HC Deb 13 June 1932 vol 267 cc147-62
Mr. MACQUISTEN

I beg to move, That an humble Address be presented to His Majesty praying that the Rules of the Supreme Court (New Procedure), 1932. dated 23rd April, 1932, a copy of which was presented to this House on 2nd May, 1932, be annulled. I am sorry to bring this matter on at this late hour of the evening, but I will be as short as I can. The subject on which I am moving an Address are certain new Rules of Procedure which were laid upon the Table of the House on 2nd May, and I am asking His Majesty to annul those Rules. My reason for doing so is because there is one Rule which I consider puts the subject to the risk of losing his inalienable right to have his civil ease tried by a jury of his peers. In Section 8, Sub-section (2), paragraph (g), it says that The judge shall in his discretion order the action or any issue therein to be tried with a jury or without a jury as in his discretion he may think fit. That has never been within the power of judges in this country. Juries were instituted as far back as Henry II, and they are supposed to be confirmed in the Great Charter. During the War the right to trial by jury was suspended by a special Act in 1918. In Scotland it had been tried earlier, without a special Act, but objection was taken, and they had to give it up and restore jury trial. There were very unhappy consequences to some litigants during the time juries were suspended. I do not propose to go into that, because I might make remarks which I would rather not make. I am not speaking as a lawyer, but as a citizen. If ever I had a case of my own to defend, I would prefer to have a civil action for damages tried before a jury. If I was ever run down by a motor car I should fancy that my executors would want to go before a jury and not before a judge to decide the amount of damages to be awarded. People have always had the right to trial by jury. In 1920, after some agitation, it was decided to modify the suspension in the Act of 1918. Curious to say it was Mr. Gordon Hewart, now Lord Chief Justice, author of "The New Despotism," who introduced, in 1920, a Bill which did not restore the right to trial by jury. It practically took it away very much in the terms of this very Regulation. It was passed through the House of Lords practically without discussion, because it was said that the judges approved of it and nobody really understood what was happening. It was brought down here and passed in the small hours of the morning through all its stages without discussion, and again no one knew what was being done. I protested against it a night or two afterwards, and two eminent judges, Mr. Justice Atkin and Mr. Justice Bankes, because they were shocked when they found that jury trials were abolished, made statements from the Bench shortly afterwards. Mr. Justice Atkin said: I speak reluctantly, because I cannot bring myself to believe that this far- reaching result was intended by the Legislature. Trial by jury, except in very limited cases, is essentially a principle of our law and has been the bulwark of liberty, a shield of the poor from the oppression of the rich and powerful. Anyone who knows the. history of our law knows that many of the liberties of the subject were originally established and are maintained by the verdicts of juries in civil cases. Many will think that at the present time the danger of attack by powerful private organisations or by encroachments of the Executive is not diminishing. It is not without importance that the right now taken away is expressly established as part of the American constitution. Mr. Justice Bankes said: I trust, however, that the other aspect of the case may also be considered, namely, whether the right to a trial by jury is not sufficiently important to be restored and maintained, subject always to exceptions which should be precisely indicated. The standard of much that is valuable in the life of the community has been set by juries in civil actions. They have proved themselves in the past to be a great safeguard against many forms of wrong and oppression. They are essentially a good tribunal to decide cases in which there is hard swearing on either side, or a direct conflict of evidence on matters of fact, or in which the amount of damages is at large and has to be assessed. There is no particular reason why a party in one class of action should have a jury more than another. As a result of these representations and of great support from the legal profession a new Bill was introduced in 1923 and became an Act in 1925. It stated that: Section 2 of the Administration of Justice Act, 1920, shall cease to have effect, and provision may be made by rules of court in the same manner as if the Juries Act, 1918, and Section 2 of the Administration of Justice Act, 1920, had not passed, for prescribing in what cases trials in the High Court are to be with a jury, and in what cases they are to be without a jury, and until such rules of court came into force the rules of court relating to the mode of trial in the High Court which were in force immediately before the passing of the Juries Act, 1918, shall have effect. That is to say that until these rules were passed there was complete restoration to the subject of his right to trial by jury. But that only gave the judges the right to prescribe in what cases trials in the High Court were to be without a jury, that is to say, to lay down regulations. No power was given by the Act to devolve to the judge at the trial that in any particular case that particular judge might say whether or not a case was to be tried by a jury. They have no right to delegate the power but in these Rules they are delegating it. Speaking with the greatest respect, as a layman—I speak as a layman in this instance—it seems to me very wrong to suggest that this power can be devolved in the manner indicated here. The judges possibly left the drafting of the rules to somebody else but it seems to me that there is an error of law in this respect. A delegate cannot in turn delegate powers, unless given express power to do so, and there is no power in the Act which I have quoted to delegate to the particular judge at the trial the selection of whether the case is to be tried with or without a jury.

