THE LORD ADVOCATE, in moving for leave to bring in a Bill to amend the procedure in the Court of Session, and the judicial arrangements in the Superior Court of Scotland, said, Mr. Speaker: I propose to explain to the House shortly the provisions of the Bill; but it would be improper for me to go into details, because many of them are technical. My object in bringing the Bill so soon before the House is that the country generally may have an opportunity of considering the alterations which are proposed by the measure. The Court of Session consists of thirteen Judges, five of whom discharge the duties which are performed by the English Judges at Nisi Prius and Chambers, and there are two Divisions which constitute Courts of Appeal for judgments of a single Judge. Now, complaints have been made that delay has existed in the disposal of cases in the Court of Session. I admit that in the Divisions to which most of the cases are sent there has been delay, which results in this—that nearly twelve months of late have elapsed before the cases are disposed of. That is an amount of delay which I believe is not peculiar to the Courts in Scotland, but which also exists in the Common Law Courts here. It is, of course, very desirable to expedite the decision of cases, and the object of the measure which I now ask leave to bring in is to effect that desirable result. Now, what is proposed to be done is to extend the sittings of the Courts to some extent, and also to make certain arrangements which will enable the Courts to dispose of cases at times when they do not at present come before them. One of the ways in which this contemplated improvement is to be effected is, that instead of taking up what are called teind cases, with reference to teinds and stipends to be paid to ministers as at present on alternate Wednesdays, and which have the effect of occupying the Court and interrupting the proceedings of the day; instead of this, the Bill provides that no such cases shall be taken up on Wednesdays. It provides that on Mondays—on which days the Criminal Court at present sits—teind cases shall be taken up by the Court; and to enable the Courts to effect this, and also to get 1082 throuh other business, it is proposed that there shall sit in the High Court of Justiciary only one Judge, as in criminal trials on circuit, thus setting free two Judges, who are now occupied in trying cases which are very often of very trifling importance. Liberty, however, is reserved for the bringing in other Judges in cases of great importance. It is further proposed that there shall be a Court of Appeal or Review, which shall review the judgments of the Sheriffs upon matters of proof. There are matters of such general importance, involving points of law, that it is proposed that all such cases—cases depending upon proof—may be sent to this Court of Appeal. It is believed that this will tend to relieve very much the Court from the restriction which it very frequently finds in the disposing of cases which are caused by the long arguments upon proofs; and it is thought that by removing these from the general roll, and by sending them to a new court to be constituted, and to sit on Mondays, a considerable portion of arrears will be got rid rid of. I think that these provisions will afford considerable facilities for the disposing of cases before the Court. There is also a provision in the Bill which has been acted upon to a considerable extent already—namely, that whenever cases are in arrear to the extent of two months—that it to say, when cases which have been brought in at the commencement of May are not disposed of at the beginning of July—that then the Court shall have extra sittings to reduce the arrear, or to dispose of it, so that there shall not be cases in arrear more than two months. I hope that there will not be even that arrear in a short time. This provision, I have no doubt, will give satisfaction to the country; and I know that the Judges are very anxious to bring about such a result as I have stated. So much in reference to the arrangements of the Courts. Now, a few words in reference to the changes in procedure. The following matters are contemplated:—The period within which a party must come into Court and plead will be shortened considerably; the improved facilities of communication between one part of the country and another by railway will enable us to do that with safety. Then, in addition, it is proposed that decrees in absence may be taken by the agent or solicitor and the party without the intervention of counsel; that where the party has not within the proper time given in a defence, 1083 that then by application to the Judge a decree may be obtained without any further expense. It is also proposed that decrees in absence, which at present are liable to be opened up and reviewed within a period of forty years, shall be made final within a much shorter time, that is to say if personal service has been made upon the party, and notice been given to him after judgment has been had, that it will be enforced. I think that this is a remedy which will be considered of importance, for I venture to say that no one will contend that a decree should be subject to be reviewed for a period of forty years. It is also proposed, with a view to expedite cases, that pleading shall be given in, according to statutory terms provided in the Act, and that there shall not be an extension of the period for pleading, except on cause shown to the satisfaction of the Judge. The next provision is one which I regard as of very