HL Deb 13 February 1852 vol 119 cc488-95

Order of the Day for the Second Reading, read.

LORD BROUGHAM

then moved the Second Reading of this Bill, and explained that it was the same as the one which was sent down by their Lordships to the other House of Parliament last Session, and returned from thence the last day of the Session, with one or two slight exceptions. Some alterations were made on the Bill in its progress through the other House, not in its substance and import, but in the mode of carrying its objects into effect; and considering most of these to be improvements, he had retained them. There was, however, one material alteration which the House of Commons had introduced, namely, the clause which had been inserted in the Bill as presented by him, and which their Lordships struck out last year, enabling barristers, whether instructed by attorneys or not, to appear on behalf of parties. Considerable difference of opinion existed in their Lordships' House with respect to that clause, and eventually it was struck out. He had restored the clause in the present Bill; the object of the clause was to repeal a provision in the County Courts Act of 1846, which prohibited the counsel who practised in those courts from taking briefs from the suitors themselves, and required that they should be instructed by an attorney. He would remind their Lordships that probably, in the County Courts, the same practice prevailed as in the Superior Courts, namely, that counsel were not in the habit of taking-briefs from the clients themselves, but from attorneys. He, however, thought that it was desirable that an option should be given upon the matter, and therefore it was that he bad reinserted this clause in the Bill. With respect to the Superior Courts, there was no inflexible statute law or common law which prohibited counsel from taking briefs from the clients themselves; but they had always been prevented from doing so by usage or custom, the etiquette of the Bar. In the Superior Courts, generally speaking, no counsel took a brief in a cause, unless he had been instructed by an attorney—a practice which in most cases he (Lord Brougham) approved of. He thought it expedient that both in the superior and inferior courts a line should be drawn between the two branches of the profession, and that, as a general rule, no barrister should appear on behalf of parties in either the courts at Westminster or in County Courts without being instructed by an attorney or solicitor. But he also thought that the same freedom upon that point which existed in the Superior Courts might be extended to the County Courts without any fear of its being abused. His objection to passing a law which would prevent counsel from taking a brief in a County Court directly from a client was, that circumstances might arise when the ordinary rule should be departed from. The professional etiquette was a flexible rule; it went to circumstances; it admitted of exceptions in cases of necessity. The statutes' prohibition was inflexible and allowed no exception, however urgent the necessity for the barrister's protection. The Bill which had passed their Lordships' House last Session upon this subject, and which had been sent down to the House of Commons, might appear, from the number of Amendments which that House had made, to have undergone considerable alteration. That, however, was not the case, for the other House had adhered to the substantial portions of the Bill, and only embodied its enactments in a different form. The noble Lord concluded by moving that the Bill be read a second time.

