the commercial court of england & wales

Leading From Behind 

"The slip-shod, happy-go-lucky administration of the Queen's Bench Division during the last fifteen years is alone the reason why businessmen have taken refuge in lay tribunals for the settlement of their disputes."

 "He did not evince any strong desire to promote or encourage reforms in our judicial system."

"No great effort will enable [Lord Chief Justice Russell] to present to the world a glowing, not to say gleaming, contrast with Lord Coleridge."
The Law Times of 1892 and 1894

The best that even Coleridge’s family hagiographer could find to say of his tenure as Chief Justice was that "he discharged the ceremonial functions of Chief Justice or Judge of Assize with the utmost dignity, distinction and grace". Even this deferential author was compelled to acknowledge that Coleridge's tendency to fall asleep in Court during his later years was problematic. Coleridge always regarded the days before the Judicature Acts with nostalgia. Perhaps he simply thought that Parliament had created the mess which had followed from the Acts, and that it was therefore Parliament's responsibility, rather than his, to put things right.

The combined effect of the various problems afflicting the Court was that Queen's Bench litigation became ever slower and more expensive during the last quarter of the 19th Century. Most litigants probably felt that they had little choice other than to put up with this if they wanted a resolution of their dispute. (Claimants in smaller cases had the option of initiating proceedings in the County Courts, which had been instituted by the County Courts Act 1846, and there was a definite drift of small claims from the Queen's Bench after the 1870s. But county court jurisdiction was subject to financial limits.) But, for the more adventurous, and for commercial litigants in particular, arbitration remained a perennial, if unpredictable and unreliable, alternative.

The Growing Challenge From Arbitration

"To guard myself against the possibility of litigation, this is the clause which I have inserted in my form of charter-party: 'Should any difference arise between the owners and the charterers as to the meaning and intention of the charter-party, the same shall be referred to three parties in London."
C.M. Normand MP, evidence to the Judicature Commissioners, 1874

 "The mercantile public is not fond of law, if law can be avoided. They prefer even the hazardous and mysterious chances of arbitration in which some arbitrator, who knows about as much of law as he does of theology, by the application of a rough-and-ready moral consciousness, or upon the affable principle of dividing the victory equally between both sides, decides intricate questions of law and fact with equal ease."
'A Member of the Bench' (Bowen LJ), The ‘Times’, August 1892

 "A glance at the [Queen's Bench] list reveals the entire disappearance of the old commercial causes... It is notorious that such causes have long gone to arbitration... Thus a silent revolution has taken place in the common law business of the Courts.”
The ‘Times’, 5th January 1895

Two lines of development during the 19th Century made that alternative more viable. The first was that rules of Court referring cases to arbitration, which were drafted by lawyers, became more sophisticated. Draftsmen developed forms of wording which ensured that any error of law would appear on the face of the record, so that the Courts would have power to intervene, and which empowered the Courts to remit awards to the Tribunal for further consideration. Such provisions also began to appear in professionally-drafted contractual arbitration clauses.

The second was that legislation cured some of the old defects of arbitration law. This process began with the Civil Procedure Act 1833, which prevented revocation of an arbitrator’s authority in any reference which was capable of being made into a rule under the 1698 statute (whether or not it actually had been made into a rule). The Common Law Procedure Act 1854 introduced wider-reaching reforms, enabling arbitration tribunals to state a special case in references under a rule of Court or under the statute (this was a mechanism for getting questions of law before the Courts), empowering the Courts to remit awards in the same sorts of reference, and providing procedures to cure failures and fill vacancies in arbitral appointments.

