§ Subject to the provisions of this Act every action, counter-claim, issue, cause, or matter, in the High Court in England requiring to be tried shall be tried by a judge alone without a jury:
§ Provided that—
- (a) nothing in this Section shall affect any power to order a trial by two or more judges or by a judge sitting with assessors, or by an official or special referee with or without assessors, or by an officer of the Court; and
- (b) in the case of any action, counter-claim, issue, cause, or matter in which fraud is alleged or in which there is a claim in respect of libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of marriage, either party shall on making application for the purpose in accordance with rules of Court be entitled as of right to a trial with a jury; and
- (c) if it appears to the Court or a judge that any action, counter-claim, cause, or matter or any question or issue therein, is more fit to be tried with a jury than without a jury, the Court or a judge may, on an application for the purpose made by any party in accordance with rules of Court, order accordingly: and
- (d) nothing in this Section shall affect the right of any party under Section twenty-eight of the Matrimonial Causes Act, 1857, to insist on having contested matters of fact tried with a jury, or the right of a heir at law, cited to appear in or otherwise made a party to a probate action, to a trial with a jury if he makes an application for the purpose in accordance with rules of Court.
§ Mr. BOOTHI beg to move to leave out the words "a judge alone," and to insert instead thereof the words "two judges."
This may be provided for to some extent by the proviso, but I want to be sure about it. This is a very far-reaching Clause, and it takes away the immemorial right of a person to be tried by his peers. In this case I put this Amendment down because there surely must be many actions of a highly controversial character where it would be better to have two judges. This House in dealing with election petitions, and knowing it was a very thorny subject, provided that there should always be two judges to try an election petition, and one can easily conceive other subjects, like a great trade union dispute or an action against an official of a trade union, or questions involving the personal liberty of some acute character, which might be better dealt with by two judges. I notice in the proviso it is laid down that
Nothing in this Section shall affect any power to order a trial by two or more judges or by a judge sitting with assessors.Being a layman, I am not quite conversant where that power lies, and in what manner it is exercised, but if it meets my case I am prepared to withdraw my Amendment. I move it, however, in this case in order that the Solicitor-General may explain to the Committee a little more fully what that power is.
§ 4.0 P.M.
§ The SOLICITOR-GENERAL (Sir Gordon Hewart)The fear which has been expressed by the hon. Member is based, I fancy, on a misconception of the provisions of the Bill. The hon. Member for Pontefract (Mr. Booth) spoke as if the Bill, or some portion of it, would interfere with what are said to be the immemorial rights of Englishmen to be tried by their peers. But he will see, if he reads the Clauses of the Bill, that it will not have that result at all. Trial by jury in criminal cases is not interfered with, and that I rather gather meets his point. The object of the Bill, so far as it limits trial by jury, is to prevent such trial in cases other than certain classes of cases which may be described as cases involving issues relating to personal character. The effect of carrying this Amendment would be to defeat the scheme of the Bill, because it would provide that in ordinary cases, say, of action on contract or action of tort other than 2034 the torts mentioned in the proviso, there shall be need for the services of two judges, and I think that makes an impossible demand on the judicial bench. But I rather gather that what was in the mind of the hon. Member was a desire for further light as to the limits of paragraph (a). There is power there to order trial by two or more judges. I am not aware that there is at present, with one exception, any existing power to order trial by two or more judges. The case of election petitions is of course a different matter. But that is not the question which the hon. Member has in view. I would like to point out with regard to paragraph (a) that it makes no addition to the existing power. It leaves the rules of the High Court in that matter unaffected.
§ Mr. BOOTHI thank the right hon. and learned Gentleman for his explanation, and ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Mr. MARTINI beg to move, in paragraph (b) to leave out the words "in which fraud is alleged or."
