law Bookseller, 1880), pager xxxvii, footnote #2.
- Gaius Institutes of Roman Law, Poste. E., Whittuck, E. and Greenridge, A., (London: Oxford University Press, 1904), page xxiii.
- McEwan, Ken, A Short History of Rule-Making For Courts, at page xxi, 2014 British Columbia Annual Practice (Toronto: Canada Law Book, 2013). Also NOTE 3.
- NOTE 4: Butler, Don, Ottawa Citizen, November 12, 2012.
- NOTE 1: Bowen-Rowlands, Ernest, Seventy-Four Years at the Bar (London: MacMillan & Co., 1924), page 24-25. "Pleaders," though, as Poland explained, circa 1852, were not lawyers but "were persons who had not been called to the bar but who had taken out a license to practiuce under the bar."
- Regulae Generales of Hilary Term 1834
- Re Coles and Ravenshear Arbitration,  KB 1
- Supreme Court Rules 1890, British Columbia, "Introductory Note"