LAW PROCEDURE (IRELAND). (Hansard, 19 November 1852)

§ MR. WHITESIDE

moved for leave to bring in a Bill to amend the procedure in the Superior Courts of Common Law in Ireland. The Preamble of the Bill recited— That it was expedient to simplify and amend the course of procedure as to the process, practice, pleadings, and evidence in the Superior Courts of Common Law in Ireland, so as to make the same less dilatory and expensive, and to prevent substantial justice from being defeated by reason of the variety of forms of action, the technicalities and prolixity of pleadings, and the unnecessary length of records; and to consolidate the provisions of several statutes and rules of Court relating to such proceedings, and also to enable the Superior Courts of Common Law to give effect to certain legal rights and just defences, so far as might be, without the expense and delay of a resort to a Court of Equity. The necessity for a reform like that proposed by the Bill he now had to ask permission of the House to bring in, was obvious and pressing. The Legislature, in its wisdom, had created County Courts throughout England and Ireland, and made the procedure in those Courts short and inexpensive. Now, in his humble judgment, the reform of the Courts of Law had begun at the wrong end; but as the County Courts were established, and had distributed justice to the satisfaction of the public, our duty was to preserve, and if necessary to improve, them for the purposes to which they were designed. The great fact was, that at present there were two classes of tribunals in Ireland—-one administering cheap justice, with a jurisdiction extending to 40l.; and the other set of tribunals, of superior structure and excellent design, administering justice in cases involving the amount of 4l., at comparatively a dear rate, and in comparatively a cumbrous method. It appeared to him that these two systems, acting on opposite principles and practice, could not exist; and nothing remained to be done but to reform the Superior Courts of Common Law on a comprehensive plan, and in accordance with the wants of the public and the spirit of the age. The House was aware that in the County Courts the question at issue between the parties was brought to a hearing by a short and simple plaint. But the case was far different with respect to the proceedings in the Superior Courts of Common Law. There we had the writ, which gives the defendant no information; 258 and the appearance, which gives as little to the plaintiff; then the plaintiff's declaration, which must be adapted to a particular form of action, told the defendant nothing; and, next, the plea of the general issue by the defendant told the plaintiff nothing; and other proceedings followed, which left the parties as little acquainted with the case as if there had been no pleadings at all. Sometimes there was what was termed in law a replication; then there might be a rejoinder, and afterwards in succession a surrejoinder, rebutter, and surrebutter. At any part of the series of proceedings a demurrer might be put in, which would have the effect, as classically expressed, of hanging up the suit for twelve months. But, supposing the issue of fact to be joined by the parties, the whole of the proceedings must then be transcribed on a formidable roll of parchment, which was called the record, although all the pleadings were recorded already; and this record was stamped, tied up, and despatched to the Judges' Registrar before the trial. The Registrar never looked at it, the Judge followed the same course, and the counsel on either side never read it; the ends of justice being satisfied by a short and simple abstract of the proceedings, which was prepared by the junior counsel, and handed to the Judge for his information. If the counsel adverted to it, he did so only for the purpose of tripping up his adversary on some formal and technical point. One question, then, to be decided was, what was the use of continuing this costly and utterly abortive proceeding? Lord Brougham, in his speech on Law Reform, delivered in that House, and which led to so many important and valuable results, truly said— I regret to say that the last century and a half has witnessed great and prejudicial alterations in the original plan of pleading, so that the record, in the great majority of cases, instead of exhibiting a plain view of what each party is prepared to prove, contains an endless multitude of words, from which, if the real matter in dispute can be gathered at all, it is only by guesswork, or by circumstances out of the record, relating to things of which he gives not even a hint. He then added— Of the circumstances peculiar to the transaction, the pleadings tell the defendant nothing, they tell the counsel nothing, they tell the Judge nothing. It may be said that the defendant must know the cause of action himself; but that does not always follow, especially if the allegations are groundless. There is, however, one person who must know the cause of action, and that is the plaintiff. He ought, for the satisfaction of all concerned, to state it distinctly. 