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The Dilemmas of Civil Litigation*

Published online by Cambridge University Press:  16 February 2016

J. A. Jolowicz
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Extract

If an English lawyer looks at modern American literature on civil procedure, his first reaction tends to be one of incredulity or incomprehension; the literature deals with subjects of which he has never heard and seeks solutions to questions he has never thought of asking. After some reflection, however, it probably dawns on him that American scholars are writing against a background of assumptions about the process of litigation which he does not share and that those assumptions stem from developments which have occurred in the United States but which have not yet occurred in England or, for that matter, in the other countries of Western Europe. No one in England could write an article such as I received recently from the United States on “Conflict and Dissent in Class Actions” for the simple reason that the class action as it exists in the United States has not yet developed on our side of the Atlantic. Nevertheless, it is now clear that new demands are being made in Europe on the process of litigation, demands which may in time lead to developments such as have already occurred in the United States, and it is these demands which lead to the dilemmas to which my title refers. I want, therefore, to draw attention to two such demands—both very broadly stated—and to the dilemmas they produce, limiting myself mainly to England but with occasional glances elsewhere. This is not a lecture on American law, but it could perhaps be described as one on “pre-American” law.

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Articles
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Israel Law Review , Volume 18 , Issue 2 , Spring 1983 , pp. 161 - 177
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1983

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References

1 Bryant E. Garth, (1982) 77 North Western U.L.R. 492.

2 Inst. 4, 6, pr.

3 Demolombes, , Cours de code Napoléon, (4th ed., 1870) Bk. II, I, 1.Google Scholar

4 Glasson-Tissier, et Morel, , Traité théorique et pratique d'organisation judiciaire, de compétence et de procédure civile, (3rd ed., 1925–1936) I, 423.Google Scholar

5 This continued to be trae even after extensive joinder of causes of action was permitted by the Common Law Procedure Act 1852: Bracegirdle v. Hinks (1854) 9 Ex. 361.

6 For a recent reaffirmation of this, see Justice, , Going to Law (1974) §§ 165–170.Google Scholar

7 See Air Canada v. Secretary of State for Trade [1983] 2 W.L.R. 494.

8 The House of Lords has, however, recently insisted that only one particular form of procedure—the “application for judicial review”—may be used in certain categories of “public law” litigation; proceedings brought as actions for declarations were struck out: O'Reilly v. Mackman [1982] 3 W.L.R. 1096; Cocks v. Thanet District Council [1982] 3 W.L.R. 1121. See Jolowicz, , “The Forms of Action Disinterred” [1983] C.L.J. 15.CrossRefGoogle Scholar

9 “Fact pleading” made its first appearance in New York in 1848: Clark, , Handbook of the Law of Code Pleading (2nd ed., 1947) 16.Google Scholar It was adopted in England by Ord. XIX, r.4 of the Rules scheduled to the Judicature Act 1875.

10 The present rule is contained in R.S.C., 0.18, r.7.

11 Cited Couture, , “The Nature of Judicial Process” (1950) 25 Tulane L.R. 1.Google Scholar Compare the well-known statement of Lush L.J. in Poyser v. Minors (1881) L.R. 7 Q.B.D. 329, 333.

12 Couture, loc. cit. supra n. 11.

13 This code was adopted in 1975.

14 E.g., Letang v. Cooper [1965] 1 Q.B. 232, 242–243, per Diplock L.J.; Motulsky, , “La cause de la demande dans la délimitation de l'office du juge”, Ecrits, 101, 106.Google Scholar

15 Article 2. Translation by Kiralfy in 7 Law in Eastern Europe, 299. Emphasis added.

16 Ibid., art. 16.

17 “El proceso en los estados socialistas” in LXXV Años de evolución jurídica en el mundo, III, 167, 186.

18 Nouveau code de procédure civile, arts. 10, 143, 144.

19 Ibid., art. 147.

20 Ibid., art. 12.

21 Air Canada v. Secretary of State for Trade, supra, n. 7.

22 Engelmann, , Der Civilprozess: Allgemeiner Teil, 159Google Scholar, cited Miller, , “The Formative Principles of Civil Procedure” in History of Continental Civil Procedure, 3, 13.Google Scholar

23 Supra n. 18, art. 12.

24 Conseil d'Etat, 12 October 1979, 1980 J.C.P. 19288.

25 Ibid.

26 The idea that a person who has a right also has a duty to assert it in the interest of society goes back at least to Ihering, Der Kampf ums Recht, cited Tur, , “Litigation and the Consumer Interest” (1982) 2 Legal Studies 135.CrossRefGoogle Scholar

27 Weinstein, , “Some Reflections on the ‘Abusiveness’ of Class Actions” (1973) 58 F.R.D., 299.Google Scholar

28 Tur, loc. cit. supra n. 26. Emphasis added. Note the assumption behind the word “unjust”.

29 See e.g. Cappelletti, , “Vindicating the Public Interest through the Courts: a Comparativist's Contribution” in Cappelletti, and Garth, (ed.) Access to Justice, III, 513.Google Scholar The subject, “Protection of Diffuse, Fragmented and Collective Interests in Civil Litigation” is included in the proceedings of the Seventh International Congress on Procedural Law, Würzburg, September 1983.

30 Attorney-General, ex. rel. McWhirter v. Independent Broadcasting Authority [1973] Q.B. 629, 636.

31 Gouriet v. Union of Post Office Workers [1978] A.C. 435.

32 Inland Revenue Commissioners v. National Association of Self Employed and Small Businesses Ltd. [1982] A.C. 617.

33 Ibid., at 644.

34 See e.g. Chayes, , “The Role of the Judge in Public Law Litigation” (1976) 89 Harv. L.R. 1281.CrossRefGoogle Scholar

35 Fiss, , “The Forms of Justice” (1979) 93 Harv. L.R. 1, 30.CrossRefGoogle Scholar

36 E.g. code de procédure pénale, art. 2–1 (racism), Law of 27 December 1973 (consumer protection), Law of 9 April 1975 (prostitution).

37 Kötz, , “Civil Litigation and the Public Interest” (1982) 1 Civil Justice Quarterly 237.Google Scholar

38 See e.g. the critical dissenting opinion of Brennan J. in Simon v. Eastern Kentucky Welfare Rights Organisation 426 U.S. 26 (1976). For two cases in which the technical grounds for granting standing to the plaintiffs were weak but the “policy” grounds for doing so were strong, see Trafficante v. Metropolitan Life Insurance Co. 409 U.S. 205 (1972); Duke Power Co. v. Carolina Environmental Study Group 438 U.S. 59 (1978).

39 Loc. cit. supra n. 11.