HC Deb 06 August 1875 vol 226 cc625-52

Bill, as amended, considered.

MR NORWOOD

moved the insertion of the following clause:—

(Barristers to be entitled to sue for fees.)

Every barrister at law retained or employed by or on behalf of any suitor in either of the said courts, and accepting any brief or instructions to act as counsel on behalf of or to advise any such suitor, shall be entitled to sue for his fees earned in respect of such employment as for work and labour done on behalf of such suitor. He said, that his object was to place the employment of a barrister on the same footing as that of members of the other branch of the legal profession, civil engineers, physicians, surgeons, architects, and other professional men, who for fee and reward rendered individual service to persons employing them. The present system of treating the fee offered to barristers as a honorarium, which he could not recover at law, but which involved the recipient in no obligation to do the work contracted for, or liability if it were either wholly or partly neglected, was inconsistent with common sense, and had produced many evils, seriously affecting not only suitors generally, but specially those of the commercial classes, who were frequently compelled to have recourse to legal proceedings of various kinds. He asserted, that during the last 30 years the rate of fees payable to barristers had largely increased, and, at the same time, the certainty of a suitor obtaining the actual services of the counsel he retained in any Court—except in the Court of Chancery—had greatly diminished. He had been furnished with several notable instances of counsel receiving and retaining fees for which no service had been rendered; but he should abstain from using them, and readily acknowledged that he was aware of honourable exceptions to the practice he complained of. He had read the arguments urged in defence of the present system in leading cases; but they had failed to convince him that in the present day the relations between counsel and client should be placed on any other footing than ordinary contracts.

Clause (Barristers to be entitled to sue for fees,)—(Mr. Norwood,)—brought up, and read the first time.

Motion made, and Question proposed, "That the said Clause be now read a second time."

MR. SERJEANT SHERLOCK

said, he was surprised that no Member of the English Bar had risen to reply to the proposal. It was impossible to understand what object the hon. Member could have in view from merely looking at the proposed new clause. He (Mr. Serjeant Sherlock) objected to it, because, while professing to give barristers the power of recovering their fees, it would impose on them obligations and responsibilities from which they had hitherto been exempt, and which the hon. Member professed to be desirous not to impose upon them. For instance, if a member of the Bar was entitled to recover fees, he would be liable to an action at law for want of skill in giving an opinion by which the client might have incurred loss. ["No, no!"] He maintained that it would be so, and remarked that solicitors were frequently visited harshly for the results of steps which they had bonâ fide taken in the interests of their clients. Members of the Bar felt as deeply as any one else the inconvenience and loss sometimes caused by their unavoidable absence from a case. But what could they do, if two cases in which they were engaged came on at the same time in different Courts? They would cheerfully adopt any system by which loss of this kind could be prevented; but he must protest against the suggestion of the Amendment, which might lead to consequences that would be most unjust to the Bar; and if the matter was to be considered by the House at all, it ought to be upon apt and proper words fairly raising the question.

