LEAVE. FIRST READING. (Hansard, 29 April 1864)

§ MR. O'HAGAN (THE ATTORNEY GENERAL FOR IRELAND)

Sir, in moving for leave to bring in a Bill to amend the process, practice, and mode of pleading in the Superior Courts of Common Law at Dublin, I shall very briefly call the attention of the House to the circumstances under which the measure has originated, the necessity which appears to me to justify it, and the objects it attempts to accomplish. The lateness of the hour induces me to postpone very many of the observations I had meant to make, especially as I shall have ample opportunity to discuss the provisions of the Bill in Its future stages; but it is desirable that I should put before the House and the country, in the fewest possible words, some representation of the state of things, which seems to me to commend to their approval a scheme of legal reform of such importance and extent as I shall show this to be. The same diversity which has prevailed between England and Ireland in the course of administrative and legislative dealings with the Courts of Equity, has equally affected the Courts of Law in the respective countries. I have already had occasion to explain historically to the House how the Equity Courts have been dealt with, and it is necessary that I should offer some similar explanations as to the Courts of Law. In England there has been a series of reforms, commencing in the year 1827, and progressing continuously down to the year 1860, when the last legislative measure on the subject was framed. The real reform of the Courts of Law in England dates from the great speech of Lord Brougham in 1827. Up to that time nothing was done substantially to rectify the errors which undoubtedly prevailed in the Courts of Common Law in England; but that 1968 memorable oration so wrought upon opinion by its power and eloquence, that a Royal Commission was issued in 1828, to inquire into their condition. It was composed of very distinguished men. It laboured long and earnestly, and its fruits are to be found in six excellent Reports, and in the Uniformity of Process Act, the 2 & 3 Will. IV. c. 39, and in the further Act the 3 & 4 Will. IV. c. 42. These were most wise and valuable measures, but I am sorry to say that all the proceedings that were then instituted and carried on deliberately and usefully in reference to law reform, were confined to England, and had no application whatever to Ireland. Neither the Commission to which I have referred, nor the legislation which it produced, had any application to her legal institutions. In the year 1834, the English Judges, acting on the powers with which they were invested by the new statutes, adopted new rules of pleading, which, I may say, largely revolutionized the English system. Those rules, also, had no application to Ireland, and for seventeen years her pleading and practice remained unchanged at the point at which they had been before the Commission of 1828 was thought of. The English reforms—great as they were—were in the course of time deemed insufficient, and in 1850 — the rules having continued to operate from 1834— this House felt that it was necessary to have further changes in England. Accordingly, in that year, 1850, a new Commission was issued for the purpose of extending legal reform. It was constituted of the very ablest men connected with the law in this country, but from its operation, also, Ireland was wholly excluded. That Commission sat for a very considerable period, and it produced three admirable Reports. It continued to work and watch the development of the existing system, and, on its Reports, Parliament adopted measures in 1851, 1853, and 1860. During the whole of that long period, from 1850 to 1860, the Commissioners continued from time to time to sit, and from time to time to suggest those measures which were most desirable and important for the improvement of the law in England. The result was the three Common Law Procedure Acts, the 15 & 16 Vict. c. 76, the 17 & 18 Vict. c. 15, and 23 & 24 Vict. c. 124—measures moat carefully prepared, and of the most useful character—which now regulate the Law Courts of England. But not one of these 1969 Acts was applied to Ireland. This has been the course of English reform, continuous and careful, deliberate and cautious, every step guarded and guided by the soundest judgment and the largest experience which the country could supply, and sustained throughout by the solemn finding of Commissions of the highest authority. Surely Ireland has some reason to complain that these great advantages have so far been denied her. Not one Commission has considered the defects of her judicial system, not one alteration in it has been based on inquiries such as have insured safety and efficiency to legal changes in England. From the time of King John—for nearly six hundred years after the first introduction of the Common Law of England, down to the year 1834—the law of Ireland and England, and the practice and pleading in the Courts in Ireland and England continued to be the same. Poyning's Act in the reign of Henry VII. extended to Ireland the whole Statute Law of England then existing; and in 1782, Yelverton's Act, passed by the Irish Parliament, in the same way extended to Ireland the Statute Law of England up to that