Almost all newspapers today came out with the news and photographs of Shri Lalit Modi giving a reply running into 12,000 pages – in some newspapers mentioning as 15,000 pages, to a 30 page Show Cause Notice issued to him. The newspapers also carried the picture of Shri Modi’s Solicitor gleefully showing “V” signs with 6 cartons containing the reply beside him. He obviously was too gleeful since he thought that what he did was a marvelous intellectual job. The news item and the pictures reminded me of the words of Benjamin Disraeli, one of the great statesmen of the 19th century, namely, “the greatest misfortune that ever befell man was the invention of printing.” (The Frank Muir Book, page 125).
Prolix legal drafting has its origin in the 15th/16th century when Courts were financed by public funds by means of Court-fee levied. The Court-fee was based on the length of the document, the higher in length – greater was the Court-fee. Lawyers and their clerks were also paid as per the length of the documents prepared. They filled up documents with unnecessary words. That began the heyday of recitals and preambles. The draftsmen found that they could lengthen their documents and repeat the material by reciting it. The remnants of the said practice are found in no mean measures in the system involved in the High Court of Bombay. A Writ Petition which could be complete in 10 pages is easily made out to 30 pages by needless preambles, index, synopsis, list of documents et al. This thoroughly unproductive, if not baneful, practice of lengthy documentation with needless recitals, preambles, etc., continue even today with no end in sight. Of all Indian cities, many of which I had occasion to familiarize with, Mumbai excels in needless prolixity of legal documents. The procedures followed in the High Court of Bombay can find no match elsewhere in terms of prolixity.
The newspaper reports indicate that the 12,000 or 15,000 pages reply had behind it the brains of many a leading lawyer of the country. I wish the claim far from truth, for it is no tribute to them. It is not as if this prolixity and unproductive practice is not resisted at all. “A History of English Law”, London, 3rd Edition, Volume 5, page 233, cites an incident which happened sometime in the 15th century when Lord Chancellor Egerton sentenced the Plaintiff, who had stretched his replication from an adequate 16 pages to 120 pages, to have his head put through a hole, cut in his document and to be led bare headed and bare faced round about Westminster Hall. However, the offending document was not drafted by a lawyer but by a Clerk. Since lawyers like Parliamentarians always enjoy immunity in judicial proceedings, had the offending pleadings been drafted by a lawyer, he probably could not have been punished. However, Spence G. in his Book “The Equitable Jurisdiction of the Court of Chancery,”, page 377, referred to a case where late Francis Bacon ordered that if any proceedings were found to be of immoderate length, both the litigant and the Counsel who sign them should be fined.
In my opinion, Shri Manohar, President of the BCCI, would be within his rights to reject the voluminous reply and instead ask Shri Modi to furnish a fresh reply which is of moderate length. By doing so, Shri Manohar, who is an eminent lawyer himself, would be reminding his legal fraternity that a time has come when lawyers have to use plain language and to be moderate when it comes to the length of the pleading.
(Mathews J. Nedumpara)