MR. CHARLES LEWIS

regretted that this important subject should have been brought forward in the waning days of the Session; but he concurred with the hon. Member for Hull (Mr. Norwood) in thinking it was right that the great practical evil of enormous fees being paid to barristers for which no work was done in return should be dealt with by legislation. If the members of the Bar felt that they had ground of complaint on account of this subject being brought forward it was their own fault for not making proper regulations for their own guidance. He was not sure that this was the most convenient form of raising the question; but unless a matter so germane to their system of jurisprudence were mentioned while this Bill was under consideration, surprise that it had not been brought forward now would be expressed when the subject was mooted on a future occasion. This clause was drawn up in an unobnoxious form, expressly and designedly, and simply provided that the relations between barristers and clients should be dealt with as an ordinary matter of contract. It had been suggested that the hon. Member for Hull was wrong in stating that physicians could recover fees; but the Medical Act of 1858 enabled them for the first time to do so, subject to the bye-laws of the Colleges of Physicians. The Colleges of Dublin and Edinburgh had passed no bye-laws on the point, so that every member of those Colleges was entitled to recover his fees. With regard to the College of Physicians in London, the state of the case was slightly different, for their bye-law prohibited Fellows from recovering their fees, but allowed the ordinary members to do so. He could not understand why, when engineers, surveyors, and surgeons, were liable to the extent of their whole fortunes for unskilfulness, barristers should be exempt from the rule of law that a man undertaking a duty for fee or reward should not only be liable to perform it to the best of his ability, but should also be responsible for gross negligence. This peculiar state of things arose from the old notion of patron and client; but the system of honorarium had been long since exploded. It ought also to be re-collected that the remuneration of the profession had doubled within the last 30 years. He had in his hand a correspondence between the clerk to a distinguished Queen's Counsel and the solicitors who had engaged his services in an important appeal case which was fixed to come on in Court upon the following morning, and he would read an extract or two without mentioning names. It was as follows:— May 11, 1874. Mr. A. B.'s Clerk to Solicitors. Dear Sirs,—I find the leading counsel on the other side has 100 guineas marked on his brief. I take the liberty of suggesting that Mr. A. B.'s he marked the same. Would you kindly do so before he appears in the case to-morrow. I am, gentlemen, yours most obediently,—. What was the meaning of that letter? The brief had been in the hands of the learned counsel and his clerk for some days; the case was fixed for the following morning; and the night before the solicitors got a letter to the effect that they must place him on a level as re- garded honorarium with his skilful opponent. "If they did not, to-morrow's sun might shine; "but he (Mr. Lewis) thought it was meant in that case there would be some difficulty in finding the counsel. The House would not be surprised to hear that the solicitors replied with indignation to the following effect:— London, W.C., May 12, 1874. Solicitors to Mr. A. B.'s Clerk. Sir,—This appeal stands second in the list for to-day. We have this morning received your note of last night informing us that you have ascertained that the leading counsel for the appellant has 100 guineas marked on his brief, and virtually demanding that we should increase Mr. A. B.'s fee from 50 guineas up to that amount, and indirectly conveying to us the intimation that this must he done before he appears in the case this morning. We can scarcely believe that Mr. A. B. can give his sanction to his clerk going to the clerks of the opposing counsel in any cases in which he may be retained to ascertain the amount of fees marked on their briefs, and then, if these fees are in excess of what may be marked on Mr. A. B.'s brief, utterly regardless of any special circumstances, but as a mere matter of course, to demand (as we take your letter to be a demand) that Mr. A. B.'s fee should be increased to a similar amount. If there be such combinations among counsel's clerks with the approval of the members of the Bar, which we cannot for one moment believe, the result will be that solicitors will find it necessary for the protection of their clients to confer with each other before delivering briefs with the object of marking such fees as they in their discretion shall think right, and saving their clients from such an intimation as we have received from you within a few hours probably of the case being argued. We are, Sir, very obediently yours, B. and B. Mr.—, clerk to Mr. A. B., Q.C., Lincoln's Inn. He was sorry to say such occurrences were not uncommon, and that the result in such cases was that a solicitor often found himself obliged to give extravagant fees to counsel, a considerable portion of which was disallowed on taxation. The evil was, in fact, two-fold. As had been correctly stated by the hon. Member for Hull (Mr. Norwood), there was no reason to complain of the Chancery Bar; but in the Common Law Courts, unless a suitor provided himself with two leaders as well as a junior, he could not be certain that he would have one leading counsel in his case. Counsel made professional engagements which it was impossible for them to perform, taking fees to attend in eight or ten different Courts sitting at the same time, reminding one of the story told of the late Mr. C. Austen, of the Parliamentary Bar, who, in the height of the Session, being engaged in a number of railway cases to come on the same morning, was met coolly taking a walk in Hyde Park by one of his clients, who asked him why he was not at Westminster. "Oh," said he, "I am doing equal justice to all my clients; nobody can complain of my deserting one client for the advantage of another." When a leading counsel did not take that course he ran from one Court to another, opening a ease here, cross-examining a witness there, and going about in such a way as to utterly destroy the value of his services to any one of his clients. It would be said that this was the fault of the clients, who need not employ very eminent counsel if they pleased. But the practical answer to that argument was, that if a leading barrister let it be supposed that he could be in any one of 10 Courts, a client would say—"But if I do not secure his services I shall not be able to prevent his appearing against me." So the counsel were paid a sort of hush money, to prevent their serving the other side. This evil could not exist if on the Common Law side Queen's Counsel followed the rule of the Chancery Bar. There, a barrister, having obtained a silk gown, attached himself to a particular Court, and, according to the etiquette of the profession, did not leave it without a special fee. At present, the client had no opportunity of protecting himself; but the clause proposed by the hon. Member for Hull would place matters on a right footing, for if counsel could be compelled to return the money when they rendered no service, that would be one of the most splendid reforms which could be effected. The connection of the barrister and his client should be a contract for service. A barrister should also be liable for gross negligence. Would the House believe that at present he might break the positive instructions of his client, and would not even then be liable? He referred to" Swynfen v. Swynfen," in which Lord Chelmsford had been counsel, and who compromised the case contrary to the instructions of his client, and when the question was brought before Chief Baron Pollock, it was laid down that a member of the Bar conducting a case possessed absolute immunity in such a case. He trusted the time would soon arrive when an attempt to place on a better footing the relations as between barrister and solicitor would be made, and he should certainly vote in favour of the clause, believing that it was full time that evils should be removed which reflected no honour on the Bar itself.

THE ATTORNEY GENERAL

said, that on a proper occasion he should be perfectly prepared to discuss the relations between barristers and solicitors. He did not think, however, that the present was such an occasion, and if he wanted any argument to support that assertion he could find it in the speech of the hon. Member for Londonderry himself. How was it possible to deal at that moment with the charges which he had made? How could the House enter into a consideration of the correspondence which the hon. Member had read between the clerk of a barrister and certain firms of solicitors without being more accurately acquainted with the facts of the case? How, also, could the House deal with anecdotes such as that which had been told about that eminent man Mr. Austen, and which had been told, almost in the same words, about other barristers in large practice; it was clear that such anecdotes were merely related for the purpose of raising a laugh. Again, what evidence had the House before it as to the circumstances of the case in connection with which the name of Lord Chelmsford had been brought forward. The clause of the hon. Member for Hull, he could not help thinking, was hardly germane to the subject before the House, and he appealed to the House whether it was consistent with convenience that at the end of the Session so large a question as one involving the practice and custom which had so long existed between solicitors and the Bar should be changed by the introduction of a clause into a Bill which had nearly reached its final stage? He, for one, did not propose to enter into the discussion of the question that evening, and he thought the House would be of opinion that he was justified in adopting that course. The hon. Gentleman who had just sat down had paid a compliment to the Chancery Bar; but he (the Attorney General) declined to accept that compliment at the expense of his brethren of the Common Law Bar, who, he believed were, in all respects, as upright and honourable as the members of the Equity branch of the profession. He would, under the circumstances, appeal to the House whether it was desirable to proceed further with the discussion.

MR. WATKIN WILLIAMS

thought no body could have listened to the speeches of the hon. Members for Hull and Londonderry without feeling that they had raised a question of deep interest to the whole community. He hoped, however, the clause would not be pressed to a division or further discussion upon it invited at so late a period of the Session. Speaking frankly on the subject, he felt bound to admit that there was a great deal of truth in the complaints which had been made by those hon. Members; and many members of the profession, in common with himself, deeply deplored the evils to which they referred and were most anxious to devise some remedies to clear themselves from such imputations. They wished to spare no labour to bring about a result so beneficial to the public; but the House, he thought, must see that the subject was far too large a one to be entered upon on the present occasion. It was scarcely the moment for introducing a change which would revolutionize the practice of centuries, and he hoped, therefore, the hon. Member for Hull would not press his Motion.

