Restriction of movement

From the earliest times, officials of the English common law courts were paid by fees, the staffing of all the central courts being self-supporting. Many court

76For example: a criminal accusation; a judge’s instruction to the jury; expenses; an encum-brance on land to secure payment of a debt.

77Again, we add a rider about context. Context may indicate that the two words are not used as synonyms. For example, in the context of a court martial, a military prisoner may be

‘freed’ and ‘discharged’; here, the words clearly have different meanings.

78For an example, see Ruoff and West, Land Registration Forms, p. 160.

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officials bought their office, and naturally were keen for their investment to show a return.⁷⁹One way was to charge fees for preparing and filing documents.⁸⁰ Litigants were required to pay for office copies, regardless of whether they wanted them and sometimes regardless of whether the documents were ever prepared.

Originally, fees were based on the overall length of documents. This led to various devices to make documents longer: wide margins, greater line-spacing, and, of course, more words. Sir Matthew Hale (1609–76), Chief Justice of the King’s Bench, in his influential book A History of the Common Law in England,⁸¹gave his reasons for the development of lengthy pleadings (‘as our vast Presses of Parchment for any one Plea do abundantly witness’).

One reason was: ‘These Please being mostly drawn by Clerks, who are paid for Entries and Copies therof, the larger the Pleadings are, the more Profits come to them, and the dearer the Clerk’s Place is, the dearer he makes the Client pay.’

As with court officials, lawyers too came to be paid by length. Longer pleadings meant more income. Occasionally the prolixity frustrated even the judges. In one famous case in 1596, a pleader was fined£10 and sent to Fleet Street prison for drafting pleadings which ran to 120 pages.⁸²The judge thought that 16 pages would have sufficed. To add ignominy to penalty, the judge ordered that a hole be cut in the offending document, that the pleader’s head be poked through the hole, and that the pleader be paraded around the courts of Westminster ‘bareheaded and barefaced’, with the document hanging ‘written side outward’. More recently, pleadings exceeding 2600 pages were lodged in a South Australian case; they were later reduced to about 360 pages and then reinflated to 500 pages. The judge expressed his distaste in epithets such as ‘contradictory’, ‘embarrassing and oppressive’, ‘meaningless’, and ‘so convoluted that [the pleadings are] well nigh impossible . . . to comprehend’.⁸³

79Holdsworth, History of English Law (3rd edn, 1927), vol. 1, pp. 255, 257.

80Mellinkoff, Language of the Law, p. 188.

81First published posthumously in 1713. The quotations are from the 1971 edition by C. M. Gray, University of Chicago Press, pp. 111, 112.

82Mylward v Weldon (1596) Tothill 102; 21 ER 136. A fuller report appears in Spence’s Equitable Jurisdiction (1846), pp. 376–377.

83South Australia v Peat Marwick Mitchell & Co. (Supreme Court of South Australia, Olsson J, 15 May 1997). Aspects of the case are reported at (1997) 24 ACSR 231.

Prolixity also became endemic in other kinds of legal documents, such as contracts and deeds. One easy way for a lawyer to increase the length of a document was by adding ‘recitals’. Typically heralded by ‘whereas’, recitals introduced the operative part of the document by stating at considerable length the background to the transaction. While occasion-ally performing the useful function of putting the transaction into con-text – a function they can still serve today, as we see in Chapter 6 – more often than not they were superfluous, adding length without legal purpose.⁸⁴

Attempts to curb excessive verbiage in legal documents failed. Early in the nineteenth century, in a submission to the Real Property Commissioners, one writer suggested that deeds could be reduced to less than a quarter of their customary length, and pointed to payment by length as the main obstacle to reform.⁸⁵In 1845, Joshua Williams wrote in his Principles of the Law of Real Property:

The payment to a solicitor for drawing a deed is fixed at 1s. for every seventy-two words, denominated a folio; and the fees of counsel, though paid in guineas, average about the same. The consequences of this false economy on the part of the public has been that certain well known and long established lengthy forms, full of synonyms and expletives, are current among lawyers as common forms, and by the aid of these, ideas are diluted to the proper remunerating strength; not that a lawyer actually inserts nonsense simply for the sake of increasing his fee; but words, sometimes unnecessary in any case, sometimes only in the particular case in which he is engaged, are suffered to remain, sanctioned by the authority of time and usage. The proper amount of verbiage to a common form is well established and understood, and whilst any attempt to exceed it is looked on as disgraceful, it is never likely to be materially diminished till a change is made in the scale of payment.⁸⁶

In 1844, the journal of the reforming Law Amendment Society, The Law Review, published an article promoting standard forms which would have

84Mellinkoff, Language of the Law, p. 190.

85Alexander Hordern in a letter to Edward J. Littleton MP, reported in Real Property Com-missioners First Report (1829): House of Commons Sessional Papers (HCSP) 1829, vol. X, at p. 446; see also at p. 586 (T. J. Hogg Esq.). See also Report from the Select Committee on Land Titles and Transfer (1879): HCSP 1878–79, vol. 11, at p. 7.

86Joshua Williams, Principles of the Law of Real Property (London: S. Sweet, 1845), p. 147.