259 It sometimes happened even that this expensive record was framed and drawn up on a wrong issue, and the Judges could then do nothing hut direct a re-pleader. In addition to this, there was, moreover, a large class of minor evils—uncertainty in pleading and other matters—all leading to great expense, and consequently to a denial of justice; and it must he remembered, that the plaintiff is compelled to select at his peril a particular form of action, and to describe it by the right name. His purpose on the present occasion was, if possible, to reform these abuses. He objected to the present system, because the steps in the cause were too many, and he thought they ought to be made fewer, and the proceeding rendered cheaper. He objected, next, to the falseness of pleas— injurious alike to morality and justice—to a lengthy record of matters already recorded, to the triumph of form over substance, of technicality over truth. He objected also to a suitor being driven like a shuttlecock from a Court of Law to a Court of Equity, and being sent to Chancery to be enabled to go to Common Law. He objected to the anomaly that some debts were assignable at Law, others only in Equity, and insisted that a remedy should be applied to these abuses, and that to be satisfactory, the remedy should be searching, cheap, and comprehensive. He had now sketched the evils which existed, and his objections to them. What were the remedies? He first wished the House to consider the principle of this Bill, and then to see what difficulty there would be in carrying it out. Its leading principle was to assimilate the procedure of the Superior Courts of Common Law in Ireland to that of the County Courts, so that justice might be done simply and cheaply; and, if that end were attained, it would recommend the venerable tribunals of the country to the confidence of the people. Now, there was an ample supply of materials for a measure of practical Law Reform, 1st, There was the procedure of the County Courts of England; 2nd, the procedure of the County Courts of Ireland; 3rd, the Act for the Regulation of Civil Procedure in Scotland; 4th, the Report of the Commissioners on the Common Law Procedure of England; 5th, the Act for the Amendment of the law in England passed last Session; and, 6th, he was not afraid to add, the American Code and the Report of the Commissioners of the State of New York. The first head of any great measure 260 of reform was to abolish all distinctions as to the form of action. At present there were eight or nine different forms of action. For instance, Breach of Duty might be converted into Breach of Covenant, and Breach of Covenant into Breach of Duty. The value of retaining these forms would be discovered by the recollection of the great case of the squib. A party at a fair fired off a squib—it fell on some gingerbread. Another party near at hand took it up, and threw it at a third; it struck him in the eye, and he lost his sight. He brought his action of trespass against the party who fired off the squib. The jury gave him a verdict for damages; but a question arose on the form of the action. A reasonable person would have supposed that the substantial question was whether the plaintiff had lost his eye by the act of the defendant. But, no, said the lawyers, that is immaterial; the real question is, whether it should be called an action of trespass vi et armis, or an action of trespass on the case, and it was contended that it must be an action on the case, because the squib had first touched the gingerbread. Sir William Blackstone exhausted his learning in proving that the unfortunate man who had lost his eye was entitled to receive nothing, because his action was brought in an improper form. The learned Commentator failed in his attempt; but his argument [ought to have mitigated his eulogium upon pleading. That was an English case. He would now give an Irish one of the same nature. A priest was travelling outside a stage-coach; a race took place between that and a rival coach, and the horses ran away. The priest was alarmed — he threw himself off the coach, and broke his leg. He brought his action for the injury; but the pleader unluckily called it by a wrong name —he called it trespass. It was argued that it was an act of necessity—that the priest threw himself off to save his life. On the other side it was said he had not been struck—that the act was his own; and, because he would not remain on the coach and lose his life, to settle the point of law, his action was held to be wrong; and he not only lost his leg, but his damages also. These cases might be multiplied, and showed the mischievous effects of retaining technical distinctions in forms of action. The Commissioners for the Improvement of Common Law Procedure had recommended their abolition, and a clause to that effect had been introduced into the 261 Bill for England. The House of Lords, however, struck out that clause; and although, when the Bill came to this House, the hon. and learned Attorney General had done all he could to improve it, yet that portion of it had been lost to the public. Possibly their Lordships preserved the forms of action, because the English Bill preserved the system of special pleading with which those forms were interwoven. To meet this difficulty he proposed to abolish both. The next step of reform, therefore, after abolishing the distinction in forms of action, was to abolish what was technically called special pleading. He wished to have distinctly stated the ground of action on the one hand, and on the other the ground of defence; so that each might be intelligible to every man—stated in the language of the people—who ought to understand the language of the law. For that purpose forms of plaint were given in this draft of a Bill; but a literal adherence to them was of no consequence, provided the substantial ground of action were stated. This was the principle acted upon in the County Courts of Ireland every day. The great end of all special pleading was to eliminate an issue—to ascertain the true question to be tried in the fewest words; and this valuable principle was carefully preserved by the proposed measure. The Bill further provided, that the plaintiff should