It is a very dangerous procedure and one which was never intended by the House of Commons—to leave it to an individual judge to take away the inalienable right to trial by jury which has existed for so long with the exception of the brief period during which it was suspended for War reasons. It would be a most disastrous thing for the courts of justice. Instead of the judges being in touch with the masses of the people and the people being in touch with the administration of justice, the judges would tend to become a kind of priesthood, a body of Druids set away entirely from the common life of the people. That, as I say, would be disastrous for the administration of justice. Of course, there are judges who definitely dislike jury trials. I have here an extract from the Press, referring to an appeal heard in the Court of Appeal recently, in a running-down case against a motor cyclist. It was stated that the plaintiff was so badly injured that he had to be carried into court and Mr. Healy, K.C., said that it would impress the jury. Lord Justice Blank—I mention no names—said it was "a bit of stage management"; and another of the judges said: That is the fault of the jury system. If under the new Rules you refer all running-down cases to the new procedure perhaps you will get rid of that. One would almost think that these two judges were licking their lips at the prospect of getting rid of jury trials. I was shocked when I read it. It was a perfectly legitimate thing, when a man was badly injured and had to appear on his own behalf, that he should be carried into court. There is one risk which will be run under this procedure. In these cases, when the fact is mentioned that a motorist is insured, judges have been in the habit of withdrawing the case from the jury on the ground that the jury have no right to know that the defendant is insured. I have always thought that the judges were wrong in that matter. A jury might give too small damages out of sympathy with the defendant whom they might regard as a poor, oppressed man, not able to pay the damages to which the plaintiff was entitled for the injuries he had suffered. The motorist pays his insurance premium for no other reason than to protect himself and also in order that the injured man may get adequate and proper damages. Of course, it will be said that these Rules are not arbitrary and that the plaintiff in a case has the option of remaining under the old Rules. But how long will that option remain? We cannot tell when it will be removed.

Be that as it may, I submit that there is not power to do what is proposed here and that a grave danger is involved, if we lose the right to trial by jury. They wrote a memorandum as to the new Rules of Procedure in which they said that the uncertainty of trial by jury involved in some instances a new trial because the jury failed to comply with the judge's direction in law or it was found afterwards that a misdirection had been given. I have always thought that counsel for both sides could probably put the ease very fully, and if a judge makes a slip of some kind, it should not be visited on the litigant. The law could easily be amended in that respect, but, be that as it may, a jury trial is the right of every subject. And this is an attempt, which has gone on since the 1918 Act, to take the right of trial by jury away from the subject. It will be very disastrous for the country if this inalienable right, which has existed since the beginning of British civilisation, and on which so many of our liberties have been built up, is in any way impaired.

Mr. MAXTON

I beg to second the Motion.

