Report No. 14

11. Case for written arguments.-

The adoption of the American method of disposing of appeals was considered by the Evershed Committee and it carefully examined the arguments in favour of and against the method. "Apparent advantages" of the system were briefly summarised as follows:-

"(a) Since the grounds of appeal are precisely stated and the authorities relief on are cited in the written "brief", there is no room for surprise. Not only are the members of the Court apprised at once of the point that is to be decided, but the other side are fully aware, before the hearing, of what is going to be said against them.

(b) Formulation beforehand of the precise grounds of the appeal makes it possible in many cases to eliminate much of the evidence, both oral and documentary, which came before the trial Judge but which is not relevant to the particular question that forms the subject of appeal. This enables considerable economies to be made in the transcribing of evidence and duplication of documents.

(c) The 'brief" constitutes a permanent record of the argument on either side, which the Judges can take away and consider at leisure. They are not so dependent, therefore, on the notes which they are themselves able to make during the hearing or on their fleeting recollection of counsel's oral argument.

(d) Above all, at the cost of preparing the written argument, there is, at any rate in all but the smallest cases, an immediate economy in relation to the time occupied in the hearing of the appeal. As already pointed out, the consumption of time, involving as it does the payment of refresher fees to counsel, is the most expensive feature of our English appellate procedure."1

2. Report, p. 191, para. 572.

12. Contrary view (Brief system a necessary evil).-

The Committee stated that "Whatever may be thought to be the advantage of the American system of "briefs" we found singularly little enthusiasm, for it amongst the witnesses whose opinions we sought. The members of the Court of Appeal whom we consulted were emphatically opposed to the adoption of such a system in this country as also were the representatives of the Bar Council and Law Society. We also had the advantage of hearing evidence from Mr. Justice Frankfurter, of the United States Supreme Court, as well as from Mr. John W. Davis, who was able to speak with a wealth of experience of appellate work in the United States Courts.

We gained the impression from these witnesses that they were by no means whole-heartedly in favour of the American system of conducting appeals, but that they rather envied the system prevailing here of unrestricted oral argument. They appeared to regard the American "brief" system, with its strict limitation of the time for oral argument, as a necessary evil forced upon them by the pressure of appellate work, the volume of which is so great that it would be simply impossible to get through it if unrestricted oral argument were permitted."1

1. Report, p. 191, para. 573.

13. Committee against the American System.-

The Evershed Committee reached the conclusion "that the American system would provide in this country a less satisfactory system for conducting appeals than that now prevailing. Furthermore, we are satisfied that the American system would be quite unsuitable for adoption in this country in view of the different conditions prevailing here and would not be likely to lead to any marked reduction in the costs of appeals."1

1. Report, p. 191, para. 574.

14. The case for the present system.-

The Committee summarised its reasons for arriving at these conclusions briefly as follows.-

"(a) We are satisfied that there are real and substantial advantages in our system of unrestricted oral argument, whereby every point in a party's case is thoroughly sifted in the process of discussion between counsel and the members of the Court. Furthermore our system enables the members of the Court to work together as a team, each member having the advantage of hearing the questions put by the other members and of weighing the answers of counsel thereto. Under this system, it is thought, there is a far greater chance of the Court arriving at a common conclusion, so that in the majority of cases the parties have the advantage of a unanimous decision, and the Court's decision on the question in issue carried all the greater authority.

(b) By contrast, the system prevailing in the United States leads to a higher proportion of dissenting judgments. It has seemed to us that the members of the appellate Courts, reading the "briefs" and documents for themselves, and without the advantages of hearing unrestricted oral argument together, must tend to bring their individual minds in the case rather than work as a team.

(c) Under the American system there is likely to be much greater delay in reaching a decision. The oral argument having been necessarily abbreviated, the members of the Court must go away and digest the written argument and evidence, by reaching it to themselves after the hearing, before they can form their opinions and are ready to give judgment. In the appellate Courts of the United States almost every judgment must be reserved, and we were informed that it is not uncommon for a substantial time to elapse, often extending to many months, before the judgments are delivered.

(d) it is to be remembered that counsel would have to get up the case twice-once for the purpose of preparing the "brief", and again for the oral argument, for which purpose he would have to be prepared for any point that might be raised against him in Court. Bearing in mind this additional burden on counsel, we do not think that any marked reduction in counsel's fees could be expected. On the contrary the overall total of counsel's fees for the preparation and hearing of an appeal might well be greater than it is at present."1

1. Report, p. 191 to 193, para. 574.

15. Some advantages of written argument already exist.-

It may be pointed out that some of the "apparent advantages" of the system referred to by the Evershed Committee namely the first and second already exist in our system by reason of our requirements in regard to memoranda of appeal and cross-objections and putting in the record only relevant documents and evidence.

