§ In every case in which trial by jury has been allowed issues shall be adjusted on a day to be fixed not later than eight days after the date of the interlocutor allowing the trial and the pursuer shall lodge the proposed issue or issues two days before the said date.
§ Mr. ADAMSON
I beg to move, "That the Clause be read a second time."
My object in moving this new Clause is to bring the procedure at jury trials in the Sheriff Courts in Scotland in civil cases into line with the procedure in the Court of Session, namely, trial by issue or issues, instead of questions being proposed to the jury and the jury in giving their verdict having to give specific answers to those questions. The form of procedure 1949 proposed has worked very satisfactorily in the Court of Session since 1870. I am not sure if I have drafted my Amendment in the correct form to secure the object I have in view, but I take it in the event of it being agreed to the Lord Advocate, with his great legal experience, will find the correct legal phraseology. Prior to 1907, jury trial in the Sheriff Court in Scotland in civil cases was unknown. In answer to a demand put forward both by employers and workmen, it was introduced into the Bill of 1907, and the jury trial in the Court of Session was taken away. The framers of the Act of 1907, however, instead of following on the lines of the well-tested procedure of the Court of Session, introduced a new form of procedure. This new form of procedure was in the nature of an experiment, an experiment which has been proved to be a complete failure. To such an extent is this the case that jury trial in civil cases in Scotland is now practically nonexistent. When the Act of 1907 was passed it was seriously questioned by many of the legal men in Scotland whether it was a wise or prudent thing to substitute for the Court of Session issue questions prepared by the sheriff, and immediately the new procedure was put to the test these fears were found to be well grounded, and a number of the cases that were tried under the new system were appealed to the Court of Session and the views of the judges in the Court of Session regarding the new system are worthy of consideration by this House before we agree to another change being made which is in the nature of an experiment. In the case of Taylor v. Sutherland, which was appealed from the Sheriff's Court at Wick to the Court of Session, the Lord President of the Court of Session, Lord Dunedin, said:—The whole difficulty arises from the provision as to questions. And certainly if it be permissible to question the wisdom of Parliament, one may well regret that with the experience of the English system and the Scotch system, which each in their own different ways have worked fairly well, the framers of this Act must needs devise a new plan, unfortified by experience, which very little consideration would have shown would be full of difficulty and consequent risk of miscarriage.The Lord Justice Clerk, in the case of Adamson against the Fife Coal Company, which was appealed from the Sheriff Court of Dunfermline to the Court of Session, said:—I must say this is a most unfortunate case. The record is most unfortunate; the questions which were put to the jury were most unfortunate, and I am afraid that the whole result of the case may well be described as unfortunate.1950 And again, in the case of McColl against the Alloa Coal Company, which was appealed from the Sheriff's Court at Stirling, the Lord Justice Clerk said:—This is the second case that has come before the Court under the Jury Trial Clauses of the recent Sheriff Court Act of 1907. It would hardly have been, conceived that a second case could present a more unfortunate instance of miscarriage than did the first, but I must say with regret that the case now before us is much more unsatisfactory than that which was disposed of a few days ago. The record is unsatisfactory, the questions put are unsatisfactory, the directions given to the jury are unsatisfactory, and as a necessary consequence of all these regrettable circumstances the verdict of the jury is unfortunate. If such cases are conducted in the Sheriff's Court as this one has been, instead of jury trial in that Court being a blessing to litigants, it will prove something very different to the unfortunate litigants who either come into Court as pursuers or are hauled to Court as defenders.This Bill is introduced by the Lord Advocate to repeal the provision in the Act of 1907, under which the Sheriff prepares the question of fact to be proponed to the jury. I regret to say that in Committee he accepted an Amendment which, in my opinion, is again in the nature of an experiment, and, if given effect to, in the opinion of many legal gentlemen in Scotland, will simply perpetuate the chaos that has arisen as a result of the provisions of the 1907 Act in the jury trials in the Sheriffs' Courts in Scotland. I hope the Lord Advocate will see his way to accept this new Clause. If he does not-so strongly do I feel that the provisions of this Amending Bill will continue to bear very heavily against working-class litigants, that I shall have no-alternative but to divide the House on the Question, and I hope I shall get a sufficient amount of support to carry this new Clause.
§ Mr. WATT
I desire to support the new Clause. As the Mover has indicated, when this measure passed its Second Reading it did not contain Clause 6, so> that we can take it that the matured judgment of the Lord Advocate and of the Scottish Office was that Section 32 of the Act of 1907 should be done away with. But in Committee the acute mind of my hon. and learned Friend the Member for Wick Burghs (Mr. Robert Munro) suggested Clause 6 as it stands to the Lord Advocate, who, with the suavity that characterises him, accepted it, I think too hurriedly. Section 32 of the Act of 1907 runs as follows:—
"Where jury trial has been ordered the Sheriff shall after hearing parties, if 1951 he shall think that necessary or desirable, issue an interlocutor setting forth the question or questions of fact to be at the trial proponed to the jury."