great importance. It is one for the bringing of the parties together, in order that they may come to the point at once, and decide whether there is to be proof in the case, and, if so, whether the proof is to be taken before a jury or before a Judge. Our Courts differ from the Common Law Courts of England in this respect—that it is not necessary in all cases, though it is in certain cases, to have them tried by jury. Our Courts rather partake of the nature of Equity Courts, and we are in this position, that the Court of Session exercises both a common law and equity jurisdiction. I think that this has given satisfaction, and there is no desire whatever for a separation of the two branches of the law. Well, then, there is to be a meeting before the Lord Ordinary for the purpose of agreeing as to whether the parties shall renounce proof. I should hope it will be in the power of the Judge to dispose of the case there. If it is to be tried by jury, he shall give instructions to that effect; or, if it it is to be tried before himself, he shall direct that it shall so take place. I cannot but think that the parties coming together in this way, will tend to bring to a point an important question, and thus shorten the case. The greater part of the delay in the preparation of a cause is owing to the absence of such a proceeding The next matter provided for is, that it will be in the power of the Judge to allow of an amendment of the record. In on Act passed in the year 1825, after taking the best advice that could be offered, 1084 including some of the most eminent English lawyers, provision was made that what is called the record should be closed, and that no amendment should be allowed. It is proposed in this Act that power shall be given to the Court, whenever sufficient cause shall be shown, to allow an amendment of the record up to the last moment, so that justice may not be defeated by a technicality; care, however, being taken that no improper advantage shall be taken by the party in fault, and that he shall pay such costs as the Court may think proper. This provision will, I think, be found of advantage; it is copied from some recent provisions made for England, and which, I understand, have been found to work well. At present it is necessary to appeal against any judgment of a single Judge, to one of the Inner Divisions within twenty-one days after judgment has been pronounced; and yet if the party allows twenty-one days to elapse, he would run great risk of it being afterwards held that he was foreclosed from bringing the case under review at all. This rule has not been very much abused for the purpose of delay, but parties are frequently driven to the Inner House, in order to avoid the risk of being foreclosed, and some delay does occur in those cases. What is proposed now is, that it shall not be necesssary to appeal from any judgment of a single Judge until the whole cause has been finally disposed of; but at the same time power is given to a single Judge, when he thinks it would be of importance to have a decision of the Inner House upon any judgment of his. If he gives leave, the interim Judge's opinion may be submitted for review by the Inner House. Another provision which is made to relieve the Judges to some extent, is that it shall be competent for the clerk of the Judge to dispose of what are called unopposed motions without the intervention of counsel, and without going to the Judge. If the motion be opposed, then the Judge will be appealed to, and whoever is found to be in the wrong will be liable to costs. There is also power given to abandon before a jury, equivalent to the right of non-suit in England. That is a power, which, I think, ought to exist in Scotland; and we propose that the Bill should contain provision to that effect. I now come to a question which I regard as one of general importance, and the proposition which I have embodied in the Bill is somewhat of a bold character. I allude to 1085 a matter relative to jury trials. I may explain to the House that according to the old law of Scotland, in criminal cases, which still subsists, the case is always submitted to a jury consisting of fifteen, one-third of whom must be special jurors, and the other ten what are called common jurors. Now, I do not propose to interfere with that arrangement so far as the Criminal Courts are concerned; I do not propose to interfere with the constitution of the juries in the Criminal Court, although the number of jurymen in that class of cases in Scotland is larger than in England. Trial by jury in the Criminal Courts has hitherto worked so well that I am unwilling to disturb a system of such long standing. There is a great difference, however, in the case of trial by jury in the Civil Courts. The plan of jury trial in these Courts was instituted under a statute passed in the year 1815; but I do not know how it is, but it is the fact, that that mode of trial has not flourished in the estimation of the people. There can be no doubt that there is a considerable amount of the unpopularity attaching to the Civil Court generally arising from the existence of trial by jury. Indeed, until I had conferred with persons interested in the subject, and who gave me suggestions as to the framing of the present measure, I had no idea that the public feeling against this mode of trial was so strong. Many gentlemen who are amongst the most successful practitioners before the Court of Session, and gentlemen connected with the legal profession in Glasgow, expressed their desire to see jury trial in civil