HC Deb 08 July 1874 vol 220 cc1271-81

Order for Second Reading read.

MR. CHARLEY

, in moving that the Bill be now read the second time, said: This may be regarded as a very unpretending measure of social and, at the same time, of legal reform; of social reform because it protects the public against unqualified persons assuming to act as legal practitioners; of legal reform, because it supplements the inadequate provisions of the existing law for checking the raids of legal quacks on the legal profession. On what principle, I would ask, is the medical quack restrained from preying upon the public and upon the medical profession, while the legal quack is allowed without any restraint at all to prey upon the public and the legal profession? The first portion of the 2nd clause of the Bill assimilates the law for the conviction of unqualified legal practitioners to the law which has now been for 16 years in salutary operation for the conviction of medical quacks; and the latter portion of the clause provides a simple means of enforcing in a mitigated form the existing law for the protection of the public against unqualified legal practitioners. The 3rd clause of the Bill provides a simple remedy for enforcing, in a mitigated form, the existing law for the protection of the public and the legal profession against unqualified and unskilled conveyancers; and the last clause—which, I may observe, is not essential to the Bill, but which, I think, is a useful clause—has for its object the protection of persons in distressed circumstances from being induced to enter into bills of sale, enabling money-lenders to break into their premises and carry off their furniture, without their fully understanding the force and effect of those dangerous documents. It may be asked—"Why does not the Council of the Incorporated Law Society proceed against those persons? The Council of the Incorporated Law Society offer their justification in their Report for the year 1871–2 in these terms— It does not seem to he generally understood that, unless it can he proved that proceedings have actually been taken by unqualified persons in some Court, the Society has no power to interfere under the Attorneys and Solicitors Acts. The 26th section of the Attorneys and Solicitors Act, 1860, would seem in its opening words to include the case of unqualified persons acting as attorneys or solicitors generally, and not merely in connection with some particular Court. The words of the section are— Every person who acts as an attorney or solicitor contrary to the enactment in sect. 2 of the first hereinbefore mentioned Act, (the Attorneys and Solicitors Act of 1843); and if we turn to that Act, and refer to the section alluded to, we find these words— No person shall act as an attorney or solicitor, or as such attorney or solicitor sue out any writ or process, or commence, carry on, solicit, or defend, any action, suit, or other proceeding. So that under these words "acting as an attorney or solicitor," although not in any Court, would be an offence; but, unfortunately, the concluding words of the 26th section of the Act of 1860 are these— Shall he deemed guilty of a contempt of the Court in which the action, suit, cause, matter, or proceeding in which he so acts is brought, had, or taken, and may be punished accordingly. Therefore, the clause is evidently confined to the case of an attorney or solicitor acting in some Court. If reference be made to the language used in the sections of the Act of 1843, imposing penalties, it will be seen that the remedy there given is confined also to acting as an attorney or solicitor in some Court. The 2nd clause of the present Bill is so framed as to include any person acting as an attorney or solicitor generally, and not merely in some Court. Is it necessary, Sir, for me to defend or justify such a provision as this? Surely, the worst part of the trade of these unqualified persons is carried on out of Court, and before any proceedings are commenced? They know very well that persons who owe money are usually very timorous persons, who think that the policeman or the bailiff is lurking around their residence, or that by the next post they will receive an attorney's letter. The House will readily understand the tremendous influence that may be acquired over such persons by these sham attorneys, after they have once got them into their toils, have lured them into a correspondence, or frightened them into an interview. The application of the thumb screw in the Tower must have been mild as compared with the influence which such acquire