Arbitration would have received an even greater endorsement in the 1880's if the London Chamber of Commerce had had its way. The Chamber produced an enormous Arbitration Bill, which was intended to codify the law. This project reflected a philosophy, fashionable at the time, that entire fields of law could be clarified and improved if common law rules which had been carefully developed over generations were replaced by statutes which were dashed off in a couple of years. A rash of codifying Acts was inflicted on English commercial law in the late 19th and early 20th Centuries, and doubtful questions resulting from indifferent drafting remain unresolved today. Launched into this apparently favourable reform environment, the Chamber's Bill was enthusiastically adopted in Parliament by Lord Bramwell, who made repeated efforts between 1884 and 1889 to bring it into law. (Bramwell, a former Baron of the Exchequer of Pleas and Lord Justice of Appeal, had become a peer on retirement in 1881: although not a Lord of Appeal in Ordinary, he sat on a number of prominent commercial cases in the Lords.) In the end, plucky private enterprise lost out to implacable state resistance. The government preferred an altogether shorter Bill, Bramwell could not gather sufficient support to push the Chamber's code through Parliament, and it was the Arbitration Act 1889, a mere 30 Clauses long to Bramwell's 136, which became law.  

But although the 1889 Act was less ambitious than Bramwell's Bill, it brought much simplification and clarity to English arbitration law. At its core was the abolition of the old distinction between references pursuant to rules of Court and those based on bare submission agreements. The Act extended to all references the law which had previously applied only to rule of Court arbitrations. So, after 1889, no reference could be revoked, even if based on a submission agreement alone. Similarly, the Court's power to remit an award was extended to all types of reference, as were the powers to remove an arbitrator or set aside an award in case of misconduct, and to compel witnesses to attend an arbitration. The jurisdiction to stay proceedings brought in breach of an arbitration agreement was retained. All arbitrators were given power to issue their final award in the form of a special case for the opinion of the Court, or alternatively to state a special case for the opinion of the Court during the course of the reference. Both were techniques for getting questions of law before the Court, and the Court was given power to compel a reluctant Tribunal to state a special case during the course of the reference. The provisions for curing failures in appointment and filling vacancies were reformulated, and any award could now be enforced in the same manner as a judgment with the leave of the Court. Several of the Act's provisions can still be recognised in modern arbitration legislation. Indeed, the 1889 Act was more far-reaching in some respects than its 1996 equivalent: anyone who wilfully gave false evidence in any arbitration was guilty of perjury and subject to prosecution, and the default rule was that arbitrators had to make their award within 3 months of appointment. (The average time-lag in Queen's Bench cases in the 1890's was more than 6 months between issue of the writ and trial, let alone judgment.)  

Arbitration now had a reasonably solid legal basis in English law. An un-cooperative party's ability to undermine a reference by revocation or failure to appoint had been eliminated; awards were readily enforceable, at least within England & Wales; and the Court had a range of powers to support the arbitration process, to deal with arbitral misconduct, and to cure arbitral mistakes. All of this made arbitration a greatly more effective alternative to litigation at the end of the 19th Century than it had been at the beginning. 

As if to maximise the threat to the Queen's Bench, this enhancement of arbitration's prestige coincided roughly with what would pass into legal folklore as the Court's darkest days for the conduct of commercial litigation. In the foundation mythology of the Commercial Court, the Queen's Bench's already tarnished reputation reached rock bottom in 1891, when Sir John Compton Lawrance, lately an MP and Deputy Lieutenant of Lincolnshire, formerly a provincial practitioner of criminal law, now one of Her Majesty's Justices of the Queen's Bench Division of the High Court, engaged in a hopelessly one-sided struggle with the law of general average.

French Farce

"He came as near as a man could to the ideal of an English lawyer."
A. V. Dicey, (1915) 31 Law Quarterly Review 96, on Arthur Cohen QC

"A stupid man, a very ill-equipped lawyer, and a bad judge."
F. D. MacKinnon, (1944) 60 Law Quarterly Review, on Mr Justice J.C. Lawrance