cases abolished altogether in Scotland. I am not prepared to go that length. I could not say that it would be right to abolish the system absolutely; but it is essential that some modification of it should be introduced. An Act was passed in the year 1866 which gave the Court a discretion to withdraw a case from the decision of a jury, and allow the judges to take evidence in a certain class of cases which were formerly handed over to a jury. That Act has worked very well. There are, however, a class of cases—such as cases of libel—which I very much doubt whether it would be proper to remove from the cognizance of juries. Admitting, therefore, that the system of trial by jury in civil cases is in an unsatisfactory state, and that the existence of such a system deters many persons from appealing to the Court of Session for settlement of disputes, still I am not, as I 1086 have already stated, prepared to go the length of abandoning the system altogether. I propose rather to amend in some respects the number of jurymen who sit upon cases. In the Civil Court there are at present twelve. This number I propose to reduce to seven. I am of opinion that twelve is too large a number to deal properly with such complicated cases as frequently came before them, and that owing to this reason the jurymen are not so well able to consult together, nor are they so manageable as they would be if the number were reduced to seven. I am confident that if this alteration be effected, the result will, in the generality of cases, be much more satisfactory. I further propose, in accordance with the old law of Scotland, which divided jurymen into special and common—that of these seven two should be special jurymen and the remaining five common jurymen. This method has been found to work well in the Criminal Courts of Scotland, and I think it should be extended to the Civil Courts. There are, I regret to say, a great number of exemptions from serving on juries, established in favour of gentlemen who would otherwise form part of the special jury list; and the result is that there is a very small jury list from which to select. Now, I venture to think that it is both for the interest of the public and of these gentlemen themselves that there should be a large and fair selection of persons who have hitherto been exempted from serving upon juries. I therefore propose to abolish all exemptions, except in the cases of ministers of religion and medical men. I would not even exempt the members of my own profession, unless it should be thought by the public that they would make the worst jurymen possible. The public have the power to challenge lawyers from serving on juries if they see fit to do so; but if the public desire to exempt the profession altogether, I am sure those who would then be exempted would not be disposed to quarrel over the matter. All I desire is that the matter shall be fairly considered by the country. Passing to another portion of the measure, I must acknowledge that a great deal of delay arises from the system of remitting cases to accountants, who, however, have not the power of enforcing their orders. Now I propose to give them the power of enforcing their orders, which should be peremptory. The result will be to expedite this class of cases before the account- 1087 ants, which at present occupy such a long time, owing to the parties themselves causing delay by not obeying the orders of the accountants, who, as I have intimated, have no power to enforce them. Then, again, there is what is called the Bill Chamber branch of the Court of Session, in which there is only one Judge who has the power of granting injunctions in certain cases; but it sometimes happens that before the injunction can be issued, the act threatened is done, and there is no remedy. I accordingly propose that the Chamber Judge shall have the power of ordering restoration against the act so done. There are certain further facilities given in the Bill for a more economical reviewing of proceedings in consequence of death or otherwise, and provision is made for affording facilities with regard to the payments that are to be made upon pleadings called fee-fund dues. The Bill of course contains a large number of details, all of which, I believe, will tend to improve the mode of procedure in the Court of Session. I feel confident that the measure will be recognized as conferring a benefit upon the legal profession as well as upon the public, because the profession can have but one interest, and that is, to make the Court of Session as popular and as accessible as possible. The interests of the public and the legal profession are in this respect coincident with it. It is not my intention to hurry the Bill through the House. I have brought it in at this early period of the Session in order that its provisions be carefully considered by the legal bodies before the commencement of the vacation of the Scotch Court. The custom has always been to submit such Bills to the consideration of the advocates and solicitors practising before the Court. It is quite possible that I may receive suggestions from these bodies which I may be able to incorporate with the measure when the Bill goes into Committee. As it is, I believe that the Bill will remedy almost all the grievances that at present exist. I beg to be understood that it will give me the greatest pleasure to receive any suggestion with the view of making the measure more efficient. I will not detain the House with any further remarks, but will simply move for leave to introduce the Bill.