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effectively thwarted the practice of payment by length.⁸⁷ The president of the Society was the radical Lord Brougham. The next year, Brougham introduced into Parliament the Conveyancing Act 1845 and the Leases Act 1845, both of which provided short forms of standard covenants. The Acts also provided that the length of a deed was to be irrelevant on taxation of costs. Section 3 of the Leases Act (which was not repealed until 1989)⁸⁸ read:

That in taxing any Bill for preparing and executing any Deed under this Act it shall be lawful for the Taxing Officer and he is hereby required, in estimating the proper Sum to be charged for such Transaction, to consider, not the Length of such Deed, but only the Skill and Labour employed, and Responsibility incurred, in the Preparation thereof.

Shortly afterwards, in an article entitled ‘The Conveyancing Acts of 1845’, The Law Review expressed its opinion that the lawyer’s client

will soon express himself in favour of the new Acts. The law will always be stronger than the lawyer. There is no class of persons who will excite so little sympathy as a body of lawyers resisting a change attempted to be made in favour of the public, and possibly affecting the profits of the profession.

Books will be written (we already perceive symptoms of them) to prove that it is unsafe and unwise to rely on the new plans; they will, nevertheless, be acted on. Learned conveyancers under the bar, and still more learned conveyancers at the bar, will argue, sneer, contemn, denounce, rail, ridicule – it will all be in vain.⁸⁹

This optimism proved misplaced. The legal profession, prompted chiefly by a fear that fees would fall, refused to use the short forms supplied by the 1845 Acts.⁹⁰In a first response to the passing of the Acts, The Legal Observer was hostile on this account.⁹¹Brougham made several attempts to overcome the anxiety about fees.⁹²Others made similar attempts. In a paper to the

87‘Recent Alterations in Conveyancing Forms’ (1844) 1 Law Review, p. 158. See also another anonymous article, ‘Conveyancing, its Early History and Present State’ (1845) 1 Law Review, p. 382.

88Statute Law (Repeals) Act 1989. ⁸⁹(1845) 3 Law Review, p. 177.

90M. J. Russell, ‘Brevity v Verbosity’ (1962) 26 Conv (NS) 45 at 54.

91(1845) 30 Legal Observer, p. 369, anonymous article ‘Conveyancing Reform and Professional Remuneration’.

92See Russell, ‘Brevity v Verbosity’, p. 54.

Juridical Society in 1862, Joshua Williams expressed himself in his usual forthright way:

But to tell a man that the more he aims at conciseness, the worse he shall be paid; that the more copies and abstracts he gets done by the law-stationer, the more prosperous he shall be; that it matters not what is in a letter, so long as he writes it; is surely not the way to encourage a genuine industry.

And it is curious to see how much the minds of some clerks and others, who have not enjoyed the benefits of a liberal education, are warped by this state of things. I have before now met with some, who seemed to think that their sole duty to their principals consisted, first in expanding every idea into the largest possible number of words, and secondly in making as many deeds as possible out of every transaction.⁹³

In 1878–79 a parliamentary select committee investigating registration of deeds and titles looked also at payment by length.⁹⁴By this time it was generally accepted that legal documents had become far too convoluted.

Several witnesses urged that a scale based on the value of the transaction would help make documents shorter.⁹⁵Nehemiah Learoyd was frank with the select committee when asked why Brougham’s Acts had fallen on stony ground:

hitherto we have been paid according to the length of the instrument, and there has been no mode of payment which the law has recognised which allows for the responsibilities of our work; so that if I draw a deed which is 60 folios in length, a folio being 72 words, I am paid for it and it probably compensates me for my labour; but if I can find a mode of putting it into a dozen lines, I am entitled to only a few shillings as the remuneration for the transaction, though my responsibilities may be as many thousands of pounds.⁹⁶

The select committee recommended abolishing payment by length and substituting scales of charges based on value (‘ad valorem’).⁹⁷ Its

93On the True Remedies for the Evils which affect the Transfer of Land (London: S. Sweet, 1862), p. 13.

94Report from the Select Committee on Land Titles and Transfer (1878, 1879): HCSP 1878, vol.

15, p. 467; 1878–79, vol. 11, p. 1.

95Ibid. (1879): HCSP 1878–79, vol. 11, pp. 7, 8.

96Ibid. (1878): HCSP 1878, vol. 15, p. 559.

97Ibid. (1879): HCSP 1878–79, vol. 11, p. 13.

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recommendation was accepted, and for the next 90 years scale fees held sway. The 1883 Remuneration Order⁹⁸introducing them was made under the Solicitors’ Remuneration Act 1881, which received royal assent on the same day as the Conveyancing Act 1881. That Act contained effective and widespread provisions designed to shorten deeds. It was a major step for-ward. The worst excesses of noun upon noun, verb upon verb, and qualifi-cation upon qualifiqualifi-cation, were never to be seen again.

However, far from abandoning the idea of payment by length, the 1883 Remuneration Order preserved it by allowing solicitors to elect to charge

‘according to the present system as altered by Schedule II hereto’.⁹⁹Many of the fees in that schedule were set according to the number of words (expressed as ‘folios’), a direct financial inducement to prolixity. This option of payment by length persisted in England until the Solicitors’ Remuner-ation Order of 1953¹⁰⁰ decreed for the first time that one of seven fac-tors in deciding a fair and reasonable payment should be ‘the number and importance of the documents prepared or perused, without regard to length’.