MR. GREGORY

, as a solicitor of many years' experience, could not help saying that there was cause for such a Motion as that of the hon. Member for Hull. Whether the clause which he proposed was the proper remedy for the evils which existed was another question. From experience gained in connection with the firm of which he was a member, he could say that the solicitor was sometimes placed in a most painful position as matters stood, it being his duty to have regard to the interests of his client on the one hand, while upon the other hand he had to pay fees which he might deem excessive to secure the services of counsel. He was aware that the evils complained of had grown up as part of a system, and in his younger days they had been by no means so prevalent. Something like a demoralizing influence had, he was afraid, been introduced among the Bar of England at the time when railway speculation became so rife, when barristers came to be feed for the purpose of rendering their services unavailable to others, thus leading to the practice of the clerks of counsel in many instances demanding fees which their employers would hardly sanction. There was no doubt, he might add, that at the Common Law Bar there was no arrangement now existing by which the services of barristers could be secured in the cases for which they had been retained. The members of the Bar were, no doubt, as honourable as they had ever been; but, then, there could be no doubt that briefs were sometimes taken somewhat recklessly, and when there was little probability that they could be satisfactorily attended to. He should like, therefore, to see some such arrangement made in the Common Law Courts as that which prevailed in Chancery. Hoping that the members of the Bar might be able to devise some scheme of the kind among themselves, he would appeal to the hon. Member for Hull not to press his Motion to a division.

MR. MITCHELL HENRY

said, he should support the Motion, for in his opinion remuneration at the Bar, as in every other walk of life, should be based upon contract. In the medical profession, of which he had the honour to be a member, the question had more than once arisen, and it had been over and over again decided that a person practising as a surgeon and apothecary could recover from his clients the fees to which he was entitled for his services. There was the difference in the case of the physician that he received his fees when he attended his patients; but in the case of barristers the fees were received by their clerks, who, of course, took in as many briefs as were offered to them. He felt bound to add that the great augmentation of fees in the case of members of the Bar in this country had not extended itself to Ireland. He felt almost ashamed when he considered the amount of work done by barristers in Ireland and the smallness of the fees.

MR. NORWOOD

said, he was perfectly willing to withdraw the Amendment, but would point out that it had been on the Paper for several weeks, and he begged to vindicate the propriety of the course which he had taken. Admitting that the present was not a desirable time for the discussion, he begged to give Notice that if the subject was not taken up by some hon. and learned Gentleman, he would next Session move for leave to introduce a Bill, when the whole question could be fairly and properly discussed.

MR. RUSSELL GURNEY

rose to say a word for the Common Law Bar, with which for many years he had been connected, and of whose history he knew more than probably most hon. Gentlemen. There had been a considerable change in the practice of the profession of late, and there were now complaints which, in his early days, were never heard of. There was then nothing like bargaining for fees. He always understood when he began to practise that a barrister was bound to take any fee marked upon his brief. What had very much increased the evil complained of was that men practising in the Courts of Queen's Bench, Common Pleas, or Exchequer, even when confining themselves to one of those Courts, were no longer able to be sure of being present when cases they were engaged in were called on. For some years past there had been two Courts in the Queen's Bench, in the Common Pleas, and in the Exchequer, and though a counsel might have prepared himself for a particular case in the Queen's Bench, he might suddenly find that it had been transferred to the second Court. That had led to a great increase of the evil, which was not the fault of the Bar.

Motion and Clause, by leave, withdrawn.

On Motion of Mr. ATTORNEY GENERAL, Amendment made in Clause 2, page 1, line 25, after "appeal," by adding—" or in any case in which leave to appeal shall be given by the Court of Appeal."

Clause, as amended, agreed to.

Clause 4 (Constitution of Court of Appeal).

THE ATTORNEY GENERAL

said, that the next four Amendments he had to propose would be all in this clause, and had reference to the constitution of the new Court of Appeal. His first Amendment was in page 2, line 23, to substitute the number "three" for the number of "five" ex officio Judges originally proposed. It had been intended that in addition to the two Judges of Appeal and the ex officio Judges there should be three additional Judges. He now proposed to make it one additional Judge; but further on in the clause, in line 38, after the word "appeal," it would be proposed to insert a provision that the Lord Chancellor might by writing, addressed to the president of anyone or more of the divisions of the High Court of Justice, other than the Chancery Division, request the attendance at any time, except during the times of the Spring or Summer Circuits, of an additional Judge from such division or divisions—not being ex officio Judge or Judges of the Court of Appeal—at the sittings of the Court of Appeal, and that a Judge, to be selected by the division from which his attendance might be requested should attend accordingly; and that every additional Judge while attending such sittings, should have the jurisdiction and powers of a Judge of the Court of Appeal. The hon. and learned Gentleman concluded by moving the first-mentioned Amendment.

Motion made, and Question proposed, "That the word 'five' stand part of the Clause."

