HC Deb 15 July 1851 vol 118 cc777-89

Order for Committee read.

House in Committee; Mr. Bernal in the Chair.

Clauses 1 to 9 inclusive were agreed to.

Clause 10 was postponed. Clauses 11 and 12 were agreed to.

On Clause 13 being proposed (the effect of which, is to exempt from the operation of the measure the provisions of the 9th and 10th Victoria, by which no person is entitled to practise in a county court "unless he be an attorney at law, or a barrister instructed by such attorney, or, by leave of the Judge, any other person allowed by the Judge to appear instead of such party; and no barrister, attorney, or other person, except by leave of the Judge, is entitled to be heard as counsel for any other person"),


said, that he wished to explain to the Committee his motives in bringing forward this Clause, which had been exposed to a great deal of misrepresentation and misconception. He certainly did not wish to create any undue monopoly, but, on the other hand, he desired, and he trusted that House participated in the feeling, that the Bar might not be destroyed. He was desirous, therefore, of explaining the precise position in which the Bar was now placed in consequence of the passing of the Act 9 and 10 Victoria. There was a general understanding that the Bar might practise in the County Courts, and that suitors were at liberty to employ them as advocates. Such, however, was not the case. The Statute 9 and 10 Victoria provided that no one should he heard as an advocate in those Courts unless he were an attorney, or a barrister instructed by an attorney, or, by leave of the Judge, any other person. The practice, however, which had prevailed since those Courts were established, evidenced a wide-spread conspiracy on the part of the attorneys for the purpose of wholly excluding the Bar as advocates; and inasmuch as no barrister was permitted by the Act to which he had referred, to practise in those Courts unless he were instructed by an attorney, the attorneys, in order to exclude the Bar, had come to a general determination not to employ counsel in any case. He was not speaking without authority in saying so; for in a pamphlet which he held in his hand, he found an extract from the County Courts Chronicle of February, 1850, where, in an address from an attorney practising in those Courts, he pointed out to his colleagues throughout the country, that all they needed to do was to carry out the provisions of the Act in their favour, and they would effectually and for ever exclude the Bar from any share whatever in the County Court business. In a letter which had been addressed to him that day, there was another statement, which showed that these tactics had been acted upon with success. A tradesman told his informant that he wished to sue a debtor in the Westminster County Court for 48l. The tradesman went to an attorney, and asked him to employ a counsel; but the attorney told him he would have nothing to do with it unless he consented to the employment of an attorney as his advocate, and if he persisted in his desire to have a barrister employed, he would throw up his case. In a word, it might be affirmed that from the infinite majority of these courts barristers were excluded; and the question was, whether, for the sake of the public itself, this was a desirable thing? It appeared to him simply as a general proposition, that the business of the advocate in all our courts, superior or inferior, should be conducted by men of trained education as advocates, of established position as gentlemen, as men of honour. He did not believe that any one was visionary enough to imagine that it would be an advantage to dispense with the advocacy of a class of men who had enjoyed the highest education, and who were known to be influenced by the highest feelings. If that were so, he did not think there could be any desire on the part of the Committee to confine the advocacy in these Courts to persons who practised as attorneys, because he must say that it was not the highest class of attorneys who practised in those Courts. He could not persuade himself that it would be for the benefit of the public that an inferior order of men should monopolise the practice there, unless possibly in an economical view of the case, such a monopoly should be found to be desirable. He begged, however, the attention of the Committee to this view of the case, because he agreed that it was essential to the good working of these Courts that the proceedings in them should be economically conducted. He had received a letter from a gentleman whose name would be a satisfactory voucher for his veracity, but he did not wish to mention it unless it were insisted on. That gentleman stated that at a certain provincial town where a County Court was held, there was a snug party of seven attorneys, and that one of them had confessed to him that they had leagued together to accept no retainer unless it were accompanied by a fee of three guineas, and that though this regulation somewhat limited their business, they found it answer very well in the long run. Another at- torney told him that he always demanded three guineas for any work done in the County Court, and that this kind of business paid him better than anything else. It was a fallacy, therefore, to suppose that economy was consulted in behalf of the public by the exclusion of barristers, for the fee which would be received by counsel would be no greater in amount than that which the attorney duly pocketed when he appeared as attorney-advocate, and therefore the expense was precisely the same to the client whether he was heard by attorney-advocate or barrister-advocate. He might be answered that monopoly was not desirable; but he should be disposed to join issue with hon. Members on that point, and he would tell them in a few words why. It was of the greatest importance that a class of men should exist, not only trained to legal advocacy, but capable of acting as Judges; but the public would neither have good advocates nor efficient Judges, unless means were taken to support a body of learned persons whose occupations allowed them to acquire the greatest amount of legal knowledge. It was impossible that any one whose time and attention were devoted to getting up the details of cases, and the preparation of documents, should be as competent to deal with questions of law as parties who had greater leisure on their hands. They might rest assured that the principle of division of labour which had done such wonders in art and manufactures, would be found to work equally well in the administration of justice. It had been found hitherto beneficial to both branches of the profession that the functions of attorney and advocate should be kept distinct; and be believed that all the great leading members of the profession concurred in this—that it was desirable that the barrister and the attorney should each limit themselves to their own branch of practice. Hitherto the Bar, with a high feeling of professional etiquette, had abstained from accepting briefs without the intervention of an attorney; but the County Courts Act had positively placed a statutable impediment in the way of their doing so. The attempt to prevent monopoly had therefore failed, for, instead of being destroyed, it had only been transferred from the Bar to the attorneys; and if any monopoly at all were allowed to exist, it would surely be better to place it in the hands of a highly-educated class of men, rather than in those of an inferior class. The Committee might, however, adopt one of two courses: they might either put the barrister on the same footing with the attorney, or they might provide that if a party wished to employ his own attorney, who was bonâ fide such, the attorney might he allowed to act also as advocate; but that in cases where it was desired that the functions of attorney and advocate should be separated, then the privilege should be given to the Bar which they enjoyed in other courts. He (the Attorney General) was satisfied that the tendency of recent legislation had been to carry justice home to every man's door. That tendency he considered a most proper one, and he had always stood by the County Courts Bill; but, at the same time, he could not but protest against an attempt to destroy a noble profession, the history of which was intimately associated with the brightest annals of our country; and he warned the Committee to be cautious how, in putting down one monopoly, they made room for a much worse.