LORD CAMPBELL

said, he always had been and still was a warm friend to the Comity Courts, and he was sure their establishment had most materially improved the administration of justice in this country. He rejoiced to see a Bill again brought; in which improved the Acts that had been previously passed. [Lord BROUGHAM: Improved and extended.] But he regretted that an alteration had been made in this Bill after it left their Lordships' House last Session—an alteration not only materially affecting the profession to which he belonged, but—what was infinitely more important still—affecting the due administration of justice. He believed we were greatly indebted in this country to the distinction which had been drawn from time immemorial between the functions of attorneys and the functions of barristers, and he thought that that distinction ought to be sacredly preserved. With one exception, this distinction had been instituted not by law but by usage; but when the County Courts were established, it was felt that an exception should be made with regard to those courts, and that it should be made by a positive enactment on the subject. With respect to the Courts at Westminster Hall and on circuit, there was a superintendence and a discipline abundantly sufficient to keep up all wise and salutary rules regarding the profession, without any legal enactment; but it was felt that in the County Courts such discipline and superintendence would not exist, and must be supplied by the Legislature. It was therefore provided by the 91st section of the County Courts Act, that; no barrister should appear in any of those; courts unless instructed by an attorney. That he believed was a judicious and salutary rule, and most earnestly would he advise their Lordships to continue it; because if that rule or custom were not maintained, the distinction between the two branches of the profession in the County Courts would be entirely obliterated; litigation would be stirred up and multiplied to an indefinite extent among the lower orders, by having every stage from the beginning to the end of the suit conducted by a spurious barrister; the profession would be degraded, and, what was still worse, the most serious evils would be entailed upon the public. Such a class degraded the order to which they belonged; and the serious objection he entertained to the 24th clause of the noble and learned Lord's Bill was, that it would have a tendency to increase the evil. He knew that there was an idea abroad in fa- vour of what was called "free trade in law." Now, although there were many things to which the principle of free trade was well adapted, he could not think that the law was one of them. It was his opinion that it was highly desirable that this prohibition against counsel practising in the County Courts without being instructed by attorneys or solicitors, should continue. It was said, indeed, that it was at present competent for a barrister to decline practice which was not accompanied by instructions from an attorney; but if it were for the general good that such a usage should prevail, surely there could he no objection to its being enforced by legal enactment. The barrister, too, ought to be guarded against a practice which now prevailed, namely, that of attorneys acting in court, not on their account, but in the capacity of advocates, and instructed by other attorneys. He was ready to second any measure which should put an end to such a practice. If a suitor were contented with one law agent, he might choose an attorney to act for him; but if he thought proper to have two law agents, an advocate as well as an attorney, that advocate ought to be a barrister, both for the sake of the suitor himself, and also for the sake of the Bar. The question was one with which the interests of justice were very intimately connected, and he could not help regretting that his noble and learned Friend had not allowed himself to be guided by the strong opinion expressed in their Lordships' House last Session, that a clause of this kind was necessary. He (Lord Campbell) trusted that it would be introduced in Committee, and in that hope he would give his entire and cordial support to the Bill.

LORD CRANWORTH

did not rise for the purpose of protracting the discussion on this subject. He only wished to say that he reserved for himself the full power of expressing in Committee, when the Bill should reach that stage, the opinion which he expressed last year upon the same point, and which, it would be remembered, was generally to the same effect as that which had just been given by his noble and learned Friend beside him (Lord Campbell), though he did not anticipate quite the extent of evil contemplated by his noble and learned Friend. His object in now rising was to make a remark upon the general frame of the Bill. Though, as their Lordships were aware, it was only one Bill, it had, in fact, two distinct objects—one half of the Bill related to the extension of jurisdiction of the County Courts over those subjects in which they had jurisdiction at present, and which he would call common law jurisdiction; the other half of the Bill conferred upon them powers for assisting the Court of Chancery in carrying into execution such decrees and orders as it might issue, and to a certain extent to enable them to discharge the functions of the Masters in Chancery. On the importance of both these objects he entirely concurred with his noble and learned Friend last year, and he concurred with him still; but he owned he entertained considerable doubt as to the policy of now proceeding with that part of the Bill which related to the Court of Chancery, when they knew—or, at least, had been informed upon authority which they could not doubt the accuracy of—that there was soon to be brought into the other House, and he hoped before the end of the Session would be brought before their Lordships, a Bill which would grapple with this and all the other difficulties of the Court of Chancery. In those circumstances he doubted the propriety of running the risk which would be occasioned by the passing of this Bill, of increasing the difficulties which existed in carrying into execution the recommendations of the Commissioners with respect to the very matter which formed the subject of one half of this Bill. He thought it would be more expedient to strike the part relating to the Court of Chancery out of the present Bill, and introduce it as a separate measure, which they could either pass or not, according as they might be satisfied or otherwise with the larger measure with reference to the Court of Chancery.