SIR HENRY JAMES

hoped the House would allow him to draw attention to this most important clause, as it practically constituted the whole of the Amendment Bill brought forward on the present occasion; the remainder, whatever it might consist of, being only the consequence of what had been done in 1873. They had very recently been informed that Her Majesty's Government had passed a measure for the reform and re-construction of the Courts of Judicature. He wished to remind the House on what that claim was founded. The great measure of 1873 was left in one respect incomplete, and that was with reference to the Final Court of Appeal for Ireland and Scotland. Before the Session of 1874 had arrived, the obligation of completing that legislation fell on those who, at present, formed Her Majesty's Government, and they attempted to complete that measure, and made a proposal for a Court of Appeal which was to be final. But no satisfactory arrangement was completed in that year, and the obligation remained in the present Session, when a new plan had been submitted; but, in consequence of the pressure from without upon the Government, a fresh proposal had to be submitted, so that the Government had not adhered to the measure proposed by themselves; for, by one of the Amendments proposed in this clause, in this matter of the constitution of the Court of Appeal, it was now proposed that the number of ex officio Judges should be three instead of five, as was formerly proposed, and thus the question had assumed a new phase. There was really nothing in the Bill except that which was in opposition to, and an obstruction of, the Act of 1873. This Bill that the Government claimed credit for as having been introduced to reform and re-construct the Judicature of this country, reformed nothing and re-constructed nothing, and it was only because the Government had fallen away from the legislation of 1873 that the present legislation was rendered necessary. When this claim for having effected the reform and re-construction of the Judicature of the country was put forward by the right hon. Gentleman opposite, a scene was brought to his (Sir Henry James's) mind in which an eminent architect was described by Charles Dickens. That architect was engaged upon the rebuilding and reconstruction of a grammar school. A great meeting was held, the mayor stood upon his right, the hon. Member for the gentlemanly interest was upon his left, and he made a speech. He produced his plans—plans for the reform and re-construction of the grammar school; but whilst he was claiming credit for these plans, the real author of them looked over his shoulder and said—" Confound the fellow! Why, these are my plans, but he has put in four new windows and spoiled the whole thing." He would suggest to the Prime Minister that when next he claimed credit for the reform and re-construction of our Judicature system he should first see whether there was any ground for so doing; that he should consult his Law Officer, who knew the details of the Bill, before he took credit for that in which he had no share. He (Sir Henry James) could see in the Bill the four windows; but he could discover no clause or line in it which tended to the reform or re-construction of our system of Judicature. On the contrary, what had been done altered and maimed, in a serious degree, the legislation effected in 1873. They were to have a Court of Appeal which was to be singularly weak—a weakness which was attempted to be justified—because the Bill was to be merely temporary, and temporary by the action of the Government. There was to be a Court of Appeal composed of three persons, and the Lord Chancellor was to have permission to borrow two members of one of the Courts below, whenever such Judges should be wanted. That was a system which would be as full of evil as anyone could conceive. It reminded one of ill-regulated domestic establishments which instead of having their own staff of servants within their walls, depended upon some greengrocer or charwoman hired for the day. The system would work in this way. The Lord Chancellor sent to borrow a Judge, and if there should happen to be in the Court a particularly weak Judge, whom the Chief Justice did not approve of, he would send him. When he came back, he would say to the other Judges that he had overruled their decision, and that certainly would not tend to make the position of that Judge or of the other Judges more pleasant. But at that period of the Session it would be impossible to raise an effective opposition to clauses that were fundamentally wrong. Some Amendments were indeed upon the Paper, but this Court of Appeal would be so weakly constituted, and would, indeed be so much weaker than the Courts from which the appeals sprung, that the only consolation they had was that it would be a temporary Court, and that it would come to an end in a few months. The Bill was so framed that instead of claiming credit for the measure as one of reform and re-construction, the Government should have expressed their regret that pressure, which they were not strong enough to withstand, had caused them to give up the Bill which they introduced to the House in 1873, and to produce this weak and ineffective measure, which they could only pray would be temporary and not lasting.

MR. WATKIN WILLIAMS

said, he regretted the course adopted by the Government with regard to the proposed Court of Appeal, and that they had proved so unequal to the occasion. The success of the measure of 1873 depended almost entirely on the construction of the Court of Appeal; but, as now proposed, the Court would not command the confidence either of the profession or the public, and the Government were tempting failure in making such a proposal.

SIR GEORGE BOWYER

said, he did not think the House would concur in the strictures passed upon the Government by the hon. and learned Gentleman the Member for Taunton (Sir Henry James). The Bill was a necessary supplement to the Act of 1873, which would not work, and had been deservedly condemned in many respects by the whole profession. If it had not been so supplemented, it must have been either suspended or abandoned altogether. Its chief feature—the abolition of the jurisdiction of the House of Lords—now had not a defender. It overturned the tribunals of the country, without establishing in their place anything nearly so good, and, in short, it was a regular nightmare to the profession; and, except for Party purposes, no one in this House would venture to say that it would not have been an almost unmixed evil. As to the proposal to substitute three for five Judges, he was sorry he could not concur in it. He maintained that to take two Judges from the Divisions of the Court in order to supplement the Court of Appeal would be a great injury to the administration of justice, for, in his opinion, nothing was so objectionable as a system of removing Judges from one Court to another. Therefore, he much regretted that his hon. and learned Friend the Attorney General, yielding to the economical arguments of the right hon. Gentleman the Member for Greenwich, had consented to diminish the number of the Members of the Supreme Court of Appeal, although he hoped that even now it was not too late for his hon. and learned Friend to re-consider his former proposal.

MR. WHALLEY

said, we were about to change the whole course of the administration of the law without a pretext to justify that course. Neither the opinion of the public nor of the profession called for that great change. He could say, on good authority, that the late Lord Westbury, contemplating in his last hours the effect of the Act of 1873, declared that a more fatal and more injurious change in the law of the country had never been made. Among the members of the legal profession the prevailing idea was, that the change now proposed would be attended with the most serious and fatal consequences, and that nothing satisfactory could be looted forward to except a complete reversal of the policy we had been hurried into.