Before that date cases of workmen's compensation had always been tried by the Court of Session, but when the cases came up there the judges put to the juries a simple issue:—"Did the workman sustain injury?" and, "Was the employer to blame?" They were asked to answer simply "Yes" or "No." By the Act of 1907 the possibility of having cases of this description tried before the Sheriffs' Courts was introduced, and a new system was also introduced of dealing with the cases in those Courts, namely, the system of asking the Sheriff to propone various questions of fact to the juries. That system has proved a complete and an arrant failure and the Lord Advocate "was of that opinion when he introduced this measure, because he removed altogether from the Statute Book Section 32 of the 1907 Act. The questions and the method of stating these questions have been condemned by practically all the judges. A distinguished ex-Secretary for Scotland has said that those questions are full of difficulty and that what a judge of the Supreme Court, after years of experience finds it hard to do, is supposed to be easy for the Sheriff-Substitute, who has had little, if any, such experience. The Lord Justice Clerk, the second highest judge in Scotland, said the questions which were put to the jury were most unfortunate. All the Lords of the Court of Session have condemned the questions put by the Sheriff-Substitute in the Lower Court. By Clause 6, the Lord Advocate has reconstituted this system of asking questions on the part of the Sheriff. T think he has erred in this respect, and I hope he will accept the Amendment or, at any rate, revert to his former position, and delete Clause 6 entirely from the measure.
§ Mr. MUNRO
The hon. Member has unwittingly attributed to me credit in connection with this Clause which entirely appertains, if any credit is due in connection with it, to the hon. Baronet (Sir G. Younger), who moved it in Committee. I supported him on that occasion, and I desire to do so again to-night. It is well that the House should clearly understand the distinction between the two rival proposals. If the hon. Member's (Mr. Adamson) proposal is entertained, 1952 the question which will be put to the jury will be an entirely general question, namely, whether on or about a certain day and at or about a certain place, the pursuer was injured through the fault of the defenders. If, on the other hand, the proposal which has been embodied in this Bill is accepted, the Sheriff may, if he thinks fit or if he is asked by either of the parties, will be directed to put to the jury specific questions with a view to ascertaining what the particular fault which the jury find proved may happen to be. I think from the point of view both of the pursuer in the action and of the defenders that is the preferable proposal. If the verdict is returned in answer to the general question which my hon. Friend (Mr. Adamson) proposed, neither the pursuers nor the defenders will have the remotest idea as to what the precise fault which the jury affirms may be. I think that will be a disadvantage from the point of view of the pursuer. It will result in this: If a specific question is put and a specific answer is returned the pursuer will have affirmed that a certain fault has been proved against the defenders, and the defenders from the most sordid point of view, namely, the point of view of their pocket, will be induced to put that matter right in order that they may not be again sued and damages recovered from them on the ground of that particular fault. It will also be an advantage from the point of view of the defenders because they will ascertain what the particular fault which the jury has affirmed may be. I think they have a right to know what that fault may be in order that they may avoid in future any such action as has been brought against them in the past. I think therefore from the point of view both of the pursuers and of the defenders the proposal in the Bill is more of an advantage than the proposal which is embodied in the Amendment. My hon. Friend has suggested that this is the same system as is at present followed in the Court of Session. That is quite true, but then in the Court of Session if any judge thinks it proper or right in any particular case to get a specific answer to a specific question he puts the specific question. I know quite well from the experience I have had of Lord Dunedin he has often put specific questions to the jury to answer in order that he may know what their view is; but with all respect to the Sheriffs of Scotland I venture to think that, unless directed by Statute to put these 1953 questions, they will not take the responsibility of doing so, and accordingly a general question and a general answer, unsatisfactory to both parties, will be returned. My hon. Friend has said if these questions are put the result will be unsatisfactory. So far as that is concerned, the only criticism levelled by Lord Dunedin and other judges of the Court of Session has been with regard to the system under the Act of 1907. That Act requires that the questions shall be framed upon the pleadings, that is to say, at a stage before the evidence has emerged and before the Sheriff or the jury is fully acquainted with the case. No doubt that system has proved a failure, but the proposal of the Bill is that the questions shall not be put until after the evidence has been led and until the Sheriff is about to charge the jury. There has been no criticism of the system of questions, but only as to the stage at which the questions shall be put. Experience teaches that the present system followed in the Sheriff Courts is unsatisfactory, and that the system proposed by this Bill is more satisfactory whether you regard it from the point of view of the pursuer or the defender in (he action. In either case their interests will be better served by the proposal in the Bill than by the proposal which my hon. Friend the Member for West Fife makes.