LORD BROUGHAM

said, that the point urged by his noble and learned Friend had not escaped him. He was aware that when the measure to which his noble Friend alluded came before the other House, it might be found to contain some provisions respecting the taking of evidence, and the transactions of other business belonging to the Masters' Offices, on which he now proposed to give powers to the County Courts. But still he could not help thinking, from the best attention which he had bestowed upon the Report of the Commissioners, that it would be found not to dispense with the necessity of some such provision as should give the County Courts certain of the functions now performed by the Masters in Chancery. It would still be necessary to take evidence in the country, and have other matters there transacted, without bringing parties or their agents up to London. That, however, would be more easily considered at a future stage of the measure; but he entirely concurred with his noble and learned Friend in deprecating any proceeding which might have the effect of retarding or impeding reforms of a more extensive and important nature. With respect to what had fallen from the Lord Chief Justice, he (Lord Brougham) could not think that his noble and learned Friend had fully or sufficiently considered the subject on which he had spoken, he had argued that the difference between the County Courts and the Superior Courts was such as well to justify a particular enactment in the case of the former. Now, it was not merely the influence of the Bench, or of usage, and etiquette connected with that usage, in the Superior Courts, which served to prevent the confounding together of the two branches of the profession, because in the country Courts of Bankruptcy and in all other courts except the County Courts—in the more obscure as well as the higher courts, the barrister was left at perfect liberty, and there was nothing to prevent him from taking practice without the intervention of an attorney or solicitor. The etiquette which prevailed in the Superior Courts was not universally recognised, and there was no confusion, not withstanding, between the two branches of the legal profession. And was it not right to throw around the barrister a protection by which he might be enabled to defend himself against combinations by solicitors and attorneys? That such combinations had at times existed, there could be no doubt whatever. In one instance, of which he (Lord Brougham) had some recollection, a member of his profession, in consequence of what he believed to be the faithful discharge of his duty in the other House of Parliament, incurred for a season the displeasure of the other branch of the profession, and a circular was issued to that part of the country in which the barrister practised, giving a plain intimation of the opinion of the principal attorneys and solicitors that he should be visited with the displeasure of the profession for what he had said in his place in Parliament. That displeasure was exercised not only affirmatively but negatively, by withholding all professional intercourse from the obnoxious party; but the barrister in question, know- ing that it was usage alone which prevented him from throwing open his chambers, and taking practice without the intervention of attorneys, gave an intimation that he would resort to this course. By these means room was afforded for explanations, and the circular was ultimately withdrawn. Other combinations had also existed at times upon different and perhaps less important questions. What would their Lordships think of combinations among attorneys and solicitors not, to give a brief to a barrister in any Court if he should presume to attend the County Courts, that branch of the profession being minded to have a monopoly of those courts? In such a case, if etiquette were the only prohibition, a barrister might protect himself against such a combination. He (Lord Brougham) threw out these remarks by way of illustration of the view which he had submitted to their Lordships, and he commended them to the candid consideration of his noble and learned Friend. Another subject had again been pressed on his attention. A proposal had been made now, as last Session, to vest in the County Courts a general equitable jurisdiction, and a petition had been presented to that House, praying that they might be given an equitable jurisdiction in the case of sums of money not exceeding 500l. He wished to take that opportunity of saying that he had given the suggestion his best and most attentive consideration, and he had arrived at the opinion that it was entirely impossible to fix any such rule. He should, however, continue to direct his attention to the subject, as he was aware of the interest which it excited in many parts of the country. He bad presented a Bill to the House last Session which embraced this subject; and, its it appeared to him, without the manifold objections to which the plan of giving the equitable jurisdiction under a certain amount was plainly liable. Last Session the Bill had been much considered, but it had not passed their Lordships' House, although it had never been rejected by them.

LORD CAMPBELL

, referring to the instance of combination mentioned by his noble and learned Friend, observed that there was little danger of the attempt of the solicitors and attorneys prevailing against an individual whose splendid talents and profound learning were such as to make him generally sought after by suitors. No one could be more proud of his profession than he (Lord Campbell) was; but there must be in every rank and profession some members not so remarkable as others for delicacy and propriety; and in the present case he feared that there might be a class of barristers, who never came to London, who were not in the slightest degree under the influence of the leaders of the profession, and who, unless they were restrained by positive enactment, would be liable to be tempted into improper proceedings. He had observed that his noble and learned Friend (Lord Brougham) was by no means confident in the correctness of the opinion which he had expressed upon this subject, and he implored him to be guided by the decision which their Lordships had already arrived at.

Bill read 2a.