MR. SERJEANT SIMON

said, he opposed the Bill, whilst recognizing the fact that all opposition must for the present be practically futile. He could not at all accept the statement that this measure was necessary. The Act of 1873 would have worked efficiently, if it had only been allowed to come into operation. It only required rules to put it into working order, and those rules would have been published if the late Government had remained in power. The present Government brought in a Bill which would have carried out the Act of 1873, but they suddenly withdrew it, and substituted the present one. He regretted that the Government had yielded to the wish of the late Prime Minister, and reduced the number of Judges of the Supreme Court of Appeal. If the Court of Appeal were not stronger than the tribunals whose decisions it reviewed, what would be the use of having an Appeal Court at all? The hon. and learned Gentleman opposite had yielded on this subject to an authority to which he owed no allegiance—namely, that of the late Prime Minister, who some time ago came down to the House and denounced the increase of expenditure in the administration of the law, and charged the lawyers in the House with having urged that increase. This Court of Appeal would be about the weakest—he was going to say the most worthless—institution that could be set up. After that came the delay, expense, and cumbrous machinery of the House of Lords. He could not refrain from entering his protest against such a course of procedure, believing that nothing was more important to the country than the due administration of justice and the public confidence in its tribunals.

Question put, and agreed to.

THE ATTORNEY GENERAL

then moved the insertion of the following clause:—In page 2, line 38, after the word "appeal," to insert the words— The Lord Chancellor may by writing addressed to the president of any one or more of the following divisions of the High Court of Justice, that is to say, the Queen's Bench division, the Common Pleas division, the Exchequer division, and the Probate, Divorce, and Admiralty division, request the attendance at any time, except during the times of the spring or summer circuits, of an additional judge from such division or divisions (not being ex-officio judge or judges of the Court of Appeal) at the sittings of the Court of Appeal, and a judge, to be selected by the division from which his attendance is requested, shall attend accordingly; Every additional judge, during the time that he attends the sittings of Her Majesty's Court of Appeal, shall have all the jurisdiction and powers of a judge of the said Court of Appeal, but he shall not otherwise be deemed to be a judge of the said court, or to have ceased to be a judge of the division of the High Court of Justice to which he belongs.

Question proposed, "That those words be there inserted."

SIR GEORGE BOWYER

said, he must again protest against the principle of moving a Judge from one Court to another. So far from thinking that the number of Judges in the Supreme Court would be too great, he hoped that in the course of next Session the Government would bring forward a proposal to increase that number.

SIR GEORGE CAMPBELL

moved to amend the Amendment by inserting words which would enable the Government, at their option, to borrow Judges for the Court of Appeal from the Judicial Committee of the Privy Council as well as from the Common Law Bench. The Members of the Judicial Committee were very lightly worked, and would be still less worked in future, whilst the Judges of the Common Law Courts were overworked, and had heavy arrears. He thought it only fair that the Members of the Judicial Committee should be liable to selection according to the original proposal of the Government. He believed some of them, at any rate, were men with an immense appetite for work, and he was sure that all would put forth the interests of the public service.

Amendment proposed to the said proposed Amendment, to insert, after the word "accordingly," in line 10, the words— The Lord Chancellor may also similarly request the attendance of an additional judge or judges from among the salaried judges of the Judicial Committee of Her Majesty's Privy Council, appointed under' The judicial Committee Act 1871,' and such judge or judges shall attend accordingly."—(Sir George Campbell.)

MR. CHARLES LEWIS

opposed the Amendment.

THE ATTORNEY GENERAL

said, that, having regard to the discussions which had already taken place upon the subject, it was not considered desirable that the salaried Members of the Privy Council should be called upon.

SIR EARDLEY WILMOT

, in opposing the Amendment, said, he considered that one of the great requisites of the Judicature Bill was that the country should have a strong and well-appointed Court of Appeal, and that he was in favour of permanent Judges for that Court, and not for borrowing them from other Courts, in which case their attendance and services would be fluctuating and uncertain.

MR. CHARLEY

said, on that—the Conservative—side of the House there was an almost unanimous opinion in favour of maintaining the jurisdiction of the House of Lords.

MR. SERJEANT SIMON

regarded the proposed constitution of the proposed new Court of Appeal as a breach of faith. He ridiculed the notion of bringing Judges from the Final Court of Appeal to an inferior Court.

MR. GREGORY

said, that whilst he was not satisfied that the effect of the proposal of the Government would be to constitute a sufficiently strong Court of Appeal, he trusted that the House would not accept the Amendment, as the principle which had been admitted throughout the discussions on the Bill was that the Privy Council should not be disturbed.

SIR HENRY JAMES

said, he was anxious not to weaken this very weak Court, but he could not help noticing that the Common Law Judges would have to depend for assistance upon two borrowed Judges when they might be wanted; and a result of the present legislation would be that they would have to get two Judges from the Equity Courts and one from the Judicial Committee of the Privy Council to take part in Common Law matters, about which they really knew nothing. He must oppose the Amendment.

Question put, "That those words be there inserted."

The House divided:—Ayes 17; Noes 71: Majority 54.

SIR HENRY JAMES

proposed to add to the Attorney General's Amendment this provision— That no Judge of the said Court of Appeal shall sit as a Judge on the hearing of an appeal from any judgment or order made by himself, or made by any Divisional Court of the High Court of which he was himself a member.

Amendment proposed to the said proposed Amendment, to add, at the end thereof, the words— Provided, That no judge of the said Court of Appeal shall sit as a judge on the hearing of an appeal from any judgment or order made by himself or made by any Divisional Court of the High Court of which he was himself a member."—(Sir Henry James.)

Question proposed, "That those words be there added."

THE ATTORNEY GENERAL

said, he had been under an impression that the object of the Amendment was otherwise attained, but, as it might be open to question, he would accept the Amendment. It helped to make the clause more clear.

SIR EARDLEY WILMOT

suggested to amend the Amendment of the hon. and learned Member for Taunton (Sir Henry James) by substituting for the word "himself," the words "was and is."