I need scarcely say that actions for fraud come within the provisions of paragraph (a). They are actions in which there may be perjury more or less involved. There are any number of actions like that involving the personal element. I am a supporter of this Bill. I think it is an excellent measure, and instead of being looked upon as a war measure it should be treated as a permanent addition to the Statute Book. But I am asking the Committee to strike out this particular exception, because I believe outside, at any rate, one or two kinds of action, all such actions should be tried by a judge. Take, for instance, actions in which fraud is alleged. You will find that actions of that kind can now be tried by jury. When a man is charged with fraud and the jury finds him guilty he has very little remedy. It may be a most unfair decision, but it is very little use his going to the Court of Appeal on that issue, because the rule is that the Court of Appeal shall not disturb the verdict of the jury even although they may think there is practically no evidence to substantiate it. The Court may be quite clear that if it had been trying the case itself it would not have considered that the fraud was proved, but it is bound by the verdict of the jury on that particular finding, however perverse 2035 a verdict it may be. Suppose, on the contrary, this Bill is applied to action in which fraud is alleged, if the judge finds a man guilty of fraud he has an opportunity of going to the Court of Appeal and getting the case reheard by three judges, who are entitled to come to their own conclusion absolutely as to whether fraud has been proved or not. The Court is not in any way bound by the decision of the primary judge except in one particular. Courts of Appeal ordinarily will not interfere with the decision of the primary judge on questions of fraud and similar questions if they think that the demeanour of the witnesses in the case is the reason for the decision. Of course, they will have had no opportunity of seeing and hearing the witnesses which the primary judge has, but, apart from that one exception, they come to the rehearing of the case with a free mind; they are not at all bound, as they are in jury trials, by the fact that the jury has found against the man. They are just free to come to their own conclusions on the evidence quite unaffected by the conclusion of the primary judge except in the one case where the demeanour of the man has, in their opinion, brought about the decision.
The general rule now in force in the Courts with regard to trials for fraud is, generally speaking, that the fraud cannot be tried by a jury. For instance, all actions which are assigned to the Chancery Division cannot, under the present law, without a special order of the judge, be tried by jury. The great majority of Chancery actions are actions to set aside written agreements on grounds of fraud and misrepresentation and matters of that kind. Under the present law you cannot try these cases by jury, and I submit that that law is a very proper one. Why? Because a judge is ever so much more fitted to appreciate the question of whether there has been a fraud or not. When you try a question of fraud before a jury and a decision is given against one side it may be because the other side have counsel better versed in what one may call the tricks of the trade in regard to the handling of juries. That, of course, is not in the public interest. Public interest requires that persons charged with fraud should have the question of their guilt or innocence decided on the evidence alone. All kinds of other questions may be introduced in jury cases, and it is possible to bring in out- 2036 side questions with regard to the nationality or popularity of the individual, political and social considerations, and other matters which weigh with the jury. It is well known that when these matters are handled by a skilful lawyer they can be made to tell very much with the jury. A judge, on the other hand, is free to apply his mind to the question of the relevancy of the evidence given. He is accustomed to do so. While acting as counsel he makes a study of that, and when he reaches a mature age and becomes a judge he comes to his work with a life's experience in dealing with this most difficult problem of properly weighing the evidence which has been given.
Fraud is not a questionable action in the same sense as those other actions which are dealt with further on in this proviso. This proposal of the Government is practically, I submit, an entire reversal of the present procedure of the Courts with regard to actions for fraud which almost invariably come within the class of action known as Chancery actions and which the Judicature Act assign to the Chancery Divisions, where, generally speaking, there are no juries unless for some special reason the judge orders one. I do not seek to interfere with that. It is a general provision of the law that in all cases, if the judge thinks a jury ought to try the action, it shall be done. It is open to the judge to make the order accordingly. I submit that the Bill goes entirely in a wrong direction in this particular. Generally speaking, I repeat, it is a good Bill. It will result in many actions being tried upon their merits instead of being decided by those outside considerations which are apt to influence juries. The effect of this proviso will be that in future all cases with regard to written documents in which fraud or misrepresentation is alleged will be tried by a jury. That is, as I say, an entire change in the law, and it is not a desirable change. I hope the Solicitor-General will leave out these words. These cases are quite different from actions of slander or malicious prosecution. As every lawyer knows, there is no case so hard to try as cases in which fraud is alleged. It is very difficult to come to a proper conclusion on actions involving charges of fraud, and, therefore, I do submit it is better they should be tried by a judge.