"Lawrance J:  ...The ship was driven, if I remember rightly, higher and higher on the rocks, and it became necessary to discharge her cargo, the whole of which was discharged and taken by carts to Boulogne and thence forwarded to London, and the two sums which are in dispute are the
sum of £750: I think I am right in that?
Mr Cohen:       Yes, my Lord.
Lawrance J:    I am not sure that I can trace that quite accurately in the book.
Mr Cohen:       It is 2½ per cent, my Lord.
Lawrance J:    Can anyone give me the page in the book on which that is? I suppose you do not remember, Mr Barnes?
Mr Barnes:      Not at the moment, my Lord.
Mr Cohen:       Pages 275, 279, and 284....
Lawrance J:    But where is it carried out? That is what I have not been able to find."
Reserved judgment of Mr Justice J.C. Lawrance, Rose v Bank of Australasia, November 1891

The cargo owners denied liability and refused to pay. The dispute came before the Queen's Bench in Rose v The Bank Of Australasia. The action was in the form of a claim by the shipowners under an average bond which the Bank had issued for one of its customers. It was treated as a test case, since the issuers of the other bonds took the same points as the Bank. The Bank's case was that the shipowners' motive for engaging the agents had been to get the cargo to London in order to earn freight, not to save the cargo for the sake of the owners. The Bank argued that the payments should therefore be treated as having been for the shipowners' own benefit, such that they were not recoverable as general average. Its alternative case was that the payments to the London agents were not recoverable, because the shipowners themselves should have performed the work for which they had paid the London agents. The Bank argued that the earlier decision in Schuster v Fletcher (1878) 3 QBD 418 was authority that the shipowners would have had no claim if they had performed the work themselves, and they could not be in any better position just because they had paid someone else to do it.

When Barnes left Rose for the Bench after the hearing in the Court of Appeal, Joseph Walton, who was his junior at the trial but became a QC in 1892, replaced him for the further appeal to the House of Lords. Walton, another Liverpudlian, had been born into a merchant family. He followed Barnes onto the High Court Bench in 1901, after an outstandingly successful career in commercial practice (his appointment filled the vacancy left by J.C. Mathew promotion to the Court of Appeal). Walton's position as the Bank's junior counsel was taken by John Andrew Hamilton when Rose reached the House of Lords. Hamilton and the shipowner's junior, Thomas Edward Scrutton, both in their early 30's, were among the mostly highly-regarded up-and-coming commercial practitioners of the day. After enormous success at the Bar, where they frequently appeared against one another, both became judges of the Commercial Court and then of the Court of Appeal. Hamilton won the edge in their career-long rivalry by the end, winning further elevation (as Lord Sumner) to the House of Lords. Hamilton's father was a merchant, while Scrutton, like Barnes, came from a shipowning family.  

Eminent though these four were, the participant in Rose who was held in highest esteem at the time was the shipowner's leading counsel, Arthur Cohen QC. An indication of the regard and affection in which he was widely held is A.V. Dicey's dedication to him of the first edition of 'The Conflict of Laws'. Cohen was at the height of an eminent career which had been built on a thriving shipping and insurance practice. Ironically, he alone of counsel in Rose did not become a High Court judge. In 1881, he had been offered one of the two Queen's Bench appointments made after the deaths of Chief Justice Cockburn and Chief Baron Kelly. But Cohen was then Liberal MP for Southwark, and Gladstone persuaded him not to trigger a risky bye-election. He declined the offer, and it was never repeated (for reasons which are obscure; by way of consolation, Cohen held the ancient office of Judge of the Cinque Ports for nearly 40 years). If the Liberal government had felt more secure in 1881, then Arthur Cohen, not James Charles Mathew, might have become the first Judge of the Commercial Court. Like the other counsel in the case, Cohen had personal as well as professional connections to the world of commerce: his father was a financier, and an uncle chaired an insurance company. 

Counsel for the Bank: (from left) John Gorell Barnes QC, who became a High Court Judge between the hearings in the Court of Appeal and the House of Lords; Joseph Walton, who became a QC during the case; and John Andrew Hamilton, Walton’s junior in the Lords. Walton and Hamilton would both become Commercial Court Judges.

