HL Deb 26 March 1855 vol 137 cc1060-7

Order of the Day for the House to be put into a Committee on the Bill read. Moved, that the House do now resolve itself into a Committee upon the said Bill.

LORD LYNDHURST

said, that the Bill referred to very important matters, which he thought it most desirable that it should be referred to a Select Committee. He had to present petitions in favour of such a course of proceeding from the Incorporated Law Society, and from the clerks referred to in one of the clauses of the Bill. The noble and learned Lord, who was very indistinctly heard, proceeded to condemn the existing mode of remunerating solicitors, which, he contended, required a thorough revision. Until such a step were taken, most of our other reforms in the judicial system of the country, whether relating to equity or to the common law, would be in a great measure nugatory and abortive. In adducing authorities in support of this view, the noble and learned Lord quoted an opinion expressed before the Incorporated Law Society by the late Lord Langdale, then Master of the Rolls, which was to the effect that the present system gave to solicitors and all other legal practitioners a direct interest in increasing the length of documents and in protracting the duration of proceedings; and that in many cases a solicitor was compelled, in his own defence, to put his client to very heavy and unnecessary expense, in order to obtain some remuneration for services in respect of which he could not otherwise make a legal demand. The noble and learned Lord then illustrated the practical working of the system by reference to particular instances, characterising it as absurd, unequal, unjust, and impolitic, and arguing that under its operation the solicitor had an interest directly adverse to that of his client, and antagonistic to that speedy and efficient administration of justice the promotion of which had been the object of so much of our recent legislation. The system was closely connected with the speedy and efficient administration of justice in the Court of Chancery; it called for investigation, and he believed it could not be investigated better than by referring this Bill to a Select Committee.

