HC Deb 10 July 1873 vol 217 cc173-86

Clause 54 (Power to direct trials before referees).

MR. GREGORY

moved, in page 29, line 14, after "thereto," to leave out "and also without such consent in any such cause or matter." The House had a right to know who these official referees were to be, and what particular causes were to be referred to them. Were they to be barristers, solicitors, or experts, and were they to be permanently attached to the Court or appointed. pro hâc vice? He protested against all delegated authority, and trusted that the Committee would support him in. his Amendment.

THE SOLICITOR GENERAL

said, that the proposition of the hon. Gentleman would make the trial of certain causes impossible. What the clause proposed to do was done in every ease at law which was referred, and it was done also in some cases by the practice of the Court of Chancery. Referees were to be appointed without the consent of the parties for conducting any inquiry which could not, in the opinion of the Court, be properly conducted in the ordinary way. The Bill proposed, as regarded documents, to continue the present practice of the Court of Chancery, and it was quite impossible that questions of detail should be examined in Court, except on appeal. Accounts in Chancery were never taken in Court, but were referred to Chambers in some way or other, and were taken by an officer termed a Chief Clerk. At Common Law such matters were referred to a Master, or to an arbitrator. They could not be taken in Court at all. He had yesterday before him a Government ease, an action the account in which contained 400 items. The case was referred as soon as it came into Court. It was referred by consent, but only after the expense of the counsel for the Crown and three for the other side, and of several attendances and heavy briefs, had been incurred. The intention of the clause was to prevent useless expenditure of that description, and that references should be made without the consent of the parties. Clients were often disgusted at finding that heavy expenditure incurred in the preliminary stages of a trial were thrown away, on their case going to arbitration. As regarded cases for scientific investigation, they proposed a slight alteration. In Courts of Common Law, such cases were only referred by consent; but the Courts of Equity had power to refer them not in form but in effect to parties named by the Judge. That power had had the most beneficial effect, and he should be glad to see it exercised more frequently than it was. In one case it had saved many thousands of pounds expenditure. It was a case of pollution of water. The Lord Justice James ordered the case to be referred for report to an eminent engineer, whose report he adopted, and nothing more was heard of the case. As the Bill was intended to fuse Law and Equity, it would extend this power to Common Law. Then, as regarded cases for local investigation, it was intended to get rid of the necessity of having "juries to view." A Lord Chancellor, in a suit for the obstruction of light, once said that since the case was before him on the previous day he had been to see the place for himself, a shop in the Strand. For this he was called to account, and he had no power to do what he did; yet there could be no doubt that it was a very useful power. They proposed that the Court should have power to send an officer to view. The hon. Member for Sussex would find, on reference to the Bill, that it provided sufficient checks against the appointment of incompetent referees, or of more than were needed. At the same time, they were not wedded to these particular definitions and proposals, but would be willing to consider any others that could be suggested. These experts attached to the Court would be permanent officers of the Court, holding a position of responsibility and professional honour, and therefore giving the Court a greater hold over them than over ordinary experts. The payment of these exports would also be more moderate.

MR. HUNT

regarded the question raised by the hon. Member for Sussex as a very important one, and the remarks of the Solicitor General had by no means convinced him that the view of the hon. Member on this point was wrong. He fully admitted that official referees should be appointed to hear cases which could not properly be disposed of in Court; but, at the same time, he strongly objected to the Judge having a statutory power to order cases to be referred, because the exercise of such a power by the Judge might prove most oppressive to the suitor. He also objected to the appointment of scientific experts to whom cases should be compulsorily referred, on the ground that scientific men usually held theories of their own on scientific matters, and that justice would be more likely to be done if such persons were called as witnesses than if they were to be made Judges of the cases involving scientific subjects of which they were assumed to have peculiar knowledge. He also objected to cases involving local investigations being made compulsorily referable, because nearly every case which came before the Courts might be held to involve a local investigation. It would be wiser to leave the parties at liberty to try or to refer their cases at their option, trusting to their common sense and to the advice of the Judge to induce them to refer where necessary.

THE SOLICITOR GENERAL

remarked that the Judge had now a statutory power to order a case to be referred where it involved a question of account.