I speak with two or three disabilities when I rise to participate in this Debate. First of all, this is a technical matter, and, secondly, it is a matter that affects English law. I am a layman and a Scots- man, and none the worse for that. But I am, of course, liable at any time to be tried according to English law, and it is somewhat surprising to me that it should be left to my hon. and learned Friend the Member for Argyllshire (Mr. Macquisten) and to those of us who come from the Clyde to have this matter raised in the House. It is perhaps in that part of the world that we are more concerned about questions of equality before the law and proper, fair judicial procedure that is above all possible reproach. On the last occasion on which the learned Solicitor-General came before us to defend a Measure, it was the Measure for the appointment of an additional judge, and on that occasion he made out a very strong case and got his request granted by the House with complete unanimity. At that time he told us that the appointment of an additional judge was necessitated by the tremendous congestion in the courts, and we understood that such an appointment would relieve that congestion. As far as one can gather, there has been no appreciable improvement in the matter. As far as one can gather from public statements on the question, the congestion in the courts, the number of cases awaiting trial, is as great as it was on the day when the Solicitor-General came and told us that the appointment of an additional judge would ease the situation. As I have said, I am a layman, and I am relying entirely on reports in newspapers, and I gather, from a paragraph in the Press the other day, that the queue which was in existence a month or two ago when we appointed an additional judge has been lengthened considerably in the intervening period. I am willing to be corrected if the Press paragraph was wrong.

If I understand the intention of these new Rules, the intention that the Lord Chancellor had in submitting them, they are designed to speed up judicial procedure, to cheapen judicial procedure, and to give people who are litigants a greater certainty as to the time when their cases will be held. I approve of all those things. I want justice to be cheap, I want it to be speedy, I want it to be certain, but I want it to be justice. Just as Parliament is the instrument through which the plain man's voice is heard as between the experts of the Executive and the people in general, so the jury is the place where the plain man has the essence of his case heard before plain men like himself, and the expert only comes in to perform a very specialist function at the end. When we on these benches read the memorandum issued on this matter and the rules of procedure, we were at once led to the conclusion that there was something of vital importance to the ordinary British citizen threatened—

Dr. BURGIN indicated dissent.

Mr. MAXTON

The hon. Member shakes his head very decidedly. I plead guilty to being a layman, but I did, in one portion of my educational experience, have to submit to attendance at certain classes in constitutional law in Glasgow University. The constitutional law at Glasgow University is not the constitutional law of Scotland, but that of Great Britain. I did not remember much. I also attended a course of Roman law at the same time, and the only recollection I carried away from that course was the knowledge that Robert Louis Stevenson attended a similar course in Edinburgh University, and that the only thing which he said he remembered was that emphyteusis was not a disease, and that suicide was not a crime. The only thing that I carried away from my course in Roman Law was the definite principle laid down that the jury system was the corner-stone of the liberty of the people. This takes away in certain very important cases the right of a jury trial for the ordinary citizen. I do not say that the House should not grant that right, but I certainly think that the House would flagrantly neglect its duty if it allowed the Executive of the day to take away that right without first making out a tremendously strong case in support of it.

Mr. SOMERVELL

The hon. Member for Bridgeton (Mr. Maxton) said that he suffered from the two disabilities of being a Scotsman and a layman. I suffer under the disability in life, but not in this discussion, of being an Englishman and a lawyer. As a very new and inconspicuous Member of the Rule Committee at a time when these Rules were considered and passed, I hope the House will forgive me if I make one or two observations. These Rules do not cover any case in which either personal liberty or personal reputation is concerned. They do not cover cases of fraud or slander; broadly speaking, they cover only cases of breach of contract, or cases in which the defendant is accused of negligence.

Mr. MACQUISTEN

Motor cases.