By contrast, the Judge tasked with resolving the issues in Rose v Bank Of Australasia came from agricultural stock. Sir John Compton Lawrance had no share in the prestige of the counsel appearing before him. His most distinguished attribute was that he was the High Court's tallest judge, although there is some uncertainty about whether the nickname "Long Lawrance" reflected this physical characteristic or the inordinate time which it took him to produce his reserved judgments (or, possibly, both). He was generally regarded as a more or less useless lawyer, and his practice at the bar had been anonymous. He had been a Conservative MP for a decade before he was appointed to the Bench by the (Conservative) Lord Halsbury in 1890. Most of the many critics who loudly condemned his elevation attacked it as nakedly political, although the more charitably-minded supposed that it was a mistake, and that Halsbury had only intended to make him a County Court Judge. (Halsbury acquired a frightful reputation for political and personal preferment in judicial appointments, although such biases were not unique in his day. One analysis claims that, of 139 senior judicial appointees between 1832 and 1906, 80 were sitting MPs, and, of these 80, 63 were appointed while their own party was in government, 33 were or had been Law Officers, and 14 were appointed directly to the headship of a Court or Division.) There were some who believed that Lawrance could hold his own well enough in a criminal case, although even his warmest supporter, who praised him as "the very essence of common sense", condemned him in the same breath as "a lazy judge". But the unreliable author of a pen-portrait in The 'Strand' was alone among commentators in thinking of Lawrance as "one of our best Judges". There was certainly nothing in Lawrance's background to suggest that he was remotely equipped to tackle the intricacies of general average, and his hapless handling of Rose did not reveal any previously undetected flair for commercial litigation.

The case came on for trial in May 1891. It lasted 22 days, and Lawrance reserved judgment. After prompting from the parties, he returned to court in November 1891 to deliver an oral judgment. Although Lawrance had notionally taken six months for reflection, the uncertainty, meandering tone, and haphazard content of the transcript suggests that he composed the judgment largely on the spot. It was a performance divided into broadly three acts. Lawrance began with expressions of profound frustration: it was difficult for him to remember the issues, the facts, and the evidence after the long interval since the trial, and he found the documents, including his own notes of the trial, largely impenetrable. After these confidence-shaking preliminaries, Lawrance embarked on a lengthy and incoherent discussion of Schuster  v Fletcher, in the course of which he was, with apparently unintended irony, highly critical of the standard of the judgments in that case. Lawrance ended this section of the judgment with the optimistic, if cryptic, conclusion that Schuster v Fletcher was "no doubt... distinguishable".

Although he had thus dealt with Schuster v Fletcher to his own satisfaction, Lawrance still had before him the task of deciding the outcome in Rose itself. He began the final part of his judgment by stating his carefully considered conclusion that "there was some expense, how much I do not know, but there was some expense, and some considerable expense incurred in salvage operations, to which, as I understand it, both the ship and the cargo have to contribute". His difficulty, he explained, was that he simply could not say what was the appropriate amount: he found the task quite beyond him. In these circumstances, Lawrance thought it safest simply to agree with the average adjuster. After an interlude in which he became hopelessly muddled about the witness evidence, Lawrance reached the same conclusion in relation to the London agent's commission. But he added, as though for the benefit of anyone who might have been misled by the calibre of his reasoning, that he was not "at all clear about it".     

Lawrance evidently considered that his work was done. Barnes had to point out that he had failed to deal with the payment to the French agents. The Judge was puzzled. "Where does that come in?", he inquired, suggesting that he had completely forgotten about this aspect of the case, if, indeed, he had ever grasped it to begin with. But, Lawrance quickly recovered his composure, and, if he was incompetent, he was at least consistent. After some further rambling discussion, he declared that, here too, he agreed with the adjuster.

The transcript indicates that Lawrance had not really begun to understand what the case was about. He appears to have assumed throughout that the key question was whether the figures in the average adjustment were correct as a matter of arithmetic. It was true that the Bank had called witnesses to testify that the adjuster had been too generous to the shipowners as a matter of quantum. But the real issues in the case were points of principle in relation to liability: whether the whole expense should be treated incurred for the shipowners' own benefit and therefore disallowed, and the effect in law of Schuster v Fletcher. Aside from distinguishing Schuster v Fletcher on the facts, Lawrance had not dealt with these issues at all. An appeal was inevitable (as Lawrance, to his credit, recognised, acknowledging that it was "a most proper case" for a stay of execution pending appeal).