over unhappy debtors. In illustration of the proceedings of these persons, the hon. and learned Member read a circular from a society calling itself "Prosecution Society for Fraudulent Debtors," threatening not only proceedings but punishment against a person alleged to be indebted to a member of the society, and also read from The Law Journal the following comments on a society of this nature— This debt-collecting establishment issues various notices. No. 1 is a request for payment in full, or by instalment; otherwise action. No. 2 is an 'arrear' notice for payment of an overdue instalment, under throat of immediate steps being taken to recover the entire debt. No. 3 is headed 'final notice, collecting department,' and threatens that unless the debt is immediately paid it will be passed over into the legal department. Last comes the notice, headed 'legal department,' which intimates that on a day named the necessary steps will be taken for obtaining a warrant of execution against the goods and chattels of the debtor; and failing that a warrant of imprisonment for contempt of Court. Perhaps the most peculiar feature in this class of business," says The Law Journal, "is the presumption of ignorance among debtors. Otherwise how can we understand the repeated demands of fees and charges for issuing the several notices, not one of which could be recovered by process of law? I have several of those notices that have been issued by these persons, here. One of them was served on a poor widow. She had been constantly pestered with certain papers demanding payment of a debt, which it is stated she agreed to repay by instalments, but she never agreed to pay any debt at all. These notices were doubtless issued in order to frighten her into payment of the amount claimed. It reads thus— It having become evident from your silence that extreme measures will be required to recover the debt against you at these offices, we have to intimate that on Tuesday next (unless a settlement be previously sent here), the necessary steps will proceed towards obtaining a warrant of execution against your goods and chattels, which failing, a warrant of imprisonment for contempt of Court will be applied for, the expense of all which will fall on you to pay. We are, your obedient servants, &c, —Accountants. There is almost invariably at the foot of these documents some such notice as this—"Sevenpence is added to the amount due, being the expense of this notice," the fact being that the amount is not, of course, recoverable from the debtor. Sir, I desire to speak with the greatest respect of accountants. Many of them are men of the most distinguished positions in the mercantile world, to which their services are essential; but I do say that there ought to be some restriction placed on the facilities with which persons become accountants. If a man fails in keeping his own accounts he sends you a circular, stating that he has set up as an accountant, and offering to keep your accounts. Clerks, who have been dismissed from Government Departments under anything but satisfactory circumstances, set up as accountants, writing "Smith and Co., accountants," after their names, and flooding their neighbours with circulars offering to look after their accounts. The transition from the chrysalis state of a Government clerk to the fully-developed accountant seems to be instantaneous. Here is a case which was heard in the Southwark County Court before Mr. Whitmore, Q.C., on the 19th November, 1872— Action by the plaintiff to recover the balance of moneys received by the defendants on his behalf. The defendants carried on business as 'legal agents throughout the Kingdom,' being styled 'The Mercantile Accountancy Offices,' their receipts and certificates bearing the Royal and City Arms. Someone called on plaintiff and induced him to become a member at 25s. per annum. Having arrears of rent owing him in the North of England, the plaintiff put the matter in the society's hands. The money owing to the plaintiff was distrained for, and paid to the defendants. The plaintiff had to travel from London to Pontefract to defend an action for illegal distress; he could not get the balance due to him by the defendants out of the society's hands, so he brought the action. It turned out that the society consisted of only two individuals, who acted as secretaries, managers, and committee."—[The Law Times, 14th Dec. 1872.] Now, to sow how these gentry insinuate themselves into the good graces of unfortunate persons who are in impecunious circumstances, I will read the following circular—

