HL Deb 22 June 1858 vol 151 cc162-9

in rising, pursuant to notice, to call their Lordships' attention to the Chief Clerks' Offices said, it would be in the recollection of their Lordships that, shortly after he had the honour of taking his seat in that House, a noble Lord (Viscount Lifford) called attention to certain complaints of delays which he stated to exist in the Court of Chancery, and mentioned a particular case in which he himself was interested. He (the Lord Chancellor) at the time certainly misapprehended the direction of the noble Lord's complaint, for he was under the impression that he complained of delays that had taken place in the Chief Clerks' Offices. He now understood that the noble Lord's complaint was much more extensive, and he had promised the noble Lord that inquiry should be instituted with the view of ascertaining whether there was ground for the complaint or necessity for applying a remedy. In conducting that inquiry, he had received assistance of a most valuable description. His noble and learned Friend (Lord St. Leonards), to whom the country was so much indebted for his attention to all those subjects, and for various reforms and improvements in the Court of Chancery which he had been the means of introducing, had volunteered the benefit of his experience in instituting an inquiry into the state of the Chief Clerk's Offices. Accordingly, his noble and learned Friend had thoroughly investigated the subject, and would be enabled much better than he (the Lord Chancellor) to give their Lordships information respecting it. With regard to the particular case to which the noble Lord had referred, he (the Lord Chancellor) had also required that a report should be furnished him with respect to the proceedings in the courts. That report he had received, and having examined it, he was bound to say that he thought there was ground for the complaint which the noble Lord had made. That complaint, however, did not attach to the Chief Clerks, or the proceedings of their office; but there certainly had been a most unjustifiable delay in the proceedings of the Court. It appeared that although the matter was referred to a Master in Chancery in March, 1850, no Master's report was obtained until the month of December, 1855, and that for the delay which took place during all that long period not the slightest explanation had been given. One thing, however, to be observed upon that subject was, that it took place under the old system. That system had now been entirely abolished and a new one introduced in its stead; and since the matter reached the office of the Chief Clerk he really did not see that there was any ground of complaint on the part of the noble Lord for any improper delay which was attributable to the Chief Clerk himself. He believed the order for inquiry was made in June, 1856, and the inquiries were rather of a complicated description. They were for the purpose of ascertaining what had become of a certain fund which had been paid into Court by a receiver, what was due on settled and what was due on unsettled estates, what encumbrances were upon those estates respectively, what annuities were existing, and what arrears of those annuities still remained to be paid. Now, he found that there were various meetings appointed from time to time by the Chief Clerk, when the parties were not ready with their evidence, and of course adjournments were therefore necessary; but there were only two occasions on which the postponement was attributable to the Chief Clerk, and in each of these instances it was the result of affliction in his family. He confessed, however, that he was astonished by what he had heard from the noble Lord, and which he had not been before aware of. It appeared that among the matters to be inquired into was a question as to whether the annuities were still in existence, and whether there were any arrears of annuities still to be paid. The annuitant, who was entitled to an annuity of three guineas a year, had, he believed, died; but the noble Lord, and those whose interest the noble Lord represented, had no proof of that. They had no direct knowledge of it, and no accurate means of showing it except that which existed in the breasts of their opponents. But the noble Lord told him (the Lord Chancellor) that the solicitor on the other side was perfectly aware of the fact of the death of the annuitant. On hearing that he suggested to the noble Lord that an easy remedy would be to call that solicitor before the Chief Clerk and make him prove the death. The noble Lord, labouring, as he (the Lord Chancellor) believed under a misapprehension, said he had been informed that the Chief Clerk had no power to summon that gentleman. He (the Lord Chancellor) thought there was some mistake as to that point, for the course he had proposed to the noble Lord seemed to him an obvious one to adopt in order to arrive at the truth in this insignificant matter. However, he believed that the case was almost ripe for the Chief Clerk's certificate, which would by ob- tained within a few days. At the same time he should in justice say that the noble Lord had not complained without cause. There had been great delay in the case, but he thought the noble Lord would agree with him that that delay was not so much, if at all, attributable to the Chief Clerk, or what took place in the Chief Clerks' Office, as to proceedings which took place under the old system. With regard to the mode of proceeding in the Chief Clerk's offices his noble and learned Friend (Lord St. Leonards) had made a careful investigation. His noble and learned Friend had, he believed, been on the whole very well satisfied with the manner in which the Chief Clerks conducted their business. He (Lord St. Leonards) had suggested some changes, which he was of opinion might be beneficially introduced into those offices. They were not very considerable; but as be had not himself made a personal investigation into the matter it would perhaps be more satisfactory for their Lordships to hear from his noble and learned Friend what those proposed changes were.


