Bringing proceedings in the High Court of Chivalry today
By Professor Mark Watson-Gandy Q.C.
Coat of Arms No. 203, Autumn 2003

The Court of Chivalry

The High Court of Chivalry came into existence in about 1350, deriving its authority from the King's Council to try cases outside the remit of the common law.

The Court's business was divided between "causes of instance", proceedings between private persons, and the quasi-criminal "causes of office". Originally issues as diverse as debt and broken parole fell within its jurisdiction. As the common law increasingly clashed with the Court's jurisdiction, the Court's competence was slowly curtailed.

Lord Goddard CJ in the case of Manchester Corporation v Manchester Palace of Varieties Limited [1955] 1 All ER 387. relied on a passage in Comyn's Digest regarding the jurisdiction of the Court:

"The Court of Chivalry has an absolute jurisdiction, by prescription, in matters of honour, pedigree, descent, and coat armour".

Most significantly this means that the Court's jurisdiction encompasses disputes arising from Coats of Arms. Coats of Arms are not recognised by the common law as they are not property in any strict legal sense.

Following the restrictions placed upon the Court it had fallen into disuse by 1737 and therefore avoided the effect of the Supreme Court of Judicature Act 1873, which formed the modern High Court of Justice. The Court remained a separate jurisdiction, slumbering for some two hundred years.

Thus the Court has retained its traditional procedure and terminology to the present day. In 1954 the Court was finally awoken when the Manchester Corporation sought an injunction to prevent the display of its Arms. Since the excitement of that case, the Court of Chivalry has fallen back into slumber.

The Earl Marshal is entitled to sit as the sole judge in the Court of Chivalry, however the modern reality is that a Surrogate or Lieutenant sits in his place. In the Manchester Corporation case the Duke of Norfolk, the hereditary Earl Marshal, although technically presiding over the case, appointed the Chief Justice, Lord Goddard, to decide the case and give judgment as his Surrogate.

The other formal posts of the court include the Registrar of the Court, who is generally a notary public. The Registrar records the formal acts of the Court. Another post is that of the Queen's Advocate. He promotes the office of the judge and gives advice as to whether the fiat (authorisation) of the Earl Marshal was warranted by a cause of instance. A further office is that of the Cryer. His role is similar to that of the clerk or usher and he proclaims the sittings and rising of the court.

Letting Sleeping Courts lie

The question has been asked as to whether the College of Arms could refuse to allow the Court of Chivalry to be reawakened from its present sleep.

The answer is plainly "no". In fact the only real bar (as it ever has been) to the Court of Chivalry becoming active again is the absence of litigants bringing proceedings.

It is unlikely that the College of Arms could block proceedings even if it were minded to. Since the Human Rights Act 1998 came into force, an unwarranted refusal to allow a case to proceed would merely expose the Earl Marshal to a claim that he was acting in breach of Article 6(1) of the European Convention of Human Rights. This provides:-

Article 6 Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

This is because the fiat of the Earl Marshal is required to initiate a cause of instance.

Procedure

The first step is to Petition the Earl Marshal requesting that he issue process.

The Petition must set out the alleged cause of action, describing the crest and arms alleged to have been infringed. It must further describe the manner in which the Defendant has displayed the crest and arms. Once this is done it must be signed by the Claimant or Counsel and be lodged with the Register of the Court. It would read something like this:-

To The Most Noble Edward William Fitzalan-Howard, Duke of Norfolk

Article 6 Right to a fair trial

THE HUMBLE PETITION of Arthur Angry of Angry Hall, Dorset SHOWETH

1. That the Petitioner lawfully bears arms of Argent, an Ostrich Rampant Gules and for Crest An Ostrich Rampant azure

2. That Barry Bogus of 8 The Sidings displays and has displayed publicly arms of Argent, an Ostrich Rampant Gules and for Crest An Ostrich Rampant azure without leave of licence and contrary to the will of Your Petitioner representations of the said Arms and Crest or of arms and Crest differing in no material respect contrary to the laws and usages of arms

3. That notwithstanding Your Petitioner's request to cease to display of the said representation of Arms and crest as aforesaid the said Barry Bogus has continued and threatens to continue the display thereof, whereby your Petitioner is greatly disparaged.

WHEREFORE THE PETITIONER HUMBLY PRAYS that Your Grace may be pleased to award process against the said Barry Bogus to appear and answer the premises in Your Grace's Court of Chivalry or Court Military and that thereupon such course may be taken for Your Petitioner's reparation as Your Grace shall think fit.

ARTHUR ANGRY
DATED 1st April 2005
Let Process be issued as is desired
Earl Marshal

The Claimant must lodge a bond with his Petition. The bond is fixed at the sum of 100. This, of course, is much more affordable now than when the condition was instituted.

Once the fiat of the Earl Marshal has been granted the Register of the Court will issue a Citation summoning the Defendant to the Court. The Citation must contain a notice of the time and place at which appearance is to be entered and contain the nature of the alleged cause of action. The Citation is executed by showing a copy to the Defendant or his agents and leaving them with a copy. The Defendant must enter his Bond of 100 at the time of complying with Citation.

