§ LORD LYNDHURST
rose to move for the Appointment of a Select Committee to inquire into the Mode of taking Evidence in the Court of Chancery and its Effects; and said:—My Lords, the question to which I wish to call your Lorships' attention is of very considerable importance, and I have been urged by many practitioners in the Court of Chancery and by many suitors there to press the subject on your Lordships' attention. I shall endeavour, however, in the statement I am about to make, not to use an unnecessary word. My noble and learned Friends around me will be able to supply my omissions, and also to correct any errors into which I may 1026 unintentionally fall. In the administration of justice the first step is to ascertain the facts, and then to apply the law. The machinery for the purpose of ascertaining the facts ought to be such as is well calculated to elicit the truth, and to perform that cheaply and at a convenient time. That is very well and very satisfactorily accomplished in the courts of common law. The parties who are at issue attend before a tribunal with their witnesses, and the witnesses are examined and cross-examined in the presence of the tribunal; the observations of counsel are made upon the case, either to the court or the jury, as the case may be, and while the impression of the evidence is fresh upon their minds the jury come to a determination. The result to the parties is—to use an allusion to a subject of a different description—cita mors aut victoria lœta. Now, with respect to the Court of Chancery, I am sorry to say that at one time the course which it pursued was directly the reverse. That Court, unfortunately, proceeded according to the forms of the civil law, which were not calculated to elicit the truth, and certainly not calculated to elicit the truth either in a convenient time or at a moderate expense. When I left that Court the course of proceedings was this—they administered written interrogatories to the witnesses and cross-interrogatories at the same time. The cross-interrogatories were drawn up before the answers were given. The original interrogatories, therefore, for the purpose of cross-examination were wholly inefficient. Various attempts have been made to alter that proceeding, and though those attempts have generally failed I think they failed because they were not sufficiently extensive. They were attempts merely to patch up the system. The last attempt of that kind was made in 1854 by a Commission that sat for that purpose. They suggested many alterations, and among others that alteration in the course of proceeding to which I am about to advert. But, my Lords, they recommended it merely as an experiment, as a thing to be tried—"tentative" is the expression made use of. Five years have elapsed since that alteration was made, and I am told by practitioners in the Court of Chancery that the experiment has amounted to an entire failure. Before that time, indeed, witnesses were examined and cross-examined orally before examiners to a considerable extent; but the main objection to that procedure was this—and my noble and learned 1027 Friends must feel the importance of it— that the evidence was taken by one set of persons and the case was decided by another set, who had no opportunity of seeing the witnesses or judging of the correctness of their testimony by their demeanour. What, however, was substituted for that system? Examination by affidavit; and I appeal to my noble and learned Friends around me whether that is not the worst mode for eliciting truth that could possibly be established. Many of your Lordships, who are not accustomed to the course of proceeding in courts of justice, may not be aware of the manner in which these affidavits are framed. The solicitor, or the clerk of the solicitor, goes to a witness, who is always a willing witness, and puts to him leading questions for the purpose of drawing out those facts that are serviceable to the cause of his client; but he takes care not to put a single question that may tend to elicit a fact that may be disadvantageous to his client. When this is done, the process, which is called by the profession "cooking the affidavit," begins. The solicitor draws the affidavit in the most artificial form. He points and extends all the material facts in favour of his client, and every word that may possibly be of disadvantage to his client is avoided. I have not exaggerated in the slightest degree, my Lords, in the statement which I have made. I have conversed with practitioners who know this so well that they quite laugh at any doubt being entertained with respect to the course of proceeding. The matter does not stop here. The solicitor who draws the affidavit is generally a very acute practitioner, and understands his business perfectly well; but he is not satisfied with his draft. He thinks it must be touched up by a more experienced and more dexterous hand, and he therefore takes it to counsel to "settle it," as it is called. What would be said in a Court of Common Law of a counsel tampering with and altering the evidence of the witnesses. My noble and learned Friend on the woolsack, who has had a great deal of experience in the Courts of Common Law, will, I think, be able to carry back his recollection to the time of Lord Ellenborough. If any person, in the time of Lord Ellen-borough, in a Court of Common Law, said a word about counsel "settling an affidavit," the learned Judge would have immediately burst out and said, "What do you mean? Counsel to be tampering with the evidence of the witnesses?" So that no 1028 person in a Court of Common Law would venture to talk of settling an affidavit by counsel. But this in the Court of Chancery is allowed and encouraged, and the cost of settling is allowed in the taxation, and it is sanctioned by the Court. What is the next step? When the affidavit is perfected in the manner I have stated, freed from all difficulty—"admirably drawn," as is the expression of counsel—the party attends, not before a Judge, but before an officer, to swear to this affidavit; it is read over to him more or less quickly, the witness is careless or attentive, according to circumstances, while the affidavit is being read, and