said, that the case stated by the noble Lord was one which called for inquiry and explanation. In 1852 much had been done to put an end to prolixity in proceedings such as these. Before that time the Masters in the equity courts constituted a sort of medium Judge; there were repeated references and reports backwards and forwards, all owing to the constitution of the Court that had existed for centuries. It was resolved in 1852 that there should be no Judges but the regular Judge of the Court—that there should be no medium for the discharge of judicial functions. The Masters in Chancery were accordingly abolished; no persons were allowed to act as Judges but the Judges themselves. Some portion of the proceedings, which had formerly been performed by the Masters, were directed to be performed by the Chief Clerks of the Judges; and he (Lord St. Leonards) resisted an attempt to give the officers who were now called Chief Clerks any other title than that which they at present bore. These officers had very important duties to perform—very complicated inquiries to go into; but all they did was done under the direction and supervision of the Judge. It was asked on a former occasion, did the Chief Clerks proceed with business de die in diem? Now, his opinion was that the best mode of getting through business was for a person to finish one thing before he entered upon another. The general practice of the Chief Clerks was for them to settle, as well as they could, with the solicitors for the parties how many sittings would be required. They then put down the cases accordingly, fixing the hearings de die in diem, so far as they had ascertained the number of days that would be required. Of course, if the cases were of a very complicated description and required frequent re-examination, much time must be consumed. He had recently gone through the Chief Clerks' offices, and he had been much struck with the competence, the diligence, and the excellent arrangements of all the Chief Clerks he had seen. It was impossible for any men to be more diligent in the discharge of their duties, and they had as much work as they could perform with the closest application. Indeed, he believed that no serious delay or inconvenience was experienced from the mode in which the business of the offices was now administered; but it was necessary that the procedure in the Chief Clerks' offices should be assimilated—at present they were not uniform. One of the principal differences of practice among them occurred in relation to receiverships. Some of the Chief Clerks thought it was not their duty to be active in the case of defaulting receivers. He (Lord St. Leonards), on the other hand, thought it was the duty of the Courts by whom the receivers were appointed to take care that they properly discharged their duties. He would suggest that, at the end of every term, a list should be made out in each of the Chief Clerks' offices of all the receivers who were in default, and who had not delivered their accounts; that such list should be hung up in the court of the Lord Chancellor; and that, if in fourteen days after it was exhibited the defaulting receivers did not come in before the Master or Chief Clerk, the latter should be empowered to employ the solicitor to the Suitors' Fund to compel such receivers to come in and pass their accounts, and to apply to the Court to remove the defaulters and appoint other receivers in their places. One of the greatest evils in the administration of property was the long continuance of estates under the management of receivers, persons who considered themselves masters of the property, but who managed that property very badly. Now, property under the administration of the Court of Chancery ought to be managed in the same manner as every sensi- ble man would manage his own property. In the cases of sales of estates, they, under the present system, remained in the courts for a long period, sometimes as long as six or seven years. The Chief Clerks did not conceive themselves in a position to drive on the parties in their litigation, and therefore delays existed which ought not to be permitted; but he thought Orders might be framed which would bring these matters within a narrower compass. The evil of the unsuitable chambers in which the Chief Clerks had to transact business ought to be immediately corrected, and it was well worthy the consideration of the Government whether it was not advisable to erect new courts with chambers attached—so that there might be constant communication between the Judge and his Chief Clerk and between the Chief Clerk and the clerks under him—on the east side of Stone's Buildings, sending the Registrars and other officers now in the buildings which stood on that site to the Masters' offices, which had become the property of the Crown. He had seen in The Times of that morning a letter very strongly complaining of the delay in winding up Mr. Feargus O'Connor's land scheme, and of the putting up the estates for sale at a reserved price, which ended in their being bought in. He thought the estates should be sold for what they would fetch. It was not a time for the discussion of that matter, and he had no doubt it would receive from the noble Lord on the woolsack the fullest attention.