§ Sir G. HEWARTThe object of this Clause, as, no doubt, the hon. Member is 2037 well aware, is not to extend, but to limit the existing right of trial by jury in civil actions. It was felt by those who are responsible for the Bill that there must be some limit in regard to this matter, and the limit we chose is to leave the right of trial by jury in certain selected classes of case, if either party to the proceedings so desires. What are those cases? They are cases of fraud, cases of libel, cases of slander, cases of malicious prosecution, cases of false imprisonment, and one or two others. They may be briefly described as cases which involve not merely personal questions, which, I think, was the phrase employed, but questions of personal character. The House is no doubt aware that seven or eight years ago a Departmental Committee was set up under the presidency of Lord Mersey to look into matters relating to the constitution, the qualification, the selection, and the summoning of juries. That Committee, in the result, recommended a very considerable limitation upon the right to a jury in civil causes, but in its Report it added this observation:
At the same time we must make one exception to the principle we have suggested. It is, we think, accepted, and for our part we agree, that in cases affecting persona] character, such as actions for fraud, defamation, malicious prosecution, etc., either party should be entitled to a trial by jury.It appears to me to be a novel suggestion that in an action for deceit the plaintiff, if he is so minded, or the defendant, if he is so minded, should not have the right to a trial by a jury. I cannot imagine any more burdensome task to be thrown upon His Majesty's judges than that they should be called upon normally in a Common Law action for deceit to decide the issue of fact upon which the allegation of fraud depends. No doubt there are other frauds which are not commonly tried in the King's Bench Division, and it is really with regard to those frauds that the objection of the hon. Member mainly has to do. No doubt there are certain classes of subject-matter assigned by the Judicature Acts to the Chancery Division, and in those cases fraud sometimes comes in, but in a proper case in the Chancery Division either party to the action gets a jury now. That right is not extended. All that is being done by this part of the Clause is to protect the litigant upon the one side or the other in an ordinary action for deceit from being deprived of the benefits of trial by a jury. Part of the argument directed against the 2038 proviso was based upon the view that it is much easier to go to a Court of Appeal after a finding by a judge than after a verdict by a jury. I am not quite sure that I follow that discrimination. Nowadays, it is the practice in the Court of Appeal, if there is evidence upon which the verdict of the jury could be found, not to disturb it. In order that a verdict may be disturbed, if there is evidence to support it, it must be of a kind called perverse. But is it really seriously suggested that cases are common in which a jury finds fraud, and in which the Court of Appeal does not set aside the verdict when it ought to do so? In my experience, I have not only never known such a case, but I have never heard of such a case. The Clause as it stands makes on this head a reasonable and proper exception, and it is right that cither party to an action for deceit should be entitled, if he desires it, to the services of a jury. To say the contrary, is to go some way, not indeed the whole way, in the direction of the evil that was referred to a moment ago, of depriving a man of his right to be tried by his peers. Because, although no doubt in form a civil action for fraud is not the same as a prosecution for fraud, the effect upon the individual is often equally serious.
§ Amendment negatived.
§ Mr. MARTINI beg to move, in paragraph (b), to leave out the words "malicious prosecution, false imprisonment, seduction, or breach of promise of marriage."