THE LORD CHANCELLOR

agreed that the question of the remuneration of solicitors in the Court of Chancery was of the greatest importance; at the same time it was one of very considerable difficulty, and he thought he had some right to complain that his noble and learned Friend had not communicated with him previous to bringing it under the notice of the House, as he then should have been able to enter into the subject more fully. Shortly after his acceptance of the Great Seal he had been waited upon by a deputation frrm the society referred to; and, in consequence of the representations then made to him, he had thought it his duty to look into the subject to see if he could devise any more satisfactory plan by which the remuneration of solicitors should be calculated upon the principle of the quantum meruit, which ought, in truth, to be the object of all systems. The noble and learned Lord said that the remuneration ought to be calculated on the scale of quantum meruit, but the difficulty was how to ascertain the quantum meruit. The scale of fees at present in force had been fixed by his predecessor in office after great consideration; and, no doubt, it would be extremely inconvenient to be changing the fees every year, so that persons would never know what it was that they were to receive. It very often happened that the interest of the client conflicted with that of the solicitor, and, if proceedings were to be paid for by their length, not very honourable practitioners would be occasionally tempted to lengthen the proceedings, in order to increase their remuneration. The proposal to pay them according to a per centage of the value of the property involved appeared to him perfectly preposterous, for sometimes a question involving 100,000l. might occupy a very short space of time. In like manner, it would be impossible to look into each separate case to see what remuneration should be given for the particular service performed. He had, however, consulted the three Judges and the taxing master upon the subject, beside several eminent practitioners in the Court, with a view of devising some more satisfactory scale; he found, however, that he was fully justified in saying that the matter was full of insuperable difficulties, and he had been obliged to leave it as he found it, with the exception of making some slight alterations in the fees adopted in 1842. This was in the spring of 1853. Since then the Master of the Rolls had informed him that he had gone into the subject, but had not succeeded in framing any plan which would exactly meet the views of all parties, and he had abandoned the task. It was customary for the Judges of the Court of Chancery to meet together, in the evening of the first or second day of each term, to consult as to any alterations of practice which might have been suggested by the proceedings of the previous three months; and at one of these meetings, at the beginning of Michaelmas or Trinity term last, it was represented to him by all the Judges of the Court of Chancery that it would be of great advantage if largely increased remuneration were given to solicitors in cases where, by their having got the facts into a neat and intelligible form a long inquiry was superseded, and the hearing compressed into an hour or two, instead of being spread over two or three days. This was an alteration which he had been of opinion could safely be made; but he owned he entirely despaired of ever arriving at any general system of remuneration which should exactly satisfy the wishes of all parties. If his noble and learned Friend would move for a Committee to inquire into that subject, he should be the last man to oppose it, provided it was to be effected in a legitimate manner; but he certainly could not consent to such an inquiry being tacked on to this Bill, with which it had nothing whatever to do. With respect to the present Bill, the original object in introducing it was to obtain power to appoint additional junior clerks to assist the senior clerks in the Judges' chambers, it having been represented to him by the Judges that the business in their offices was greatly impeded by the want of such clerks. The senior clerks, it appeared, having each only one junior clerk under them, were often obliged to do work which would properly fall to the lot of a junior clerk to attend to, and it was thought advisable that extra assistance should be afforded them by the appointment of a second junior clerk in each office. He originally introduced the Bill with that sole object; but his attention was then called by persons connected with the Court of Chancery to the fact, that there was one office, that of Master of Reports and Entries, the abolition of which had been recommended by a Committee of the House of Commons, but that was not adopted by the Act passed three years ago, although other recommendations of that Committee were adopted; and the second object of this Bill was virtually the abolition of that office. The reason why the recommendation he had mentioned was not adopted was, that his noble Friend, Lord Truro, thought that that was a hasty recommendation—that the office was useful—that, if necessary, its duties might be increased; he therefore thought it was better it should remain. But it had since been found that the office did not work well. The office of Clerks of Records and Writs, in which most of the business of the Court of Chancery was carried on, could transact more business, and more effectually, if it were separated from the Office of Reports and Entries in the way in which it now existed. It was therefore suggested as desirable, practically to abolish the Office of Reports and Entries, the present holder of that office to be called upon to perform other duties, with the same salary, during his life, and that the duties he had hitherto discharged should be transferred to the Clerks of Records and Writs. He had made it his duty to go and inspect the Office of the Master of Reports and Entries, and he must say that it was in a most discreditable state. The place was crowded with documents so as to defy all attempt at arrangement, and the whole floor was covered with papers that were of the greatest importance. By the Act of the 15 and 16 of Vict., four clerks were appointed to perform the duties of Clerk of Reports. One of those appointments fell vacant the other day. The Master of the Rolls had not felt it to accord with his views to fill up that vacancy, so that three clerks were now discharging the whole of the duties of that office. It was proposed that they should continue to do so, and that if it should appear to the Lord Chancellor that the additional duty cast upon them deserved additional salary, he—with the advice and assistance of the Master of the Rolls—was empowered to give it, so that the whole amount paid for such salaries in any one year should not exceed, if divided equally, 250l. for each clerk. Under the Act which abolished the Masters' Offices, power was given to the Lord Chancellor to let or sell the Masters' Offices; now by a former Act, the fee of these offices was vested in the Crown; and the third object of this Bill was, that the piece of ground in Southampton Buildings and the buildings thereon should be vested in the Lord Chancellor for the time being for the purposes of the said Act. With regard to the proposal of his noble and learned Friend to refer the question of solicitors' fees to a Select Committee, he thought it was going out of their Lordships' way, and would be doing an act which was not at all necessary.

