HL Deb 06 April 1854 vol 132 cc491-6

, in moving the Second Reading of the Bill, said, it had at various times been stated that the law of England did not encourage arbitration; but he could hardly admit that this was a just charge against the law itself—he thought it would be truer to say that the English courts had frequently gone out of their way to discourage arbitration. But, letting the blame be divided between the law and the practice of the law, one thing was certain, that till a very late period the law and practice touching arbitration was of a most unsatisfactory nature. It was one of the great benefits which we derived from the reign of William III., that an Act was passed for the purpose of encouraging arbitration, by which it was provided that parties might agree to have the submission of their suits to arbitration made a rule of any of the King's Courts of Record, and that after such rule, the parties disobeying the award should be liable to be punished as for a contempt of court. But a principle was established both in the courts of equity and in the courts of law, by which it was found almost impossible to consider the most solemn reference that could be made to arbitration of any legal effect whatever, because the award not being made, the reference not being completed, either party, at the last stage, might revoke his consent, and put an end to the whole proceeding. The consequence of this was, that as soon as either party discovered, or thought he discovered, that the arbitrator was likely to be against him, he revoked his commission and the arbitration was at an end. About twenty years ago, however, by the 3 & 4 Will. IV., this most absurd state of the law was altered, and the authority of the arbitrator cannot now be revoked by either of the parties unless under particular circumstances and with the leave of the court. But great defects still existed in the law; for were the instrument appointing the arbitration ever so deliberately signed, yet it was of no more value than waste paper, because no means existed under the present law of compelling the reluctant party to go on with the reference. Take the case of partnerships. It was one of the great complaints of our commercial men that, however deliberately the usual article in partnership deeds might be agreed on, that in case of dispute the matters in difference should be referred to arbitration—though even the parties might have covenanted to refer to a particular person's arbitration—no action could be maintained upon the breach of that condition, no bill in equity could be effectual to compel the specific performance of it. It was absolutely at the option of either party to prevent, at any moment, the proceeding going on with effect, and as the question could only arise after the parties had differed, it was not very likely they would come to an agreement and go on. The main object of this Bill was to make a reference to arbitration effectual by making it possible for one willing party to compel the other to go on; so that unless both parties chose that the reference should be put a stop to, the arbitrator would proceed to make his award. He had added three clauses to the Bill, which did not appear when he presented it. Great complaints had been made by the Judges that matters which ought to be referred to arbitration frequently came on for trial in courts of justice, which were very ill adapted to deal with them—particularly in matters of account. The consequence was, that after all the expense of bringing the cause for trial, of retaining counsel, engaging attorneys, and having witnesses and documents ready, the case was no sooner opened than the learned Judge, and the counsel on both sides, agreed "this was really not a case to be tried before a jury, and it should go to a reference." The case then usually ended in a reference, and it ended in a reference after all the expenses of a trial had been incurred, expenses which were to be renewed, and perhaps increased, before the arbitrator. The Bill dealt with this, and gave permission, under certain modifications, to the Court which would try the cause to direct a reference. Following the recommendation of the Common Law Commissioners, it proposed that the reference should be made to the Judge of the County Court; but he was inclined to add that it should be referred to the Judge of the County Court unless the parties preferred another arbitrator. He had further provided for allowing one party to summon another before a Judge at chambers when hardly any expense had been incurred, and letting the Judge decide whether the case was one for reference; and if the other party—notwithstanding the Judge's deciding that it was—chose to go to trial, of letting him do so, but at the risk of costs. Those who attempted to reform the law were exposed to two objections. One was, "Why do you bring so many measures of law amendment before Parliament?" The other, "Why do you not bring in more measures, and more comprehensive ones?" He could only say, for himself, if he were charged with presenting too many of such law amendment Bills for the consideration of their Lordships—that if their Lordships knew how great were the numbers that he declined to introduce—if they were aware how frequently he received applications not merely from respected individuals, professors of the law and practitioners of the law, but from bodies of his fellow-subjects engaged in agriculture, in manufactures, or commerce, urging him to propound this remedy or that remedy for what he was inclined to consider great grievances under which they laboured, and of removing what he admitted to be great defects of the law—if their Lordships were aware how many more of these Bills he had refused to present than those which he actually had brought forward—they would, he thought, not at all agree with the first class of objectors, who asked, "Why do you present so many measures of law reform?" Then, with respect to the second class of objectors, who asked, "Why do you not go further, and bring in more comprehensive measures?"—Those who were the friends of the amendment of the law—called in common parlance "Law Reformers"—were only suffering the same persecution, so to call it, which Par- liamentary reformers on occasions now long past used to undergo, from those friends of Parliamentary reform who had more zeal than knowledge; and this their Lordships would understand, when he reminded them that some of the most distinguished Reformers used to speak of those who were moderate Reformers as mock Reformers, using the term "moderate Reformers," and "mock Reformers" as though they were exactly synonymous. He believed that he did wisely in adhering to the doctrine of a moderate reform of the law, and not going too far, or too fast, considering the important interests which legislation upon such subjects must affect. Again, upon the charge that he presented too many Bills for law reform to their Lordships, he might observe, that the majority in number, and the great majority in value, of the Bills which he had presented to their Lordships for the amendment of the law, had passed, and were now the law of the land. Referring to the year 1845, in which he was most charged with introducing a multiplicity of projects of law amendment—to that year in which he had laid nine Bills upon the table of their Lordships' House—he would ask how many of those Bills had passed? He knew that five out of those nine Bills had passed, and were now the law of the land. Although he was told in that year, nine years ago, that he was presenting a set of crude projects which he had not the slightest chance of carrying, he was able to refer to the fact that the Bill respecting the Conveyance of Real Estate, the Bill respecting Satisfied Terms, the Bill respecting Leases, had all passed, had all become law, had all become Acts of Parliament in that very year; and to show that the benefits resulting from these amendments of the law were not speculative, but strictly practical, he would remind their Lordships of what he had stated on a former evening when few of their Lordships were present to hear the statement, that at a meeting of the Society for the Amendment of the Law it had been stated by the solicitor of a noble Duke, in his client's presence, that the operation of one of these Bills alone had saved his Grace nearer 5,000l. than 4,000l. in one year. He thought, therefore, that so far from these reforms being justly characterised as wild, speculative, and chimerical, anything more practical had never been propounded. He might appeal, also, to his Friend the noble Mar- quess opposite, who had postponed certain arrangements concerning his estates until the proposed amendment of the law had received the sanction of Parliament, to bear him out in the statement that he had been benefited—he would not say to what amount, but to a very considerable amount—by his (Lord Brougham's) Bill of 1833 abolishing fines and recoveries. But, as to his Bills of 1845, the one might be justly cited—in favour of which his noble and learned Friend opposite (Lord Campbell) had borne ample testimony—the Bill to enable parties to be examined as witnesses. That Bill was originally propounded in the year 1845, when their Lordships gave it a second reading. It was dropped then in consequence of the advanced period of the Session; but it had been since passed, and was now in full and beneficial operation, as was also another, improving the Law of Evidence. So true were the words of Lord Bacon—and they ought to be a great comfort to the friends of law reform—that "No good suggestion for the amendment of the law ever was made which did not, in time, although it might not immediately, bear good fruit." They ought to take great comfort from such words; and he hoped and trusted that the passing of this Bill for the amendment of the law of arbitration, and of one or two other Bills which were now before their Lordships' House, would give additional encouragement to the friends of temperate and well-considered amendments of the law. The noble and learned Lord concluded by moving the second reading of the Bill.


