HC Deb 13 July 1875 vol 225 cc1381-95

Bill considered in Committee.

(In the Committee.)

Clause 17 (Provision as to making of rules of court before or after the commencement of the Act—in substitution for 36 & 37 Vict. c. 66, ss. 68, 69, 74, and Schedule).

MR. WATKIN WILLIAMS

moved, in page 9, line 24, to insert words, the effect of which would be to limit the power of the Judges in making rules to matters of pleading practice, and procedure. The hon. and learned Member observed, that a similar Amendment had already been made in sub-section 2, on the Motion of the hon. and learned Member for Limerick (Mr. Butt). It seemed to him an innovation to grant to Judges the power to repeal or alter Acts of Parliament, which they would have under the Bill, without the consent of Parliament.

Amendment proposed, In page 9, line 24, after the word "Act," to insert the words "Provided always, and it is hereby enacted, That the Rules and Orders hereby authorised, whether entirely new or altering or annulling any previously existing Rules or Orders, shall be confined to regulating the pleading, practice, and procedure of the Courts, and no Rule or Order shall be made under the power or authority of this, or the last preceding section, taking away or infringing, otherwise than in so regulating pleading, practice, and procedure, any existing right founded upon any Act of Parliament or upon the Common Law, or in any way conflicting with the provisions of this or the principal Act."—(Mr. Watkin Williams.)

THE ATTORNEY GENERAL

believed that sub-section 2 would probably not have been altered in the way mentioned by the hon. and learned Gentleman had the effect of the 20th section been more fully considered. He (the Attorney General) did not think it desirable to limit the power of the Judges in the way proposed; in making so great a change in the judicial spstem of the country, it was impossible to say beforehand what rules or orders might be necessary for the efficient working of the Act. In the Schedule to the Bill it was attempted to provide for all the cases that might arise, but it might well be that some matters of trivial importance were omitted, which, if not supplied, might lead to great inconvenience. In such a matter, confidence must be placed somewhere, and, unless it could be placed in the Judges, they would be hardly fit for their position. For several years past, similar powers had been placed in the Judges, and they were not confined to the Judges, for similar powers had been conferred on different Government Departments. If the Amendment were carried, it would impose a very unnecessary fetter on the power of the Judges in framing the rules and orders for regulating the practice and procedure of the Courts. It would be altogether unusual and extremely inconvenient in practice. He, therefore, hoped the Committee would not assent to the Amendment.

MR. WHALLEY

supported the Amendment, remarking that the Judges at the present day exercised their powers extensively, as might be seen when they dealt with cases of contempt of Court. The power in this clause was excessive and unconstitutional.

SIR HENRY JAMES

said, for once he almost agreed with the hon. Member for Peterborough (Mr. Whalley). They were going to give power to the Judges to make rules and orders, which, so far as they were inconsistent with any Act of Parliament, would virtually repeal that Act from the time those rules and orders came into effect.

THE ATTORNEY GENERAL

observed, that at the proper time he should have an Amendment to propose which would obviate any difficulty upon that point.

SIR HENRY JAMES

said, he was glad to hear it. He would give the Judges all the power that was required to frame general rules and orders for the administration of the law as regarded pleading, procedure, and practice, but would not place in their hands the power virtually to frame the law which they had to administer.

MR. LOPES

said, that if he felt that this clause conferred undue power on the Judges, he should be inclined to vote for the Amendment; but he could not come to that conclusion. The true meaning of the clause was that the Judges should have full power to make the rules that were necessary to carry out this and the principal Act; and, if that was the true meaning, there were numerous precedents for them. He considered it would be impossible to adopt the Amendment, which proposed to limit the power of the Judges to make rules only with regard to practice and procedure.

MR. LAW

observed, that Parliament, by passing these rules, was asked to enact a new code of procedure, and then by one sweeping clause, power was given to the Judges to alter or repeal any part of this code.