Amendment to Amendment to said proposed Amendment agreed to.

Amendment amended, by adding at the end thereof the words— Provided, That no judge of the said Court of Appeal shall sit as a judge on the hearing of an appeal from any judgment or order made by himself or made by any Divisional Court of the High Court of which he was and is a member.

Question, "That the words— 'The Lord Chancellor may by writing addressed to the president of any one or more of the following divisions of the High Court of Justice, that is to say, the Queen's Bench division, the Common Pleas division, the Exchequer division, and the Probate, Divorce, and Admiralty division, request the attendance at any time, except during the times of the spring or summer circuits, of an additional judge from such division or divisions (not being ex-officio judge or judges of the Court of Appeal) at the sittings of the Court of Appeal, and a judge, to be selected by the division from which his attendance is requested, shall attend accordingly. Every additional judge, during the time that he attends the sittings of Her Majesty's Court of Appeal, shall have all the jurisdiction and powers of a judge of the said Court of Appeal, but he shall not otherwise be deemed to he a judge of the said court, or to have ceased to be a judge of the division of the High Court of Justice to which he belongs. Provided, That no judge of the said Court of Appeal shall sit as a judge on the hearing of an appeal from any judgment or order made by himself or made by any Divisional Court of the High Court of which he was and is a member,'—

be inserted after the word 'appeal,' in page 2, line 38," put, and agreed to.

On the Motion of Mr. ATTORNEY GENERAL, Amendment made, in page 3, line 1, by leaving out from "Provided" to "committee," in line 11, both inclusive.

Clause, as amended, agreed to.

Clause 5 (Tenure of office of Judges, and oaths of office. Judges not to sit in the House of Commons).

THE ATTORNEY GENERAL

moved, as an Amendment, in page 3, line 19, after "every" to insert "person appointed after the passing of this Act to be." The object was to prevent the necessity for the existing Judges again taking the oath of allegiance.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 8 (Admiralty Judges and registrar).

THE ATTORNEY GENERAL

moved the following series of Amendments:—Page 5, line 11, after "the," insert "present holder of the office of."

Line 14, after "court," insert— and the office so far as respects the duties in relation to such appeals as aforesaid shall be deemed to be a separate office within the meaning of section seventy-seven of the principal Act, and may be dealt with accordingly. Line 20, leave out "said registrar," and insert— The person who is at the time of the passing of this Act registrar of Her Majesty in Ecclesiastical and Admiralty causes. Line 23, after "heretofore," insert— But it shall be lawful for Her Majesty by Order in Council made upon the recommendation of the Lord Chancellor, with the concurrence of the Treasury, to make, notwithstanding anything contained in any Act of Parliament, such arrangements with respect to the duties of the said last-mentioned office, either by abolition thereof, or otherwise, as to Her Majesty may seem expedient: Provided, That such Order shall not take effect during the continuance in such office of the said person so being registrar at the time of the passing of this Act without his assent.

The Amendments related to the Registrar of Admiralty and Ecclesiastical causes. Mr. Rothery was at present joint Registrar in Admiralty and Ecclesiastical causes. The Admiralty business was under the Bill to be transferred, while the Ecclesiastical business would remain with the Privy Council. The object of the Amendments was mainly to allow Mr. Rothery to discharge his duties separately and not jointly.

Amendments agreed to.

Clause, as amended, agreed to.

Clause 17 (Provision as to making of rules of court before or after the commencement of the Act,—in substitution for 36 & 37 Vict. c. 66, ss. 68, 69, 74, and Schedule).

THE ATTORNEY GENERAL

moved, as an Amendment, in page 8, line 39, after "England," to insert— The Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, and the Lords Justices of Appeal in Chancery, or any five of them. The object was to give greater security for the proper consideration of the Rules, so that they should have the consent of five out of seven of the ex officio Judges and the consent of a majority of the other Judges.

Amendment agreed to.

Clause, as amended, agreed to.

Clause 18 (Provision as to Rules of Probate, Divorce, and Admiralty Courts, being Rules of the High Court,—in substitution for 36 & 37 Vict. c. 66. s. 70).

THE ATTORNEY GENERAL

moved, as an Amendment, in page 10, line 5, after "Act," add,— The present Judge of the Probate Court and of the Court for Divorce and Matrimonial Causes shall retain, and the president for the time being of the Probate and Divorce Division of the High Court of Justice shall have, with regard to non-contentious or common form business in the Probate Court, the powers now conferred on the Judge of the Probate Court by the thirtieth section of the twentieth and twenty-first years of Victoria, chapter seventy-seven, and the said judge shall retain, and the said president shall have, the powers as to the making of rules and regulations conferred by the fifty-third section of the twentieth and twenty-first years of Victoria, chapter eighty-five.

Amendment agreed to.

Clause, as amended, agreed to.

Schedule 1.

MR. GORST

moved, as an Amendment, in page 65, line 2, Order 35, after "exercising," insert— And may also exercise the same authority and jurisdiction in respect of discovery, whether of documents or otherwise, and inspection and interpleader as may be exercised by a Judge at chambers, subject nevertheless to appeal to a Judge or the Court. The reason why district Registrars should have more powers than Masters in London was, that in London it was as easy to go before the Judge as before the Master; but in the country it was a very costly matter to conduct matters in London which might be left to the Registrar. The cost of coming to London from Liverpool, for instance, would be four times as great as it would be if the matter might be dealt with by the district Registrar.

THE ATTORNEY GENERAL

said, he would accept the Amendment, with a slight modification.

Amendment amended, and agreed to.