16. Introduction in India inadvisable.-

Though no doubt some of the grounds given by the Evershed Committee for expressing itself against the adoption of the system in England may not apply to us, we are of the view after giving our careful consideration to the matter, that it would be inadvisable and even harmful to introduce the American system into India.

Additional expense (No saving in time).- The change would be so revolutionary and foreign to the system of oral arguments which we have followed all these years that its introduction will be beset with difficulties. Its adoption will involve considerable additional expense. Further, if the system is to be worked as in the United States there will be no saving of judicial time. The free time which will have to be given to the Judges to digest the briefs will very likely be equal to or even exceed the time saved by the restriction put on the length of the oral argument. The American system has as we have seen, its disadvantages and some American Judges of experience have indicated a preference for the system of unrestricted oral hearing.

The opinion elicited by us has almost unanimously expressed itself against the introduction of this system in our Courts. We understand that the Chief Justices of the various High Courts have also expressed themselves against it.

17. The true remedy: Better personnel (Judges to read papers in advance.).-

Is then the evil of protracted hearing of appeals to be allowed to continue unchecked? Is there no remedy for it? The true remedy for these delays in the hearing as in many other matters lies in our view, in a judiciary capable of controlling the hearing.

Much of the time during the hearing of an appeal is taken up by a reading of proceedings in the record. Indeed, in some Courts it seems to be the normal practice to start the opening of an appeal with a reading of the plaint in the suit and taking the appellate Court through the pleadings, the issues and the oral and documentary evidence. There is no reason why time should be spent in reading the whole record. If the Judges have previously read the judgment under appeal, as we think they ought to, there should be no difficulty in their following a statement of facts in the opening on broad lines, attention being drawn only to such parts of the pleadings or the evidence as are germane to the points to be argued in the appeal.

Time is also spent in some Courts in needless questions relating to points of fact and law which doubtless would in due course be referred to and dealt with by counsel.

18. We have also considered the desirability of introducing in the High Courts at any rate in the heavier appeals a system of filing a statement of the case as now obtains in the Supreme Court. The adoption of a somewhat similar system was recommended by the High Court Arrears Committee.

The suggestion has received our careful consideration but has not commended itself to us. So far as second appeals are concerned many of them are of small value-and only a very small number of them involve important point of law which would justify the filing of a statement of case. Even as regards first appeals, under the system of appeals envisaged by us a fairly large number will continue to be below Rs. 20,000 in value. Further a statement of case unless it is carefully drawn is not capable of rendering much assistance to the court. Hence an insistence on the filing of a statement of case in the High Courts is not likely to serve any useful purpose but will merely tend to increase courts. We were also informed that this system was tried in at least one High Court, but without success.

In our opinion the object sought to be achieved by filing a statement of case can be equally well served by the judges reading the papers relating to an appeal before the hearing-and we have already made a recommendation to that effect We are therefore unable to recommend the acceptance of this suggestion.

What perhaps makes most for a saving of time during the course of the hearing of the appeal is an appreciation of the real points in the appeal by the Judges hearing it. If such appreciation exists, it will not at all be difficult for the Bench to confine counsel, assuming he is inclined to be prolix, to the real points arising and shut out all references to and discussion of matters which are no longer of importance at the stage of the hearing of the appeal. It is a matter of common experience that an appeal which takes before a certain Bench a day for the hearing may take as many as three or four days before another Bench of Judges.

This emphasizes what we have stated, namely that Judge, who have a grip of the real issues in the appeal can easily regulate the proceeding so as to lead to its quick disposal. We have heard complaints about the prolixity of some members of the Bar and the difficulty of the Bench in controlling them. In our view no such difficulty will be felt, once the Bench is able to gather the real points in the appeal.

19. Exchange of authorities.-

We would however suggest that, in order to prevent surprise and to ensure adequate and speedy assistance to the Court, counsel should exchange before the date of the hearing lists of the authorities they propose to cite. The Evershed Committee was also of the view that1 in the appellate Court counsel should disclose to each other, the cases which they propose to cite and which have not been cited in the Court below.

1. Final Report, p. 201.

20. Summary of recommendations.-

We may summarise our conclusions on the adoption of written arguments as follows.-

(1) The American system of "written briefs" and restricted oral arguments is not suitable for introduction in our country.

(2) It is not necessary to insist on the filing of a statement of case in appeals to the High Courts.

(3) Counsel should exchange before the date of the hearing lists of the authorities they propose to cite.

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