§ Sir GEORGE YOUNGER
As I was responsible for moving the Clause in Committee perhaps I may be allowed to express my view. The charges made against the Amendment by the hon. Member for the College Division of Glasgow (Mr. Watt) are directed to a totally different point altogether. They were quite proper, but they do not in the least affect the proposal now made. It surely stands to reason that both employers and employés
§ ought to know for what they are held responsible and liable in order that every necessary improvement may be made in machinery or otherwise which would obviate clangers of the kind in future. I hope the Lord Advocate will adhere to the proposal.
§ The LORD ADVOCATE (Mr. Ure)
I have no hesitation whatever in responding to the appeal made by the hon. Baronet opposite, and in adhering to the Clause as it stands in the Bill. The reasons have been so admirably and briefly stated by, the hon. Member for Wick Burghs (Mr. Munro) that I think it is unnecessary to detain the House by reciting them. It is perfectly true that in the Bill as originally introduced I proposed to delete Section 32, and so get rid of the procedure therein described, which I do not for a moment deny, led to the chaos and confusion to which the hon. Member for West Fife (Mr. Adamson) referred. But this Clause which stands in the Bill and which is quite properly regarded as an alternative to the new Clause moved by the hon. Member for West Fife, relieves us entirely of the difficulty found in connection with the wording of Section 32. I should not have accepted this new Clause even if Clause 6 had not been inserted, because the result would have been to lead to a general issue which really sheds no light whatever on the case, and I am satisfied that Clause 6 will be a clear and decided advantage, not only to the employer, but also to the worker, and for the reasons which have been so admirably expressed by the hon. and learned Member.
§ Question put, "That the Clause be read a second time."
§ The House divided: Ayes, 16; Noes, 185.1955
|Division No. 568.]
|Barlow, Montague (Salford, South)
|Jowett, F. W.
|Sutton, John E.
|Barnes, G. N.
|Macdonald, J. M. (Falkirk Burghs)
|Walsh, Stephen (Lanes., Ince)
|Duncan, C. (Barrow-in-Furness)
|Parker, James (Halifax)
|Wilson, W. T. (Westhoughton)
|Gill, A. H.
|Roberts, G. H. (Norwich)
|TELLERS FOR THE AYES.—Mr. Adamson and Mr. Watt.
|Hogge, James Myles
|Smith, Albert (Lanes., Clitheroe)
|Abraham, William (Dublin, Harbour)
|Benn, W. W. (T. Hamlets, St. George)
|Byles, Sir William Pollard
|Acland, Francis Dyke
|Boland, John Pius
|Campbell, Captain Duncan F. (Ayr, N.)
|Addison, Dr. C.
|Booth, Frederick Handel
|Carilie, Sir Edward Hildred
|Agnew. Sir George William
|Boscawen, Sir Arthur S. T. Griffith-
|Carr-Gomm, H. W.
|Allen, Arthur A. (Dumbartonshire)
|Boyle, Daniel (Mayo, North)
|Baker, Joseph A. (Finsbury, E.)
|Brady, Patrick Joseph
|Banbury, Sir Frederick George
|Bridgeman, W. Clive
|Chapple, Dr. William Allen
|Bathurst, Charles (Wilts, Wilton)
|Bryce, J. Annan
|Clancy, John Joseph
|Beauchamp, Sir Edward
|Burns, Rt. Hon. John
|Clive, Captain Percy Archer
|Beck, Arthur Cecil
|Buxton, Rt. Hon. Sydney C. (Poplar)
|Clyde, J. Avon
|Holt, Richard Durning
|O'Neill, Dr. Charles (Armagh, S.)
|Collins, Godfrey P. (Greenock)
|Hope, Major J. A. (Midlothian)
|O'Neill, Hon. A. E. B. (Antrim, Mid)
|Collins, Stephen (Lambeth)
|Home, Charles Silvester (Ipswich)
|O'Shee, James John
|Cornwall, Sir Edwin A.
|Howard, Hon. Geoffrey
|Craig, Ernest (Cheshire, Crewe)
|Hughes, S. L.
|Parry, Thomas H.
|Isaacs, Rt. Hon. Sir Rufus
|Pearce, Robert (Staffs, Leek)
|Davies, David (Montgomery Co.)
|Jones, Edgar (Merthyr Tydvil)
|Pearson, Hon. Weetman H. M.