§ MR. SERJEANT GASELEEsaid, that some time ago a Committee of the House had recommended that the number of Scotch Judges, which was at present thir- 1088 teen, should be reduced to eleven. He would like to know whether the Bill contained any provision for carrying this recommendation into effect? His own opinion was that they might very easily take two Judges away from Scotland and add them to England, more especially in consideration of the recent proposal to increase the work of the English Judges by adding to the functions which they already discharged.
§ MR. MONCREIFFsaid, he had not the advantage of hearing all that fell from the lips of the learned Lord just now; but he had been previously put in possession of the particulars of the Bill which his right hon. and learned Friend proposed to produce; and he had given it the fullest consideration, and could say without hesitation that he considered it to be a great improvement upon the existing state of things. Whether in some respects his right hon. and learned Friend had not gone further than might seem well to some persons, it was not necessary that he should say. He proposed among other things, what he (Mr. Moncreiff) thought would be an exceedingly valuable change. He meant that he proposed to use the Lords Ordinary, by forming them into a new and separate Court, for the purpose of hearing appeals from the Sheriffs. He thought that a very desirable arrangement, and he hoped he would make the Court so constituted an independent Court in the proper sense of the term. He thought it would be extremely undesirable that the calling of such a Court into existence should be made dependent upon the heads of the Court in the Inner House. It was not desirable that Lords Ordinary should be in a subordinate position in any sense, and he felt quite satisfied that if he constituted that Court for the purpose of hearing appeals from the Sheriff Court, with an independent jurisdiction, he would confer an immense boon, and a great despatch of the pleas of the Sheriff Court. The delay that at present took place in the Court of Session acted as a discouragement, and prevented people appealing from the decision of the Sheriffs. That was one observation upon the Bill. A second was—and he hoped the right hon. and learned Gentleman would give it serious attention—with regard to the trials by jury. The right hon. and learned Gentleman had made some observations with reference to the unpopularity of jury trials in civil causes. It was quite true that the system 1089 had not achieved all the success which was expected. There might be many reasons for that. When the jury trial was first introduced into the Civil Courts of Scotland, before the case went to the jury the proposition would be simplified and put into a single question or more questions than the jury were to decide. Eventually, however, from this state of things arose one of the great incumberances of the system. There were many reasons why he should ask his right hon. and learned Friend to bestow his serious consideration on this matter—quite certain that his proposal to create a Court of Appeal was a step in the right direction. With regard to what had fallen from the hon. and learned Member for Portsmouth (Mr. Serjeant Gaselee), it might be quite true that the nominal judicial staff of England did not bear the same proportion to the population as did that of Scotland; but in England the Judges were assisted by an immense staff of Law Officers, and the salaries of those officers in the Supreme Courts amounted to more than the salaries of the Judges in Scotland. They had chief-clerks in England who did a great deal of the work done by the Judges themselves in Scotland, and therefore they could not compare the mere number of Judges in the one country with that in the other. A good deal had been said lately about the falling off in the business of the Scotch Courts. It was true, he believed, that the number of cases introduced into the Court of Session was smaller than it was some years ago; but, in the first instance, his own experience led him to say—and he thought his right hon. and learned Friend would agree with him—that the class of cases were far higher and more important than they were when they first joined the bar. The reason of that had been the establishment of minor Courts, which had absorbed and swallowed up the cases of smaller importance. The Sheriffs' Courts not being like the English County Courts, they were competent in all questions, whatever their amount; and they had consequently absorbed a good deal of the minor business which in former days went before the higher Courts. Some hon. Gentlemen were, he knew, anxious to disturb that jurisdiction, but he trusted that it would not be disturbed. In regard to the complaints of delay which had so frequently been made, there were no doubt matters which had created a good deal of delay in isolated cases. That there were great delays in many cases was true; but 1090 when you came to represent that as the normal state of the Court, it was a totally different matter. There were, however, two matters in the administration of the Judicature Act which might very well be changed. The first was the practice of holding that the Inner House ought not to decide any question which had not been previously decided by the Outer. That, he thought, was a mistake. He did not think that the intention of the Judicature Act ever was that the Inner House should only act as a court of review upon the cases decided by the Lords Ordinary. The other matter was the principle which had been acted upon, he thought too closely, of refusing to decide the law until the facts of the case had been established. He thought that was unfortunate. It was more a practice than a principle; but he knew many cases in which the Court had refused to go into the law of the case until the facts had been proved, when it might well have done so. With these few observations he felt bound to give his right hon. and learned Friend his support in the Bill which he asked leave bring in.
