HC Deb 15 April 1858 vol 149 cc1161-8

THE SOLICITOR GENERAL, in rising to move for leave to bring in a Bill to amend the course of procedure in the High Court of Chancery, said that with the permission of the House he was anxious, in a very few words, to explain the objects of the measure. In the debate which had just terminated an hon. and learned Friend of his had made some observations with which he was at the time much struck. He alluded to the Hon. and learned Member for Ennis (Mr. J. D. Fitz-Gcrald, who said that the two most serious evils under which we laboured at present in regard to the administration of the law were—first, the defective state of the law of bankruptcy; and, secondly, the impossibility at present to obtain complete relief in a single court, the suitor being obliged to go to one court, which exhausted part of the case, and then to proceed to another for what he must call the supplemental relief which he desired to obtain. The defective state of the law of bankruptcy was one the importance of which could not be overrated, and he trusted that before many days passed over there would be presented to one or other branch of the Legislature a Bill which he was sanguine enough to hope would remedy, to a considerable extent, those evils which all must admit to exist. The present Bill would, he trusted, go far to remove the other evil mentioned. The measure had two objects in view, both tending to one common end,—to enable the suitor to obtain in one court the complete relief to which he was entitled. Those hon. Members who paid attention to the proceedings in the Court of Chancery would doubtless be aware that a largo portion of the jurisdiction of that Court consisted in giving relief in cases of breach of agreement, by restraining the continuance of the breach for the future; but it could not give damages for the injury inflicted in time past. For those damages the suitor was obliged to go to a court of common law; and thus he got prospective relief from the Court of Chancery, and retrospective relief from the court of common law. So, with respect to the specific performance of an agreement, the Court of Chancery could compel specific performance for the future, but could not give damages for the non-performance of the agreement in time past. Now, he proposed to remedy this state of things by empowering the Court of Chancery, upon any application for an injunction, or for the specific performance of an agreement, to award damages for the breach of the agreement up to the time when the Court gave relief. He ought to say that on this point a corresponding jurisdiction had been conferred by Parliament on the courts of common law. They could give retrospective relief by way of damages, and the Common Law Procedure Act enabled them also to exercise jurisdiction with respect to the future by way of injunction or decree for specific performance. He proposed that the Court of Chancery should in the same manner complete its jurisdiction, and then every suitor would have it in his power to appeal cither to the Court of Chancery or to a court of common law. In this way, if a perfect fusion of law and equity were not effected, at all events complete jurisdiction would be given to the courts of common law and equity in their several departments, so that there would be no portion of relief which any of those courts might not give to the suitor. This subject was brought before the Commission which sat to inquire into the procedure of the Court of Chancery, of which Commission several eminent Members of that House, among whom were the right hon. Baronet the Member for Carlisle (Sir J. Graham) and the President of the Board of Trade (Mr. Henley) formed part. The subject was considered by them, and in the second report they recommended that this jurisdiction should be conferred on the Court of Chancery. That, then, was the first object of the Bill, and the second object was a corresponding one though different in its kind. He proposed to obviate the difficulty which now existed in the Court of Chancery in reference to trying questions of fact. Hon. Members conversant with proceedings in courts of law might he aware that in 1852 the mode of taking evidence in the Court of Chancery was materially altered, Up to that time it was taken in a very absurd manner—namely, by taking written depositions as they were called, the party being examined in private without his adversary being present, and the story was committed to paper by the person in whoso hand the questions were put which were to be asked of the witness. That practice was altered in 1852, and the system which had since prevailed was the system of viva voce examination; but the witnesses were not called before the Judge who had to decide the case, but before an examiner of the court in the presence of both the parties. No doubt that was a great improvement, but evils, and he might add evils of a serious kind, had grown out of the system. In the first place, it was obvious that it was a manifest evil that the Judge who had to decide the cause did not see the demeanour nor hear the evidence of the witnesses. But another objection was, perhaps, more serious—namely, that the examiner had no power to check the prolixity of the proceedings, or to decide as to the relevancy of the questions. The examiner, therefore, was at the mercy of the parties, and must take down every word, and examine all the witnesses, however numerous. The consequence was, that in cases involving a decision on questions of fact piles of papers were collected together, the sight of which might alarm any hon. Member in that House, and which had to be waded through page by page for the purpose of ascertaining one very small grain of fact, which might have been discovered, if the witnesses had been examined in the presence of the Judge, in one-tenth the time and at one-tenth the expense. The Court, then, was in very serious difficulty on the subject, for it could not check this prolixity nor prevent the expense which was incurred: and then, after all, if it were a case in which the witnesses gave evidence one against the other, the Court could not tell without seeing the witnesses which was telling truth and which falsehood. A jury, consequently, must have the opportunity of considering the question of fact raised, and an issue was sent to be tried by a jury in another Court, where, at a serious expense, the whole proceeding had to be gone through again. He therefore proposed that the Court of Chancery should have the power of calling in a jury with respect to any case in which a question of fact should arise sufficiently grave to warrant the interposition of a jury. Thus the issue which had hitherto been sent to be tried in a court of common law would be disposed of in the Court of Equity itself in the most simple expeditious, and economical manner. This arrangement was the more necessary in consequence of the first part of the Bill, because that gave to the Court of Chancery the power to grant damages, and they all know that there was no mode of assessing damages satisfactorily except through the intervention of a jury. Therefore, for assessing damages, and on questions of disputed fact, the Court of Chancery would have the advantage of a trial by jury. He did not propose to make his Bill compulsory in all cases, but to leave the matter in the first instance to the discretion of the Court, though, no doubt, that discretion would be very largely exercised in favour of the intervention of a jury; and if hereafter it should be found that this was a successful experiment, he trusted that they would be able still further to improve the mode of taking evidence, by means of witnesses examined in Court, where the Judge might observe their demeanour. Having thus shortly stated the objects of the measure, he trusted the House would consent to its introduction.