"(Private and Confidential) Mr."—(I will not give his name)—"in forwarding this circular, does not presume to infer' that his services, or other of a like profession (sic) are required: but having observed that a judgment is registered against you, and as such things are very frequently the introduction and forerunner of bankruptey, and in many cases the destruction of homes, he simply suggests that if it should happen that the recipient he pecuniarily involved, or pressed by creditors, or having process of any kind issued against him, he will do well to favour Mr.—with a personal interview. That is a case which refers to a registered judgment. Here is one in reference to registered bills of sale— Madam,—Having noticed your bill of sale in the registered list, I take the freedom to state that should it at any time lead to your embarrassment, I shall be happy to place my services at your disposal.—Yours obediently,—. I could not find the name of this gentleman in the commercial portion of The Post Office Directory, but I found it in The Court Circular, because he had no occupation. A case was tried in the Huddersfield County Court before Mr. Serjeant Atkinson. It is the case of Clement v. Hall. This was an action brought by the plaintiff, a surgeon, for professional services rendered to the defendant. Mr. Barker, who appeared for the defendant, said his client had received a notice from an accountant. He thought no professional man could advise his client to act on it. His Honour said— That is a clear violation of the 6 & 7 Vict. c. 73, s. 2. The clause is prohibitory, and renders a person who acts as an attorney subject to an indictment. Although people seem not to understand it, an attorney is subject to the supervision of the Superior Courts for all his acts; he is an officer of those Courts; his education is expensive; he has a position to maintain, and his character for probity is everything to him. If accountants or agents presume to act as attorneys, there is no supervision or control exercised over their actions, and the public are entirely at their mercy. Now, Sir, the language of the provisions of the Attorneys and Solicitors Act of 1843 is much milder in dealing with the question of unqualified persons acting as attorneys and solicitors than that of the Acts which that Act repealed. There are three important Acts which it repeals. One was passed in the year 1729, one in the year 1739, and one in the year 1749. By the Act passed in the year 1729, it is provided that a penalty of £50—and here I need hardly point out to the House that £50 represented 150 years ago a much greater sum than it does now—was imposed on any unqualified person assuming to act as an attorney or solicitor; and I would particularly call the attention of the hon. and learned Gentlemen on the Treasury Bench (the Attorney General and the Solicitor General) to the fact that the penalty was recoverable by any person without leave of the Law Officer or the Law Society in any of the Superior Courts at Westminster, or in any Court of quarter session, within whose jurisdiction the offence had been committed. The Act of 1739 contains similar provisions with respect to unqualified persons acting as attorneys or solicitors in the County Courts, and the Act of 1749 contains like provisions with respect to unqualified persons acting as attorneys or solicitors in Courts of quarter session. There were no restrictions in any of these cases on the right of the public to sue. The Act of 1843 provided that the unqualified person shall be liable to be committed for contempt of Court. This provision was borrowed from the Act of 1749; but, while the Act of 1843 repealed the Acts of 1749, 1739, and 1729, it did not re-enact the pecuniary penalties which those Acts imposed. An attempt was made to remedy this omission by the Attorneys and Solicitors Act of 1860; but the unqualified person is so fenced in by securities in the 26th section that, in the hands of the Council of the Incorporated Law Society, it has been like the rusty old sword of excommunication in the hands of the Bishops, or the penalties of prœmunire in the hands of the late Lord Westbury. First there must be an action brought; then the unqualified person must act as an attorney or solicitor in that action; then he must be committed for contempt of Court; he is not allowed to bring an action for his fees, but he always takes care to have the fees paid beforehand. The aggrieved party may then go to the Attorney General and ask for leave to sue for £50, and when he has got that leave he must sue in the name of the Incorporated Law Society, and when he has recovered the £50 he must hand it over to the Crown. Our ancestors were not neglectful of this question. They well know the dangers that would arise from allowing unqualified persons, without stint, to act as attorneys or solicitors. The Preamble of the 11th section of the statute 22 Geo. 2, c. 46, is very much to the purpose. It says— And whereas divers persons who are not examined, sworn, or admitted to act as attorneys or solicitors in any Court of Law or Equity, do in conjunction with, or by the assistance or connivance of certain sworn attorneys