According to Sir Frank MacKinnon, a pupil of Scrutton who followed his mentor into the Commercial Court and the Court of Appeal, Scrutton was accustomed to regale his pupils with an even more exaggerated account, from which Lawrance emerged as an unlikely hero, "the Only Begetter of the Commercial Court". The story that the Court’s creation was directly inspired by Lawrance's bumbling in Rose was amusing, and none the less so for seeming to be essentially untrue. It appears to be a largely apocryphal tale, rooted in personal dislike. Both Scrutton, who was prone to harbour grudges, and MacKinnon clearly detested Lawrance. (MacKinnon would not even grant Lawrance the dignity of recognition as the worst Judge of the age, bestowing that honour instead on Edward Ridley, another of Halsbury's more hapless appointments). Rose's failure to attract significant attention in the legal press, although the deficiencies of commercial litigation were a more or less constant editorial theme by the early 1890's, betrays Scrutton's exaggeration. A more realistic assessment is that the Rose debacle was a particularly striking example of how badly things could go wrong under the existing system. But the problems on which the case shone a vivid light were already well-recognised, and demands that "something must be done" about how commercial cases were handled in the Queen's Bench did not begin with Rose. On the contrary, they had been recurrent for a generation.  

The Demand For Reform

"A much larger number of cases than are now entered for trial would be set down if we, who have to advise on these matters, were not obliged to point out to clients that any terms out of court are worthy of acceptance, as against the excitement, anxiety, and loss of time involved in watching the spasmodic progress of the cause list."
A solicitor, quoted by the Joint Committee of the Bar Committee and the Incorporated Law Society, 1888

 "In the view of some authorities, it is a mistake to form special Courts; every Judge should be competent to try all matters. As to this contention, it is enough to say that it is decidedly against the tendency of recent times."
The 'Times', 17th January 1895

The idea that commercial cases should be dealt with by a specialist tribunal had already been popular before the Judicature Acts, and the Royal Commissioners whose work laid the foundations for the Acts received numerous representations that a modern system should include "tribunals of commerce". Starry-eyed claims were made that such institutions worked wonders on the Continent, delivering justice which was quick, cheap, and in accordance with the expectations of business. The reality was rather more nuanced. There was no single European model, and the natures, compositions, and jurisdictions of commercial tribunals varied significantly from country to country. There was no consensus before the Commissioners about which format should be adopted in England & Wales, and this was sufficient to kill off an idea which was always controversial. (One reason that it was controversial was concern that any commercial tribunal would be likely to develop its own rules of law. The concept of specialist tribunals developing distinct rules in particular areas was contrary to the philosophy, which was strongly held among the judiciary and legal professions, that all legal disputes must be determined by reference to the same law.) Ultimately, the Commission's only recommendation was that at least some commercial cases should be tried by a Judge advised by expert assessors, following the practice in the most technically-demanding Admiralty cases. Even this idea was not fully-implemented in the Judicature Acts (possibly because Admiralty procedures had themselves been criticised for cost and delay). The 1873 Act gave the High Court a power to sit with assessors, but this was seldom exercised outside the Admiralty, and a defendant could exclude this form of trial by demanding a jury.

 The London List

 "A special list should be instituted in which only mercantile causes should be included."
Joint Committee of the Bar and the Incorporated Law Society, 1888

 "If the High Court of Justice is to regain the confidence of the commercial community, or even retain its present limited share in the settlement of mercantile disputes, it is imperative that a separate list... should be established for the entry of commercial actions for trial."
Joint Committee of the Bar and the Incorporated Law Society, 1892

An alternative idea to re-allocating commercial business between the Divisions was to make commercial litigation a special case as part of a wider reform of the Queen's Bench's chaotic listing arrangements. In 1888, a Joint Committee of the Bar and the Law Society, which had been established to consider how Queen's Bench listing could be improved, recommended that the Court's business should be divided into a number of separate lists, including a "London List" for mercantile cases, which would be presided over by a specially assigned Judge. The Joint Committee commented that existing arrangements left commercial litigants "practically excluded" from the Queen's Bench by providing woefully inadequate notice of hearings and by making a lottery of which Judge would be allocated.