Mr. SOMERVELL

In the last three or four years there has been a very strong movement on the part of the judges, a movement in which members of the Bar, and members of the solicitors' profession, have taken an active part, to reduce the cost of litigation. These motoring cases form to-day a very large part of the volume of litigation, and one of the objects of this Rule is to reduce the cost of litigation in this class of case, because there is no doubt that a trial with a jury is more expensive and more prolonged than a trial by a judge alone. Cases have to be explained at greater length and in greater detail to 12 untrained men than to one trained man. Anybody who has had experience of the two forms of trial would admit that to be true. The other reason for the experiment was this: I make no reflection on the jury system and its desirability in cases in which personal liberty and reputation are involved, but there is no doubt that, especially since the passing of the Road Traffic Act in 1930, juries have been apt to assume that the defendant was insured and they are apt to be biased by that fact. They feel that they are confronted with a man who has suffered some injury, and it is difficult for them, and it would be difficult for the untrained man, to weigh the issues judicially and not to be over impressed by sympathy for a man who has suffered damage. For that reason and the other reason that it was thought right that this experiment should be tried, these cases were brought under the new Rules with the object of seeing whether experience would not show that in this class of case trial by a judge alone not only was cheaper' but resulted in greater justice being done as between defendants and plaintiffs.

The SOLICITOR-GENERAL (Sir Boyd Merriman)

After the admirable speech made by my hon. and learned Friend it is really unnecessary for me to add very much. If the Mover of this Prayer will allow me to defer dealing with his speech for one moment, I should like to say that there was one point in the speech of the hon. Member for Bridgeton (Mr. Maxton) to which I must take exception. He said that on a former occasion I had supported the appointment of an additional judge on the plea that that would remove entirely the congestion in the courts. I really said exactly the opposite, and it is a little important that we should realise what the position is, because the inference from, the hon. Member's speech was that it was unnecessary to relieve the congestion in any other way. What I really said was this: The request we are now making will by no means fill the whole gap. It would be idle to pretend that the appointment of an additional judge will at once reduce the arrears in London so that they become comparable with the state of business in the provinces. But this, at any rate, is true: The presence of an additional judge will render it much more possible to keep a continuous flow of business going in London. As long as that is possible we may hope, at any rate very substantially, to reduce the arrears before the end of the oresent legal year."—[OFFICIAL REPORT, 11th February, 1932; col. 1160, Vol. 261.] 11.30 p.m.

I think the House will agree that there is nothing there inconsistent with any proposal to accelerate trials in London. I yield to nobody in my admiration for the jury system, and to some extent it is true that there is a slight inroad on the right of trial by jury, but we ought not to exaggerate. The area over which these Rules apply is extremely limited. All actions for seductions and breach of promise, malicious prosecution and false imprisonment are entirely ruled out; they do not come within the new Rules of Procedure. Nor does any cause of action where the issue of fraud is raised. The Rules do not apply to Scotland, nor to any criminal charge of any sort or kind.

Secondly, they depend on the wish of at least one of the parties; unless either the plaintiff or the defendant wishes the new Rules of Procedure to apply, they do not apply at all. Indeed, it is that very aspect of voluntariness which has been criticised in some quarters as being a defect in the Rules. Over the whole of the rest of the area of litigation the existing Rules, and the right of trial by jury, in appropriate cases, apply. The substance of this complaint is, as my hon. and learned Friend the Member for Argyll- shire (Mr. Macquisten) has indicated, what we call running-down cases. The whole objective of the Rules is cheapness and expedition, and those apply just as much in running-down cases as in any other cases. The longer the case is, the more expensive it is. It is just as necessary to relieve expense in a case of personal injury as in any other case.

If I may just summarise the advantages that will be derived in those cases: you cut down all the preliminary proceedings and expenditure incurred; you get a fixed date, a matter of great convenience to witnesses who have no connection with the case except that they happen to have been present at an accident; you limit the number of expert witnesses; you are able to refer the medical condition of the injured man to an independent medical referee, and you are able to limit the right of appeal. I suggest to the House that all these things are very much in the interests of parties in running-down cases, as in any other cases.

Mr. MACQUISTEN

May I ask whether all these things cannot be done between the parties to-day I A man injured in a motor accident will have to take what the claims inspector of the insurance company assesses.