THE ATTORNEY GENERAL

desired to remove a misapprehension which appeared to exist in regard to the operation of this clause. No power was given by it to the Judges to introduce a fresh legislation in regard to the administration of justice; the whole power conferred on them was to make further or additional rules for carrying out the purposes of this and the principal Act, that was to say, those purposes connected with the administration of justice which were regulated and determined by the Acts themselves. The Judges could not, under that power, introduce any fresh legislation inconsistent with the Acts of Parliament. In all probability, by far the greater number of the rules and orders hereafter made would have reference to procedure only, but questions might arise which would require that the Judges should go beyond mere procedure. They had exercised powers of this nature for the last 20 years, and had never exercised them in such a manner as to require the intervention of the Legislature.

MR. OSBORNE MOEGAN

remarked that the hon. and learned Member for the Denbigh Boroughs (Mr. Watkin Williams) had got into a way of looking upon the Judges as his natural enemies, whom it was necessary to fence round in every way in order to prevent them from indulging in a sort of irrepressible desire to do mischief. If the Judges were not fit to be entrusted with the power which the Bill conferred upon them, they surely were not fit to be trusted with the high judicial functions which they exercised every day. The Judges had exercised similar powers without objection under the Chancery Amendment Act (Lord Cairns's Act), the Leases and Sales of Settled Estate Act, and the Trustees Relief Act, under which the Judges were authorized to regulate the exercise of their own jurisdiction. They had not abused these powers—why, then, assume that they would do so in this instance?

MR. CHARLES LEWIS

complained that provisions were constantly creeping into Acts of Parliament by which the Queen in Council, municipal bodies, or other persons were empowered to make laws and regulations. He protested against that House delegating its power of legislation to bodies outside. He should support his hon. and learned Friend the Mover of the Amendment.

MR. WATKIN WILLIAMS

objected to giving the Judges any more legislative power, and thought their functions ought to be confined to laying down rules of procedure or practice; otherwise the Schedules of the Bill would be useless, because they might be overridden by the Judges. He must press his Amendment to a division.

MR. LOPES

suggested that the Attorney General should re-consider the question, with a view of meeting the difficulty when they came to the Report.

SIR GEORGE BOWYER

argued that legislative powers should be exercised by the Parliament, and not by the Queen in Council, on the recommendation of the Judges as proposed. He had no doubt it was a convenient mode of dealing with the matter; but it was very objectionable, and, he ventured to say, unconstitutional.

MR. GREGORY

considered that a provision like that contained in the clause was absolutely necessary. If the Amendment should be adopted, the power proposed to be given to the Judges would be materially cut down.

Question put, "That those words be there inserted."

The Committee divided:—Ayes 83; Noes 143; Majority 60.

MR. GORST

then proposed an Amendment, the object of which was to preserve the existing machinery in the county of Lancaster until such time as the new machinery contemplated by the Bill should be ready and be brought into operation. He proposed to remedy this state of things simply by enacting that the existing machinery should go on until such time as an Order in Council was passed bringing into play the changes to be created by the Judicature Bill.

MR. RATHBONE

said, he hoped that the Government would either accept the Amendment or themselves introduce a clause to effect the same object. The people of Lancashire were very well satisfied with their local Courts, and it would be a very serious thing for their action to be suspended even for a little time.

THE ATTORNEY GENERAL

asked the hon. and learned Member to withdraw the Amendment for the present and bring it forward again on the Report. In the meantime, it would be fully considered by the Government.

MR. GORST

asked the Attorney General to take up the subject himself, and relieve him of all further responsibility in the matter.

THE ATTORNEY GENERAL

said, that if, upon mature consideration, he approved the principle of the Amendment there would be no objection, on the part of the Government, to propose a clause on the Report carrying it into effect, but at present he could not accept it.

Amendment, by leave, withdrawn.

Clause agreed to.

Clauses 18 and 19 agreed to.

Clause 20 (Provision as to Act not affecting rules of evidence or juries—in substitution for 36 & 37 Vict. c. 66, s. 73).