thought his noble and learned Friend bad given himself very unnecessary trouble in vindicating himself from charges that had never been made by any person whose opinion was of the slightest consequence. All whose opinions were entitled to any weight were well aware that the cause of law reform was under the deepest obligation to his noble and learned Friend. His noble and learned Friend appeared to think that their memories were much shorter than they really were, for he could assure him they did not forget, nor would posterity be likely to forget, the great services which he had rendered. With respect to this Bill, he should be delighted to see the law upon the subject of arbitration further amended; but he thought his noble and learned Friend was hardly justified in saying that the courts of law had shown the slightest hostility to arbitrations; for there was a very good law passed in the reign of William III., which had been acted on very beneficially. In reference to what his noble and learned Friend had said upon the subject of arbitration clauses in articles of partnership, he thought he had hardly done the Judges the honour to read the recent decisions in Westminster Hall. He fully agreed that it was much better to refer as soon as an action was commenced, than after all the expense of preparing for a trial had been incurred; and with this object he fully concurred in the Motion for the second reading of the Bill, which he hoped his noble Friend would consent to refer to the Select Committee on the Common Law Procedure Bill, since some of its clauses were similar to clauses contained in that Bill.


said, he bad himself intended to propose that course.

Bill read 2a, and referred to the Select Committee on the Second Common Law Procedure (1854) Bill, &c., and the Bills of Exchange Bill.