The great attraction of this proposal was its relative simplicity. The Joint Committee thought that the idea of transferring commercial work to an expanded Probate, Divorce & Admiralty Division was a good one in principle, but believed that implementing the necessary legislation or Rules changes would cause delay when remedies were needed urgently. Since the London List would take the form of a mere re-organisation of the Queen's Bench's internal administrative arrangements, it could certainly be implemented without legislation, and possibly without even amendments to the Rules of Court.

However, while the "London List" was squashed, the horrors for commercial litigants in the Queen's Bench did now at last receive some official recognition, and a minor effort was made to stop the outflow of commercial cases. Under the Supreme Court of Judicature (London Causes) Act 1891, the Queen's Bench returned to the Guildhall for commercial jury trials. (The Guildhall sittings had ended, after a long decline in popularity, after the Royal Courts of Justice had opened as the new London home for the High Court and Court of Appeal in December 1882.) Lord Chief Coleridge opened the new sittings, but his short speech betrayed a distinct lack of enthusiasm for the initiative, although, characteristically, Coleridge did not propose any alternative remedy, or, indeed, acknowledge that any problem existed for which a remedy was required. Coleridge's complacency was further reflected in what the legal press described as a "really remarkable" speech in December 1892, in which the Lord Chief Justice stated that he entirely understood why commercial litigants preferred arbitration to "the enormous expense and endless delay which often attends proceedings at these Courts of law", again without suggesting that anything might be done to remedy this state of affairs.

But Coleridge's scepticism about the Guildhall initiative was entirely justified. Moving the trial venue for Queen's Bench commercial cases a mile to the east did nothing to cure any of the Court's underlying defects. The fact that Coleridge was the first Judge to sit at the Guildhall, when there were other Queen's Bench Judges far better qualified to try commercial cases, proved the point. The system by which Judges sat in rotation, without any regard to relevant expertise, was a constant criticism of the resumed Guildhall sittings. Nor could a mere change of trial venue remedy the delays which plagued the Queen's Bench. A motion at the 1892 annual general meeting of the Bar condemned the length of time which it took for Guildhall cases to come to trial (although one dissenter - presumably not a commercial practitioner - complained that a case had been tried within 3 months of issue of the writ, which he considered much too quick). When the Joint Committee issued a further report in January 1892, they condemned the Guildhall sittings as "a wholly inadequate provision for the requirements of commercial suitors". Indeed, the initiative created new problems of its own, since barristers and solicitors had to shuttle between the Royal Courts Of Justice in the Strand and the City, at the risk of missing hearings (a very real possibility, given the inadequate notice provided by the Queen's Bench's anarchic listing arrangements). The revived Guildhall sittings were never a success, and they were quietly abandoned at the end of 1894. The Joint Committee recommended that a "commercial list" for mercantile, commercial, and shipping matters must be established as a matter of urgency and assigned either to a specially designated Judge in the Queen's Bench, or to an additional Judge of the Probate, Divorce & Admiralty Division.

The basic idea of a special list was a repeat of the Joint Committee's first report, but this second report (which was specific to arrangements for commercial cases, and did not discuss wider reform of Queen's Bench listing) developed the notion further. The Committee recommended that the designated Judge should have control over which cases went into the commercial list, and that the Judge (not a Master) should hear all interlocutory applications. Cutting the Master out of the equation would reduce the number of interlocutory appeals, and a Judge with a commercial law background should be better equipped than a Master to make sure that pleadings, disclosure, and other interlocutory stages were tailored to meet the needs of a commercial case. The Committee also dropped heavy hints that the rules of pleading and evidence should be modified for commercial cases, and, in what may have been an unintended indication of the scope of its ultimate ambitions, referred to the proposed arrangement as "a commercial court". Separately but around the same time, the Council of the London Chamber of Commerce proposed that commercial cases should be kept separate from others and tried by courts specially devoted to the purpose and presided over by specially appointed Judges. But, while the London List proposal was gradually becoming more sophisticated, it still faced the fundamental problem that Lord Chief Justice Coleridge was sincerely and implacably opposed to it.