said, that he had listened with great pleasure to the hon. and learned Gentleman's statement, and had no hesitation in expressing his opinion that the Bill would confer a valuable jurisdiction on the Court of Chancery, and in many respects contribute to the effective administration of justice. There was no doubt that the provision with respect to suits for specific performance must be beneficial. As jurisdiction was given at common law, for complete justice in cases of breach of contract, so the same authority should be conferred on the Court of Chancery. No proposition could be more indisputable than that very Court in this country, great or small, should have full and complete power to bring to a conclusion all matters intrusted to its jurisdiction. With regard to the other proposal, that the Court of Chancery should have power to summon a jury, if a jury was the best tribunal for the decision of a question of fact, there was no reason why it ought to be confined to the courts of common law. Still he thought that in general it would be found that parties would be satisfied with having the question of fact decided by the Judge; and, therefore, he regretted that his hon. and learned Friend had not gone a step further, and provided that all witnesses upon issues brought before the Courts of Chancery should be examined in the presence of the Judges, precisely in the same manner as in the courts of common law. The system now adopted in the Courts of Chancery had not been satisfactory either to the suitors or to the Courts, but he believed that such an extension of this measure as he suggested would be very beneficial.


said, he believed the Bill would greatly improve the administration of justice. He hoped, however, it would not be confined to England, but that either by additional clauses, or by a separate Bill, the advantages it conferred would be extended to the suitors in the Court of Chancery in Ireland. The difficulties mentioned by the Solicitor General had been so sensibly felt in Ireland, that the late Lord Chancellor and the Master of the Rolls, when any question as to facts arose, instead of referring to the Examiner, had invariably required the witnesses to attend before them for examination, and had then come to a decision. He believed, however, that in many eases it would be a great relief to these learned Judges to have the assistance of a jury in determining disputed questions of fact. He might observe that there was at present no adequate machinery for taking down the evidence of witnesses in Chancery, and he would suggest that the Judges of courts of equity should be authorized to appoint shorthand writers to discharge this duty. Such an arrangement would not, he believed, involve any considerable expense.