said, that the hon. and learned Gentleman had left the Committee rather in the dark about his intentions as to whether he meant to give exclusive audience to barristers in these courts. If, however, he meant to propose the clause as it stood in the Bill, he should certainly oppose it, as it would defeat entirely the object of the Bill. The object of the County Courts Act was to combine speed with cheapness in the administration of justice—an object which was incompatible with exclusive audience on the part of the Bar. Enact that cases were not to proceed unless a counsel was heard on either side, and the delay would become such as altogether to deter persons from seeking that remedy with which these courts were at present more and more effectually providing them for the attainment of their rights, and the vindication of their wrongs. No complaints had been made by the public of the manner in which the advocates in the County Courts had conducted their business. The hon. and learned Gentleman had talked about the combination of attorneys against the Bar; but was not the real fact this, that the public preferred attorneys as their advocates? By the Act, defendants were allowed to settle proceedings by the payment of the demand within five days of the meeting of the Court; and it often happened that suitors, in the hope that their debt would be paid them without litigation, contented themselves with taking no further trouble than lodg- ing the plaint until the day for the hearing drew nigh. Thus an attorney was frequently instructed on that morning, and often after the Court had actually been sitting some time. The attorney was able at once to proceed with the case; whereas it would be impossible for him to instruct a barrister. He should certainly look upon the destruction of the Bar as a great public calamity; but still the public interests were paramount. If the Committee should adopt the clause proposed by the hon. and learned Attorney General, it would be in the power of any two barristers to monopolise the practice of a County Court, because, so long as they attended, the public would not be at liberty to retain the service of any other advocate. He contended that the Bar had no right to restrict the public in their choice of an advocate. A monopoly of this kind did not stand on better ground than a commercial monopoly. He believed that the County Court Judges were perfectly satisfied with the conduct of attorneys as advocates, and would be very sorry to see any change take place. There was nothing at this moment, he believed, to prevent barristers from practising in the County Courts; it was within his own knowledge that in the Oxfordshire County Court circuit barristers practised, without encountering anything at all resembling that persecution at the hands of the attorneys which the hon. and learned Gentleman had, properly enough, denounced.