MR. LOPES

contended that the clause did not sufficiently protect trial by jury. The Judges would have the power, if they saw fit, to interfere with trial by jury, and that was a thing which he altogether deprecated. He moved, in page 10, line 16, to insert after the word "affect," "trial by jury or."

THE SOLICITOR GENERAL

pointed out that under the 36th order of the Schedule trial by jury was regulated and the particular mode of trial prescribed. The Amendment was therefore unnecessary.

SIR HENRY JAMES

suggested that it would be better to let the clause stand as it was, but to insert a Proviso at the end enacting that no rules made by the Judges hereafter should be allowed to interfere with trial by jury.

THE ATTORNEY GENERAL

explained that trial by jury was actually interfered with by the Act of 1873. Unless the clause was kept as it stood a portion of that Act would practically be repealed.

SIR HENRY JAMES

said, they had no intention of repealing any portion whatever of the Act of 1873. If Parliament saw fit to interfere with trial by jury there could be no objection; but what they did object to was to give the Judges power to so interfere.

MR. GRANTHAM

agreed that the Amendment would not only be inconsistent with the clause, but would also be inconsistent with the Act of 1873.

MR. BUTT

contended that there were two perfectly distinct points in connection with this question—one was whether they were to allow trial by jury to be altered, and the other was whether they would allow the Judges to alter it. Well, his own clear conviction was that if there was to be any alteration at all it should be made by Parliament, and not by the Judges. He objected to the Judges having any such legislative power, simply because they were bad legislators, and ought to be confined to their own proper functions—the administration of the law.

MR. WATKIN WILLIAMS

supported the view of the Attorney General, that trial by jury had already been interfered with by the Act of 1873.

SIR HENRY JAMES

suggested, instead of the Amendment, the introduction of words providing that no rules of court hereafter to be made should affect the mode of trial by jury now in existence

THE ATTORNEY GENERAL

said, that that proposal would meet the case, but that, if adopted, it had better be embodied in a separate clause.

SIR HENRY JAMES

had no objection to reserve his proposition.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 21 (Provision for saving of existing procedure of courts when not inconsistent with this Act or rules of court—in substitution for 36 & 37 Vict. c. 66, s. 73).

MR. WATKIN WILLIAMS

moved, in page 10, line 32, at end of Clause, to add— Whereas by section forty-six of the principal Act it is enacted that any judge of the said High Court sitting in the exorcise of its jurisdiction elsewhere than in a Divisional Court, may reserve any case, or any point in a case, for the consideration of a Divisional Court, or may direct any case or point in a case to be argued before a Divisional Court:' Be it hereby enacted, That nothing in the said Act, nor in any rule or order made under the powers thereof, or of this Act, shall take away or prejudice the right of any party to any action to have the issues for trial by jury submitted and left by the judge to the jury before whom the same shall come for trial, with a proper and complete direction to the jury upon the law and as to the evidence applicable to such issues. 13 Ed. 1, St. 1, c. 31; 3 & 4 Vic. c. 65, s. 15; 15 & 16 Vic. c. 76, s. 184; 20 & 21 Vic. c. 85, s. 39; 22 & 23 Vic. o. 21; 23 & 24 Vic. c. 144, s. 1. In the event of the last preceding Amendment being adopted, to add, at the end of the last Amendment, the words— Provided also, That the said right may be enforced either by motion in the High Court of Justice or by motion in the Court of Appeal founded upon an exception entered upon or annexed to the record.

THE SOLICITOR GENERAL

opposed the Amendment. The object of the Amendment was secured by an appeal to the Appellate Court from the decision of the Judge.

MR. GREGORY

pointed out that the Amendment provided for the whole question being submitted to the jury. The power of reserving points had been carried somewhat too far by the Judges.

SIR WILLIAM HARCOURT

agreed that nothing was more dangerous than the extent to which this power of reserving questions had been carried of late, contrary to the former practice of such Judges as Lord Ellenborough or Lord Mansfield.