said, he had no doubt the propositions contained in this Bill would be productive of great advantage. The power of sommoning a jury would unquestionably be very beneficial, and although he doubted whether such a power would be frequently exercised, he thought it ought to be given to the court. In four-fifths of the eases in Chancery the evidence was taken by affidavit, and it was only on cross-examination that vivâ voce evidence was given. The Court of Chancery was, however, now armed with the power both of examining and cross-examining witnesses vivâ voce, and some of the Judges readily availed themselves of the power, while others declined to do so. In the Court of Appeal before the Lords Justices, it was the common practice to examine and cross-examine the witnesses vivâ voce. The power was, however, in the discretion of the Court. There was considerable difference of opinion on the subject among the Judges; and in some brandies of the court the power was very rarely exercised. It was of great importance that Judges should have an opportunity of observing the demeanour of witnesses, and he thought it would be an improvement in the practice of the court if witnesses respecting matters of fact were in all cases cross examined before the Judge who was to decide the question. He considered that the administration of the Court of Chancery was now as creditable as it had been discreditable previously to 1852, for as a general rule there was no delay in that court, and cases which formerly occupied years were now decided in months. Believing that this Bill would further improve the efficiency of the Equity Courts, he would readily give it his support.


said, he had no doubt the measure would prove advantageous to the public, as it would in some degree assimilate the practice of the Court of Chancery to that of the courts of law. The hon. and learned Gentleman would confer a real service on the public, if, instead of having witnesses summoned up to Lincoln's Inn at great expense from remote parts of the country, he would send the issue to be tried—like issues of fact in law—before a Judge of Assize in the county where they arose. He thought that if witnesses were to be brought up from Cornwall, Yorkshire, and other distant places, great confusion and possible injustice would arise.


said, he would ask the hon. and learned Gentleman, the Solicitor General, to give his attention to the suggestion of his hon. and learned Friend the Member for Cork (Mr. Deasy) as to the employment of a shorthand writer in each court where evidence was to be taken vivâ, voce. This would be a very great advantage in nisi prius courts, and it would be absolutely essential in the Irish Chancery Courts if the additional duty pro- posed by this Bill was extended to them. With regard to the Bill itself, he did not consider that it went far enough, but it took a step in the right direction in abolishing to some extent the distinction between courts of law and equity.


said, that, having some experience in Committees when notes were taken by a shorthand writer, and also knowing something of the proceedings of courts of law, he was bound to express a hope that nothing would be done to relieve the Judge from the necessity of taking notes which now devolved upon him. This necessity led the Judge to bestow the most unceasing attention on the case, and it would be a great misfortune if, by delegating the duty to a shorthand writer, the Court should not, as heretofore, feel compelled to maintain throughout that vigilant watchfulness so necessary for the duo administration of justice. The provision in the Bill that the Judges who had to determine upon the evidence should see the witnesses was one of great value. Though a great improvement had been effected in the old practice, the present mode of taking evidence in chancery was very unsatisfactory, and he believed that this part of the Bill would be productive of great benefit. With reference to what had been said in respect to dispensing with juries in certain cases, and allowing the Judge to decide matters of fact, he thought it far better that in all disputed cases the assistance of a jury should be called in. This was the opinion of Mr. Justice Cresswell, the present Judge of the Court of Probate, and he entirely agreed in it.

THE SOLICITOR GENERAL, in reply, said, he did not mean to make it compulsory upon the Court to summon the witnesses from the country; it would be loft to the Judge, if he thought fit, to direct the issue to be tried in the country. With respect to the employment of a shorthand writer, he would ask what was to be done at the close of the trial when the Judge, having taken no notes, was called upon to charge the jury? The shorthand writer's notes would not be available, because there would not have been time to transcribe them, and he doubted, therefore, whether any saving of time would be effected. With respect to what the hon. and learned Gentleman opposite (Mr. J. D. FitzGerald) had said as to the Bill not going further, he had to remark that with the exception of the two cases he had mentioned he was not aware that any Chancery suitor could not get complete relief. If any other could be suggested, he would gladly give it consideration. The hon. and learned Member for Newcastle (Mr. Head-lam) had referred to the advisability of taking evidence in Court vivâ voce, and for himself he thought it very desirable to have witnesses examined in the presence of the Judges; but the reason why he had made no provision in the Bill to that effect was, that the Court of Chancery already possessed power.

Leave given.

Bill to amend the course of Procedure in the High Court of Chancery ordered to be brought in by Mr. SOLICITOR GENERAL, Mr. ATTORNEY GENERAL, and Mr. Secretary WALPOLE.

Billpresented, and read 1°.