[BILL 18.] SECOND READING. (Hansard, 15 March 1882)

§ MR. FINDLATER
, in moving that the Bill be now read a second time, said, it was framed for the purpose of remedying a great injustice which at present existed with regard to the appeal in ordinary cases, and also under the Equity Clauses of the Irish County Court Act of 1877. It provided for the hearing of appeals in equity cases by Assize Judges. At present all the cases went before the Lord Chancellor. In small cases this led to expenses which were simply ridiculous. Under the law as it at present stood, in ordinary cases before a suitor could appeal from the decision of the County Court Judge, it was necessary he should obtain two sureties to enter into a recognizance in double the amount of the decree, and the state of the law in many cases caused very great difficulty where the amount was considerable, say, £50. When the security to be given was large in amount, practically there could be no appeal; and in some cases he had heard that the County Court Judges had fixed the security at such an outrageous figure as to preclude all chance of appeal, knowing the very great difficulties there were in the way of poor suitors to procure the necessary securities, although, of course, he 939 (Mr. Findlater) could not speak from personal knowledge of any case. Another difficulty was that appeals should be made during the session of the Court, the consequence being that very often, where the decree was made near the close of the session, it was almost impossible to get the opinion of counsel in time to institute the appeal. The Bill he had introduced would obviate that grievance. Although these difficulties existed with regard to appeals in ordinary cases, appellants in those cases certainly had the advantage of appealing to the going Judge of Assize, who was quite accessible; and, in fact, there was a perfect re-hearing of the case, and there was some certainty of justice being administered. However, with regard to appeals under the equity jurisdiction of the Court, the case stood upon an entirely different basis. In all cases, however small, these must come before the Lord Chancellor, leading to expense which was simply ridiculous. Most cases instituted under the equity jurisdiction of the County Courts were cases for the recovery of small legacies, and the amount involved was generally so small that if a ridiculous mistake happened to be made by the Chairman, there was practically no appeal at all. Another difficulty was the great delay that occurred in the hearing of the appeal cases. It usually took six months from the time a decree was pronounced before the appeal was heard, and sometimes even longer than that. He believed there was one case not long ago which took nine months. In a case, Murdock v. Murdock, the reversal of the decree cost £20, and a delay of five months. The case goes back to the Chairman, and will be heard next April, and the parties are in the meantime in a starving condition. Then, again, in these equity cases, the appeal had to be decided mainly on the notes of the evidence taken find the points raised by the County Court Judges. He need not point out how unsatisfactory it was that the Judge of Appeal should only have the notes of an inferior Judge to decide the facts of a case upon. In Ireland, just as in this country, strong complaints had been made by Judges as to the incomplete and imperfect notes made by County Court Judges in cases that came before them on appeal. He noticed in the London Times of the previous day a strong expression of opinion on this point, and the 940 case was sent back to the County Court Judge. Things were twice as bad in this respect in Ireland. If such scandals took place in the Superior Courts the outcry would, no doubt, be very great indeed; but they attracted little attention when they occurred before the inferior tribunals. There was also an extreme difficulty in getting these notes from the County Court Chairman, imperfect and one-sided as they generally were. There was a case before the ex-Chancellor (Dr. Mall) in which it took nearly six months to get the notes from the Chairman, and the appeal had to be ultimately lodged without the notes at all. This irregularity and delay in lodging the notes was a very serious matter. In some cases the disputed amount involved might be nearly £500; but it was equally hard in principle when the amount was small. A barrister friend of his (Mr. Findlater's) not long ago came across a case in Court when an equity civil bill for specific performance was decided by a County Court Judge. The defeated party sought advice from the barrister as to the propriety of appealing, and handed him the Judge's notes of evidence, when it was found that the notes absolutely left out all reference to the case of the party in question. The name of the case was Simpson v. McLelland. In this case the barrister, of course, advised that no appeal should be lodged. To put an end to the evils to which he (Mr. Findlater) had referred, the Bill proposed to refer the equity appeals to the going Judge of Assize, and not to the Lord Chancellor, who would re-hear the case both as regarded the facts and the law. Surely it would be a considerable advantage that cases of this kind should be tried at Assizes. They would be heard by Judges of eminence, who, as the Bar in Ireland from which they were taken did not confine their practice to one branch of the Profession, would have the necessary equity experience. They would not have, as the Low Chancellor had at present, to decide the cases upon imperfect notes of evidence and other matters. That would be a very great advantage in the hearing of small cases. He understood the present eminent Judge who occupied the position of Chief Baron of the Exchequer in Ireland was strongly in favour of the hearing of these appeals by the Assize Judges. [Mr. GIBSON: Have you any evidence of that?] He did not say he had evidence of it; but he had 941 been told it by a gentleman practising at the Bar, whose statement he believed. He thought there was some reform wanted in these matters, and the Bill which he now begged to move should be read a second time met all the difficulties he had mentioned in the observations he had made to the House.

