DESPATCH OF BUSINESS, COURT OF CHANCERY BILL. (Hansard, 9 August 1855)

§ SIR JAMES GRAHAM
Sir, I am almost afraid the Committee will consider any interference in this matter, on my part, to be, if not impertinent, at all events intrusive, as this Bill deals with professional matters, of which I may be supposed not to be cognizant. My excuse for troubling the Committee must be that I, together with my right hon. friend the Member for Oxfordshire (Mr. Henley), have taken a deep interest in law reform as connected with the Court of Chancery, and I am bound to say I regard the present measure with considerable anxiety. I have some offences, as a member of the Commission, to answer for with respect to the Court of 2061 Chancery. I allude to the abolition of the offices of the Six Clerks, and the compensation given them, which I now consider was to an injudicious and exorbitant amount. As a member of the Chancery Commission, I also recommended the abolition of the office of Master in Chancery, and Parliament concurred in that recommendation, and granted to the Masters a liberal allowance—no less than their salaries for life on their retirement. It was believed by the Commission and by Parliament that a great benefit would be effected if the judicial powers exercised by the Masters were transferred to the Judges of the Courts of Equity, and if in Chambers the duties of the chief clerks of the Masters were performed by the clerks of the Judges. The danger of the change was this, that, under another designation the chief clerks of the Judges would perform the duties of the Masters. I have with great anxiety watched the working of this change, and I can safely say that, on the whole, it has been efficacious and salutary. Both in Chambers and on the Bench proceedings have been conducted in a most satisfactory manner, with greater promptitude and at less cost than heretofore, and in these Courts, combined with the Courts of Appeal, business has proceeded with great rapidity, without any sacrifice of efficiency. I must, however, say that I think such a change as the proposed measure contemplates is to be regarded with great jealousy. At the same time I should not be doing justice to the eminent persons who are connected with the administration of justice in these Courts if I did not state that I have been in communication with them, and that I have reason to know that this measure meets with the unanimous approbation of the Judges of the Court of Appeal, the Master of the Rolls, and the Vice Chancellors. The Lord Justice Turner is of opinion that the 1st and 2nd clauses of this Bill are judicious, and is desirous that they should become law. The first clause empowers the Judges of the respective Courts to appoint an additional number of junior clerks. I am informed that, although in the Courts themselves there is no growing arrears of business, yet that in Chambers there is a considerable arrear. I am also informed, on the best authority—that of the Law Society—that at the present time in Chambers an appointment or adjournment before the chief clerks cannot be fixed in less than from two to 2062 five weeks, and that these arrears arise, not from any want of junior clerks, but from the senior clerks being overwhelmed by work. It is quite clear, however earnest the Judges may be to prevent the accumulation of arrears in Chambers, that it is but natural they should devote the largest portion of their time and attention to the business in their respective Courts which must be regarded as being of primary importance. These learned, assiduous, and able men, throughout Terms protracted beyond those of the Common Law Courts, devote day after day, from ten in the morning until four in the afternoon, to proceedings in open Court, and night after night they have to prepare themselves at home for coming judgments in the causes which they have heard. This is their primary business, in addition to which they undertook to transact in Chambers the duties of the Masters on the abolition of the Masters' offices. The great object of the change of 1852 was that the Judges should, from the commencement of a cause to its final adjudication, have it under their notice and control in all its stages. To effect this it was absolutely necessary, however irksome it might be, that, in addition to the leading features, the minor details of the cause should be attended to by the Judges. The arrears of business in the Courts have been kept down by the exertions I have mentioned, but I am bound to say that the most assiduous of the Judges have given less time to the business in Chambers than I think is desirable. Their practice has been to go to Chambers after four o'clock, and to devote occasionally an hour, or an hour and a half, to business there. [Mr. MALINS: They generally go to Chambers after three o'clock.] Still that is at the fag end of the day, when the mind is exhausted and oppressed with a sense of duties awaiting them at home, hardly less important than those of the Bench; and this practice of devoting occasionally not the whole but a portion of a day to the business in Chambers is, I think, to be regarded with jealousy and apprehension. In order to give the Committee some idea of the business which is got through, I may state that during the last year 12,000 ordinary summonses have been heard, which were before heard by the Masters' head clerks; that 5,000 orders have been made, which were before these alterations made by the Masters; that 3,500 orders have been issued, which 2063 before required a motion or petition to be made in open Court; and that there have been 500 summonses in the nature of decrees for execution, which formerly required a bill and the attendant expenses. Anticipating this increased business, and anxious to avert the accumulation of arrears, the Chancery Commissioners, in their Report, used these words— The judicial business which has hitherto occupied the attention of the Masters would thus, in effect, be transferred to the Court, and the duties not discharged by the Judges themselves would be transferred to officers immediately attached to the several branches of the Court, which officers should possess similar qualifications and perform similar duties to those of the present Masters in Chancery. And then came the anticipation to which he wished to call attention— If experience should prove that the business of the Court cannot be sufficiently transacted without an addition to the number of Judges, we trust this necessity will be promptly met by the Legislature. Now, how can you meet the present accumulation of business in Chambers? If you seek to give effect to the principle—which I am satisfied is a good one—that the Judges only should themselves exercise their judicial functions with respect to a case from its beginning to its close, then it is absolutely necessary that the Judges should not give a small portion of a day, but that they should at least devote a day in each week to Chamber business. I will not now go into the question of additional Judges, nor into the question of the Testamentary Courts, nor matrimonial jurisdiction, which I trust will early next Session meet with the attention of Parliament, and which will give rise to the question of the appointment of one or more additional Judges, who, if not in immediate attendance on the Court of Chancery, will be in connection with it. I am afraid in the appointment you propose of junior clerks you are, in this change, beginning at the wrong end, and my fear is, that these junior clerks will do the work of the Masters' clerks, and that you will erect into a new power the clerks of the Judges, who will do the work of the Masters, and the Judges will no longer be responsible for the business in Chambers. I am apprehensive that, under these proposed appointments, the abuses which have heretofore been rife will arise under a new term, but in an old shape, and that the measure of 1852, which has been so advantageous, will be sapped to its foundations. I need 2064 not say that I have the utmost confidence in the Master of the Rolls and the present Vice-Chancellors, but there is in the clauses of this Bill an evil which the Committee ought to regard with jealousy. It is the infirmity of human nature that when a man is overburdened with work his natural desire is to transfer a large portion of it to his assistants, and there is inherent in the Judges, although they may not know it, a desire to increase their share of patronage. The clauses we are discussing are vicious in both these respects; they will tempt the Judges to transfer duties to their subordinates, and then hold out the inducements of a considerable increase of patronage. The necessity for the first two clauses of this Bill is very doubtful—they are objectionable in principle and likely to be vicious in effect. I should prefer the direct proposition of the appointment of additional Judges in order to prevent an accumulation of Chamber business, and I am sure that if such a course were adopted there would be a saving rather than an increase of expense, and that the public would benefit much more by the application of the remedy which I have suggested than by that which is proposed under the present measure. I am not, perhaps, competent from my experience to deal with this question, but I am certain that, both with regard to the friendly feelings which I entertain for some of the Judges, and also the part I have taken in this question, I am justified in stating my views frankly to the Committee. If the Committee should not agree with me, and should think I am not justified in the apprehensions I entertain, still what I have said may have the effect of causing the House of Commons and the Government to bear in mind that which I think will be found to be the most efficacious remedy of the evil now complained of. I could also have wished, had time admitted of my so doing, to have commented on the other clauses of the Bill. I doubt whether it is wise to increase the salaries of the clerks of the records, as the Judges already have power, should they think fit so to do, to transfer to those clerks any additional duties without any increase of salary. The 10th clause, which provides that public practitioners may take affidavits, I consider is most objectionable and indefensible. Then, again, the clause empowering the sale of Southampton-buildings directly and essentially affects the question of the site of the 2065 Law Courts. All these are questions of importance which I know cannot receive at this late period of the Session the attention which they deserve, but I have felt it my duty thus to state my views, and although we cannot hope to proceed far with the Bill to-day, still to pass it over without a discussion would be, I think, treating it in a manner wholly unworthy of its importance.