MR. MATTHEWS

said, he thought that the power to order a case to be referred ought to be exercised before it came into Court, so that parties might be saved the expense of paying counsel's fees. If the clause were agreed to in its present form, we should have a crowd of official and salaried chemists, doctors, mathematicians, and other scientific persons in the employ of the Government. That all cases might be compulsorily referred to official experts seemed to him to be a dangerous proposal to make, because such men, however honestly disposed they might be, would be liable to act upon theories of their own, and not to deal with the questions which came before them from that common-sense point of view from which juries, though less acquainted with the subject, would consider those questions. He was not prepared, therefore, on such short notice to accept that part of the clause.

MR. SERJEANT SIMON

said, he thought the clause one of the most valuable improvements in our system which had been devised. It provided for just those cases which could not be properly tried in a Court of Justice, but which ought to be dealt with in a private room by an arbitrator. He, however, concurred with the hon. and learned Gentleman who had just spoken in the objection which he had taken to the scientific referee.

MR. LOPES

said, the clause dealt with scientific and technical cases, as well as questions of account, but there were many railway cases which would come under that description which ought to be tried by a jury. As the clause stood he thought it would confer a very dangerous power.

MR. JAMES

said, the effect of the clause was that almost every case that could be conceived might be referred. He hoped that the Committee would be disposed to consider the interests of suitors, and not give Judges an unlimited power of referring all the causes, or as many of them as they might select from the list to arbitrators.

MR. AMPHLETT

said, he thought the clause went too far, and might offer a great temptation, in the hurry of Assize business, to both Judges and counsel, to get rid of a case by referring it. He hoped the Solicitor General would agree to the insertion of words requiring the reference to be made before notice of trial, and also to the omission of the words "any scientific or local investigation."

MR. OSBORNE MORGAN,

said, that if he had to choose between a properly qualified official referee and an ordinary arbitrator, he would prefer the former, as the latter had all the duties and none of the powers of a Judge. That clause, however, as it stood was far too sweeping, and would practically enable Judges at any time to shift from themselves the burden of trying every case. Scientific referees would generally be inclined to decide according to their preconceived theories. The Court of Chancery had now the power of taking the evidence of scientific witnesses; but here it was proposed to substitute the man of science for the Judge.

MR. STAVELEY HILL

apprehended that under this clause there would be an uncertain number of referees, and that the Judges would be able to refer such causes as they might think proper. In his opinion, any cause which could be properly tried by a Judge should not be delegated to any referee.

MR. HINDE PALMER

regarded this clause as one of the most important in the Bill, and hoped its main principle and object would not be destroyed, for many causes which related to matters of account and to subjects of scientific importance could not be properly tried by a Judge.

MR. VERNON HARCOURT

questioned whether the advantages offered by the clause might not be bought at too great a price. He considered that one of the greatest scandals of the profession was the present system of reference. If the cause were to be disposed of at the Assizes, it would soon be over and done with; but in the case of a reference there were almost invariably postponements—now for the convenience of counsel, now for that of the arbitrator—and the result was dilatory proceeding, heavy expense, and great anxiety. He hoped that in the Bill the number of cases in which reference could be resorted to would be limited, and that the Committee would have some idea given them of what the expense of the new system was likely to be.

THE ATTORNEY GENERAL

said, the clause was an important one, and ought to be approached from the suitors' point of view. The discussion seemed to have proceeded on a distrust of the discharge of their duty on the part of the Judges. It was apprehended that if the Bill passed as it stood the Judges would refer cases which ought to be disposed of by juries in their own Courts. In that view he, for one, could not concur. The Judges had power at this moment to refer not only all cases of account, but also all cases which involved "partly matter of mere account." It was true that no such reference could be made at Nisi Prius; but he had known cases in which causes were adjourned at Nisi Prius, and summonses subsequently taken out for a reference of each instance. He was bound to say that the cases in question ought originally to have been referred. What was now sought to be done was this—to provide that, before great expense was incurred in the giving out of briefs and otherwise, such cases should be remitted, not to arbitrators to be paid by the parties, but to a tribunal to be appointed by the Government and paid by the State. With respect to the expense of such a tribunal, he need only say that year by year the charges consequent upon it would be before the House in the Estimates, so that Parliament would have the opportunity of exercising complete control over them. The worst, therefore, that could happen—and even that he did not contemplate—would be an extravagant payment for one year.