said, he viewed this as a contest between cheap justice and dear justice. The Courts at Westminster were jealous at the well-established and well-deserved popularity of the new Courts, and seeing that their occupation was gone, or almost gone, they stepped in and said, "Give us a monopoly." Now, whenever he heard the word "monopoly," he felt certain that "something was rotten in the state of Denmark." The Courts of Westminster had brought this upon themselves. They had refused to reduce their expenses, to reform their technicalities, and, above all, they had clung to that antiquated rule of refusing to permit parties to suits to be themselves examined. The Courts of Westminster had refused to simplify their proceedings, and the consequence was, they would be swamped. There was an old saying, that when persons of a certain description fell out, honest men would get their own; and he had no doubt that the result would be beneficial to the public. Besides, it was a very pretty quarrel as it stood—attorneys versus barristers—and he hoped the Committee would not interfere. He trusted that they would not stultify themselves, after they had given such a vast boon to the public, by trying to introduce the technicalities which they had so wisely swept away. If the Courts of Westminster would only reform themselves, they might depend upon it they would continue to be respected and frequented.


said, that as he saw the sense of the Committee was against exclusive audience being given to the Bar, he was quite willing to substitute for the clause before the Committee a clause that had been drawn up by a County Court Judge, and its purport was, that in all cases where the parties chose to employ an attorney to act both as attorney and advocate, they might be allowed to do so; but if the parties desired the assistance of an advocate in addition to their attorney, that advocate should be a barrister. The clause—which only applied to the extended jurisdiction of the Court—also authorised other persons to appear, with permission of the Judge. He (the Attorney General) must say, that the observations of the hon. Baronet who had last spoken had greatly astonished him. The hon. Baronet had talked about the Courts of Westminster reforming themselves; but surely he must know that they could do nothing of the kind. Heaven forbid that they should have any more judge-made law! They had had plenty of that in times past, and it was the worst of all law. No; it was the province of the Courts to administer the law, and of the Legislature, if necessary, to amend it.


said, he must confess that his own wish, and that of the right hon. Baronet the Member for Ripon (Sir J. Graham), who was unable to attend, was, that both attorneys and barristers should have a fair field, and no favour, and that if the suitor liked to go to a barrister, he should go to a barrister, and vice versâ. That, he believed, would have been the best course for the public, and would have secured the attendance of a Bar. If, however, the hon. and learned Attorney General thought it better to frame the clause in a more restrained sense, he, for one, saw no objection to that course. At present, no doubt, the Bar were virtually excluded from practising in the County Courts by the words introduced in the Act 9 & 10 Victoria. He believed, however, that the success of this experiment would mainly depend on having a Bar in these Courts, which he considered to be a great security for the due administration of justice. At present, the Judges were fresh from Westminster Hall, and came prepared to administer justice in a spirit of energy and efficiency to which they had been accustomed; but in the course of time they would become rusty, and, without the attendance of a well-qualified body of practitioners, in ten years' time he feared that the County Court Judges would not deserve the same respect which they now enjoyed.


thought that the alarm of barristers on this question was unnecessary. They could protect their own interests most effectively if they would only consent to adopt a liberal and enlightened policy, such as was suited to the spirit of the times.


suggested that the Clause should be postponed, the Committee not having had an opportunity to see it in print.


entirely approved of the suggestion. He would not show exclusive favour either to barristers or attorneys; but he could not help thinking that the interests of the public would be materially promoted by the presence of a respectable Bar in the County Courts.


was certainly not prejudiced against the attorneys, for, though on his appointment as Chairman of a Quarter Sessions he had thought it his duty to be called to the bar, he had practised as a solicitor for thirty years. Nevertheless, he preferred the hon. and learned Attorney General's original clause to the proposal to remove all restrictions.