§ SIR EDWARD COLEBROOKEsaid, he must tender his thanks to the right hon. and learned Gentleman for having undertaken the difficult task of reforming the Court of Session, both in its expense and procedure. Certainly, he was not disposed to complain that he had not adopted a bolder or more decided course. The proposals made had the appearance of meeting many of the complaints as to the practical working of the system. One complaint of the public was that the Court sat only half the year, that its sittings were so short, that certain days in the week were blank, that a considerable portion of its time was taken up with formal business which might be disposed of by clerks, and this evil was proposed to be got rid of by continued sittings at the end of each session. He thought the efficient business of the Court might be disposed of by a smaller number of Judges; and the question having been raised, he believed public opinion would support some such reform. He did not, however, say that any great saving would arise to the public; for if higher duties were thrown on the Court of Session salaries must be raised, and the result would very probaby be the number of appeals would be diminished. With regard to the juries, he doubted very much whether a reduction in the number of jurymen would be attended with any advantage. The system 1091 was, in fact, altogether condemned by public opinion. As far as he himself was concerned, he should be reluctant to see trial by jury abolished; but the subject was one that demanded the most serious inquiry. It was certainly worth inquiring how a system which had worked so well in England had so signally failed in Scotland. He doubted whether the best way to ascertain the difficulties of the case, or to satisfy the public mind, was to lay the provisions of the Bill before the legal profession, and suggested that the subject should be referred to a Commission or a Committee.
§ MR. M'LARENsaid, that since the Lord Advocate was inviting suggestions, he should take leave to make one, and commence with the subject which had been touched upon by his hon. Friend the Member for Lanarkshire (Sir Edward Colebrooke)—namely, the time of the Judges. There was a general opinion in Edinburgh, and, indeed, all over Scotland, that the time of the Judges was not fully employed. For example, the Criminal Courts sat on Monday but only occasionally, and that day was therefore declared a blank day for all the Courts. The Inner House Judges remained at home, and the Judge Ordinaries remained at home, and this in itself constituted an abuse that ought to be remedied in any new Bill. Another point was that in 1828 a rule was made for the convenience of the senior counsel employed at the bar—and he might say the senior counsel were in number (according to an article in the Journal of Jurisprudence of last month) just about equal to, or, in fact, rather fewer than, the number of the Judges—that the Courts of the single Judges should sit at ten o'clock in the morning, and the Supreme Courts should sit at eleven o'clock, or practically a quarter past eleven, in order that these counsel might be able to attend to their briefs in both Courts; and the practice of these Courts was to adjourn for half-an-hour for lunch in the course of the day, and to rise finally at four o'clock, the Courts of the single Judges rising at three o'clock. It was clearly impossible to do much business in the course of so short a a time. He would, therefore, suggest that all the Courts should sit at ten o'clock; and this would, in his opinion, be a great advantage to the suitors and all parties interested. The present was not a right state of things, according to the general opinion of Scotland; he did not speak of the legal profession, but of the general public, which 1092 included poor litigants, who got into court, and had to pay largely in order to get out again. He would recommend the learned Lord not to be so solicitous about the opinion of the legal profession, who had opposed nearly all legal reforms in their Courts. He would rather appeal to the general good feeling of the public, and the good sense of the Lord Advocate to frame a good Bill. There was another matter he begged leave to suggest. Reference had been made to accounts. A great grievance in Scotland was, that the Courts, in place of doing something themselves, or by their chief clerks, in reference to matters of account, as was the case in England, remitted the business to Professional Accountants, who had in many cases to decide, not only as to the form of the accounts, but of the principle of law upon which they should be founded—becoming in fact accountant and Judge in one. The effect of this frequently was, that when an account was produced it was objected, not that it was a bad account as such, but that it was bad in regard to the principle on which it was constructed; and then the Court frequently ordered other accounts. The expense of doing this was something enormous. He (Mr. M'Laren) knew a case in which the accountants' bills amounted to nearly £3,000. Exceptions were often taken to the principle on which the account was made out—in other words, to the accountant's view of the law. The Court might find that the objection was well founded, and the subject was remitted to another accountant to make a report, and in that way an enormous expense was incurred. He therefore hoped that some provision would be introduced into the Bill, which would provide for the accountants being instructed at any rate as to the law which they had to frame their report upon before their account was prepared.