The Arbitration Alternative

 "The inauguration of the City of London Chamber of Arbitration... is the outcome of a long-growing dissatisfaction on the part of the commercial world with our legal system.. This Chamber is to have all the virtues which the law lacks. It is to be expeditious where the law is slow, cheap where the law is costly, simple where the law is technical, a peacemaker instead of a stirrer-up of strife".
E. Manson (1893) 9 Law Quarterly Review 86

 "The London Chamber of Arbitration has proven to be a total failure."
(1895) 30 Law Journal 158

Of course, if the Queen's Bench was not going to improve its procedures for commercial litigants, then commercial litigants had the option of simply bypassing those procedures altogether. The alternative of dispute resolution by arbitration received a publicity boost in November 1892, when the  Corporation of London and the London Chamber of Commerce launched the London Chamber of Arbitration, predecessor of today's London Court of International Arbitration. (This was a year after the first-instance fiasco in Rose v Bank of Australasia, but there was no specific causal link between the two events, for the City institutions had been working on the idea of a new arbitration tribunal for the best part of a decade.) As if to rub in the message, the Chamber set up home in the Guildhall, where Lord Mansfield had presided over commercial cases during the Queen's Bench's glory days. 

In the event, the initiative proved a disappointment. At its launch, at a celebratory luncheon hosted by the Lord Mayor in the City, supporters boasted that the parties to 1,200 commercial disputes waiting their turn to submit their cases to Chamber arbitration. But, around a year later, The Law Journal reported that only a dozen references had been determined, and The Law Times thought that none had been. By 1894, the over-hyped Chamber had managed to attract only about 60 cases in two years, and it felt constrained to revise its fee arrangements in 1895 in a drive to attract more custom.

However, while the Chamber in particular was not a success, the legal profession had no doubt that arbitration in general was steadily increasing its share of commercial dispute resolution at the expense of the Queen's Bench. City trade associations commonly promoted arbitration, and some inserted arbitration clauses into the standard-form contracts on which their members were expected to do business. (It was said that cotton trades started this trend, adopting arbitration clauses in response to the cost involved in litigating disputes arising out of the American Civil War, and that other trades followed their lead.)

Judicial Discontent

"The kindness and patience with which Judges treat litigants in person, especially women, have drawn others like a magnet."
(1893-94) 38 Solicitors' Journal, 558

Frustration with the handling of commercial cases in the Queen's Bench was not confined to litigants and legal professionals. Lord Coleridge may have been indifferent to whether commercial parties preferred arbitration to his own Court, but Queen's Bench Judges whose professional background was in commercial law could hardly be expected to be so sanguine. Moreover, the numerous deficiencies which afflicted the Queen's Bench did not just affect commercial cases, and few of the Judges can have been as insensitive as Coleridge to their Court's debased reputation. By the early 1890's, The 'Times', in the grossest insult which could be thrown at any Court, was openly comparing the Queen's Bench to the Chancery of Dickens' 'Bleak House'.

The apparently unstoppable upwards trajectory of costs also created a new problem, which affected the Judges day-to-day, in the form of an outbreak of litigants in person. Because these lay people had even less understanding than the Judges and legal professionals of what the new Judicature Acts and Rules of Court were supposed to mean, and because they generally lacked restraint in their pleadings and oral arguments, their - often hopeless - claims absorbed a disproportionate amount of Court time. The legal press identified three main categories of litigant in person: those who had been rendered unbalanced by a sense of real or imaginary grievance; the vindictive; and publicity seekers. The Judges were so pestered by litigants in person that Parliament passed the Vexatious Actions Act 1896, which empowered them to prohibit particularly troublesome individuals from commencing further proceedings without permission.