said, he should support the proposed Clause. Let the Committee recollect that it was to the Bar of England that we owed in a vast measure the great liberties of this country. It was Lord Coke who framed the Petition of Right; it was Lord Somers who prepared the Bill of Rights. It had ranked amongst its members the most eminent supporters of our liberties. But, further than that, he would ask, what would be the state of property in the country if they allowed it to be disposed of by Judges who had not the responsibility of giving their decisions in the presence of a Bar? The hon. Member for Oxfordshire (Mr. Henley) who had had experience of that, had told the Committee his opinion on the point; he had told them that they could not have the security of an able Bench unless it were watched by an able Bar. Nothing could be done more disastrous to the suitors, nothing could be done more to degrade these Courts, and make them odious and disgusting in the eyes of the country, than to withdraw the Judges from the supervision of an efficient and high-minded Bar. The Bar was kept in order by the esprit de corps by which every barrister was the watchful guardian of the honour and integrity of his learned brethren. Besides, all barristers were obliged to be members of one of the four Inns, which were governed by benchers, who sat as judges over their conduct, and who were armed with the power of expelling them from the Inns, and so depriving them of the right to practise. In like manner, a person's own attorney was liable to an action for damages if his client suffered loss from his negligence. But this hybrid class of attorney-advocates would be liable neither to be debarred nor to suffer the pecuniary consequences to which a person's own attorney was liable. Now the persons who principally used the County Courts were singularly liable to be preyed upon by knavish practitioners; and if these latter persons were admitted into the Courts, they would soon become so debased as to he a perfect nuisance, and ere long an Act would be called for to abolish them altogether.


said, that having taken the attorneys and solicitors especially under his protection, it would be expected that he should express his sentiments on this question. The hon. Member for Boston (Mr. Freshfield) had stated that, having practised for many years as a solicitor, it might be supposed that he regarded the proposition of the hon. and learned Attorney General with some degree of disapprobation, as militating against his profession; but the fact was, that the profession generally, attorneys as well as barristers, viewed the County Courts with unmitigated dislike, for their great profits consisted in the retention of Westminster Hall as it was. He was therefore most anxious to reduce the profits of attorneys and solicitors, as he believed he was doing in maintaining the County Courts as they were. Now, as he understood the proposition, it was this: That at that moment an attorney, if he did not choose to advocate a cause himself, might ask ano- ther attorney, called an advocate-attorney, or, as they had been named by the hon. and learned Solicitor General, a hybrid class, to undertake it for him; but now it was proposed that the attorney should not he able to do that, and that if he wanted assistance, it must be intrusted to a barrister. To that proposition he should most unwillingly assent. No gross case had been brought forward in which this hybrid class had abused the trust reposed in them; and having himself witnessed how well and cheaply justice was there administered, he should be sorry to alter the present method of proceeding.


said, that as it was not competent for the Committee to adopt a perfectly new Clause unless it were brought up at the end of the Bill, it was clear, therefore, that the object which the hon. and learned Attorney General had in view could not be effected on the present occasion otherwise than by varying the terms of the 13th clause.


said, what the Government proposed was this: so far as the old jurisdiction of these Courts was concerned, a party should be allowed to employ a barrister through his attorney, if he so thought fit; but in reference to the new jurisdiction about to be established, a party should be allowed to appear either by attorney or a barrister, or any other person who should be approved of by the Judge of the Court.


said, that although he had come down to the House to vote against the original clause, yet he would support the amended one. If the monopoly of the Bar were to be guarded against, much more for the interests of the people ought the monopoly of the attorneys to be guarded against. The Committee was aware that complaints had been made that suitors were prevented from having a barrister for their advocate. A barrister had told him that he was waited upon by a poor man, who requested him to hold a brief in a cause that was coming on on the following morning. He refused, unless the brief were handed to him in the usual way, through an attorney; to which the poor man replied, that that was impossible, for an attorney who had almost exclusively all the practice at the Westminster County Court had told him that if he insisted on having a barrister, he would, at the last moment, throw up his case: and similar cases were continually occurring. In the Colonies a learned, in- telligent, and able Bar had been destroyed by that depraved system. He knew, from his own experience, that it was the case in Van Diemen's Land; and the same consequence must follow here if the same system were adopted. Although he insisted, in the name of economy and justice, on the right of the client to employ whom he pleased, and to instruct counsel personally, and not through an attorney, still, having regard, not to a monopoly of the Bar, but to the interests of the clients themselves, he objected to arm attorneys with the great additional power which this proposed innovation would confer upon them.