§ MR. HADFIELD
said, he apprehended that after the remarks of the right hon. Baronet it was very doubtful whether any progress could sbe made with the Bill that Session.

§ MR. MALINS
said, the country should feel indebted to the right hon. Gentleman (Sir J. Graham) for the attention he had given to that most important subject. He (Mr. Malins) could corroborate the right hon. Gentleman's view that it would be difficult to imagine greater improvements in the practice of the Court of Chancery than had been effected by the alterations of 1852. The former practice of the Court was to defer decision; the practice since 1852 was to accelerate decision. Formerly cases were referred to the Master for decision; now they were decided on affidavit, under the immediate supervision of the Judge in Chambers. With regard to the statement of the right hon. Baronet as to the mode of transacting business in Chambers, there was a great deal in his suggestion. Every Judge was occupied on an average six hours each day in open Court, during which some sixty to eighty matters were often disposed of. That a Judge should have, after that, to go to Chambers was undoubtedly an evil, which, however, the appointment of an additional Judge, to enable the Judges to sit a day each week in Chambers, would not remedy. One of the advantages of the alteration of 1852 was that of getting rid of the arrears in the Court of Chancery. Vice Chancellor Stuart had risen on the 27th of July, having disposed of every cause and every petition in his Court, except one, which stood over on agreement. The other Chancery Judges had also disposed of every cause set down for hearing, so that there were only six weeks' arrears at the utmost. As regarded the delay in appointments at Chambers, he was very much surprised to hear the statement of the right hon. Baronet. He was assured, on the contrary, that the present staff, of two chief clerks for each Judge, was amply sufficient if the Bill passed giving additional junior clerks. 2066 He could not think that the appointment of another Vice Chancellor would be of any good; but rather the contrary. While, if an additional Judge was to be appointed to each Court, besides the unnecessary expense which it would cause, it would not effect the purpose. The present chief cherks were perfectly competent persons, and they had stated to him that the presence of a Judge more than a couple of hours twice a week was unnecessary.