§ [Progress 9th June.]
§ Bill considered in Committee.
§ (In the Committee.)
§ New Clause (Expenses of references held out of London) brought up, and read the first time.
§ Question proposed, "That the Clause be added to the Bill."
§ MR. DILLWYN
moved the omission of the clause. Formerly, before the appointment of official referees, the work was done by arbitrators, who gave a patient hearing to the case before they came to a final decision. However, dissatisfaction was expressed at the great expense and the great delays through frequent adjournments, and to remedy this the official referees were appointed, and it was hoped that they would overcome the difficulty. That expectation was disappointed, as it was found their fees were very heavy, which prevented people from going to them, and the decisions were not final. After an official referee had given his decision, his judgment could be appealed against and carried to another court. As a consequence, business did not go to them in the way expected. To remedy this the fees were materially reduced about a year ago, and there was a prospect, at last, of the official referees getting more work for their courts than at present; but this clause provided that any expenses incurred by the referees in the discharge of their duties should not be paid by the Treasury out of monies provided by Parliament; but that the costs of the referees sitting elsewhere than in London, the travelling and other expenses incurred in and about the reference by reason of the sitting being held out of London, including the accommodation for sittings, should be defrayed and paid for by the parties. Now, he thought their object should be to reduce, as far as possible, the expenses of all litigation; and where a reference was forced upon litigants by Judges the costs should be borne by the State. The litigants had now no choice in the matter. They went before a Judge, expecting their cases to be tried, and he declined to try the case, and sent 724 it to a reference. Under such circumstances, the expenses of the reference should be paid by the State, just in the same way that other expenses were; and he could see no more justice in saddling litigants with these costs than in making them pay the travelling expenses of the Judges at the Assizes. The result was, to refuse justice to a poor man who might have scraped together enough money to go to trial before a Judge, and would not be able to carry on subsequent litigation before a referee. He moved that the clause be struck out.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
replied, that the fees payable to referees were very small indeed. The amount payable to the Treasury for the services of the official referee for each reference, irrespective of length, was the sum of five guineas. That was a very moderate sum, infinitely less than the amount for which the services of an ordinary arbitrator could be obtained, while there was another advantage in employing the referees—that they sat de die in diem until the matter was disposed of. Therefore, if the parties preferred that the referee should go down to Liverpool, or anywhere else, to try a case, it was only fair that they should pay the travelling expenses, and so on, of the referees in going there. He thought the clause a very fair one, and should oppose its omission.
§ MR. B. WILLIAMS
said, his hon. Friend the Member for Swansea (Mr. Dillwyn) had confounded, to some extent, the functions of a referee and an arbitrator. Under the old Common Law Procedure Act, the arbitrator was a Judge appointed by the parties. It was a private affair, and he merely did the work which the parties thought he could do better than a Judge or a jury. But when the official referees were appointed, they were appointed to do not the work which the parties privately agreed could be done by arbitrators better than a Judge, but to do the work of the Judges themselves. Under the old law, except for matters of account between parties, there was no power at all to compel a person to resort to arbitration. The Judicature Act had changed all that; and it very often happened now, if the Judge thought the matter was at all complicated, that he threw up his 725 pen, leant back in his chair, and declared that he could not try the issue, but it must go before an official referee. Then, of course, as his hon. Friend had said, it became a question between the rich man and the poor man. By this clause, parties were compelled not only to pay the travelling expenses of the referee, but he believed, also, the expenses of staying in the town where reference was held, which did not strike him as very fair. Referees were, practically, the same as Judges, and the parties who went before them ought to be treated in exactly the same manner. One of the great necessities of the present time, and the great aim of all law reformers, was, and ought to be, to cheapen procedure in law; while, on the contrary, all modern reforms seemed to have gone in exactly the opposite direction.
§ Question put.
§ The Committee divided:—Ayes 57; Noes 29: Majority 28.—(Div. List, No. 173.)
§ Clause agreed, to.
