SECOND READING. BILL POSTPONED. (Hansard, 25 June 1857)

LORD BROUGHAM
said, he did not at present propose to press this Bill to a second reading, but, as he had given a notice of his intention to call the notice of their Lordships to the subject of vexatious suits, he would take this opportunity of making his statement; but he would not detain their Lordships long. This was a Bill which he had twice before presented to their Lordships, for preventing vexatious litigation by the establishment of courts of reconcilement. He had the misfortune to differ from the noble and learned Lord on the woolsack and from other noble and learned Friends upon that subject; they were, at least, not so sanguine as he was of the benefits to be derived from the establishment of courts of reconcilement. His own opinion was a very strong one, and was founded upon what took place in other countries. In France more than two-thirds of all the causes brought into court were stopped by the court of reconcilement, including one-third of the greater causes. In Denmark the result was still 339 more striking; for there, out of 30,000 causes brought into court, no more than 3,000, or one-tenth of the whole, ever came to be tried, nine-tenths being stopped by the court of reconcilement. In Germany and Switzerland the experience was precisely the same. In all these countries the system had been found to answer better than in France, because it was under better regulation. Of the value of the principle there could be no doubt; but knowing the great indisposition of his noble and learned Friends to adopt this plan, he could hope for no more than that they might be induced to approve those parts of the Bill for preventing vexatious litigation. Since the Bill was last before their Lordships, he had made one material change in it. It originally stood that the parties were to go before the Judge without their counsel or their attorneys; but he had been induced to alter it, and to enable them to go there, if they were so minded, with their professional advisers. He now begged to call the attention of their Lordships to the experience of the Examiners' Office of the Court of Chancery since the recent change in its constitution and practice. The present Examiners had had before them somewhere about 600 causes, and they had found the intermediary process of examination most successful. One-seventh of the whole had been stopped in the office through their kindly intervention, and allowed to go no further. No doubt, as the Master of the Rolls, the head of that office, suggested, much of this was owing to the parties becoming aware of each other's feelings. One advantage of the plan, indeed, was that the parties at an early stage, before any expense had been incurred, were brought together, and, discussing their several cases, each knew what chance he had of meeting a formidable array of evidence against him, the result being that many hopeless actions and defences—hopeless suits for one party or the other, which would have been attended to one of the parties with great—perhaps ruinous—expense were stopped. But in what he proposed there was also the great benefit of the parties coming before a respected individual of sagacity and experience, wholly uninterested, and giving his advice from no possible motive except that of kindness towards the intending litigants. The effect of that with respect to the Examiners had been, that in almost all cases in which they had recommended the plaintiff 340 to give up his suit because he had no chance of success, or advised the defendant to abandon his defence because he was sure to be defeated, their advice had been Followed. The Examiners had told him that attorney's actions, either in inception, or what became attorney's actions during the suit, formed a very large proportion of all actions. The defect in the Examiners' Office, valuable as it had proved, was this, that when the parties got there, a good deal of expense had been already incurred. Were there a court of reconcilement in the first instance, those expenses might not be incurred. It was a melancholy fact, known to all who had lived as long in the profession as he had, that great suffering occurred to poor and deserving persons through unhappy litigations. How many instances had he known of the ruin of men's fortunes?—cases which were distinctly traceable to their having engaged in suits, for the success of which there was no reasonable hope. Were there courts of reconcilement to which they might apply in the first instance, their ruin might have been prevented. He proposed that, in order to prevent vexatious suits, the litigation of claims for which there was no just foundation, by persons in insolvent circumstances, he would give power to a Judge to require security for the costs to be incurred in such action. Actions the most desperate and untenable were brought; subscriptions were obtained for carrying them on, at the instigation of some pettifogging practitioner of the law; and, when they failed, the plaintiff was found to be utterly incapable of paying a farthing. There was the well-known case of Smyth (Provis) v, Smith, in which a man utterly reckless, wholly unprincipled, as dishonest as any man who ever entered a court of justice, brought an action of ejectment against the proprietor of an hereditary estate, and put that proprietor not only to great expense but to great anxiety for months and years. The claim on his property was defeated. Smyth himself was examined, and a person seeing in the London papers an account of the examination was enabled to send down a telegraphic message which convicted him of the fabrication of a ring and of the forgery of a document. He was tried for forgery. He might also have been tried for perjury, but he was tried and convicted of forgery and sentenced to transportation for life. The defendant in the action 341 brought by that man had to pay between £7,000 and £8,000. It might be asked how were the funds for carrying on the proceedings provided? He grieved to say they were provided by the subscriptions of persons in London and Bristol, who, on the promise of 150 per cent, were ready to speculate on the chance of success; but those persons would not have been willing to run the risk of having to pay the whole costs in the suit. He would answer for it that if there had existed such a provision as he proposed, Provis would never have found any person to give security for costs. Provis broke down under his own examination under the admirable operation of the new law of evidence: but this was but one remarkable case. He might cite to their Lordships hundreds of cases of smaller amount in which the defendants were put to an expense of £400 or £500 by these vexations proceedings. The only other provision of this Bill was to cure a defect in the insolvency law. The Insolvency Court did not possess the power of visiting parties to vexatious suits with punishment, unless they happened to be defendants. He proposed to make the power of punishment apply equally to the plaintiffs. He would not at present trouble their Lordships further, but would move the second reading of the Bill, in order that further proceedings might be adjourned.

THE LORD CHANCELLOR
said, he was, to a certain extent, opposed to courts of reconcilement, because he believed they would be only sinks for adding to the expense of ordinary litigation. When it was said that the Examiners in the Court of Chancery found they could often put an end to suits, it was no doubt perfectly true, because it should be remembered that the parties had been in violent hostility to each other for some time, and, the truth having all come out, they had the means of knowing what the chances of success or failure were. It seemed to him that to force persons to appear before a tribunal amicably to settle their differences, would only lead, ultimately, to further litigation. With respect to the proposal to call upon the plaintiff to give security before entering upon a suit, he could only say that it was one which, in his opinion, was open to grave objection, because the Judge who was to fix the amount of security could know nothing about the merits of 342 the case without having the whole matter investigated before him. The object which his noble and learned Friend sought to accomplish was no doubt one of great importance, and its attainment would be productive of considerable advantage if it could only be made consistent with a due regard to the interest of the poorer class of plaintiffs. He must confess that he entertained great doubts upon that point, but he should abstain—as his noble Friend proposed to move the adjournment of the debate—from offering any further comment upon the subject on that occasion.

LORD CAMPBELL
said, he had not the slightest doubt that a court such as his noble and learned Friend sought to establish had been productive of great benefit in Denmark and other continental countries; but he must at the same time contend that it would be found to be totally irreconcilable with the form of procedure in England; that it would add to the amount of vexatious litigation, and would increase the costs of particular suits. Out of the causes which came on for trial in this country eighty per cent were of a nature in which the question involved admitted of no doubt, in which the defendant had not a shadow of a chance of succeeding, and in which his only object was to seek some means by which a good defence might be got up. In ten out of the remaining twenty per cent, to bring the parties face to face before entering upon a suit would, instead of leading to a reconcilement between them, be, in his opinion, productive only of exasperation. He was quite as much alive as his noble and learned Friend could be to the evils resulting from the prosecution of vexatious claims to estates, but the inconvenience was one which he despaired of seeing removed by the operation of any general Law.