period. The existence of separate Legislatures, the distinct circumstances of the two countries, and other differences, created some divergence in the English and Irish procedure, but it remained substantially the same until the period of the Union; and it is very remarkable that not until thirty years after that Union had been effected, did the strange diversity which is now established begin to have existence. Such a diversity had been pronounced by Yelverton's Act in 1782, to be inconsistent with the true interests of the people of Great Britain and Ireland; yet it commenced fifty years after, in a condition of circumstances which ought to have made it impossible. The Commissioners of 1862, to whom I shall refer just now, in their Report, have stated their view of the different course of proceedings in the two countries, and the fact that for seventeen years the reforms that had been in operation in England did not apply to Ireland. Only in 1850, when a new Commission was granted for England, some of the English changes, after the lapse of seventeen years, were applied to Ireland by the Irish Process and Practice Act, 13 & 14 Vict. c. 18. But this created a very partial assimilation, and the differences of the two systems were made more pronounced and 1970 absolute by the English Act of 1852, which did not apply to Ireland. Then came the Irish Common Law Procedure Act of 1853, which established a new mode of pleading and practice, and rendered those differences still more pronounced and absolute. It was the work of my right hon. Friend the Member for the University of Dublin, who sits opposite to me. The Act was introduced upon his responsibility, and with an anxious desire, no doubt, to advance the interest of the country, and to improve the condition of the law. It was designed with the best intention—to simplify procedure, to destroy technicalities, and to save expense, to avoid the complication of pleadings, and to reduce the whole, as far as possible, to a plain and simple system. It abolished the general issue, it not only abolished the general issue but the various forms of actions; it destroyed altogether the ancient distinctions between actions in the Courts of Common Law, and more than that, it destroyed the ancient system of pleading by which the pleaders on the one side, and on the other between them eliminated the issue which was to come before the Judge and jury, and upon which were to be determined the merits of the case. The result of that Act was this, that a complete distinction was established between the practice and pleading of the Courts of Law in the two countries. I do not say it without respect for my right hon. Friend, but the fact is, that his Act was preceded by no inquiry; it was not authorized, as were all the reforms of England, by the deliberate and cautious judgment of a responsible Commission; it adopted new principles, it ventured on untried experiments, and the result has not been satisfactory as the evidence I shall lay before the House will abundantly demonstrate. It was passed upon the responsibility of the very learned and able persons by whom it was framed, and one of whom was the ex-Lord Chancellor of Ireland. [Mr. WHITESIDE: He had nothing to do with it.] Then I am mistaken in that. At all events, he was in the House at the time. No doubt my right hon. Friend, with a natural affection for his own creation, has given testimony in its favour; but that testimony is encountered and overborne by the general sentiment of the Bar of Ireland, and the Bill which I now ask leave to introduce condemning its peculiar provisions is in 1971 full accordance with that sentiment. The measure of my right hon. Friend carried further than ever the divergence between the English and Irish systems. And another Irish Common Law Procedure Act— that of 1856—though mainly founded on the English Act of 1854, left these great distinctions substantially undisturbed. The systems of the two countries are at this moment founded on different principles, and have different machinery and inconsistent aims. In this state of things the Royal Commission of 1862 was issued, to inquire, amongst other things, into the constitution, establishment, practice, procedure, and fees of the Superior Courts of Common Law in Ireland, with a view to reduce costs and expenditure, and to assimilate, as far as might be practicabe, the administration of justice in England and Ireland. I have already stated to the House how that Commission was constituted, and I need not advert to it again, further than to say that the very ablest and most distinguished lawyers of the two countries took part in its deliberations, and unanimously adopted the conclusions at which it arrived. It sought the assistance of the leading members of the legal profession, and, after the fullest consideration, it reported upon the system which was introduced in the way I have described, in 1853, in these terms— We have carefully considered the working of the system of pleading and practice introduced into Ireland by the Irish Common Law Procedure Act of 1853, and find that it has not been satisfactory, nor has it been attended with such advantage as would justify a continuance of a diversity of practice between the two countries. And we have come to a unanimous