§ MR. CHARLEY
said, a great anomaly had been introduced, by reason of which solicitors had a right of audience as counsel in the Court of Bankruptcy. The Bill, as it now stood, would intensify that anomaly by giving solicitors a right of audience as counsel in the Supreme Court of Judicature. It might be said that it would only give them a right of audience in the particular division to which the Court of Bankruptcy was attached; but he could not obtain from his hon. and learned Friend (the Attorney General) an assurance that this clause would not also give solicitors a right of audience in the Court of Appeal, and even before the House of Lords, in bankruptcy matters. The 70th section said that they should have a right of audience in any Bankruptcy Court; and the Court of Appeal, and even the House of Lords, he contended, would be Bankruptcy Courts for that purpose. The duties of solicitors and barristers were quite distinct. Solicitors had to prepare and to sift evidence, to lay the case before the barrister and to instruct him in the cause; while the duty of the barrister was to appear as an advocate in Court. If it was thought right that the office of solicitor and barrister should be amalgamated, it surely should not be 726 done in this indirect way, and certainly the point ought not to be left in doubt. He would, therefore, move the following clause:—
Section seventy of 'The Bankruptcy Act, 1869,' is hereby repealed, except as to anything heretofore duly done thereunder; and, instead thereof, Be it Enacted, That every solicitor of the Supreme Court shall be and may practise as a solicitor of the London Court of Bankruptcy after its union and consolidation with the Supreme Court of Judicature under this Act; and if any person not being such solicitor practises as a solicitor of the London Court of Bankruptcy he shall be deemed guilty of a contempt of Court.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)
said, it was not the desire of the Government, by this Bill, either to increase or diminish the privileges of solicitors. Their object was to leave them exactly in the same position as they now occupied. He did not think the Bill changed their privileges in any way. If it did, he would be very anxious to propose some clause which would have the effect of keeping them the same as they were before. He could not assent to this clause; but he would consider the matter further, and if he thought it was requisite to have any clause for the purpose suggested, he would bring one up on Report.
§ MR. BULWER
entirely agreed with the spirit of the remarks of his hon. and learned Friend (Mr. Charley). The Bill, as it stood, was open to the construction that a right of audience was to be given to solicitors in the Supreme Court in bankruptcy matters. Without speaking in any illiberal spirit, he was sure everyone would wish that whatever rights and privileges were conferred upon solicitors should not be conferred upon them by a side wind, but only after mature consideration and discussion. In his opinion, it was very desirable to keep the two branches of the Profession distinct.
§ MR. WATKIN WILLIAMS
did not think the Bill made any difference, his own impression being that it effected no change whatever. He, therefore, hoped his hon. and learned Friend opposite would be satisfied with the assurances of the Attorney General, and that he would not divide.
§ MR. B. WILLIAMS
wished to observe that the Bill did make a change, for it 727 constituted the Court of Bankruptcy a portion of a division of the High Court of Justice. The Bill proposed to give the solicitors the same right of audience as they had when the Court of Bankruptcy was separate, and so it gave them a right of advocacy in the High Court. If so important a change was to be made, he entirely agreed with his hon. and learned Friends opposite (Mr. Charley and Mr. Bulwer) in thinking that it should not be made by a side wind. It was very desirable that the tone of advocacy in their Courts should be kept up, especially in the High Court of Justice. And for that purpose, as things were at present, the Bar ought not to have their right of audience interfered with.
§ MR. CHARLEY
observed, that the Attorney General had very fairly promised to consider the matter before the Report; and as his hon. and learned Friend had heard opinions expressed by several eminent members of the Bar, he hoped on the Report the hon. and learned Gentleman would feel it necessary to deal with this question by bringing up a clause. He begged to withdraw his Amendment.
§ MR. MONK
observed, that the four hon. and learned Gentlemen who had spoken seemed to express an opinion that solicitors who had a right to be heard in the Court of Bankruptcy should not have an audience in the High Court of Justice. If they did possess a right of appearing in the Court of Bankruptcy, and the Court of Bankruptcy was to become a part of the High Court of Justice, he certainly thought the same privilege which attached to them now ought to attach to them hereafter. He hoped, therefore, that the hon. and learned Gentleman would not consider that the general feeling of the House was that solicitors should not have the same rights after this Bill became law as they possessed at present.
§ Amendment, by leave, withdrawn.
§ New Clause.
§ (Entry of actions in district registry.)
Whereas it is expedient to provide for the entry for trial of actions or the issues therein in district registries, and to enable such actions and issues to be entered and lists thereof prepared before the opening of the commission of assize, it shall be lawful for any person giving notice of trial of an action or issue elsewhere than in London or Middlesex, and provided there is a district registry at the town
where such action or issue is to be tried, to enter the action or issue for trial at any time after the close of the pleadings, and up to and including the day prior to the commission day of the assize at which such action or issue is to be tried in the district registry of the town where the trial is to be had. The registrar of each district registry shall make a list of all actions and issues so entered in his registry in the order in which they are entered, and shall send it to the associate or other proper officer on or before the commission day of the assize.
§ Clause agreed to, and added to the Bill.
§ House resumed.
§ Bill reported; as amended, to be considered upon Monday next.