MR. GORST

moved, as an Amendment, in page 65, line 2, Order 35, after Rule 5, insert— 5a. The several district registrars of any district in the county of Lancaster, may exercise, in addition to the authority and jurisdiction given to them by the last Rule, all such or the like authority and jurisdictions as, previously to the coming in force of this Act, might have been exercised by the prothonotary or district prothonotaries of Her Majesty's Court of Common Pleas at Lancaster, and in addition thereto the settlement of issues under this Act.

Amendment agreed to.

On the Motion of Mr. ATTORNEY GENERAL, Amendment made, in page 65, Order 35, Rule 8, line 11, after the word "Judge," by inserting the words— Such appeal may be made notwithstanding that the order or decision was in respect of a proceeding or matter as to which the district registrar had jurisdiction only by consent.

MR. GORST

, as an Amendment, moved the omission of Rule 12. His object was to provide that where a defendant entered an appearance in the district Court, it should not be competent to remove the cause to London without the order of a Judge. As the rule stood, if the defendant resided in the district, or if he chose to enter an appearance in the district Court, he might of his own arbitrary act remove the cause to London. He thought that all these cases when once they were begun in the district Court should be prosecuted there to their final issue, unless they were removed to London by the order of a Judge. That system existed in the county of Lancaster, and gave great satisfaction, and the inhabitants of the county desired to retain it, an object which would be gained by the passing of the Amendment.

Amendment proposed, in page 65, to leave out Rule 12.—(Mr. Gorst.)

MR. RATHBONE

supported the Amendment, on the ground that it secured to the county of Lancaster the fulfilment of the promise that its jurisdiction should not be interfered with.

MR. CHARLEY

also hoped that Her Majesty's Government would assent to the Amendment.

MR. HERMON

also spoke in support of the Amendment, and hoped the Government would not do anything to interfere with the privileges which the county of Lancaster now enjoyed.

THE ATTORNEY GENERAL

, in opposing the Motion, said, the hon. and learned Member for Chatham (Mr. Gorst) had not moved the Amendments which really pointed at the object which his supporters had in view—the retention of a separate jurisdiction for Lancashire. The whole object of the Judicature Bill was to secure uniformity of procedure throughout the whole country; and he could not therefore accept the amendment of his hon. and learned Friend. In Lancashire there had been a peculiar jurisdiction, but that jurisdiction had had reference only to a particular class of cases. The rule in question had been recommended by the Committee of Judges, and that was itself a strong reason for accepting it.

MR. JACKSON

, in supporting the Amendment, said, that the argument for uniformity was untenable, as there was a Court of Chancery in Lancashire which it was not proposed to touch by this legislation, and which exercised unlimited jurisdiction to the great advantage of the suitors.

MR. GREGORY

opposed the Amendment. Were he speaking in the interest of the London solicitors, he should be disposed to support it from his experience of the profitable business which had arisen in appeals from the local registers; but it would be a monstrous hardship upon the public to subject them to these registers, which were to be established under the present Bill, and of which, as yet, they knew nothing, without a power of removing a case to the superior tribunals.

MR. SERJEANT SIMON

also opposed the Amendment. The Bill was intended to establish one uniform of procedure over the whole country, and should be administered with a profound knowledge of jurisprudence, and that was a qualification of the district Registrars. In 1870, at the instance of the attorneys of Liverpool and Manchester, a Bill was introduced into Parliament for the alteration of the ancient Palatine judicature, on the plea of saving the poor man, whereas their real object was to benefit themselves by securing all the costs in each case without having to share them with their London brethren. The local Courts were fed with speculative actions, and a respectable attorney, unless he appeared for the defendant, was scarcely ever seen in one of them. The state of things fostered by some of those local Courts had disgusted him early in his professional career, and confirmed him as a law reformer. The Government would do well to oppose the Amendment.

THE SOLICITOR GENERAL

did not think it was desirable that any exceptional privileges should be given to the district Registrars in Lancashire, and was quite sure his constituents were too reasonable to expect him to vote for a Motion which, in his opinion, ought not to be adopted.

MR. MUNDELLA

approved of the Amendment. If a wealthy suitor were allowed to take his claim to London, that would amount to a denial of justice to the defendant, if a poor man.

MR. CHARLES LEWIS

supported the Amendment, because he considered it a very reasonable proposal.

Question, "That Rule 12 stand part of the Bill," put, and agreed to.

MR. GORST

moved, as an Amendment, in page 66, line 21, Order 35, after Rule 14, insert— Any party to an action proceeding in London may apply to the court or a judge for an order to remove the action from London to any district registry, and such court or judge may make an order accordingly, if satisfied that there is sufficient reason for doing so, upon such terms, if any, as shall seem just.

Amendment agreed to.

SIR HENRY JAMES

, in moving to amend Order 55 by the addition of the following:— Provided, That where any action or issue is tried by a jury in the Queen's Bench, Common Pleas, or Exchequer Division of the High Court, the costs shall follow the event, in the manner heretofore existing in the Superior Courts of Common Law, unless upon special application and for good cause shown the judge before whom such action or issue is tried or the Court shall otherwise order, said, the Bill proposed to give the Judge entire discretion in the matter. The result, therefore, might be that while the jury were of opinion that one party was entitled to recover, the Judge might give the costs to the other and unsuccessful party. That was an immense and far too great a power to give to the Judge. It was a practical question, and from what he had seen and what he was afraid he should see, if the Bill passed without amendment, the power of the Judge would be raised over that of juries. Already the Judges had this overriding power to a certain extent, for they could grant new trials in cases where they differed from the juries, and this was freely exercised. But if during the trial the Judge could show that he had the power over the costs, the good results of trial by jury would be gone. In the Common Law Courts, advocates were not in the habit of accepting what the Judge said so unreservedly as they were in the Court of Equity. In the latter, if the Judge said anything, the advocates immediately agreed with him. The Attorney General did so. His hon. and learned Friend would say, "Just so;" but immediately afterwards he would endeavour to persuade the Judge that he was wrong. In the same way the Bar, if it so happened that they did not agree with the Judge they went a very long way about to express their view, for they knew well that if they established a difference with the Judge their client's case was gone. Then if the Judge did not agree with the jury, he would say, "The costs must be paid to the unsuccessful party," and in that case the independence of the jury was gone. But then there was another aspect of the matter. There were a great many cases which ought never to be brought, but which came within the strict rule of law. Now, to meet such cases he would propose a middle course. While he would say that, as a rule, the costs should follow the event, in special cases, if not proceeding from caprice, and after cause shown, the Judge should be allowed to give his reasons why that rule should be departed from. His hon. and learned Friend would say that the rule, as proposed by the Bill, existed in the Court of Chancery; but there the Judge had to determine the question of fact, and where a jury had to determine that question, it was not right to put the Judge in antagonism to the jury. He would conclude by moving the Amendment, which he thought would be a fair compromise between a capricious exercise by the Judge of his discretion in every case and a uniform rule that costs should follow the event.