after it is read he signs it. Now, what is the oath? "Is that your signature?" "Yes." "Are the contents of this affidavit true?" "Yes." Is it satisfactory that an oath should be administered in that form? Compare it with the oath taken by witnesses in the Courts of Common Law. "The evidence that you shall give shall be the truth, the whole truth, and nothing but the truth." But in the case of an affidavit in the Court of Chancery the only question is, "Are the contents of the affidavit true?" Without any great stretch of conscience the party swears that the contents are true, although the affidavit does not contain the whole truth. Now, this is the objection which I have to evidence by affidavit. I appeal to my noble and learned Friend on the woolsack, and to my noble and learned Friend on the cross benches, whether they do not admit the force of my objection. Then, what is the next step? The affidavit thus imperfect and one-sided is filed. Copies after copies of these affidavits have to be supplied. Your Lordships will mark that I have been mentioning only one affidavit, but there may be twenty in a cause, and the course of each is the same. Now, my Lords, I shall be told that a remedy has been proposed for this evil, and I wish to consider what that remedy is. The remedy is the right of cross-examination. But first let me mention the fact, that if I call a witness in a Common Law Court, I pay for that witness, and he may be cross-examined by my adversary without the latter incurring any expense. If the cross-examination should extend for a week I pay for the cross-examination, because he is my witness. What is the case in the Court of Chancery? If a witness make an affidavit and the other parties wish to cross-examine, they have to find the witness, bring him before the Court, and attend 1029 the cross-examination. At whose expense? The whole is at the expense of the cross-examiner. It is not at the expense of the party whose witness he is; and this tends to prevent the exercise of the power to cross-examine. That is only a part of the evil. If I am an unhappy party in a Chancery suit and want to exercise the power, I have to go to the Examiner and say, "I want to cross-examine such a witness." The Examiner says, "I must look at my book and see which is the first open day," and having looked, he says, "My first open day is two months hence." One of the Examiners was asked by a member of the Commission on the 28th of February, "Look at your book and tell us which is your first open day." The answer was, "The 6th of May." Another Examiner said, "My first open day is earlier; it is the 3rd or 4th of May." In both cases more than two months afterwards. Perhaps the witness is not at home. Possibly he keeps out of the way on purpose, and cannot be subpœnaed to attend in time. The Examiner has to appoint another day, and two months more elapse. At last the witness attends, and when he attends this further frequently happens:—the counsel are not ready; the opposite counsel is engaged in Court in an important cause. The examination is again postponed for two months. "Does this happen frequently?" the Commissioners asked the Examiner. "Frequently," was the answer. "Does the delay sometimes extend over several months?" "Frequently," was the answer. Some noble Lord—I do not know whom—moved for a Return upon this subject. I looked over that Return, and I found in one year 240 attendances and 264 non-attendances. In all these latter cases the appointments and notices have to be repeated. But, my Lords, suppose that at last the examination takes place. My noble and learned Friend on the woolsack knows pretty well what the course of cross-examination is in a common law court, and how prone counsel are to be discursive, even under the superintending authority of the Judge. What is the fact before an examiner? If the examiner says, "Do you think this question material?" Counsel replies, "Material! you have no jurisdiction to decide whether it is material or not; the Act deprives you of any such jurisdiction." Thus the cross-examination goes rambling on from one irrelevant point to another; and your Lordships may judge of the expense of 1030 the proceeding. Then as to the effect of the examination. It is taken down narratively by the Examiner—not question and answer; and in consequence the Court docs not see whether the witness answers the questions or omits to do so. The evidence is taken in the same way as a Judge takes evidence in trying a cause. It is very well for a learned Judge to incorporate question mid answer, because he sums up while the evidence is all fresh in his recollection. He can supply an omission; he can give the proper construction to a phrase; nothing can be left in doubt, because that doubt can be supplied by his memory of what took place before him. But nothing of the kind occurs when the examination is handed over to another tribunal who is to decide upon the facts; and I am told by authority which I consider unimpeachable, that it not unfrequently happens that counsel employ shorthand writers to take down the evidence, not to lay before the Court—which indeed would not receive it—but for their own guidance; and that evidence so taken not unfrequently differs in essential particulars from the evidence taken by the examiner. But the main objection is that the Court has no means of judging of the demeanour of a witness, his hesitation, his fencing with the question, and the many other circumstances which tend to betray a witness who is not speaking the truth. Can your Lordships be surprised, after what I have stated—and I have not exaggerated anything—that parties are not willing to go through the process of cross-examination, considering it almost useless, very expensive, and very dilatory? If you try what I have stated by all the tests which are possible, you will find that the whole proceeding is not calculated to elicit the truth, but directly the reverse, and that it is neither cheap nor expeditious. The propositions hitherto made apply to the mode of taking evidence previous to hearing; but there is another branch of the Court of Chancery to which I wish to refer—namely, with regard to interlocutory motions. Questions of the