Catalogue description Court of King's Bench, Crown Side, and Supreme Court of Judicature, High Court of Justice, King's Bench Division: Special Cases

The superior courts of common law at Westminster had for centuries been able to refuse to enter judgment in cases determined at nisi prius if cause were shown, by means of various categories of motions in banc, why it should not do so. During the eighteenth century a procedure developed by which it was possible, when a difficult point of law arose from a case in one of the inferior courts, for that court to find a general verdict in favour of the plaintiff subject to a special case stated by counsel for both parties for the opinion of a superior court; the final result of the case depended on the decision made by the superior court. The special case was dictated by the trial judge and signed by the counsel for both parties before being filed in the superior court. It was not entered in the record of the court, so the only evidence of it is the filed case papers; the record made after the case was a normal general verdict. It was also possible for a special case to be filed, with the consent of both parties and the judge, before a suit came to trial, a process which came to be regulated by the Common Law Process Act 1852.

The procedure was also developed by statute. In 1849 it was provided by section 11 of the Quarter Sessions Procedure Act that parties wishing to appeal from general or quarter sessions could, with the assent of a judge of one of the superior courts of common law, state the facts in the form of a special case for the opinion of the superior court, which when given was entered on the record of the general or quarter sessions as the judgment. In 1857, by the Summary Jurisdiction Act, parties involved in summary hearing before justices of the peace could by way of appeal state a special case to one of the superior courts; its decision would be final, and by doing so the party in question forfeited the right to appeal to quarter sessions.