said, be had heard the statement of the noble and learned Lord (Lord St. Leonards) with unmixed satisfaction. His noble Friend had the happiness to have been in the highest degree instrumental in the reform of the Court of Chancery. It was his (Lord Cranworth's) good fortune to become the holder of the Great Seal shortly after his noble and learned Friend's Act passed in 1852. The holder of the Great Seal practically did not come into contact with the Chief Clerks—they were attached to the Master of the Rolls and the Vice Chancellors. But when he became Lord Chancellor he felt that one of the main duties imposed on him was to see that the new system introduced by the Act of 1852 was properly carried into effect; and with that view he followed the course which he ventured to recommend to his successor, of having an interview every term with the Judges, and inquiring of them whether matters were conducted in the mode con- templated by the Act, and particularly as to the working of business in the Chief Clerks' offices. It was a universal feeling that every contested matter which was begun should be carried on until it was ended; but, although the theory was correct, it was impossible always to observe it in practice—postponements must necessarily take place, whatever precaution might be taken to have the cases gone through without interruption. For example, the Chief Clerk had to inquire who were the creditors of a person deceased. Advertisements were issued calling upon the creditors to come in by a certain day and prove their debts. On the day appointed it was found there were other creditors who had not heard a word upon the subject—perhaps, too, the deceased was a trader, dealing with persons in Australia or in India, who could not possibly have had notice. There was no blameable delay, but, for the attainment of justice, a postponement was necessary. Then again, it was not always possible to go on with the same case from beginning to end. A case of importance was fixed for Thursday and it was calculated to last until Saturday. But on Saturday it was not finished, and choice had to be made between postponing it until Thursday or Friday in the following week and going on with it on the Monday, to the great inconvenience of persons engaged in the cases previously fixed for that day. It was impossible to lay down any unvarying rule that should never be departed from. A rule had been laid down with his (the Lord Chancellor's) sanction by the Master of the Rolls, that when a case was once commenced it should be proceeded with until it was finished, unless circumstances rendered it impossible or inexpedient; and very early in the working of the new system it was arranged that every day for an hour or two there should be a time fixed for short applications, so that they might be disposed of without interfering with long and heavy cases, and this plan had been found to work remarkably well. He had always felt, however, that the real improvement was not to be effected by legislation, but was, so to speak, mechanical. It would be an advantage beyond price if they could place the Judge in an airy comfortable court, with a superfluity of chambers attached to it, in which the Clerks and junior Clerks could conduct their business in immediate conference with the Judge. It was difficult and inconvenient, for example, for a Clerk to leave his chambers and walk 100 or 150 yards off to consult the Judge. At one time he thought that the benchers of Lincoln's Inn were disposed to give up a large portion of their inn for the purpose of building new courts there. Difficulties however presented themselves, but he was sure that the erection of good courts, with chambers for the clerks, would be of greater service than any regulation or orders that could be made.


expressed his great satisfaction at the explanations he had heard. They had heard of delays in Chancery from time immemorial, but he believed that those delays were not the fault of the Lord Chancellor, or the Master of the Rolls so much as of the Masters' offices; but he thought that there had been reformations effected in the Court of Chancery which would work well, and be highly advantageous.


was of opinion that the inquiries that had been made, and the results that had attended the labours of the noble and learned Lord, would be of essential service to the unfortunate suitors of the Court of Chancery. The complaints that had been made were not so much against the Judges of the Court of Chancery, as from the existence of a feeling on the part of the public that there was no adequate check upon useless expense or means adopted for the prevention of frivolous and vexatious proceedings.