or solicitors, and by various subtle contrivances, intrude themselves into, and act and practise in the office and business of attorneys, to the great prejudice and loss of many of Her Majesty's subjects, and the scandal of the profession of the law, he it enacted, &c. The language of the Preamble of the 12th section of the same Act (1749) is very applicable to certain proceedings sufficiently notorious in connection with the Middlesex Sessions and the Old Bailey. It says— And whereas frequent delays, inconveniences, and unnecessary expenses arise, and happen, as well to parishes as to private persons, by the mismanagement and unskilfulness of persons employed as solicitors or agents, at the sessions held for the several counties, ridings, divisions, cities, towns corporate, and other places of this Kingdom, who, having never been regularly bred to the law, and being ignorant of the forms and operations thereof, offenders against the law of the land, have frequently escaped with impunity, be it enacted, &c. The principle which the 3rd clause of the Bill embodies is well explained by Lord Wensleydale, in his comments in the year 1854, on the statute of the 44 Geo. 3, c. 98, s. 14, which has since been repealed and re-enacted by the 33 & 34 Vict. c. 97, s. 60. Lord Wensleydale says— The object of the Legislature could not have been merely to secure to the revenue the duty on certificates. The object of the Legislature was to confine the practice of drawing the instruments to a certain class supposed to have competent knowledge of the subject"— to provide against mistakes of inexperienced persons in matters of this kind. The statute," said Mr. Baron Platt, "was intended to prevent ignorant persons from drawing conveyances of serious import. The conveyance itself is perfectly valid, no matter who draws it. This, of course, is in accordance with public policy, but under the existing law the person drawing it is liable to a penalty of £50, and is also disqualified from suing for any fees. Oddly enough the remedy is given to the officers of the Inland Revenue exclusively, who must, I think, sue in the name of the Attorney General, and in the Court of Exchequer; but I say this subject to correction. [The ATTORNEY GENERAL signified his assent.] I have referred to the words of Lord Wensleydale because they clearly show that the object of the Legislature was not merely to protect the Revenue, but also to protect the public against the crass ignorance of unqualified persons. There are persons who are not required to take out certificates, who have the right to draw these conveyances by statute, such as barristers-at-law and serjeants-at-law, which would in itself show that the sole object was not to protect the Revenue. Large sums are made by persons totally unqualified to draw these documents; great irritation is excited in the minds of qualified conveyancers, while the public have no guarantee that the important documents they execute at the most serious moments of their lives—documents dealing with thousands and tens of thousands of pounds—have been drawn by persons who have the slightest knowledge of the subject. I would just say a word with respect to the provisions of the Bill, that a qualified attorney or solicitor must be a certificated attorney or solicitor. What I say is this—Do away with the certificate duty altogether, if you wish, and I, for one, will certainly not oppose it; or else make it a qualification in all cases. I think it very unfair to qualified practitioners that the client is not required to exercise caution as to whether the person he employs is qualified or not. In all other cases the principal is required to see that the agent he employs is a responsible person competent to represent him. The door is opened for collusive actions with a view to dividing the spoil. The unqualified person cannot sue for his fees, but the moment the plaintiff sues for them the disqualification is practically purged. The 3rd clause of this Bill gives a remedy in the County Court, and if reference be made to the Act of 1860 it will be seen that by section 26 the remedy is given through the intervention of the County Court. I think that that is a very excellent provision. The remedy will be inexpensive, the amount recoverable will be small, but the security will be great—for the first time there will be a real protection both to the public and the profession. It may be said—"Why not have free trade in law?" Well, if the State chooses to say that there shall be free trade in law, be it so, and I wish the State joy of the result; but so long as there is a body of men who are required to undergo a severe course of training and very great expense to qualify themselves for their profession, and who are subjected to very severe discipline in consideration of certain privileges being conceded to them, I say it is the duty of the State to protect those persons from being preyed upon by adventurers and mountebanks, and that if the State were to act otherwise, instead of sanctioning free trade, it would be sanctioning piracy. I beg to move the second reading of this Bill.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Charley.)