resolution, that the system of practice and procedure of the Courts of Common Law of England and Ireland should, as far as practicable, be assimilated. In adopting this resolution, we feel that we are only, in effect, restoring that substantial uniformity which existed in course and practice of the Superior Courts of Common Law in both countries, from the reign of King John to that of King William the Fourth. This is a very clear and distinct finding of the Commission, and it is perfectly supported by the evidence they have collected from the most able and experienced members of the Irish Bar. I have marked a number of passages from that evidence for the consideration of the House, but at this hour I can venture to produce only a few of them. I should state, however, that the whole of the evidence, with the exception of that of my right hon. Friend, who, as I said before, is naturally attached to the 1972 system of which he was the author, and of that of one or two others, the whole of the evidence was in favour of assimilating the Irish and English systems of pleading and practice, and of the system of issues and of pleading generally introduced by this Bill. I shall first read a passage from the evidence of a very distinguished lawyer — Master FitzGibbon—a man of great capacity and integrity and of very large business while at the Bar in the Common Law Courts of Ireland. He says— The law of pleading in civil suits had been settled in the course of centuries by Judges of the greatest learning and ability, instructed by experience and assisted by able lawyers, in repeated discussions of every important principle—the only way in which such a law could or can be made reasonably perfect. A fabric had been thus erected which had long been the boast of English jurists and English Judges. The erection of it was the work of the judicial wisdom of ages. Its destruction was a summary act of legislative power. The substitute for it is the hasty fabrication of empiricism. The framers of the Irish Procedure Act assumed that all established forms were either absurd or mischievous, and that the abolition of them was the first great step towards the simplification of law. Forms and fictions which had been for centuries established, which had been approved of by sage writers and jurists, and had been jealously guarded by the wisest of our Judges, suddenly became the subject of sarcasm and ridicule. The abuse of them became a road to popularity, and the abolition of them was so loudly applauded by the multitude, who did not understand their utility, that the few who did were abashed, and no one raised a voice in support of them. If it were possible to read the mass of absurdity, of falsehood, and of inconsistency which the last eight years have placed on the files of the Irish Courts in the shape of socalled truthful and simple pleadings, and if it were possible to narrate the series of forensic discussions to which these shapeless pleadings gave rise, at the expense of suitors for justice, if the censures from time to time expressed by able Judges upon the mischievous novelties by which the administration of the law was clogged and impeded, could be recalled and repeated, we should be astonished at the apathy of the public and its rulers, by which this evil has been so long tolerated. This is the opinion of Mr. Serjeant Sullivan — The result of my experience of the working of the present system of common law pleading in Ireland is that such system has been, on the whole, extremely unsatisfactory. It has brought about a most involved and perplexing system of making up records for trial, and of sending questions to juries, and it has led to very great and unnecessary expense. My hon. and learned Friend the Member for Clare who will, no doubt, speak for himself in the course of the discussion on 1973 this Bill at a future stage in its progress through the House, says— The existing system of common law pleading in Ireland does not, in my opinion, work well; and I consider it calculated seriously to embarrass parties in the assertion of their rights, and to be attended with unnecessary prolixity and expense. A similar opinion is given by Mr. J. T. Ball, a very eminent Queen's Counsel in Ireland. He says — I have to express my opinion that uniformity of practice and procedure in the English and Irish legal tribunals is attended with such advantages, that to the attainment of this object all minor details must give way. For this reason, even if the Irish system had been superior, I yet should have been favourable to the adoption of the English; but, so far as I have had opportunity to compare the two systems, I consider that the English ought to be preferred. My experience has been that a loose and uncertain mode of pleading prevails under the Irish system; that in actions of tort, the want of the general issue, or some equivalent plea, entails such difficulties upon the pleader as to impede the proper defence of his client; that the ascertainment of the issue to be tried before the evidence has been heard, embarrasses both Judge and jury in the discharge of their duties at the trial; and that the abolition of local venues, and the permission to plaintiffs, by choosing their own place of trial, to withdraw the case from the neighbourhood where