The SOLICITOR-GENERAL

I really cannot agree with the hon. and learned Member. I will just give the House one fact from what has already occurred during the three weeks in which these Rules have been in operation. There have been just over a hundred cases set down under the new procedure Rules, and over a quarter of those are running-down eases. If it be true that it is always to the interest of the plaintiff in running-down cases to be tried by a jury, I invite the attention of my hon. and learned Friend to this fact, that in the whole number of cases which have been set down under the new procedure, three to one of the applications for the new procedure have been made by plaintiffs, and only a third of them have been made by defendants. That seems to show that plaintiffs in running-down cases 'are not afraid of the new procedure Rules. This is an attempt to give effect to a crying demand on the part of the public for cheapness and expedition in legal cases. It is an experiment, but it is a bold experiment, and I invite the House to reject this Prayer, and to allow the judges to administer the experiment without any restriction.

Mr. O'CONNOR

I only wish to add the small testimony of a somewhat limited experience to that of the learned Solicitor-General in regard to the procedure under the new Rule. I would like to express my mild surprise that a member of my profession coming from north of the Tweed should have found objection to take at this early stage to Rules whose obvious object is to give expedition and cheapness and, at the same time, to safeguard all the reasonable rights of the litigants, on both sides.

Mr. MACQUISTEN

May I point out that I take no objection to the Rules except on that one ground, that I think the plaintiff should have a right to a jury trial if he wants it?

Mr. O'CONNOR

My hon. and learned Friend has made his point with great cogency, and I was gratified to notice that, of this large network of Rules, he only objected to one part, namely, that dealing with trial by jury. Do not, however, let the House be under any delusion as to the value of a jury and the reasons why, in many cases, a jury is sought. No one wants to place impediments in the way of poor litigants getting justice, but no one wants to devise or facilitate means by which poor litigants can get something which is not justice, something which is more than justice, by means of speculative actions. Everyone who knows the state of the jury lists in the case of the vast majority of actions for damages for personal injuries knows that a large number of these are what are called speculative actions, that is to say, actions brought by people who have no legal right, but rely upon the sentimentality or sympathy of a jury to give them something to which they are not entitled. There are in existence in London solicitors who have harpies sitting at the doors of the hospitals obtaining news of every accident case brought in, and even ready, in an emergency, to provide witnesses as to the occurrence. There was said to have been one case in which such a harpy was convicted because he gave evidence of two accidents in different parts of London on the same day. That is the kind of abuse that has arisen under the jury system in some of these running down cases. Every member of the Bar knows about it, and every practising solicitor knows of the type of case to which I am referring. These cases clutter up the list and result in the denial of justice to people who have real causes of action; and a denial of justice is a withholding of justice, because swift justice and real justice are really interchangeable terms. So far as these new Rules can lead, as they seem to have been leading, litigants in that class of action to transfer their causes to the New Procedure, under which they run the risk of not being tried by jury, and which, therefore, may be taken as the acid test of the bona fides of an action I think everyone who welcomes speedy justice should be united in attempting to give these new Rules a fair trial.

Mr. ATKINSON

There is one point that was not dealt with by my hon. and learned Friend the Member for Argyllshire (Mr. Macquisten). He considers that the Rules Committee had no power to make Rules interfering with what he calls the sacred right to trial by jury. He may be right or wrong about that. If he is right, the first time a litigant is, against his wish, deprived of a jury, he would have a perfect right to call in question the legality of the Rule and to ask the Court of Appeal to declare that the Rule is a bad one. It does not follow that it is good; if the Rules Committee have exceeded their powers it would be bad, and would be declared to be bad. On the other hand, if it is not bad, it is only because this House has authorised the Rules Committee to make a Rule of the kind. In other words, it is not because the right to a jury is not that sacred right which my hon. and learned Friend thinks it is, but because it is one that is subject to the powers of the Rules Committee. I think that that point ought to be made clear.