utmost interest are decided by the Court on interlocutory motions. How does the Court proceed? Entirely by affidavit, and subject to all the objections which I have stated. The party who makes the motion files an affidavit. The other party answers. Then there is an affidavit in reply. Then, perhaps, an affidavit in rejoinder, in rebutter, or surrebutter. There is no rule limiting the number of affidavits and I am told that 1031 sometimes they are so numorous counsel have not time to read them through, but have to guess at the facts:—they may be seen in the Chambers of Counsel, piled up like Pelion upon Ossa. It is true that another course of proceeding may be adopted; the parties may be examined and cross-examined before the Court, as in the Courts of Common Law, if the Court thinks proper; but it is the exception. It is not liked in the Court of Chancery. The practitioners of that Court are men of extraordinary talent in arguing a case, but they are not accustomed to the examination of witnesses; they are not handy at it. They sometimes call in the assistance of a common law barrister, but I am told that while these examinations go on the state of the Court is anything but edifying. I refer to that for the mere purpose of saying that, although in one or two cases in the course of a session an examination takes place in the Court of Chancery, for the reason I have stated, or some other reason, it is an exception to the general practice and not the general rule. I began by stating, and I repeat it, because it is essential, that the practice to which I have adverted arose out of the Report of the Commissioners of 1854; but the Commissioners, in recommending the alteration, said, to use their language, "what we suggest is tentative, and we can come to no conclusion until the experiment has been tried." For four years the experiment has actually been made, and the result is that which I have stated. A noble and learned Friend of mine has asked me what I would suggest. I would suggest nothing: but I wish to have an inquiry by a Committee or a Commission, as I cannot tell what should be the remedy until I know the extent and nature of the evil. Now, my Lords, the Motion which stands in the paper in my name is for a Select Committee to inquire into this subject; but whether the inquiry takes place through that medium or by means of a Commission, it is not for me to determine. That is a question upon which it rests with my noble and learned Friend on the woolsack to pronounce a decision. The effect of intrusting the investigation to a Committee is likely to be that it will be impossible to legislate on the subject during the present Session, and that their labours may not draw to a close until even late in the ensuing Session; whereas, if a Commission be granted, the inquiry may proceed without interruption, and. a Bill introduced in the course of next 1032 Session, providing a remedy for the evil to which I have drawn your Lordships' attention. But, however that may be, my Lords, my present Motion is for the appointment of a Select Committee to inquire into the made of taking evidence in the Court of Chancery, and its effects, and to report thereon.
§ THE LORD CHANCELLOR
said, that if his noble and learned Friend would undertake to serve on a Committee or a Commission he should give to the appointment of either the one or the other a cordial support. His noble and learned Friend, in addition to his great statesmanlike and scholar like accomplishment, we profoundly versed in the history of common law procedure. But while nobody was more capable of pointing out the inconveniences and evils which resulted from the present system of taking evidence in the Court of Chancery, his noble and learned Friend must, he thought, admit that that system had within his own reflection been marvellously improved. He (the Lord Chancellor) remembered a period when bills in equity told the same story over and over again, and each time more obscurely than on the previous occasion. When the answer came, the great object in drawing it up was that, however long it might be, it should only form one sentence, so that if a part of it had to be read it should be necessary to read the whole. But he was happy to be able to say that both the Bills and answers which he had lately read were simple, reasonable, grammatical, and perspicuous, and the answers were framed in the same way. It could not however be denied that, so far as the examination of witnesses was concerned, the present system of the Court of Chancery was productive of great evils; the cooking and settling affidavits must be considered great abuses, and little advantage was derived from the power of cross-examination as at present existing. A proposal had been made for the appointment of an Examiner with the view of rendering it more efficient; but he felt obliged to confess that proposal had turned out to be a failure, and for the reason that no preliminary proceeding had been established with the view of ascertaining the points to which the examination was to be addressed. He had simply to say, in conclusion, that he hoped his noble and learned Friend would lend his invaluable assistance to remedy the evils to which he had adverted.
§ LORD CRANWORTH
, while admitting 1033 that the present system of taking evidence in the Court of Chancery was in some respects open to objection, contended that it was infinitely improved as compared with that which it had been some years ago. He was quite prepared to admit that the best course to be adopted in those cases in which there arose a bonâ fide question of disputed facts was to summon the par-ties to he sent before the Court for the purpose of giving oral evidence. He must, however, observe that in those instances in which such a question was to be investigated, nothing could be more unsatisfactory than that it should he tried before an Examiner and then reported to the Court, and nobody was more alive to the justice of that statement than were the Examiners themselves. He entirely approved of a Motion for either a Committee or a Commission to inquire into the subject, in order that a remedy might, if possible, be applied to evils of which complaint was very justly made.