§ THE LORD ADVOCATEA question has been put to me as to whether it is purposed to reduce the number of Judges according to the terms of the recommendations made by a Committee which sat upon this subject, I presume in 1840. That, I think, is the last Committee which sat. Now, I will read the following extract which I find in the Report of that Committee. It is to this effect, that any reduction in the number of the Lords Ordinary seems at present impossible. The Committee state, further, that they had considered the administration of justice with the view of ascertaining whether the num- 1093 ber of Judges could be reduced, and that they were not prepared to recommend such a reduction. It is plain, therefore, that the Committee of the House of Commons did not recommend any diminution in the number. [Mr. M'LAREN: I think there has been a Report since that time.] I think not. So far as I am personally concerned, I really do not care about the matter; and if it should be found necessary hereafter to reduce the number of Judges, they can be reduced; but I scarcely think that it would be proper to reduce the number when the complaint is that they do not get through their work. It is said that a good deal of litigation is kept out of the Court in consequence of there not being that rapidity of discussion which there ought to be; and we must expect a considerable increase in the business if a satisfactory result is arrived at. I am not prepared to say that the number of Judges ought to be diminished. It is impossible on an occasion like this to go into all the details of a Bill which embraces upwards of 100 clauses, without subjecting the House to inconvenience; but I may say that many of the objections which have been raised this evening are provided for in the Bill itself. For instance, it is said that the Court ought to meet at ten o'clock. There is a provision in the Bill to that effect. As to the remark that delay arises in consequence of consulting the convenience of senior counsel, I can only say that in 1865 I brought that question before the Faculty, when a proposition was agreed to that no case should be adjourned for the convenience of counsel engaged in another Court. My hon. Friend opposite, who is at the head of our bar, gave me every assistance in the matter, and when the proposition was submitted to the Court it was agreed to; and from that day there has been considerable improvement in the administration of the Courts—the cases being better disposed of than they were before, and with less delay. I hope, therefore, it will be understood that I have no desire to protect the interests of the senior counsel at the expense of the public; nor do I wish to limit consideration of the Bill to legal bodies, because I know that commercial bodies also take great interest in the measure The Bill contains a provision, that on what are called their blank days the Lords Ordinary shall not dispose of motions or hear argumentative discussions, but sit for taking proofs on trials by jury. I have had conversation with one of the learned Judges, 1094 who devotes the greatest energy to the discharge of his duties, and he says that these blank days are frequently the busiest for judicial work, and for this reason, that he then considers the arguments which came before him during the hearing of a cause, before giving the decision which it is his duty to pronounce. The Equity Courts of England, which more nearly approach the Courts of Scotland, meet for three weeks, and then adjourn for a week, and have sittings after term. The Scotch Courts sit for two sessions without interruption, and have only a fortnight's recess at Christmas. These weeks of vacation have provided means by which the Equity Judges are enabled to prepare their judgments, frequently requiring a great deal of consideration before they are pronounced. I have, however, put in a proviso—although I have done so with some hesitation—that in their blank day the Outer House Judges shall make use of that day for the purpose of taking proofs.
§
Motion agreed to.
Bill to amend the procedure in the Court of Session and the Judicial Arrangements in the Superior Courts of Scotland, ordered to be brought in by The LORD ADVOCATE, Mr. Secretary GATHORNE HARDY, and Mr. ATTORNEY GENERAL.
Bill presented, and read the first time. [Bill 45.]