Major MILNER

I am in the main in agreement with what the Solicitor-General has said, but I should like to suggest that he should draw the attention of the Rules Committee to the matter of counsels' fees. He says there is a, crying need from all quarters for economies and expedition, and I suggest, as a member of the legal profession of some years standing, that economy most certainly can best be carried into effect by some scale whereby counsels' fees are dealt with. There is, for instance, the two-thirds Rule, which causes great hardship to litigants, whereby a junior counsel can claim two-thirds of the fee of a senior counsel. I respectfully draw the Solicitor-General's attention to that and ask him to convey it to the Rules Committee with a view to further economies being carried out.

Mr. BUCHANAN

I should not have risen but for the speeches of the hon. and learned Gentlemen the Members for Nottingham (Mr. O'Connor) and Crewe (Mr. Somervell). They disregarded what we have been told about quick justice. Their great point was that juries are sentimental, and put sentiment before justice and, therefore, the jury system ought to be discontinued. There are one or two replies that ought to be made to that. First of all, it is a little unfair that juries can be attacked wholesale while judges cannot. Juries carry out judicial work and lawyers can come here and say what they like about them. They practically say they care nothing for justice but only for sentiment. If I say the same about judges, I am told it is not right and I must table my charges, but they can sling their charges about without the decency that should become a lawyer. Hon. and learned Gentlemen have not given a single instance that has happened. Both these hon. and learned Gentlemen hope to be judges one day. [Interruption.] I know it is always denied. The last thing Mr. Snowden denied was that he was going to the House of Lords. But this is the point. They make serious charges against people. They come here and make them without giving the House any evidence. I am entitled to hear evidence, but I have heard none. I am prepared to compare jury justice with judges' justice. I do not know whether Mr. Speaker will pull me up when I say that we are allowed to slander juries and solicitors, but the judges are sacred. When I compare some of Mr. McCardie's justice with that of juries, the juries win easily.

Mr. SPEAKER

So long as the hon. Member was dealing with generalities I did not call him to order, but now he is getting out of order.

Mr. BUCHANAN

I am prepared to say that I have seen bad jury decisions, but I have also seen extremely bad judicial decisions, as a result of which, on appeal, the House of Lords has not merely rejected them but has administered severe censure. The system of trial by jury compares well with that of the judicial system. So far as the insurance companies are concerned, it is not a matter of delay and expense. They are a great vested interest. I would sooner take the juries' expert advice than the judges' expert advice. A judge moves in a very limited human society. The nature of his profession keeps him within certain limits, whereas the jury are usually trained business men. They do not come from the ranks of poor people, but from the business community. They come in contact with life and its realities and can judge much more clearly in civil cases. In civil cases the jury often have a better chance of judging between right and wrong than they have in criminal cases. Very often in criminal cases the police give the vital evidence, and the judge has a better chance of weighing up police evidence than any other class of evidence. In civil cases, the kind of man required is the man who can judge the type of persons giving evidence, and a jury have a far better chance in this connection than the judge.

It is all very well, as my hon. Friend the Member for Bridgeton (Mr. Maxton) said, to talk about cheap justice. What does cheap justice matter to a man if at the end of it he does not get the decision. On the whole, I do not accept the suggestion that judges' decisions are better than those of ordinary men. I could take the country, whether North or South, and find decisions and speeches that have been made from the Bench that have been a thorough disgrace. I am not going into special cases, but I frequently read statements and comments which show a total ignorance both of Acts of Parliament and of unemployment. So far as a thorough trial is concerned, I think the House is taking a grave risk, because once you let it go here it will not be long before it gets into other walks of life. Once you concede a part, it will not be long before it extends to bigger and more fundamental issues.

Question: That an humble Address be presented to His Majesty praying that the Rules of the Supreme Court (New Procedure), 1932, dated 23rd April, 1932, a copy of which was presented to this House on 2nd May, 1932, be annulled,

put, and negatived.

It being after Half-past Eleven of the Clock, Mr. SPEAKER adjourned the House, without Question put, pursuant to the Standing Order.

Adjourned at Nine Minutes before Twelve o'clock.