MR. LOPES

said, the hon. and learned Member for Oxford did not appear to understand that one of the great advantages of a Judge being empowered to reserve leave was that it enabled a verdict to be entered, so that the whole question could be decided by the Court above without sending it down for further trial. If, however, the object of the Amendment was to secure something in the nature of a Bill of Exceptions it had his earnest approval.

THE ATTORNEY GENERAL

said, if the purpose of the Amendment was to secure the benefit of a Bill of Exceptions, without maintaining the entire form of the old procedure, he entirely agreed with it.

MR. WATKIN WILLIAMS

said, he did not wish to retain the ancient form of procedure; but he protested against giving a Judge indiscriminate and indefinite power of reserving questions which really came within the province of the jury.

SIR JOHN KARSLAKE

said, as he understood the Amendment, it did not in the slightest degree interfere with the power conferred upon a Judge to reserve questions of law for the consideration of the Court above, with the consent of counsel, and he hoped nothing ever would; but it was a very different question whether the power conferred upon a Judge should be so large as to enable him to withdraw a question from the jury altogether, contrary to the wish of counsel; that should be carefully guarded against, as it was intended to be by this Amendment.

MR. BUTT

supported the Amendment, observing that without such a protection we should be giving up trial by jury.

THE ATTORNEY GENERAL

said, he considered the Amendment to be hardly necessary; but as there appeared to be so strong an opinion in favour of it, he would save time by assenting to it.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 22 (Regulation of circuits).

MR. GRANTHAM

proposed an Amendment, the object of which was to prevent the doing away with the circuits by means of an Order in Council. If the object was only to make changes in circuits he should have no objection, but to the power which seemed to be proposed he did object. He thought it was important that everyone should know that the law was administered fairly and justly, and without favour or affection.

THE ATTORNEY GENERAL

complained that on a subject of so much importance the Amendment was not placed on the Paper or any Notice given of it. The clause was, in point of fact, founded on the Report of a Royal Commission, and the principle it contained was already recognized by the law as it now stood. He must therefore oppose the Amendment.

MR. OSBORNE MORGAN

also opposed the Amendment, because it was, it his opinion, necessary that power should be given to alter the circuits when necessary. They were often attended with great expense, and useless in results, and it would be expedient on many occasions to dispense with them.

Amendment negatived.

Clause agreed to.

Clauses 23 to 25 inclusive, agreed to.

THE ATTORNEY GENERAL

moved, after Clause 24, to insert the following clause:— ("Amendment of 35 & 36 Vict. c. 44, as to the transfer of Government securities to and from the Paymaster General on behalf of the Court of Chancery and the National Debt Commissioners.")

Clause agreed to, and added to the Bill.

THE ATTORNEY GENERAL

moved, after Clause 25, to insert the following new clause:— ("Amendment of 32 and 33 Vic. c. 83, s. 19; and 32 and 33 Vic. c. 71, s. 116, as to the payment of unclaimed dividends to persons entitled.")

Clause agreed to, and added to the Bill.

