THE COURT OF CHANCERY.

HL Deb 03 July 1854 vol 134 cc1019-27

LORD ST. LEONARDS

rose, pursuant to notice, to call the attention of the House to the present state of business in the Court of Chancery in the Masters' Offices, and to move for certain returns. In the course of a discussion some time since he had taken occasion to observe, in answer to seine strictures which had been made on the Court of Chancery, that he believed there was no court of justice in this country in which a decision could be obtained at an earlier period, or in which justice was more satisfactorily administered. This observation had led to a great deal of correspondence, and not a few persons had declared that there was no place in which greater delays took place than in the Court of Chancery. He had ascertained, however, that those complaints referred to the business in the old Masters' Offices; whereas his observations were especially addressed to the new state of things in the Court of Chancery, and he certainly had not in view the remaining matters in the old Masters' Offices. But, in consequence of communications made to him, he had been induced to look into that part of the subject, and to move for returns of all the matters which were depending in the Masters' Offices at the time he made the Motion. Those returns had been for some time upon their Lordships' table; but, although he had been very anxious to save the public the expense of printing them, he had found it impossible, upon full consideration, to do so, and they would therefore be before their Lordships in a printed form in the course of a few days. They contained a complete index to cases at present remaining in the offices of those Masters who had not yet been relieved of their duties, the state in which they were at the time when the returns were made, and various details relating to them; so that they would form, when published, a complete book of reference, and he believed that their publication would lead more than any other measure to the speedy winding up of these cases. Their Lordships would remember that the Act of Parliament which abolished the Masters in Chancery allowed them to wind up the matters which were then depending before them; and in order to bring the old system as nearly as possible into harmony with the new, it gave them as nearly as might be the same powers for this purpose as were given to the Vice Chancellors. It directed them at the same time to take certain steps by which the winding-up of the estates remaining in their offices Might be hastened, and, in the event of these steps not succeeding, to certify the fact to the Court. But the Act had, in this respect, either not worked well or had not been carried out. At the time the returns were made there remained in the Masters' Office, in round numbers, about 1,200 cases, many of which were very far from being ripe for final adjudication by the Court. This was undoubtedly a great evil, and it appeared to him to be absolutely necessary that there should be some strong measure in order to meet that evil, and to wind up these remaining cases, which were at once a clog and a reproach to the administration of justice. It reflected great credit on the Vice Chancellors that they had allowed some of the cases in the Masters' Offices to be transferred from the Masters to themselves in order to be worked out at chambers; but he confessed he thought there was great danger of the new system being obstructed in its working by the introduction of these old cases. The matters in the Masters' Offices were not matters which depended upon questions of legal construction; they were almost, without exception, matters of account and of inquiry, and of course the difficulty of taking such accounts and of prosecuting such inquiries was much greater after a delay of ten or twelve years than if they had been prosecuted with earnestness when they were originally directed. Rules of practice had been made under the authority of the Act to avoid all unnecessary delay and expense before the Court itself; and the Masters were directed, as far as they could, to adopt these new rules in their offices, and carry out the new system; but he had been often asked why there were two systems—why the old business already before the Masters was left there, subject to any of the old rules, while the new business was put on an entirely new footing? The answer was plain. The new system was worked out by means of communications between the Vice Chancellor and his clerk, who, it must be borne in mind, was a chief clerk, and nothing more. He should have been glad if the Masters also could have been put in communication with the Judges; but they had represented that they had accepted their offices on an entirely different footing; that they were judicial officers of old standing, and had never been accustomed to communicate in this way with the Court; and that, if they were compelled to do it, their consequence would be lowered and their position materially affected. He had felt the force of this argument so much that he had yielded to it, and the Masters were not required to enter into personal communication with the Judges. Great improvements had, however, been made in the Masters' Offices. Short reports had been substituted for long ones, and the result had been a great reduction of expense. But it appeared that there was an inveterate habit among suitors of delay in the Masters' Office; it was not easy to alter habits, and when a case had been lingering for six or eight years, to make parties suddenly active and compel them to bring it to a close. Therefore it was, the Masters told him, that, although they had endeavoured very earnestly to put the Act of Parliament in force, the delays were not much less than before. Looking at the reports of the Masters, they had the satisfaction of knowing they were dealing with public officers willing and anxious to execute the duties of their office. As the report of Master Tinney was the first returned to the House, he had gone through it and extracted a brief statement of the position in which matters before him stood. The noble and