Victorian Reform of Civil Litigation in the Superior Courts of Common Law

Abstract

The “delay, vexation, and expense” of English civil procedure attracted considerable criticism at the beginning of the nineteenth century, most notably from Jeremy Bentham and his ardent supporter in Parliament, Henry Brougham. Brougham’s marathon speech in 1828 attacked the “double tax of cost and delay” and urged a series of sweeping reforms. Reform would come piecemeal throughout the century, culminating in transformative statutes enacted after Brougham and Bentham had died. Holdsworth accurately labeled the Victorian period the “age of reform” in procedure as in so many other areas of the law. This essay examines the Victorian era’s responses to undue delay in English civil litigation in the superior courts of common law. The immediate verdict on the reforms was overwhelmingly positive, but with the benefit of hindsight the appraisal is more modest. Indeed, it remains to be seen whether the High Court judges of the twenty-first century will be more successful than their Victorian counterparts in combating undue delay.

Keywords: civil procedure, English law, legal history

JEL Classification: K40, K41