LORD ST. LEONARDS

said, that one thing was most obvious, that nothing would be more unwise than to disturb the late settlemennt on this question without grave consideration. What he called the late settlement was the Act passed in 1852, when the new arrangements were made with regard to the Court of Chancery, affecting not only the matters referred to in the Bill now before their Lordships, but the whole business of the highest court of judicature in the kingdom. He was not disposed to offer any opposition to the present measure; but there ought to be great forbearance exercised in coining to a decision upon any particular branch of the system until they saw how all its parts worked together. If their Lordships allowed a pressure from without to have too much influence, they might by and by find it exceedingly inconvenient. Give the system a little time to work, and whatever evils might be found in it, set about and correct them. As regarded the appointment of an additional junior clerk to each chief clerk, it was impossible to resist that demand. He agreed with his noble and learned Friend, as to the appointment of an additional chief clerk, that if not absolutely necessary he should regret its being done. If the Judges did not require it, he was sure the chief clerks did not require it. If there were more chief clerks, it appeared to him that the great security of the whole plan of 1852 would be violated. That plan was based upon this:—that the clerks should be kept in their proper position; that they should be men of ability and of judicial power, but that they should not be viewed in the same light as the masters were, but should depend upon and be under the sole direction of the Judge. The duties of the chief clerks, from what he had himself seen, had been well discharged, and he believed the offices were filled by men who had proved themselves competent for the duties intrusted to them. With regard to the building of new courts, he certainly would press upon his noble and learned Friend the necessity of taking the subject into consideration without loss of time. He rejoiced that he had successfully resisted the transferring of the Judges chambers to the masters' offices. He felt that the locality was extremely prejudicial for carrying on the business of the Court of Chancery; but, although he did so, never thought of hiring chambers except as a temporary arrangement. There was a spot in Lincoln's Inn on which two new courts could be built, with convenient chambers for the Judges' clerks, and if the Masters' offices in Southampton buildings were sold and the money applied to the new building, the expense would be very small indeed. He thought the Government ought to erect the building suggested, as it was almost essential to the working of the legislation of 1852. As his noble and learned Friend retained the Master of the Records and his salary, he did not object to that part of the Bill. He considered the clerks had mistaken the course which they ought to have taken, and that, instead of petitioning against the Bill, they should have gone to his noble and learned Friend and respectfully submitted to him any complaint on the subject of remuneration. Unless the new system were watched they would have abuses springing up. It was not sufficient to carry measures of reform. It was the duty of his noble and learned Friend on the woolsack, of his noble and learned Friend near him (Lord Lyndhurst), and of himself—who understood the subject—to give their anxious attention, for the benefit of the suitor, to see that the system worked as was intended. It was said that the attorneys did a great deal of work and had very little to show for it; but they must take the business altogether, and consider whether the whole did not produce sufficient remuneration. His noble and learned Friend said the attorneys had the temptation to make conveyances of unne- cessary length for the sake of costs; but he did not believe—though in every profession there would be some persons who would act dishonourably and discreditably—that any respectable professional man would indulge in great length for the mere purpose of making charges. If they altered the fees, that would give an additional motive for delay. They could not prevent delay except by such arrangements as those of 1852. His argument with the attorneys was that, although the scale of fees was not so large, the facility with which cases would be decided and these bills paid would be more advantageous than those longwinded suits in which the interest of their money absorbed a great proportion of their profits. He could have no other motive in settling the fees of 1852 than that of giving fair remuneration to the attorneys, standing as he did between them and the suitors. If it could be shown that they were entitled to higher remuneration he was perfectly ready to join with his noble and learned Friend in giving it; but still he must say they ought to take the rough with the smooth—it would not do to take all the plums and leave the rest of the pudding. The attorneys desired to have any expense saved by their exertions considered in the amount of remuneration. If that could be done he should not object, but there must be something by which to measure the value of services, and, therefore, the proposition on the part of the solicitors did not seem to him to be practicable. He would not oppose the Committee, but he was bound to declare that he should not got go to that Committee with any hope of ever coming at a satisfactory conclusion. There were in the scheme of 1852 several things requiring attention, and one was the operation of the regulation relative to the examination of witnesses. Care should be taken to see that the expenses were kept within narrow bounds, and that no special examination was taken without very sufficient grounds. There ought also to be some cheek upon the number of counsel who attended before the examiner.

LORD LYNDHURST

said, it was now nine or ten years since he had washed his hands of the Court of Chancery, and he had never wished to entangle himself again in its folds. He had to-night presented a petition from the Incorporated Law Society, who were more minutely acquainted than any other body of men with the proceedings of the Court of Chancery. He had no doubt their statements were correct, and he had founded his observations upon the statements of that petition.

THE LORD CHANCELLOR

had referred to the petition of the clerks in the Record office, who had not adopted a perfectly correct course in presenting a petition to their Lorships' House without previously communicating with the head of that Court. The circumstance should never be an obstacle in their way as far as he was concerned, but he must protest against such a course as irregular. He thought it right to add that he had received a letter from seven other clerks in that office, who stated that they entirely dissented from the petition.

LORD LYNDHURST

said, that the Bill did not put the clerks of the Record office on the same footing as the other offices, as was recommended by the Select Committee of the House of Commons of 1848.

Motion agreed to; House in Committee accordingly; Amendments made; The Report thereof to be received To-morrow.

House adjourned till To-morrow.