learned Lord proceeded to read a tabular statement prepared from the report of Master Tinney, giving the names of the causes, the date when reference was made, and how far the inquiry had advanced; from which it appeared that in charitable suits many had been fourteen years in the Master's Office and no scheme settled. Of suits for taking accounts, several had been in the Master's Office twelve years, and little done until forced on by the Master. Of administration suits there were instances of twenty-two years, seventeen years, and ten years having elapsed since the reference without any result. A remedy should be found to put an end to this state of affairs; and though he considered that the powers which they possessed would have enabled them to do a good deal more than had been done, still he thought that further powers should be given to the Masters to conclude these long-standing matters, and some additional aid afforded them to get through the business. As regarded the existing Courts, under the Vice Chancellors and the Master of the Rolls, a great delay in business was occasioned in the cases of passing accounts, as the clerk employed to look into and report on cases had also to pass accounts. In consequence of want of time to attend to them, these cases were not passed so regularly as they ought to be; he therefore proposed that a new officer attached to the Vice Chancellors and the Master of the Rolls should be appointed, whose duty should exclusively be to attend to the passing of accounts. If a particular officer were appointed whose duty it would be to investigate these cases, and to compel parties to account in due time, not only would much time be saved, but a great deal of money would be brought in which ought at once to find its way into the pockets of the suitors. The Masters had now 511 different causes in which accounts had to be passed; the time the passing of those accounts occupied prevented the preparing the necessary reports. If, as he proposed, a new officer were appointed, whose duty it should be exclusively to attend to the passing of accounts, he was convinced there would be not only great celerity in winding up cases, but a great deal of money would be brought in which ought to find its way into the pockets of the suitors. He hoped his noble and learned Friend the Lord Chancellor would agree in that suggestion. There were a good many cases which the Masters considered and treated as abandoned; but they had not been reported to the Court, or included in the return. He very much feared many of those cases would be revived; and he proposed that the Masters should certify all abandoned cases to the Court, so that they should be declared closed and finally disposed of. He thought, also, that power should be given to the Master to refer accounts to accountants. They had given that power to the new system, but not to the old system, and he thought it most desirable to extend it, so as to wind up many of those suits which had been standing still for eighteen or twenty years. A further delay was occasioned under the present mode of proceeding in conveyancing matters. Under the Acts recently passed, the Lord Chancellor had power to appoint a certain number of barristers as conveyancers of the Court, to whom reference was made of questions of title for their advice and settlement; and he proposed that the Masters should, when they required assistance, have the same power of referring matters to the conveyancers of the Court. It was not, indeed, clear that they did not already possess that power. He might observe that it was impossible that gentlemen who had been appointed conveyancers of the Court should retain that appointment unless they used that reasonable despatch which was consistent with the Act of Parliament, for, whether the delay was in the conveyancers' chambers, or in the chambers of the Judge, the mischief was the same. Then, he thought provision should be made for intricate matters of abatement and bankruptcy now before the Masters, which he explained. He proposed, further, to give a discretion to the Masters to admit accounts on such evidence as they might deem satisfactory, although not such as, in strictness, the Courts might require. There was a class of cases in a singular predicament, such as they ought not to be left in. The retiring Masters transferred bodily what causes remained in their offices to the remaining Masters, and in several instances no papers had been transferred. The consequence was, the Masters had the name of the case and the names of the suitors, but not a single paper; and, therefore, he proposed that the Masters should advertise all those cases, calling on the parties to bring in their papers by a certain time. Lastly, he proposed that the Lord Chancellor should have power to appoint additional clerks temporarily to assist the Masters. He had not the slightest doubt that the calling the attention of all parties to the state of matters in the Masters' Offices had already led to much despatch, and though at one time he thought he should have to propose that the Masters should be formed into a court, and should hear one by one, in turn, the causes remaining, and make orders upon each of them, he would refrain at present from making such a proposal, in the confident hope that when they met next Session the return from the Masters would be of a satisfactory character. He begged to move for— 1. Returns by the Masters of the Court of Chancery of all Causes and Matters not included in former Returns made by them in pursuance of the Order of the 24th of March last, which they have treated as abandoned. And, 2. Returns by the Masters of the Court of Chancery on the 1st of February, 1855, in continuation or the former Returns, made by them in pursuance of the Order of the 24th March last, stating the further Cases in which Reports shall have been made since the former Returns. He hoped the Lord Chancellor would turn his attention to this subject, and bring in a short Act embodying such of the provisions he had mentioned as he might think necessary, to give full and complete powers to wind up these matters.