The next step is to draft the Libel. The Libel is the equivalent of the modern Particulars of Claim. It must be addressed to the Earl Marshal. The Libel should be exhibited at open court upon the Defendants' appearance. The Libel must open with a description of the Claimant's arms and his title to them, state the ground for complaint against the Defendant and must be signed by Counsel.

The Libel would look something like this:

BEFORE YOU The Most Noble Edward William Fitzalan-Howard, Duke of Norfolk, Earl Marshal and Hereditary Marshal of England by way of complaint in law propounds as follows:-

1. That on 1st April 2003 the Earnest Escutcheon Garter Principal King of Arms and Clarence Crescent Clarenceux King of Arms by writing under their respective hands and seals granted and assigned to Arthur Angry of Angry Hall, Dorset arms of Argent, an Ostrich Rampant Gules and for Crest an Ostrich Rampant azure to be borne and used forever by Arthur Angry and his descendants with all due and proper differences according to the law of Arms.

2. Also That Barry Bogus of 8 The Sidings displays and has displayed publicly before many worthy persons the arms of Argent, an Ostrich Rampant Gules and for Crest an Ostrich Rampant on the hoarding of "The Bogus Ostrich Burger Bar" or without leave of licence and contrary to the will of Your Petitioner representations of the said Arms and Crest or of arms and Crest differing in no material respect contrary to the laws and usages of arms

3. Also that notwithstanding a request from Grey & Grim as solicitors for and on behalf of Arthur Angry, to cease to display of the said representation of Arms and Crest as aforesaid the said Barry Bogus has continued and threatens to continue the display thereof, whereby Arthur Angry's is greatly disparaged.

4. And that Barry Bogus orally stated "Up yours, squire" and by that he did not admit Arthur Angry's right to require him to cease to display the said Arms and Crest and further that he did not propose to stop so displaying them.

5. Also that all and singular the premises were and are true, public and notorious and therefore there was and is a public voice, fame and report.

WHEREFORE THE CLAIMANT PRAYS for right and justice from Your Grace and that Barry Bogus may be compelled to make Arthur Angry full satisfaction and restitution of his honour and that he may be condemned in the cost of this suit incurred on the part of Arthur Angry and condemned to whatever further may be requisite according to the laws and customs of Arms and of this Court by Your Definitive Sentence.

AND the Claimant propounds the premises jointly and severally not binding himself to the burden of superfluous proof and saving himself the benefits of the law in all things.

The Defendant's Defence takes the form of an Answer. The Answer need not be lodged until evidence has been given for the Claimant, but must be addressed to the Earl Marshal. The Answer must contain either a denial of the Libel or a plea of confession and avoidance. It must also answer each of the paragraphs of the Libel and be signed by Counsel.



Evidence is given on commission, not orally. After the Libel has been lodged, Letters Commissory in the name of the Earl Marshal are issued by the Register commanding named persons to take evidence on behalf of the Claimant. Witnesses attend at the request of the Claimant or are summoned by a Compulsory, that is to say, a witness summons signed by the Earl Marshal or the Commissioners. Letters Commissory on behalf of the Defendant are issued after lodging the Answer using the same procedure as for the Claimant.

Letters Remissional can be filed by the Defendant signed by Counsel, when the Defendant takes exception to any witnesses. Expert evidence can be obtained on any question arising in a cause in the form of a report directed to the King of Arms.

The hearing takes place before the Earl Marshal or his Surrogate. Both parties submit a "Definitive Sentence", similar to a draft order, upon which the Court gives its judgment, adopting one of the two versions put forward with any adaptations that the Court deems necessary. The Court has the power to award damages, to fine and to award costs. Itemised bills of costs must be submitted and signed by each Counsel, and the assessment of costs is by the Register, subject to appeal to the Earl Marshal or his Surrogate. Costs can also be agreed. in the High Court.

Professor Mark Watson-Gandy is a barrister in private practice at Plowden Buildings, Temple, London. He is a Junior Counsel to the Crown.

Thus the Court has retained its traditional procedure and terminology to the present day. In 1954 the Court was finally awoken when the Manchester Corporation sought an injunction to prevent the display of its Arms. Since the excitement of that case, the Court of Chivalry has fallen back into slumber.

The Earl Marshal is entitled to sit as the sole judge in the Court of Chivalry, however the modern reality is that a Surrogate or Lieutenant sits in his place. In the Manchester Corporation case the Duke of Norfolk, the hereditary Earl Marshal, although technically presiding over the case, appointed the Chief Justice, Lord Goddard, to decide the case and give judgment as his Surrogate.

The other formal posts of the court include the Registrar of the Court, who is generally a notary public. The Registrar records the formal acts of the Court. Another post is that of the Queen's Advocate. He promotes the office of the judge and gives advice as to whether the fiat (authorisation) of the Earl Marshal was warranted by a cause of instance. A further office is that of the Cryer. His role is similar to that of the clerk or usher and he proclaims the sittings and rising of the court.