said, what they wanted to do was very obvious; it was to put an end to all restrictions unfairly imposed either on one class or the other. They had been told that there were combinations among the attornies to oust the Bar from these courts. Let them then put an end to all the machinery by which those combinations became possible, and then let it be equally clear that in these courts there should be no necessity for a poor client to have any advocate at all unless he chose. Surely that could be put in a short intelligible form. Let them then repeal the statutory restriction which prevented the Bar from acting as advocates in the County Courts, and then it would be for the Bar to review their own rule of etiquette which forbade the acceptance of briefs except through the hands of an attorney. He would then propose to unite in this clause the provision of the statute of the 9th and 10th of Victoria, and then let them say, "Be it enacted that the said last-recited provision be repealed," and then enact as follows:— And that it shall be lawful for any person or party to the suit, or for an attorney conducting the suit, or a barrister retained by or on behalf of either party to the suit, or, by leave of the Judge, any other person, to appear for him and address the Court without any right of pre-audience or exclusive audience, but subject to such regulations as the Judge should from time to time direct for the transaction of the business of the Court.


thought it would be enough to strike out the words "instructed by an attorney," occurring in the provision referred to by the hon. Member for Liverpool.


said, there was only one point in which the alteration proposed by the hon. Member for Liverpool differed from the view taken of the subject by his right hon. Friend the Chancellor of the Exchequer. The hon. Gentleman proposed to apply the clause to cases under the old jurisdiction as well as to the new. Now, it might be desirable, if they put all parties on a fair footing, to have an uniform course of proceeding. As he understood the hon. Gentleman's proposition, a party would be entitled to advocate his own cause, or an attorney might be his advocate, or, if he preferred it, he might have counsel, and he might either instruct his agent to retain counsel, or might go directly to counsel and instruct him. The latter was a question of etiquette, which it would be afterwards for the Bar to determine how far they would alter the present practice of the profession, which prevented them from accepting any brief except through the hands of an attorney. That, however, was, as he understood, the effect of the clause; and he believed it would be satisfactory to everybody, and he trusted, therefore, the House would support it.


said, that he had received information of secret partnerships being formed between attorneys and the attorney-advocates to divide the profits between them; and there had been instances in which combinations had existed to prevent the Bar from being employed. He would agree to the Amendments as proposed by the hon. Member for Liverpool, but he did so only because the House appeared to be against exclusive audience to the Bar.


thought it would be better that barristers should receive their instructions from attorneys instead of from the parties themselves.


wished to know whether the clause of the hon. Member for Liverpool would allow of one attorney employing another attorney to advocate a cause, or was it confined to the attorney conducting the cause? He thought the parties ought to be left to themselves. All the difficulty raised by the hon. and learned Attorney General as to barristers would be best met by leaving it to free competition.


thought it should be as open to employ attorneys as advocates as to employ barristers in that capacity.


explained. There must be a security for the suitor in these courts, and that must be either by having attorneys liable to actions at law for neglect of duty, or barristers liable to the control of the opinion of the Bar and the benchers of their Inns of Court, or persons who by leave of the Judge addressed the Court, and were, therefore, answerable to the Court. He believed it would meet the unanimous wish of the Committee if he substituted the words "attorney of the superior courts of record," instead of the words, "attorney conducting the suit."


then put the Clause which, after repealing the provision contained in the Act of the 9th and 10th Victoria, was in the following words:— And that it shall be lawful for a person a party to the suit, or for an attorney of Her Majesty's superior courts at Westminster, retained by or on behalf of the party on either side, or for a barrister to be retained by or on behalf of the party on either side, or, by leave of the Judge, any other person, to appear and address the Court, without any right of pre-audience or exclusive audience, but subject to such regulations as the Judge might from time to time direct.


wished, before the Committee came to a decision, to ask his hon. and learned Friends opposite whether an attorney answering the description in the clause just read could possibly escape from an action for negligence in the misconduct of a cause?


was of opinion that he could.


said, he had only assented to the proposition of the hon. Member for Liverpool (Mr. Cardwell) on the express ground that the person to be employed was to be either a barrister as a barrister, an attorney as an attorney, or any other person, by leave of the Court. That was what he had assented to. It was not in the same form now, as it allowed an attorney to employ any other person, with whom he might have a secret partnership. He believed that by this Clause the grossest frauds would be, as they had been, practised, and that the public would feel the greatest inconvenience from it.

Clause, as amended, agreed to.

The House resumed; Committee reported progress.

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