THE LORD CHANCELLOR

said, he was sure no Member of their Lordships' House would feel more indebted than he did to the noble and learned Lord for the Motion he had made, and for having called attention to this subject. And if he did not entirely concur in the suggestions made for remedying the evil, it was not that he felt less strongly than the noble and learned Lord the necessity of some remedy. There was one matter which he thought the public ought to understand, and it was this—that, after all, this was more a nominal than a real scandal to the Court. The Court was perfectly open, and the statement of his noble and learned Friend showed the truth that all the delay was not the delay of the Court, but of the parties. It happened in these complicated suits—what happened out of suits and in their own experience—that when parties were involved in a very troublesome matter of accounts, they became weary, and would not proceed. Since the alteration, two years ago, the Masters were not only not instrumental to the delay, but in every possible manner tried to force on the parties to bring the suits to a termination. The difficulty was, they could not get the parties to come forward. Under the Act of 1852, when parties were in default, and would not go on, the Masters had the power of reporting them to the Court. In conversation with the Masters he had asked why they did not exercise their power, and the invariable answer he had received was, that if they did summon the parties and threaten to report them in a week, they begged for longer time, and declared it impossible to proceed in the time named. The Masters yielded to these solicitations on a variety of considerations, and amongst others there was this—that in punishing a party for not going on they might be punishing not the party guilty of the delay, but a number of innocent parties, not parties to the carrying on the cause, but interested in the results. For instance, a decree being made to take account of the property of a deceased person, and to apply it to the payment of his debts, the course was to advertise in the papers for the creditors to come and prove their debts. The creditors were stopped from taking any proceedings on their own account—the person obtaining the decree was the person to prosecute it, and the creditors were entirely dependent on him for the diligence with which the proceedings were carried on. Thus, if the Masters were compelled to dismiss suits, great injustice might be done to the unfortunate creditors who had proved their debts, and who might be willing and read to proceed. He therefore did not think that the Masters would be quite justified in acting with great stringency. After all, there were no individuals in the three kingdoms who were so much interested in getting causes wound up as the Masters, because the moment that was done they were released, and in the full enjoyment of their salaries for the rest of their lives; and, therefore, in every case in which they abstained from exercising the power which they possessed of compelling parties either to go on or to have the cause, as it were, destroyed, they acted directly against their own interests, and only from a sense of public duty. He was inclined to agree with his noble and learned Friend that the proper business of the Masters was interfered with by passing receivers' acccounts; but the evil could not be remedied without the appointment of one new officer at least. He also thought that abandoned causes should be certified to the Lord Chancellor, and dealt with in the way suggested by his noble and learned Friend. He was not certain that he had not already the power to refer to an accountant; but if he had not, it was quite right that such a power should be given by the Legislature. At the same time he might state that it was only in the case of intricate mercantile accounts where a reference to an accountant was at all important; and the truth was, that, although the Judges had at present the power to make such a reference, yet they found it necessary to exercise it only upon rare occasions. With regard to the power to refer to conveyancers, he thought that such references were made at present, but no harm would be done by the power being given by the Legislature. So with respect to the power of the Judges to bring parties before them for bankruptcy and cases of that sort. It was within the power of the Lord Chancellor to advertise causes in which there were no papers, and that course would continue to be adopted. As to the power of the Lord Chancellor to appoint additional clerks, he believed that under an existing Act the Lord Chancellor was authorised to appoint such officers as he might consider necessary; but he thought that the power referred to by his noble and learned Friend had better be given by the Legislature, because it might be a question whether or not the powers already possessed by the Lord Chancellor included the appointment of additional clerks. It appeared to him, however, that if the Masters were directed to make returns to the Court twice within the year, or every term, setting forth the state of the causes, and if such returns were regularly laid upon their Lordships' table, more good would be done than if a mere written document were hung up in the Court of Chancery. They might depend upon it, that the real difficulty was this—that it was not the interest of those who were conducting the suits to devote that extent of time and attention to them to which they were entitled. He hoped he would not be understood as throwing out improper insinuations or reflections upon guy class of men. He believed that there was not a more honourable or a more useful body of persons than the solicitors; but of course there were solicitors of every sort and grade, and undoubtedly a solicitor was much more profitably employed when engaged in dealing with new causes than when involved in the unremunerative and irksome details of old worn-out suits. That was the real source of the delay which occurred; but by the publication at certain fixed periods in every year of the state of all causes, the parties interested would see what their agents had done, and the latter would be shamed into a more vigorous course of attion—although it was but fair to state, in favour of the solicitors, that they were frequently unable to proceed for want of funds. Upon the whole, he thought the suggestions of his noble and learned Friend were most valuable, and would take them into immediate consideration, with the view of seeing what could be done by way of legislation in the present Session, to provide an effectual remedy for the evils complained of.

Ordered to be laid before the House.

House adjourned till To-morrow.