the character of the parties and their witnesses is known, has tended to increase expense, encourage speculative actions, and make the result uncertain. Mr. J. K. Lowry, one of Her Majesty's Counsel, gives this pithy judgment— The result of my experience, and my opinion of the present system of common law pleading and practice in Ireland is, that nothing can be worse. The change in the present system of pleading and practice in the Common Law Courts of Ireland that I would suggest is to assimilate it, in every respect, to the English system. There is a very large body of testimony to the same effect which I had intended to lay before the House, but the extracts I have read may suffice as specimens of the general sentiments of, I may say, all the lawyers who have been examined before the Commission, upon whose evidence their Report was founded. They go on in that Report, which has received the highest approval from the most competent persons, to state in detail the changes which they recommend. Amongst others, they desire to have the use of the general issue restored, under the restrictions which have been introduced in England; the Irish mode of raising issues, in fact, assimilated to the English, and the English system of writ and declaration substituted for that of the summons and plaint. They recommend that the distinction between actions in the Courts of Law shall not be 1974 ignored, and that the issue to be tried shall not be settled by the Judges, as it now is, a system which has been found productive of inconvenience and confusion. There are other recommendations to which I shall not now call attention. It is impossible at this hour, and would be useless, to bring them all under the notice of the House, but I ought to observe that the Commission, which had upon it an equal number of gentlemen of either country, has dealt with the matter in the fairest and most liberal spirit of honest reciprocity. It has not recommended assimilation merely because it is assimilation. Looking to the real merits of the conflicting systems, it has laboured to adopt from each what in each is useful and desirable—to give to England what is good in the Irish system—and to Ireland what is good in the English system—and to identify them beneficially by raising both to the level of a common advantage. Thus I find, that in fifteen important matters of practice and procedure, it is recommended that the course of the Irish Courts shall hereafter be adopted by the English, and in eight as important matters, that the course of the English Courts shall hereafter be followed in Ireland. In a few peculiar instances, Ireland is to retain her peculiar practice, as with respect to the rotation of writs, the Consolidated Nisi Prius Court, the speeding of Writs of Inquiry, and the arguing of Bills of Exceptions, in which the actual circumstances of the profession and of the country make that practice more convenient for the time. Then there are general improvements suggested as applicable to both countries, and fit to be adopted simultaneously by each. The Crown Office of the Queen's Bench in Ireland is the subject of a separate finding, and it is suggested that the Crown practice in Ireland, at present somewhat uncertain and obscure, shall be assimilated to the Crown practice of England, and shall be made public and patent to all the world. These are, in very general terms, the recommendations of the Commissioners; and to carry them into effect, so far as Ireland is concerned, is the object of this Bill. It has been laboriously and carefully prepared. It endeavours to give operation to all the Commissioners have advised, and for the purpose of accomplishing a wise, discriminating, and judicious assimilation, it, to a large extent, consolidates the provisions of the English statutes which have been originated by the English 1975 Commissioners, and adopted by the Legislature. The Bill has been prepared in such a way that hon. Members by looking at the margin will be able at once to refer to the corresponding sections of the English statutes; and they will find that there is no portion of it that has not the sanction of great authority, and very few of its provisions that are not commended to adoption by a sound and large experience of their successful working. If it be accepted by the House, it will establish in England and Ireland a homogeneous and consistent scheme of pleading and practice, to the great advantage of the professions in both countries, while it will enable both to afford to each other the benefits of their mutual intelligence, experience, and authority—and to the advantage also of the Community and the State. For the first time a comprehensive system is offered to Ireland—the issue of full inquiry and authoritative decision—and I trust it will be accepted by the House as possessing the sanction of the successive Commissioners whose labours Parliament has already made the basis of salutary legislation, as invited and approved by the opinion of the Irish Bar, and faithfully embodying the proposals unanimously submitted to the Sovereign, after anxious inquiry and long consideration, by many of the most eminent Englishmen and Irishmen who, at this day, adorn the profession of the law. I beg, Sir, to move for leave to introduce the Bill.