THE SOLICITOR GENERAL

said, he would not oppose the second reading of the Bill; but he was sorry he could not speak wholly in its favour, for he knew how earnest the hon. and learned Member for Salford (Mr. Charley) was in promoting measures of practical usefulness, which were generally intended to remove hardships under which the humbler classes of the community were suffering. The early portion of the Bill he (the Solicitor General) regarded as containing useful provisions, which might well receive the sanction of the House. It provided that anybody who wilfully and falsely pretended to have a qualification to act as a solicitor or attorney should be guilty of an offence, and subject to a penalty. It was, undoubtedly, right and proper that anybody who held himself out as qualified to do tilings he was not qualified to do, and who thereby deceived the unwary, should be subject to a penalty of some sort or other, and under the existing law he might be proceeded against if he falsely represented himself to be a qualified legal practitioner. If such a person escaped punishment under present circumstances, it was not because the law protected him, but because the machinery which had to be put in force with that view was cumbrous and difficult to work. With respect to that point, therefore, so far it appeared to him that the provisions of the Bill were useful and ought to be sanctioned, subject to some alteration of the language to which he need not then refer, but which could be made in Committee. But with regard to the 3rd clause of the Bill, it was one of which he could not approve. It seemed to him that if that clause were carried into law, it would very unduly and unnecessarily interfere with the liberty of the subject in the widest sense of the term. He alluded to the right that every man had to employ whom he liked, and to do what he liked in his business or anything else, provided he did not do that which was morally or legally wrong. He could not understand why a man should not, if he thought proper, employ any person he thought fit, if he were not deceived into employing him, to prepare documents with reference to his property. If he liked to entrust his business to an unqualified person that was his own affair, and he could not see why a person who was so employed, if he did not in any way deceive the person who employed him, might not do any business entrusted to his charge. By the clause in question it was provided that any unqualified person who prepared any instrument should practically be subject to a penalty of £10, as he was to be subject to an action for that amount in the County Court. When they came to the definition of the word instrument, they found it meant every document relating to real or personal estate, or to any proceeding in law or equity; but it did not include wills and testamentary documents, nor powers of attorney. Under that provision the contingency would arise, that perhaps the very best persons qualified for any particular work might find themselves highly penalized; for example, an accountant who drew up a document for a man on the eve of bankruptcy, with reference to his bankruptcy, would be liable to a penalty of £10. Why that should be he could not understand, as it was more the business of an accountant than of an attorney, and he was more qualified than an attorney to transact it. Again, an auctioneer who prepared a document with regard to a sale of property would be subject to the same penalty, and would not be able to recover the remuneration for his work. He thought it would be most dangerous to sanction any provision leading to those results. With regard to the 4th clause, which referred to bills of sale, it was not, he thought, desirable to oblige a man to call in an attorney. It generally happened in these cases that an attorney came in, sooner or later, without being eagerly sent for, and there was a Bill before the other House containing provisions with regard to bills of sale which would probably meet the requirements of the hon. Member. If it did not, the clause of the hon. Member might be very well inserted in it. He should not object to the second reading of the Bill, but he thought that the 3rd clause ought either to be struck out, or considerably altered in Committee.

MR. C. E. LEWIS

said, that the Bill was one in the interest of the public, and as such it must be looked at; for if it were merely in the interest of the legal profession, it would not be acceptable to the House. While saying that the Bill might in some respects go too far, he yet thought its various clauses admitted of a clear defence, and their details could be dealt with in Committee. He was surprised to hear a Law Officer of the Crown object to the 3rd clause, for it only embodied a principle that was contained in earlier statutes, and which was substantially now the law of the land, as the 60th section of the 33 & 34 Vict., c. 97, showed. In legislation of this kind the public rights ought to be clearly defined; but at the same time, when the Legislature thought fit to tax a certain class of persons annually, there was a collateral right on the part of those persons to receive from the Legislature a reasonable amount of protection in the exercise of their profession. He did not think that the 4th clause, relating to bills of sale, was altogether foreign to the Bill; still, if there were a Bill upon the subject of bills of sale in "another place," it might be prudent to insert the clause in that Bill. It was clear that under the present law persons in distressed circumstances were deluded into signing bills of sale, under which every article of furniture could be, and was, removed off the premises. He submitted that the law in regard to the execution of bills of sale should be placed upon the same footing as the execution of warrants of attorney. This was a matter of great importance to a largo class of the community whose necessities compelled them to borrow small sums of money occasionally.

Question put, and agreed to.

Bill read a second time, and committed for To-morrow.