MR. GREGORY

observed, that the question before the Committee now was simply whether a man should have a right to be tried by Judge and jury, or have his case sent to a referee, whether he would or not. He proposed to withdraw his present Amendment, and, instead of that, to move to strike out from the clause the words "or any scientific or local investigation."

Amendment, by leave, withdrawn.

Amendment proposed, in page 29, line 16, to leave out the words "or any scientific or local investigation."—(Mr. Gregory.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

DR. BALL

supported the Amendment. He objected to giving irresponsible power to any scientific persons. You might have them to assist, but he would have a legal mind present to guide and control them.

Question put.

The Committee divided:—— Ayes 76; Noes 55: Majority 21.

MR. MATTHEWS

proposed, in page 29, line 20, to insert after "at any time" the words "before notice of trial." His object was to prevent the scandal of persons being sent to a reference after they had gone to all the expense of preparing for a trial.

THE ATTORNEY GENERAL

objected to the Amendment as limiting too much the discretion of the Judge. It was not the suitor but the attorney that objected to a reference. He opposed the Amendment in the interest of the suitor.

MR. LOPES

observed that references now were made in matters of account before trial.

MR. JAMES

supported the Motion, which was really made in the interest of suitors. If an attorney was sincere and honourable to his client he would endeavour to prevent a reference on account of the expense inevitably caused thereby. If, on the other hand, he wished to increase his bill of costs, he would act in the contrary way. He must, .however, make one remark. It was very hopeless and almost heartbreaking work for Members who remained in their places and took great pains to improve as far as they could a measure which was not a party one, to have themselves set aside by other Members who came in for the division and voted without hearing or understanding the question, but were merely told which were the "Ayes" and which were the "Noes." In the case of the last division the Members in the House were almost unanimous in favour of the Amendment. Yet it was lost, and he had little doubt that if a division took place on the Amendment now moved by the hon. and learned Member for Dungarvan, the result would be the same.

THE ATTORNEY GENERAL

said, he was sorry to hear the observations of his hon. and learned Friend, but he would endeavour to keep his temper, and would not retort.

MR. HUNT

must say there was some ground in the last division for the observation of his hon. and learned Friend (Mr. James). No independent Member had supported the view of the Law Officers of the Crown.

THE SOLICITOR GENERAL

observed that his hon. and learned Friend behind him (Mr. Hinde Palmer) had spoken on that side.

MR. HUNT

admitted he had made a mistake. The Government had the support of one independent Member. But certainly the division lobby did not represent the opinion of those who had heard the debate. He thought this Amendment would require some modification. He hoped, however, it would be pressed; if it were not, he should take the sense of the Committee on the whole clause.

MR. JAMES,

in explanation, said, he had criticized only the conduct of Members who were absent from their discussions.

THE SOLICITOR GENERAL

observed that in technical discussions of this kind the lay Members of the House ought either to have confidence in the Law Officers of the Crown, who were only actuated by a desire for the public interest, or else rely upon the opinion of such other lawyers as might be accidentally in attendance. The adoption of any other course would not be satisfactory either to the House or to the public.

MR. HUNT

denied that this was a mere technical matter, but a broad and intelligible proposal whether a Judge was to have the statutory right of driving litigants to arbitration. He thought the hon. and learned Gentleman should be more careful, and not attribute improper motives to those who opposed the clause.

THE SOLICITOR GENERAL

said, he had not had any such intention.

MR. HINDE PALMER

said, he could not vote for words which would deprive the Judge at a trial of the power of directing a reference.

MR. F. S. POWELL

vindicated the right of lay Members to discuss matters affecting the interests of suitors.

MR. C. E. LEWIS

opposed the Amendment on the ground that practically it would operate as a denial of justice.

MR. MATTHEWS

expressed his willingness to adopt the suggestion of the right hon. Member for North Northamptonshire (Mr. Hunt), and to substitute for the word "time" the words "at any time by consent, and without consent before notice of trial."

MR. HUNT

said, he hoped the hon. and learned Member for Dungarvan would allow his Amendment to be negatived, so that a division might be taken on the original clause, which he desired to see expunged.

Amendment negatived.

Question put, "That the Clause stand part of the Bill."

The Committee divided:—Ayes 66; Noes 25: Majority 41.

Clause agreed to.

Clause 56 (Powers of Court with respect to proceedings before Referees) agreed to.

Clause 57 (Her Majesty may establish District Registries in the country for the Supreme Court).