THE ATTORNEY GENERAL

said, he could not follow the hon. and learned Member (Sir Henry James) in the argument he had used in support of the Amendment. He (Sir Henry James) said that if the juries decided one way the Judge might decide as to costs in the opposite direction; but he (the Attorney General) should be sorry to believe that the Judges, in awarding costs, would be influenced by such motives as the hon. and learned Member attributed to them. The House should bear in mind that the same Rule as was now proposed was contained in the Schedule of the Act of 1873, and it was not a Judge-made Rule, but one adopted by the House itself. It was then thought well that there should be uniformity of procedure with regard to costs in all the Divisions of the Court, instead of allowing them to be awarded at the discretion of the Judge in one Division, and to follow the event in another. Were the House prepared to repeal so much of the Act of 1873 as dealt with costs? It was, however, a question for the House to decide.

MR. SERJEANT SIMON

said, that the Bill proposed to repeal, as far as the Appellate Jurisdiction was concerned, the Act of 1873, and if the Bill could repeal that essential part, surely they might consider whether it was not worth while to amend that portion of the Act of 1873 which applied to Common Law trials. There was no analogy between a trial before a single Judge who found as to the facts, and, therefore, might well exercise jurisdiction over costs, and a Court in which the jurisdiction was divided into the decision of law by the Judge and of facts by a jury. He would not put it into the power of any Judge, however able and high-minded, to turn round upon the jury and mulct in costs the person to whom they had given a verdict. The present rule that costs should follow the event was a sound one, and, instead of applying the rule in Equity to the Common Law, he would rescind the rule in Equity and make the Common Law rule the general one. The question affected every suitor in the country. Why should a man be put to expense in litigation for asserting or defending his rights? The Amendment was not an extreme one, and he hoped it would be adopted.

SIR EARDLEY WILMOT

, in supporting the Amendment, said, that from a long experience in the trial of civil cases, he was strongly opposed to any deviation from the present law, under which costs, as a general rule, followed the verdict of the jury.

MR. CHARLES LEWIS

said, much had been said of the Act of 1873, but, as a practical man, he believed it to be a great sham. The lesson taught by that Act was that there were two noble and learned Lords in "another place," sitting one on the Ministerial, and the other on the Opposition side, who were too much inclined to take upon themselves to settle the legislation as to the legal business of the country, and that they seemed to think they were the only parties to be consulted in this matter; and that had been at the root of the difficulty. The proposal of the Government would produce great uncertainty in the law.

MR. WATKIN WILLIAMS

cordially supported the Amendment. If not carried the Bill would, in its present form, entirely alter the relations that now existed between the Bench and the Bar in the Common Law Courts, and lead to a revolution in the administration of the law which was little dreamt of.

MR. SERJEANT SPINKS

considered the Amendment of so moderate a character that the Government should accept it. He should vote for it.

MR. WHITWELL

said, he thought that no Judge should have the power to give costs against the party who had obtained a verdict.

Amendment agreed to.

MR. GREGORY

then proposed an Amendment that the Court should have a discretion to direct that the costs should be between party and party, or between solicitor and client, as he should think fit.

Amendment proposed, in page 89, at the end of Order 55, as amended, to add the words— The court shall in any case have power to direct whether the costs shall he paid as between party and party, or as between solicitor and client."—(Mr. Gregory.)

THE ATTORNEY GENERAL

objected to the Amendment, which had, he said, been already discussed and decided upon.

MR. WATKIN WILLIAMS

said, that what had been decided upon was a compulsory enactment, whilst the present proposition was, that there should be a discretionary power in the Judge as to costs. He could not understand why the Attorney General should not approve of this Amendment. He should vote in favour of it.

MR. LEEMAN

hoped that the Government would not object to give this discretionary power. The present Rule as to the costs involved great hardships, and many persons had to forego their rights rather than pay the extra costs which would fall upon them when they had established their claim.

MR. JACKSON

thought that the former vote in no way concluded the present proposition. In numerous cases costs as between party and party were not sufficient, because when a plaintiff recovered a verdict the amount of it went not to him, but too often to his attorney for the extra costs.

Question put, "That those words be there added."

The House divided:—Ayes 45; Noes 85: Majority 40.

On the Motion of Mr. ATTORNEY GENERAL, the following Amendments were made:—Page 97, line 11, Order 61, leave out Rules 7 and 8; page 97, line 27, Order 61, leave out from "or," to "respectively," in line 28, inclusive; page 97, line 31, Order 61, leave out "or of the Court of Appeal, as the case may be."

Schedule, as amended, agreed to.

Bill re-committed, in respect of a new Clause; considered in Committee, and reported; as amended, considered; read the third time, and passed, with Amendments.