MR. JACKSON

moved, in page 8, after Clause 14, to insert the following new clause:— (Principle on which costs are to he taxed.) Whenever in any suit or proceeding in the High Court of Justice, or in the Court of Appeal an order or judgment directs the taxation of costs and the payment thereof by any litigant party, or out of a fund or estate, the costs so to be taxed shall include not only the costs of the suit or proceeding as between party and party, but also all such costs, charges, and expenses as are allowed by the Court of Chancery whenever costs, charges, and expenses are directed to be taxed on the principle of taxation as between solicitor and client, and to be paid out of a fund; and the Rules in the Schedule to this Act relating to costs shall be subject to this enactment. His object was to secure to every successful litigant indemnity from his opponent for the necessary costs and expenses he was put to in enforcing his right, and not simply costs between party and party. There were at present three modes of taxation recognized by the Courts; the first was taxation between party and party; the second, taxation between solicitor and client; and third that frequently adopted in Chancery—namely, taxation between attorney and client, when the costs had to come out of the estate. Under an order for costs as between party and party the successful litigant received only the costs actually incurred in Court; for instance, though it might be impossible to prove his case without scientific witnesses, he would be allowed only the fee for the witness's appearance in Court and would receive nothing for the cost of that witness's journeys to inform himself of the nature of the case, though it might be admitted on all sides that such a journey was indispensable. The result of this state of the law was that in every case the successful party had to pay at least one-third and often one-half more than he could receive, and in many cases it amounted to a denial of justice. He assured hon. Members that this was in no sense an attorneys' question. The attorney would in any case be paid his full costs. The question was whether his own client or the opponent, who from having been ordered to pay costs must be taken to be in the wrong, was to pay them. Parliament had already in several instances—such as the Patent Law Amendment Act, the Mercantile Marks Act, and the Election Petitions Act—sanctioned the principle of this clause, and enacted that in litigation arising under these Acts the costs awarded should be a full indemnity to the winning side. If it be objected that a rich or a timid litigant might put his opponent to an excessive expense, the answer was that the clause had been carefully prepared to avoid that possibility. He did not propose to make the defeated party pay all the costs for which the successful party might be liable to his own attorney. Such a proposal might open the door to considerable oppression, but only to costs taxed on a scale which would secure a complete indemnity for all reasonably necessary expenses both before and during suit. The most respectable solicitors were always willing to undertake the conduct of a suit in Chancery for the remuneration allowed by the Court, and the system of taxation adopted prevented either oppressive or "fancy" costs being allowed out of funds when administered by the Court, While a staff of competent Taxing Masters was maintained he failed to see why their services should not be applied to secure a reasonable result instead of perpetuating a practice which worked injustice and was unsuited to modern requirements. The language of the clause which he proposed had been submitted to some of the highest authorities and had received their approval.

Clause brought up, and read the first time.

Motion made, and Question proposed, "That the Clause be read a second time."

MR. OSBORNE MORGAN

said, the clause was so reasonable that it was surprising it had not been adopted before.

MR ALFRED MARTEN

said, the clause, if adopted, would establish complete control over the costs.

MR. SERJEANT SIMON

said, no man should be put to expense or loss in asserting or defending his legal rights. He contended the principle should be that the winning party should be reimbursed all costs both as between party and party, and attorney and client, subject, of course, to taxation. He cordially supported the new clause.

SIR HENRY JAMES

said, that the present mode of awarding costs in the Common Law Courts did not appear to throw any heavy burdens on successful parties, and it was desirable that too much encouragement should not be given to litigation. If the attorney knew that he would get his whole costs it would increase the inducement to resort to litigation, and would, in fact, be a premium upon the introduction of a class of cases and a class of practitioners that ought to be avoided.

THE ATTORNEY GENERAL

said, that this was hardly so much a question of principle as of policy. It was true that, with the exception of his hon. and learned Friend who had spoken last, every Member, who had addressed the Committee, had spoken in favour of the Amendment; but the opinions so expressed were the opinions of Members of the legal profession only, and he (the Attorney General) thought that before the Committee agreed to a change in the rule which had been established for so many years, they should have some general expression of opinion on the subject. They had not had any such general expression of opinion on a question in which the public were really the persons interested. If he entertained a stronger feeling in favour of this clause than he did, he should appeal to the Committee not to deal with a question of this kind without having ascertained the general feeling of the public. Although there would be advantages in certain eases in giving the winning party his whole costs, he much feared that the general adoption of the rule would greatly multiply speculative actions, and would lead to a great deal of harassing litigation. He therefore asked the Committee to hesi- tate before it sanctioned any change in the existing system, which might prove a considerable burden on the unprofessional community.