MR. F. S. POWELL

moved, in page 30, line 8, to leave out "to be thereby defined," and insert, "which shall be such as are hereinafter described." His object was to ask the Government to define and limit the area on the face of the Bill.

THE ATTORNEY GENERAL

opposed the Amendment.

Amendment, by leave, withdrawn.

MR. MATTHEWS

moved, in page 30, line 10, after "issued," to leave out to "after-mentioned" in line 11. The object was to confine district registries to ministerial steps in an action, and to take away from them the contentious proceedings which were given by Section 60.

THE ATTORNEY GENERAL

said, he thought it would be better to take the discussion of this matter on Clause 60, which raised the whole question.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 58 (Seals of District Registrars) agreed to.

Clause 59 (Powers of District Registrars) agreed to.

Clause 60 (Proceedings to be taken in District Registries).

MR. RATHBONE

moved in page 31, line 9, after "proceedings," to insert, "including proceedings for the arrest or detention of a ship, her tackle, apparel, furniture, cargo, or freight."

Amendment agreed to.

MR. LOPES

said, he had great objection to the clause, and moved its omission. These district registries would have jurisdiction, unlimited, both as to subject-matter and geographical extent. Under the new system anyone might issue a writ in the District Registry against anyone living anywhere. If the proceedings were not removed the cause would go to judgment in the district; and the decision of the District Registrar was practically without appeal. It was true that application might be made to the Judge, who might remove the whole proceedings. But there was no inherent right of appeal, and this power of applying to the Judge was a perfect illusion, for the Judge would be too apt to think the Registrar a competent person, nor could the grounds of objection to the Registrar's jurisdiction always be stated to the Judge. The Registrars would have to exercise judicial duties, to settle pleas and issues under a new system of pleading, to deal with particulars, to decide whether interrogatories should be administered, to decide also as to discovery and inspection of documents and the taking of partnership accounts. These were matters now dealt with by Judges and Masters, but hereafter they would be dealt with by Registrars, who would be practising attorneys within the district, unassisted by any Bar. What were the benefits to the suitors to be accomplished by this sweeping change? It was said that this localization would save expense and prevent delay. As to expense, the only difference would be that hereafter under the Bill the local attorney would put the whole of the fees into his pocket, instead of dividing them with the London agent. If a man living at Truro were to bring an action against a defendant at. Newcastle, the defendant must employ a person at Truro, of whom he knew nothing, to conduct his case; and as the District Registrars would decide differently all over the country upon points of law and practice, there would be the utmost confusion. He denied that the local solicitors favoured this local jurisdiction. He knew they did so with regard to the issue of writs and the dealing locally with mere ministerial matters; but they did not desire that contentious and judicial business should be disposed of locally. The example of the County Palatine was not in point, for an easy appeal existed there, and the writ did not run beyond the County Palatine, so that both plaintiff and defendant lived within the same jurisdiction. If the Government would be content to confine these District Registries to ministerial proceedings, and to remit contentious proceedings and judicial matters to be disposed of in London, or to give the parties the option of removing them upon mere application, a considerable part of his objections to the clause would be removed; but if the clause remained as it was, the practical effect would be, whilst endeavouring to redress an alleged grievance, to create one of much larger proportions, to the injury of the general body of suitors.

MR. LEEMAN

said, the country solicitors in Manchester, Liverpool, Birmingham, Leeds, and many other of our large towns, were of opinion that if there was one portion of the Bill from which the community at large was likely to derive great benefit, it was that portion which gave to local communities the power of putting into operation the provisions of the Bill. The establishment of the County Courts was almost an analogous case to that which was proposed, and they had conferred such advantages upon the community that it had been thought advisable to entrust to them Equity, Admiralty, and Bankruptcy jurisdiction. It was the crying evil of our law that the moment they got a Chancery suit, however small might be the amount it involved, into the office of the Chief Clerk of the Court in London, they could form no idea of the time when they would get it out of that office. If, however, as proposed by that Bill, District Registrars could, by directions from the High Court of Justice, go into and take accounts, there would be far less delay and expense incurred than if the business were entirely done in London. As to District Registrars not being able, especially in the absence of the Bar, to deal with contentious business, he would remark that it was only in difficult cases that country solicitors required to consult the Bar, and that they were obliged by their education to make themselves acquainted with the practice of both Law and Equity. He hoped the Government would hold by the clause they had proposed, which, in his opinion, would work satisfactorily.