§ LORD CHELMSFORD
also concurred in thinking that nothing could be more unsatisfactory for the purpose of ascertaining the truth in cases of disputed facts than the mode in which witnesses were now examined in the Court of Chancery; though when the facts were not disputed an affidavit was a cheap and ready mode of laying the case before the Court. One of the great inconveniences of the present system was that no vivâ voce examination could in such cases take place except at the discretion of the Judge, and not even when he wished it, unless the parties to the suit also consented to the adoption of such a course. He thought a great mistake was made in continuing the Examiners at the time of passing the Act for the Amendment of Chancery Practice. His noble and learned Friend (Lord Lyndhurst) had alluded to the great delays which existed in the Examiner's office, and if the present system continued the staff must be increased, and more power must be given. The Examiner now was a mere cipher, the examinatian was private, with only the counsel and solicitor in the case present. He had no power to check an irrelevant question, but was compelled to take down everything upon his notes, and in that shape the evidence went before the Court. The present system was objectionable not only from the inconvenience and delay to which it gave rise, but still more because of its unsatisfactory and imperfect character as a means of ascertaining the 1034 truth. The written examination was all that the Judges had before them to arrive at a conclusion. Now, upon paper all witnesses looked alike, and how great, as his noble and learned Friend had said, was the advantage in having witnesses before the Judge, so that he might distinguish between the unwilling, the false, and the truthful. It was true that power was given to the equity Judges to examine witnesses vivâ voce; but it was also true that there was great reluctance on the part of those Judges to do so; and during the time he was Chancellor he believed there were only three instances in which this course was taken. He had himself introduced a Bill which had passed into law, by which the Judges of the courts of equity, instead of being compelled to send contested questions of fact before courts of law, were themselves empowered to try those questions with the intervention of a jury. He was sorry, however, that there seemed to be great unwillingness on the part of the Judges in equity to adopt that which was intended to be a great advantage to the suitor in order to prevent his being driven about from court to court to obtain justice. All the disadvantages that arose out of the present system were admitted by very one, and his only objection to the Motion of his noble and learned Friend was, that he appeared disposed to occupy time unnecessarily by inquiry, whereas the vice of the system was perfectly well known already, and the remedy was obvious. What was wanted was a Bill by which, in questions where disputed facts were really involved, the parties might at once examine the witnesses in open court, and so the facts might be ascertained. Such a measure, it seemed to be thought, would lead to increased expense; but he (Lord Chelmsford) did not think so, for it should be remembered that the evidence, which was now rendered more voluminous by the want of power and authority in the Examiners, would be considerably reduced in length by examination in open court.
thought they were all agreed upon the evils of the present system, and the necessity of a change; but he did not agree with his noble and learned Friend (Lord Chelmsford) that the remedy was obvious. It seemed to him, at the first blush, that there could be no effectual vivâ voce examination of witnesses, owing to the nature of the proceedings or of the issue placed before the Court. They had not now the absurdity of cross- 1035 examining without any knowledge of what the direct examination was—that gross absurdity had ceased—but such were the effects of the system, while it lasted, that when in the Court of Chancery he hardly ever found an instance of cross-interrogatories. Another and a still greater evil in the system was, that one person took the case and then decided on it—that the Judge who had to decide the case on the evidence never saw the witnesses, and had not an opportunity of seeing their manner and their demeanour. That was a very great evil, because it was almost as material for a Judge, who had to decide on the credit of a. witness, to see his manner of giving evidence as it was to know what that evidence was, or to have the substance of it taken down in writing. The great difficulty, however, was this.—Proceedings in equity generally led to a vast number of facts asserted on the one side and denied on the other. How were these to be reduced to such a narrow compass that a jury could be empanelled to try them? He owned, however, that he did not despair of the possibility of this being done. He thought the Court might be allowed to have the statements of parties before it—that they should be allowed to make their alternate allegations, and then upon the subjects that were in dispute an issue might be drawn with the concurrence, or at least with the knowledge of the parties, and after hearing their suggestions, be finally sent before a jury. He was by no means confident, however, that this would not lead to expense, complication, and delay. That was the very matter on which he thought a Commission would be of service. A Commission would have before it counsel, solicitors, and even the Judges, and he had great hopes it would be able to arrive at some satisfactory result. He was not so sanguine of the result of a Committee, and therefore he trusted a Commission would be allowed to issue.
§ After a few words from Lord WENSLEYDALE,
§ LORD LYNDHURST
withdrew his Motion for a Select Committee, and moved—That an humble Address be presented to Her Majesty, praying Her Majesty graciously to appoint a Commission to inquire into the Mode of taking evidence in the Court of Chancery, and its effects.
§ Motion agreed to.
§ The said Address to be presented to Her Majesty by the Lords with White Staves.