SIR ANDREW LUSK

observed that this practice of not giving the winning party in a suit his whole costs was one of the greatest injustices of which suitors had to complain. He was very much surprised to hear the hon. and learned Member for Taunton (Sir Henry James) say that a man should not get justice because it might encourage litigation. They had to pay an enormous sum for Judges and law, and it would be very hard if a man in this land could not get justice. He considered justice one of the brightest gems in the Crown of England. He knew many men in London—and he was one of them—who would suffer wrong rather than go into a Court of Law; and just let the Committee fancy justice being administered in such a way that it was not worth trying to get it. It was not a creditable state of things, and he would appeal to the Attorney General to do something to remedy the evil.

MR. LOPES

expressed his concurrence in what had been said by the hon. and learned Member for Taunton.

MR. LEEMAN

said, that as a member of the other branch of the profession, he might be allowed to say a few words. He had been in practice as a solicitor for between 30 and 40 years, and he had many times to advise a client, when he knew he was in the right, to submit to an injustice rather than go to law, because the actual expenses must far exceed the allowed and taxed costs. If the hon. and learned Gentleman (Sir Henry James) had passed some time in the earlier years of his life in a solicitor's office it would have been better for him, and he would have had sounder views on this subject. As the Bill stood there were many cases in which a suitor might get a verdict, but in which he would not recover costs. The Judge might refuse to give costs. The Attorney General said there had been no expression of public opinion on this question; but when had the public had an opportunity of expressing their opinions? The hon. and learned Gentleman knew that the great branch of the profession to which he (Mr. Leeman) belonged had long felt that this was a grievance which ought to have been redressed. The Attorney General might be unwilling to interfere with the old principle as to costs; but it was really taken away by Clause 52, which enacted that the costs which were incident to the litigation might be allowed at the discretion of the Judge. It might be said that, unless costs were taxed as between party and party, the solicitor might go into unnecessary expense by engaging scientific witnesses and eminent counsel with large fees. There was, however, no difficulty. In the case of any extravagance on the part of the solicitor, why should not a discretion be given to the Judge who tried the cause to say whether the items ought to be allowed? There was no one who might not be driven into Court to defend his rights. It mattered little to the solicitor, who had the client behind him to pay the costs disallowed by the taxing-master; but the general public were interested in the question, and he trusted that the Attorney General would see his way to adopt at least the principle of the Amendment.

MR. GRANTHAM

said, he had certainly heard complaints from suitors who, after they had gained a cause, found themselves saddled with a very heavy burden of costs. The Amendment, however, was too wide, and he would suggest that the clause might be made permissive, so that the Judge would have the power, in cases where he thought it proper, to allow the costs between client and attorney.

MR. DODDS

said, he hoped the Committee would adopt the clause. As an active member of the profession to which the hon. and learned Member for York (Mr. Leeman) belonged, he had known the greatest injustice inflicted on litigants by the rule in force at the present time. No one would contend that fancy fees should be paid by the unsuccessful litigant; but that was very different from taxing the successful litigant with a great deal of the necessary costs he had incurred.

SIR JOHN KARSLAKE

said, he hoped the hon. and learned Member for Coventry (Mr. Jackson) would not press the clause, which, in his opinion, went too far. The Bill, as it now stood, gave the Judges a discretion in the matter of costs, and all that he thought was necessary was that in particular cases they might have the power of allowing the costs between the attorney and the client. He, for one, thought that the discretion which was now conferred upon a Judge of determining whether costs should be allowed, and in what proportion, was a salutary rule under existing circumstances. He thought the proposal of the hon. and learned Member for Coventry went too far. The effect of it would be that although the Judges might think it perfectly wrong to give costs, they were yet to be told that if they did award costs to one particular party they were to be bound to award them on a particular scale, and in a particular way, instead of leaving it to the Judge's discretion. He would suggest that the Amendment should for the present be withdrawn, with a view to his hon. and learned the Attorney General considering the question in view of the arguments which had been advanced on each side, before the bringing up of the Report.

Question put.

The Committee divided:—Ayes 61; Noes 193: Majority 132.

Committee report Progress; to sit upon Thursday.