MR. RATHBONE

observed that the profession in those districts where local courts existed were anxious that the clause should be adopted, and that thereby the advantages existing in certain localities should be widely extended.

SIR RICHARD BAGGALLAY

said, that no objection was taken to a certain amount of jurisdiction being conferred on the District Registrars. The objection was to the magnitude of the judicial power which it was proposed to confer on gentlemen who, however well qualified to discharge the offices which they at present filled, did not possess the qualifications which usually belonged to Judges of the Superior Courts. The clause enacted that all proceedings down to the trial might be taken before these District Registrars, and they might even exercise, in certain cases, a jurisdiction equivalent to the issuing of an injunction. The duties of the Registrar ought to be limited to purely ministerial functions: He did not believe that the public were aware of what was now proposed to be done, otherwise there would be a great out cry against it.

THE SOLICITOR GENERAL

said, he thought he could relieve his learned Friends from some of their apprehensions by pointing out that the powers to be conferred upon Registrars would be subject to rules framed under the 64th clause by the Lord Chancellor, the Lord Chief Justice of England, and a majority of the Judges—subject to the approval of Parliament. That was a guarantee that no powers would be given them which they were not qualified to exercise; and it was out of the question to suppose that they would be entrusted with the power of issuing injunctions. It had been found in practice in the County Palatine that the powers conferred by the clause had been of the greatest use, and had saved enormous expense. Sixty per cent of the writs issued by the Registrars never went any further. The causes became undefended actions, and all further expenses and costs were saved, which was a mercy to the defendants. The Committee might safely leave the power of making these rules in the hands of the Judges.

MR. MATTHEWS

opposed the clause, observing that it allowed absurd and irrational things to be done, which the Judges were to endeavour to prevent by the framing of Rules of Court.

MR. TORR

said, this seemed to be a contest between the London and the country lawyers. But the suitors were the persons to be considered. He regarded it as a most important and valuable feature of the Bill that it did away with the extensive centralization, which in legal matters now existed in London.

DR. BALL

said, there was nothing in the Bill to limit the jurisdiction in which these writs should be issued. He would suggest that the District Registrars should be left as they were, and the power of issuing writs retained; but that no writ should be served on a defendant who resided more than a certain distance from the particular Registry from which the writ proceeded. It would place a vast power of annoyance in the hands of litigants if some such limit was not fixed.

THE SOLICITOR GENERAL

said, he thought the power which his right hon. and learned Friend sought was contained in the 4th sub-section of Clause 64, which laid down rules for the conduct of the practice and procedure of the Courts.

MR. C. E. LEWIS

pointed out that the 7th rule in the Schedule would work harshly in many cases. For instance, a London merchant served with a writ issued out of a County Court in Dorsetshire would have, if the writ had been specially endorsed, to obtain permission from the Judge to show that he had sufficient primâ facie evidence for a good defence before he could be allowed to proceed in the action. It would be a hardship upon a man to compel him to go to long distances and incur considerable expense in order to take the initiatory steps towards meeting what was perhaps an illusory claim.

MR. WHALLEY

complained that the Bill was being passed through Committee without any Member being able to understand it who was not a lawyer. In his opinion, the Government were bound to explain what was the precise grievance to suitors with which this clause proposed to deal. It was quite a new thing to lay down in an Act of Parliament rules for a system of procedure for a purpose that was not strictly necessary.

Amendment negatived.

Clause, as amended, added to the Bill.

Clause 61 (Power for Court to remove proceedings from District Registries) agreed to.

Clause 62 (Accounts and inquiries may be referred to District Registrars) agreed to.

Clause 63 (30 & 31 Viet. c. 142. ss. 5, 7, 8, 10, to extend to actions in High Court).

MR. MATTHEWS

moved, in page 32, line 6, to leave out the word "fifth," the object being to omit the continuance of the 5th clause of the County Courts Act, as it was now unnecessary, upon the ground that under the present Bill the question of costs would be in the discretion of the Judge.

THE ATTORNEY GENERAL

said, that it would, in his opinion, be necessary to retain the 5th section of the County Courts Act.

Amendment, by leave, withdrawn.

Clause agreed to.

Clauses 64 to 72, inclusive, agreed to.

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