The Solicitor-General has suggested that if you do not allow each party to an action for fraud the right to a trial by jury you deprive the individual of his right to be tried by his peers. Of course, that is true, but it is true of any action. The present law of this country does deprive a large number of litigants of their right to be tried by a jury, and, if that is to be the principle, it must extend to every kind of action. If you say that there should be a jury in an action for fraud, I cannot see why you should not have a jury for actions between masters and servants. I should say that in such actions it goes much further in the direction of depriving an individual of his right to be tried by his peers than in actions for fraud. Yet under this Bill disputes between masters and servants will always be tried by a judge, unless the judge decides 2039 otherwise. A judge, after the expression of opinion by this House, would not decide that such an action ought to be tried by a jury. I have left out one cause of action, as the Committee will see. I am quite willing that actions for libel should continue to be tried by a jury. This idea of the right of the individual to be tried by a jury arose almost entirely from the fight that was made a century and a half ago as to questions of libel. In those days an action for libel could be tried by a judge. Unfortunately the judges then were to a large extent influenced by the Court, and after some very gross miscarriages of justice, whereby individuals were found guilty of libel and heavily punished simply because they were asserting their political rights, the Act known as Charles James Fox's Act with regard to libel was passed. Before that the question whether the document was a libel or not was one for the judge. The jury had nothing to say about that. The judge directed them: "This is a libellous article and the only question you have to find is, Did this man publish it?" Fox's Act provided that that was no longer to be the case. The jury was to be judge of law and fact in libel cases. That is a privilege that I do not seek to change, although I believe with our present judges no such dangers are to be feared as were prevalent in those days. The Government practically controlled the judges of the time. I do not suppose that the Government to-day would attempt any such thing, although judging by some of the things that they have done in the last few weeks it is very difficult to imagine anything that they would not attempt.
With regard to these other actions, I put forward the same argument as I did with regard to actions of fraud. We want to have these questions decided on the evidence. We go to great expense in having a trained body of judges whose business it is and who are capable to decide these questions. Under the present system we throw a net out and gather in a certain proportion of the community, interfering with their other work. Merchants and busy men are always asking to be excused from serving on juries. The best men have not the time to give, and there is no desire among the people of the country to sit upon juries. They feel that they are handicapped in properly doing the work. That is another 2040 reason for doing away with juries. The Solicitor-General said that it would be adding greatly to the burdens of the judges to ask them to take into consideration these questions of fraud. I submit that that is a very poor argument indeed. What do we employ judges for? Why do we pay them the large salaries that we properly pay them? I do not object to their salaries. If you are going to have good judges, as we have, you have to give a man a chance of earning something like what he can earn by private work. It is a very poor argument for putting these questions before juries to say that it will save placing the burden upon judges. No doubt it is hard work, but it is work that they are capable of doing and for which they are paid. If it is imposed upon them, I am sure that they will carry it out as conscientiously as the other duties placed upon them. I therefore move the Amendment with the object of furthering the Government's purpose of putting the administration of justice in this country on a better basis. If these arguments are not good, why do not we give a citizen the right of having every action for which he is hauled into Court tried by his peers? After all, there is no distinction, except that a judge is competent to try the case on the merits and on the relevant evidence, and a jury is influenced by all kinds of considerations other than questions of relevancy and the evidence produced in Court.
Mr. DENNISSThe hon. Member has put a good many Amendments down, and many of them are founded upon a misapprehension. There never has been an absolute right to trial by jury in civil actions in recent times. In these actions for fraud, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, to which he objects, the plaintiff or the defendant has always been entitled to have a jury. If he looks into the simplest law book with regard to the practice of the High Courts of Justice, he will see it is provided that either party shall have a right to a trial by jury. This Bill makes to change whatever in that respect. Perhaps if he had known that, he would not have said a good many of the things that he has said to-day. All that the Bill does is in certain cases to limit the right to a jury in civil actions.
§ Mr. MARTINDoes the hon. Member think that after thirty years' practice in the law I am not aware of the conditions?