§ MR. GIBSON
said, it was obvious that any attempt to modify such an important Act, passed so recently as the year 1877, required strong evidence for its being carried into effect. He was of opinion that no such case was made out by the hon. Member for Monaghan (Mr. Findlater). The Bill was one that would only be justified by establishing the fact of the great inconvenience of the present system as well as the convenience that would result under the system proposed to be adopted. With respect to the objections made by the hon. Member to the present system of appeal in equity cases resting with the Lord Chancellor, he (Mr. Gibson) had the honour to be Chairman of the Committee which sat upon the subject in 1877, and if there was any one point on which there was the greatest possible unanimity it was upon this—the importance of giving the widest equity jurisdiction to County Court Judges. There was an equal unanimity on the point that it was desirable that the comparatively humble suitors before County Courts should be able to appeal to the highest judicial authority the country could supply. Both the late and present Lord Chancellor, he knew, felt that no part of their duties required more zealous attention than these appeals on equity matters from County Courts. The hon. Member had complained that there was delay in the hearing of the appeals. That delay, however, was not an evidence of the failure of the system, for in the very nature of things there must necessarily be some delay in working a new jurisdiction. Moreover, the delay had been greatly obviated by the fact that the Lord Chancellor had called in the aid of two of the higher Judges of Equity to assist him in his administration. He believed that with the assistance of the Vice Chancellors and of Judge Flanagan, who had been asked to assist the Lord Chancellor, there 942 would be very little delay in future in hearing these equity cases. The Bill as at present drafted would lead to the greatest confusion. As to the power of appeal, supposing the money amount in the case involved a long and complicated account, as was often the case, he believed it would not often happen that such cases could be taken within the short limits of the Assizes. That meant a new Judge to sit in the next Assizes, and to decide on the accounts ordered by the last Judge of Assize. He ventured to think that if his hon. Friend considered all those matters, he would find they involved very considerable difficulties. He (Mr. Gibson) thought it premature at present to make such changes in so short a jurisdiction; and, under all the circumstances, he would suggest that the hon. Gentleman should postpone the consideration of the Bill until public opinion had been elicited upon it—until it had been ascertained what was thought by the Judges as well as by the suitors regarding it, and until they could see what was the effect—the tendency—of the proposal. Therefore he would move, not in any spirit of hostility or disrespect to the legislation proposed by his hon. Friend, but to obtain an expression of public opinion upon it, the adjournment of the debate.

§ THE ATTORNEY GENERAL FOR IRELAND (Mr. W. M. JOHNSON)
said, that, in his opinion, the suggestion of the right hon. and learned Gentleman opposite (Mr. Gibson) was one which it was highly advisable that his hon. Friend (Mr. Findlater) should adopt. He (the Attorney General for Ireland) did not acquiesce in all the objections raised by the right hon. and learned Gentleman against the Bill; but he thought the course proposed by him was the best to be adopted. He did not think Assize Judges incapable of taking long and complicated accounts into consideration within the limits of the Assize sessions. He had seen long cases of the kind, for instance, between butter merchants and farmers, with a history which extended over a period about 12 months, decided by a Judge of Assize. But he agreed with the right hon. and learned Member for the Dublin University—and that was the 943 key-note of his objection to the passing of the Bill now—that it was inadvisable so soon to alter the arrangement come to in 1877. He objected altogether to the system of the passing, and then immediately pulling up Bills when they had been in operation for a short time in order to see how they worked; and he thought on that ground it would be desirable that the debate should be adjourned until the subject was brought before the country and the opinion of those whom it affected could be expressed upon it. On this subject he might remark on the state of the Benches below the Gangway on the opposite side, usually occupied by what was known as the Irish popular Party. This was a question which affected the very poorest class of suitors in Ireland. There was no person so poor as not to be touched by it, and yet those Benches were altogether vacant, the only Members of the Party present being the hon. Member for Youghal (Sir Joseph M'Kenna) and the hon. Member for Carlow County (Mr. Macfarlane). That showed how, in one respect, Irish questions were attended to by the hon. Gentlemen. He believed the County Court decisions, as well as the appeals before the Lord Chancellor, gave satisfaction in Ireland. The judicial capacities of the ablest and most learned Judges were brought to bear upon these matters, which inspired the Irish people with the greatest confidence. He did not think himself that there was any authority for saying that there was any general dissatisfaction with the present system of appeal, either by the suitors or on the part of professional men. In fact, he had the highest authority for saying just the reverse. The delay complained of by his hon. Friend would be obviated by the recent regulation by which the Lord Chancellor was enabled to transfer his jurisdiction in certain cases to two or throe Equity Judges. Under all the circumstances of the case, therefore, he thought it would be bettor if his hon. Friend agreed to the adjournment of the debate, in order that the matter should be ventilated in the country affected by it; and if, after the sense of the country should have been obtained, it should be shown that any alteration was required, he was quite sure that such alteration would not be objected to by the House.

§ MR. FINDLATER
said, he readily accepted the proposition of the right hon. and learned Gentleman (Mr. Gibson). His (Mr. Findlater's) only object was to get the subject well ventilated. It would now be heard of in Ireland, and he had not the slightest doubt himself as to what the result would be.