supply an abstract of the issue to be tried. If his adversary disputed the form or substance of the issue proposed, he might take the opinion of a junior Judge of the Court, at the risk of costs, if his objection was frivolous, and the question stated in the abstract was to be taken as the question to be tried. A simple question was now buried under a mass of papers which might be stated in a very small compass. They had an instance of this in the books of 2,000 folios of pleading, irritating the Judges so that they asked counsel in Court to settle the issue. They did so on a quarter of a sheet of paper; and he believed that almost every question to be tried might be as concisely stated. What was the use of a record except as stuffing for the attorneys to make their brief? Again, he objected to the number of steps in a suit, and he proposed that process should not only call upon the party to appear in Court on a certain day, but should also tell him why he was so called upon, and should state concisely the cause of action. The declaration as a separate step was useless. So, on the 262 other hand, he proposed that the appearance and the defence should be combined in one. The next important question was whether or not the pleadings should be verified, and how? This Bill contained a new principle, and that was that the plaintiff should verify his plaint by a short affidavit to the effect that he believed what he had stated was true; and that the defendant should in like manner verify his pleading in defence. At the present clay there was no check or limit to false pleading. Sugpose an action were brought for payment of a bond. The pleas set up might be that the bond was not given—that was lie the first; that the bond was paid on the day required —that was lie the second; that the bond was paid after the day—that was lie the third; that a release was given —and that was lie the fourth. All that was the flourish of the pleader; but he proposed that the pleading now should be tested by the oath of the defendant. It was nothing but a revival of the ancient system of pleading in this country, which was bottomed on truth (formerly if a man denied his deed falsely, he was fined and imprisoned); and it had been recommended and adopted in the Code of Civil Procedure in New York. Upon that subject the Code contained the following admirable passage:— Ought these solemn allegations of the parties, which are called pleadings, and which set forth the cause of action and defence, to be verified or not? The solution of this question depends upon two others—first, whether a party should be allowed to aver what he does not believe; and, second, whether there be any better test of his belief than his own affidavit. Both questions admit of easy answers. There are several reasons why a party should not be permitted to aver in a court of justice what he does not believe. First, the courts are, or should be, schools of morals. It becomes them to sot virtuous examples. Of all the institutions of society, Courts of justice should be the most sacred to truth. Whenever, therefore, they sanction, connive at, or open the door to untruths, they falsify their own professions, and become the corrupters rather than the teachers of mankind. Second, men should be protected, as far as possible, against false charges. It is signally unjust that any person should vex another with a claim founded upon statements which he does not believe.…What sort of protection does it afford if it allows these rights to be assailed by every adventurer, even though he furnishes not only no security against his misconduct, and no proofs of his charge, hut no test of his sincerity—not so much even as his affidavit of belief in it? Third, lawsuits are a disadvantage to society at large. They require a large array of public officers. They require the attendance of citizens, either as jurors or as witnesses, to the detriment of their own affairs. It seems, consequently, most fit that a check, at least as great 263 as this, should be interposed to the prosecution of frivolous or factious lawsuits. Fourth, if the party be not confined in his pleadings to what he believes, no adequate reform in pleading can ever be effected.… If, then, it be clear that no party should he allowed to aver in a court of justice what he does not believe, the remaining inquiry is, whether there be any better test of one's belief than his affidavit? Here there seems no room for question. The oath is the universal test applied to the consciences of witnesses. If it be good for the witnesses, it is equally good for the litigants. He would now explain why it was that this Bill contained 274 clauses. The Bill brought in for England by the hon. and learned Attorney General, who had bestowed on it all the care and anxiety possible, had been considered defective in some respects by certain Societies in the metropolis for the amendment of the law. In order that the present measure might obviate one of those objections, it was a measure of codification and condensation. All the Acts which had been passed for the amendment of the law as to pleading, practice, and evidence in Ireland, had been condensed and concentrated into this Bill; and if Parliament should accept the new procedure contained in it, the new procedure was made to apply to all those useful statutes which previously existed. Another reform proposed was, to abolish the necessity of personal service of process. By the County Courts Act of Ireland, service was not required to be personal on a debtor; it would be sufficient if process were served upon any member of his family, as pointed out in the Act, and a similar rule prevailed in the Court