§ Sir G. HEWARTI fear that this is an Amendment which cannot be accepted. The hon. and learned Member for East St. Pancras has no doubt said a good deal which goes to support the Bill as a whole, but I am sorry to hear the Bill supported, even for a moment, by means of attacks upon the intelligence or impartiality of juries. I once heard an eminent judge say that in his experience juries were always right, and that if they appeared to go wrong it was because there was some imperfection in the way the case was laid before them. My hon. and learned Friend must perceive that, no matter how the right to a jury may be limited, there may nevertheless remain exceptional cases in which it ought to be continued. The effect of this Amendment, if carried, would be to remove from the class of actions in which there is to remain a right to a jury, actions for malicious prosecution, false imprisonment, seduction or breach of promise of marriage, and, for some reason or other, it would leave only actions for libel or slander as actions in which there should be a right to trial by jury. These other causes are clearly causes affecting personal character within the meaning of the Report from which I have just read an extract. For the reasons which I offered on the first Amendment relating to fraud, which I refrain from repeating, I submit this is an Amendment which ought not to be accepted.
§ Mr. RENDALLThe Solicitor-General in his very interesting remarks has explained why this particular class of actions are still to be tried by juries. I would point out that it is a class of actions in which the strongest emotions are aroused which are to be left to trial by jury, whereas it ought to have been exactly the opposite. All those cases where people do not have strong feelings, where they do not lose their tempers, where they can only fight, give evidence and reason matters out, might well go before a jury. The particular kind of actions you are leaving to be tried by juries are those—we have had some examples of them lately—where people have the strongest views, perhaps involving party feeling or Boloism, or something of that kind, in which all the feelings in the public mind are strongly aroused. You have newspapers first trying the case before it comes before the jury at all. Those are the cases which 2042 are still left to the jury. I regret that. The Solicitor-General might well put jury actions on one side at any rate for the duration of the War. I do not think any particular harm would be done. We are going to put juries on one side in all other actions where masters and servants are concerned. Those form a very large class of actions. I cannot understand why purely personal matters, which do not involve public policy or any public ends and which are merely quarrels between individuals, should be put on a pedestal and we should say that there must be a sacred trial by jury for them, while far more important matters, involving great principles, large numbers of persons and far larger sums of money, are to be handed over for trial by a single judge. It is a mistaken policy to exclude this particular kind of action, and I regret that the Solicitor-General has not been able to accept this Amendment or some modified form of it.
§ Amendment negatived.
§ Mr. MARTINI beg to move to leave out paragraph (c).
This paragraph provides that on an application to a judge, even in cases which by this Bill will be no longer tried by a jury as a right, the judge may order the case to be tried by a jury. One of the most important things in jurisprudence is to have the law well settled, so that when a person gets into trouble or thinks he is going to get into trouble regarding the law, he can go to a competent lawyer and find out what the law is. I am opposed to any discretion of this kind being given to His Majesty's judges, for the reason that no one can tell beforehand what a judge will do in a case of this kind It is fair to say that if an application of this kind were made to half a dozen judges, probably half of them would decide one way and the other half the other way. That is most unfortunate. We, as a legislative body, should undertake to lay down a general principle on which a person is to be entitled to a trial by a judge and also to a trial by a jury. The moment you make it a matter of discretion for the judge to whom the application is made, you are almost certain to get different decisions, all depending upon the particular judge to whom the application is made. Some judges, like myself, do not believe much in juries; other judges think that juries are an excellent institution, perhaps very largely for the 2043 reason given by the Solicitor-General, that they are in that way relieved of considerable trouble in disposing of the matters that come before them.