 Bowen & Mathew

"I cannot have any doubt that Lord Bowen was one of the most distinguished judges who have sat in the Courts of England in my time. His knowledge of the whole law of England was so perfect and so accurate, and the whole law was so much at his command, that I have no doubt that he had studied every head and particular of English law... His mind was so beautifully single and subtle that he delivered perfectly expressed essays upon the law which will be handed down for use by future generations of lawyers."
Lord Esher MR on Lord Bowen

"The beau ideal of a judge... in his way a second Mansfield... His first effort was to find out the merits of the case... A first class lawyer, but above all a humane judge."
G. Alexander, 'The Temple of the Nineties', on James Charles Mathew

Two Judges with successful backgrounds in commercial law became prominent in the drive for reform during the early 1890's.

Coleridge repaid his debt by securing Bowen's appointment as Junior Counsel to the Treasury, the barrister of choice for government cases. It was a high-profile post which made Bowen one of the most prominent members of the junior Bar, helping to attract a greater quantity of private work, including many commercial cases. It was also traditionally a staging-post on the path to a judicial career. Bowen was duly appointed to the Queen's Bench Judge in 1879 when he was just forty-four, a remarkably young age (all the more so when Bowen had never been an MP). His meteoric rise continued with promotion to the Court of Appeal after just three years.

James Charles Mathew also participated in the Tichborne saga, although not working with Coleridge. After the civil action, the Tichborne Claimant was charged with perjury, and Mathew and Bowen were  junior counsel for the prosecution. Coleridge dropped out, so Hawkins did get to lead this time: the Claimant was convicted and sentenced to fourteen years imprisonment, serving ten. Working together on the Tichborne case was an unusual experience for Bowen and Mathew. At the height of their careers at the Bar, they were both commonly instructed in the main commercial cases, so they were much more accustomed to appearing on opposing sides. But, while professional rivals, the two became close friends,  although their backgrounds were very different. Bowen's origins were solidly rooted in the English establishment: son of a country Church of England clergyman, he was educated at Rugby and Balliol, where he became President of the Oxford Union. Mathew was an outsider by comparison, an Irishman whose family was relatively well-to-do, but was also firmly Roman Catholic in an age when the repeal of long-standing statutory discrimination against the faith was still recent (Mathew was born in 1831, only two years after the last of the major emancipation legislation). After education at local private schools and Trinity College Dublin, Mathew moved to London to try his chance at the bar, with no connections to smooth his path and only his own talent and determination to rely on. Like Bowen, Mathew found work in short supply in the early years. But, when success eventually arrived, it was phenomenal, for Mathew became the outstanding commercial junior barrister of the age. He acquired an enormously successful practice at the Guildhall, and it was said that he was instructed in virtually every case which was tried there in his day. Bowen joked that Mathew's involvement in the Tichborne prosecution was hugely loss-making, because he had to give up more lucrative commercial work for the duration.

Like Bowen, Mathew became a Judge without having been a QC. But the achievement was more notable in his case, because he had never been Treasury Junior. (He came close: when Bowen joined the Bench in 1879, the Conservative Attorney-General, Sir John Holker, offered the position to future Conservative Solicitor-General, Edward Clarke. Declining the offer because he hoped to become an MP - which he duly did at a bye-election the following year - Clarke recommended Mathew or A.L. Smith as alternatives. But he cautioned that Mathew was bound to become a Judge soon - which proved right - and did not have a strong constitution - which proved wrong. The post went to Smith.) A little older than Bowen, and less intellectually brilliant, his judicial career was not so stellar: appointed to the Queen's Bench in 1881, he was not promoted to the Court of Appeal until twenty years later. By the early 1890's, he had been a colleague of Coleridge's for more than a decade, and knew the Lord Chief Justice well.