of Chancery. Why, then, should they insist on a different rule in serving process of a Court of Common Law? By this Bill the system of substituted service was adopted without the expense of applying to the Court to allow it. He now approached a subject of some importance—the equitable jurisdiction of Courts of Common Law. He was quite aware of the distinction that existed between the Courts of Equity and the Courts of Common Law; that the former dealt with complicated questions, arising between many parties, while in the latter the simplicity and directness of the ancient Common Law were applied to determine a precise question arising between the plaintiff and defendant upon the pleadings. But while he admitted that it was impossible to unite Law and Equity with the present systems of procedure, yet, on the other hand, he thought it was perfectly possible to remove many obstructions that now prevented the free 264 action of the Superior Courts of Common Law, and the necessity of applying to the Court of Chancery for the purpose, so that one tribunal might do complete justice between the parties. First, then, he proposed that choses in action should be assignable at law. He proposed to make every form of debt assignable at Common Law as they were in Equity. Assignments, he proposed, should be registered in an Office. He was not without an authority, and a strange authority, upon this subject—that of Oliver Cromwell. In 1654 a Commission was appointed by the then House of Commons to consider the best mode of reforming our laws; and on that Commission sat Mr. Oliver Cromwell and Mr. Mathew Hale. He trusted that what had been recommended by such great authorities would not be considered as a rash innovation. He next proposed to deal with cases of lost bonds and lost bills of exchange or other instruments. At present a person losing a bill of exchange had to go to a Court of Chancery to settle an indemnity. He proposed to give to Courts of Common Law all the powers of Courts of Equity in deciding on the sufficiency of any indemnity for a lost bond or bill of exchange, or other instrument of a like nature. The Court of Chancery now must also be applied to by a person who had a contract for the possession of premises but not a legal title. In the County Courts of Ireland the existence of such an agreement for a lease would prevent the landlord from ejecting the tenant, and the Judges in the Superior Courts would on appeal confirm such a decision. He now proposed to give the Judges in the first instance the power they at present possessed after the decision of the inferior Courts, and to make a contract of that nature a good defence to an action of ejectment in a superior Court, thus saving the party from the necessity of a Chancery suit. Another part of the Bill applied to the removal of obstructions from the trial and ascertainment of a legal right in reference to a legal matter. A party now desired to dispute the will of his ancestor, who had disinherited him, and wanted to try its validity. If it affected real estate, it must be tried according to Common Law by a Judge and Jury; but when the party began to try the validity of the will, he was threatened with "temporary bars," and he could not go on with his action without going into the Court of Chancery for their removal. It was now 265 proposed that the Courts of Common Law should exercise a jurisdiction without the aid of Equity in these cases. Lastly, there was one other subject which he submitted might be made the subject of a legal defence in a Court of Law. There were cases in which a person sued, had, according to the strict letter of the Common Law, no defence, but had equity, conscience, reason, and justice with him; and when he went to a Court of Equity, it would grant a perpetual injunction against his adversary, so that he could never move against him in a Court of Common law. To give Common Law Courts a right to decide nice questions of complicated equity, would be impossible; but in such a case, why should a party when he was persecuted wrongfully, he also vexed by a suit in a Court of Equity? If a party could set forth facts which would entitle him to a perpetual injunction in Chancery, it was proposed that such defence should be available at Common Law. These were the principal reforms adverted to by this Bill. They were large and comprehensive, and, in addition to their value in that respect, he thought it would be found, when the table of fees and costs were added, that, in ordinary cases, the costs would be reduced nearly one-half, and certainly one-third, so that failure in a lawsuit would not entail ruin upon the plaintiff or defenfant. These propositions, he ventured to hope, would not meet with much opposition, or at least would only be opposed in a friendly spirit—as they were calculated, he firmly believed, to give satisfaction to all classes of the people. He could not conclude without returning his thanks to the Lord Chancellor of Ireland, who had clearly and decidedly expressed his approbation of these measures of reform. The Bill had also received, in reference to the verification of pleadings and other important provisions, the sanction of the Lord Chief Justice of the Queen's Bench in Ireland, and of his right hon. and learned Friend the Attorney General for that country. The object of the measure was to make justice easier, cheaper, and more accessible; and, presenting it in that character, he respectfully solicited for it a favourable reception on the part of the House. It was offered as an instalment of the series of legal reforms which the Government intended to submit, and as such he trusted it would be graciously accepted.