§ Sir G. HEWARTMy hon. and learned Friend has done something less than justice to the scheme of this part of the Bill. What is that scheme? The Bill is engaged, so far as this Clause is concerned, in limiting in civil cases the right to a jury. It provides, among other things, that in the case of certain classes of actions either party shall be entitled as of right to a jury, but because that may not be enough and because there may be particular cases not falling within those categories in which there ought to be a jury, paragraph (c) gives a discretion to the Court or a judge to order a trial by jury—that is, in a case in which the Court or the judge is of opinion that the cause is more fit to be tried by a jury. That, I submit, on a fair view of the provision as a whole, is a reasonable and proper supplement to that part of the Clause that has gone before. My hon. and learned Friend entirely mistakes my meaning if he thinks that, when I was referring to actions of deceit, and I said it would be a burdensome task for the judge without a jury to determine the issue, I meant it was because it would throw hard work upon them. Judges like hard work. It is not because the work is hard, but because of the particular characteristic of the issue that I made the suggestion that it would not be right to require a judge alone to determine it. Where you have cases, like eases of fraud, affecting personal character, I submit it is right that the facts should be found by a jury of twelve, and that the judge should not be saddled with the peculiar personal responsibility of coming to a conclusion upon the contested matters of fact, but not in the least because I suspect or think that they would refrain from the mere arduousness of the labour.
Mr. DENNISSUnder the practice and procedure of the Courts for many years past the judge has had this discretion and has always exercised it. The Bill, therefore, introduces no new principle. I can appeal on that point to the Solicitor-General. This is no change of the law in any way. My hon. and learned Friend the Member for East St. Pancras may have had, and no doubt has had, a very distinguished career in the law for a great many years, but it has not been in 2044 this country, and if he will refer to the book which I see he holds in his hand, which is the manual of practice and procedure in this country, he will find it clearly laid down that the judge has a discretion to allow a jury in all these cases of libel, slander, malicious prosecution, seduction, breach of promise of marriage, and fraud.
§ Amendment negatived.
§ Motion made, and Question proposed, "That the Clause stand part of the Bill."
§ Mr. BOOTHThis is the operative Clause of this portion of the Bill. It does not refer to increasing the juries available to perform the service, but it is the portion of the Bill which limits the right to trial by jury. I am thankful that the Government have not yielded to the pressure which came from the hon. and learned Member for East St. Pancras to take away the right to trial by jury altogether. Even in this limited way they are incurring a great danger. I do not mean in the actual practice of the law. The object of the Amendments which I had put down on the Paper, but which I did not move, was to lessen that danger. My view is—I may be wrong—that in the immediate future there will be a great tussle in this country with Bolshevism. I take the view that when that happens a jury will be a great bulwark in sustaining the legal administration. If it is removed, there will be an immediate agitation started antagonistic to the administration of justice. I am not hinting at something far away. This danger is upon us; it is ruling in Coventry and Birmingham at this moment. So long as trial by jury is preserved, you have an answer to the extreme democracy entering upon an agitation of that kind. But if you remove it, and this Clause removes it in some degree, then you will have an outcry from this quarter against judge-made law, class prejudice and so on. It is a very great danger. It may be that some hon. Members think I am looking too far into the future, but I am perfectly sure that in a few years it will be found that this warning is justified. Bolshevism has already overrun Finland, largely upon the point that munition workers drawing large remuneration are suddenly, owing to war conditions, thrown out of work. We may get that position in this country. A large number of the workers now getting high wages may suddenly be asked to go back to lower con- 2045 ditions of life. Then this evil will appear. It has already reached regrettable dimensions. I do not suggest that my right hon. Friend's proposals are not good and will not effect a good purpose immediately, but if this pressure is brought to bear upon him in the future—pressure such as we have seen to-day—to extend this Bill and amend this Clause, I hope he will bear in mind the grave dangers to which I have alluded. I wish they were not there, but one has only to go a little beneath the surface to find that the propertied classes in the immediate future will be in a position of challenge, if not of jeopardy. The middle and upper classes will be well advised to preserve wherever they possibly can the existence of the jury system as a bulwark between them and a fierce attack which they may not like to meet.
§ Question put, and agreed to.
§ Clauses 2 (Assessment of Damages), 3 (Limitation of Jurial Trials in the County Courts) and 4 (Limitation of Jury Trials in Other Inferior Courts of Civil Jurisdiction) ordered to stand part of the Bill.