|Davies, Ellis William (Eifion)
|Jones, H. Haydn (Merioneth)
|Pete, Basil Edward
|Davies, Timothy (Lincs., Louth)
|Jones, J. Towyn (Carmarthen, East)
|Ponsonby, Arthur A. W. H.
|Davies, Sir W. Howell (Bristol, S.)
|Jones, William (Carnarvonshire)
|Pringle, William M. R.
|Dawes, J. A.
|Jones, W. S. Glyn- (Stepney)
|Pryce-Jones, Col. E.
|Raffan, Peter Wilson
|Rea, Rt. Hon. Russell (South Shields)
|Duffy, William J.
|Kebty-Fletcher, J. R.
|Duke, Henry Edward
|Kennedy, Vincent Paul
|Edwards, Clement (Glamorgan, E.)
|Roberts, Charles H. (Lincoln)
|Edwards, Sir Francis (Radnor)
|King, J. (Somerset, North)
|Robertson, J. M. (Tyneside)
|Esmonde, Dr. John (Tipperary, N.)
|Lambert, Richard (Wilts, Cricklade)
|Esmonde, Sir Thomas (Wexford, N.)
|Lardner, James Carrige Rushe
|Roch, Walter F. (Pembroke)
|Essex, Sir Richard Walter
|Law, Hugh A. (Donegal, W.)
|Esslemont, George Birnie
|Levy, Sir Maurice
|Runciman, Rt. Hon. Walter
|Eyres-Monsell, Bolton M.
|Lewis, John Herbert
|Russell, Rt. Hon. Thomas W.
|Locker-Lampson, O. (Ramsey)
|Sanders, Robert Arthur
|Ferens, Rt. Hen. Thomas Robinson
|Lynch, A. A.
|Scott, A. MacCallum (Glas., Brldgeton)
|Lyttelton, Hon. J. C. (Droitwich)
|Scott, Leslie (Liverpool, Exchange)
|Seely, Col. Rt. Hon. J. E. B.
|Flavin, Michael Joseph
|Mackinder, Halford J.
|Forster, Henry William
|Macnamara, Rt. Hon. Dr. T. J.
|Simon, Rt. Hon. Sir John Allsebrook
|Gilmour, Captain John
|MacNeill, J. G. Swift (Donegal, South)
|Smyth, Thomas F. (Leitrim)
|Gladstone, W. G. C.
|Talbot, Lord E.
|Greenwood, Granville G. (Peterborough)
|M'Callum, Sir John M.
|Taylor, Theodore C. (Radcliffe)
|Greig, Colonel J. W.
|M'Curdy, C. A.
|Tennant, Harold John
|McKenna, Rt. Hon. Reginald
|Thorne, G. R. (Wolverhampton)
|Griffith, Ellis J.
|Thynne, Lord Alexander
|Guest, Hon. Frederick E. (Dorset, E.)
|Meehan, Francis E. (Leitrim, N.)
|Toulmin, Sir George
|Gwynn, Stephen Lucius (Galway)
|Millar, James Duncan
|Trevelyan, Charles Philips
|Gwynn, R. S. (Sussex, Eastbourne)
|Tullibardine, Marquess of
|Molteno, Percy Alport
|Ure, Rt. Hon. Alexander
|Hancock, J. G.
|Morgan, George Hay
|Ward, W. Dudley (Southampton)
|Harmsworth, Cecil (Luton, Beds)
|Morrison-Bell, Capt. E. F. (Ashburton)
|Wason, Rt. Hon. E. (Clackmannan)
|Harvey, A. G. C. (Rochdale)
|Wason. John Cathcart (Orkney)
|Harvey. T. E. (Leeds, West)
|Havelock-Allan, Sir Henry
|Munro-Ferguson, Rt. Hon. R. C.
|White, J. Dundas (Glas., Tradeston)
|White, Patrick (Meath, North)
|Norton, Captain Cecil W.
|Williams, Llewelyn (Carmarthen)
|Healy, Maurice (Cork)
|Norton-Griffiths, J. (Wednesbury)
|Wood, Rt. Hon. T. McKinnon (Glas.)
|Healy, Timothy Michael (Cork, N.E.)
|O'Brien, Patrick (Kilkenny)
|Young. W. (Perthshire, E.)
|Henry. Sir Charles
|O'Connor, T. P. (Liverpool)
|Younger, Sir George
|Herbert, General Sir Ivor (Mons., S.)
|Higham. John Sharp
|TELLERS FOR THE NOES.—Mr. Illingworth and Mr. Gulland.
|O'Kelly, Edward P. (Wicklow, W.)
|Holmes, Daniel Turner
Question put, and agreed to.