ADDRESS FOR A COMMISSION.

HL Deb 15 July 1861 vol 164 cc850-5

THE MARQUESS OF CLANRICARDE

rose to move an Address to the Crown for the appointment of a Commission to inquire into the Constitution, Practice, and Procedure of the Common Law and of the Equity Courts in Ireland. He was induced to bring the question again before their Lordships in consequence of the encouragement he had received and the valuable information which had been supplied to him since he opened the subject in that House. He complained that the reforms and improvements in the practice and procedure of the English courts of law had not been extended to the Irish courts. The consequence was not only a continued waste of money and time to suitors in Ireland, but also an extravagant expenditure of public funds, for the judicial establishments were overgrown and out of all proportion to the work they had to perform. The point on which he desired first to address their Lordships, and on which he felt himself prepared to speak with confidence, because he was supported by high authorities, was the present condition of the Irish Court of Chancery. The value of property assessed to the income tax in England exceeded £246,000,000. The value of property so assessed in Ireland, where the population was, he believed, about 6,000,000, was only £22,000,000. In England there were seven Equity Judges— the Lord Chancellor, the Master of the Rolls, two Justices of Appeal, and three Vice-Chancellors. In Ireland they had the Lord Chancellor, the Master of the Rolls, the Lord Justice of Appeal, three Masters in Chancery, exercising ju- dicial functions—a class of functionaries now abolished in England—besides one Master occupied in accounts, and three Judges of the Landed Estates Court—in all nine Equity Judges. With regard to the last-mentioned court one instance would be sufficient to show the benefits which it conferred by facilitating the transfer of land. An estate having been bought in the Encumbered Estates Court passed into the hands of a person who wished to resell it. A gentleman was desirous to become the purchaser. Negotiations were entered into and the purchase was completed. The money was paid, the estate was transferred, and the conveyances were duly executed. The gross rental of the estate was £576 a year. The cost for stamps was £62, and the attorney's bill, including a search of the register to see that no incumbrance had been created since the Court gave a title, and the registering of the new purchase, was only £8 14s. 2d. It was obvious that the simplicity of title secured under the administration of the Court must prevent a great amount of litigation, and that there was a certainty of the business of the Court being gradually reduced. About six or seven years ago the number of cases in the court was 1,300, and in 1859 the number was reduced to 400. He held that the staff of even this Court might be easily reduced; while its affect upon the legal business of the country generally was obvious. But the point to which he wished to call particular attention was the existence of three Masters of Chancery, performing judicial duties, when those officers had been abolished in England. In the Court of Chancery in England the business was now disposed of with the utmost facility and with the greatest cheapness, while due attention was paid to legal points and legal questions. How extravagant was the staff of equity Judges in Ireland appeared by a comparison of the property administered by those courts with that managed by the Equity Courts in England. The total amount of money paid out of the English Court of Chancery in 1859 was £14,185,035. The amount paid out of the Irish Court of Chancery in the same year was £1,145,000, or about one-fourteenth. The cash, stocks, and securities held by the Court of Chancery in England amounted in October, 1858, to nearly £53,000,000. The cash, stocks, and securities held by the Court of Chancery in Ireland amounted on the 1st of January last to nearly £4,000,000. The amount of business in the Irish Court Was infinitely inferior to that of the English Court, and yet the cost of administering property in the English Court of Chancery was little more than one-third that of the Irish Court. The Report of the Commission, to which were attached the names of the present Lord Chancellor or England, the present Lord Chancellor or Ireland, Mr. Blackburne, the Lord Justice of Appeal in Ireland, the Master of the Rolls in England, and several other eminent lawyers, recommended that the practice and procedure of the Irish Court should be assimilated to those of the Court of Chancery in England. The Report was presented five or six years ago, and ever since it had remained a dead letter. He felt that here he was rather over proving his case, and that it might be said there was no need for a Commission, as, after the Report to which he had referred, they might deal with the case at once. But it must be remembered that, whereas all the alterations in England had proceeded on well-considered Reports, either of Commissions or Select Committees, the alterations, such as they had been, in the Irish courts within the last thirty years had for the most part been made without previous investigation. The expenses of the Common Law Courts had, as he had shown on a former occasion, increased in proportion as the business had decreased. The staff was larger than necessary, for, while there were only fifteen Common Law Judges in England, there were twelve in Ireland. In his opinion, these twelve might safely be reduced to nine, and instead of six circuits, four circuits would be quite sufficient. As far as he could make out, two puisne Judges in England did as much work as nine puisne Judges in Ireland. When Lord Lyndhurst recommended the increase of the number of the puisne Judges in England, it was with the object that there might alway be Judges to hear cases in chambers; but while in England the number of orders made in chambers in 1859 was 44,870, of which 41,325 were made without the attendance of counsel, the number of chamber order made in Ireland in 1860 were 1,782, of which a few more than 100 only were made without the attendance of counsel. To show that the number of circuits might be safely diminished to four, he found by Returns before Parliament, that there were only five cases of homicide in 1859 in Ire- land, while in England and Wales in 1860 there were 149 homicides. The committals, too, for crimes in England and Wales were 16,674, and the convictions 12,470, in 1860; while for Ireland the committals were only 5,865, and the convictions 3,109. In 1851 the number of judgment cases entered in the three Law Courts in Ireland was 7,229, at a cost to the public in salaries and emoluments of £17,759, while in 1859 the number of cases and judgments entered had dwindled to 3,421, and the expense had risen to £22,399. Much inconvenience arose from the practice in Ireland of the Judge framing the issues, which of course he did not on evidence of the real facts of the case, but on mere statements of parties. The consequence was that at the trial the evidence was not directed so much to the merits of the case and the rights of the real litigants as to the particular issue thus framed by the Judge. These were matters which were notorious, and he trusted the Government would not object to inquiry into admitted evils. The only objection which he could conceive to the Motion was that it would be unpopular with the legal profession in Ireland to diminish the number of places; for there could be no doubt that the effect of new regulations in the Law Courts would be to diminish the amount of public money expended on the staff of these Courts and the number of fees uselessly paid. He did not believe that any Irish lawyer worthy of his Profession would take such an objection. His object was to raise the Irish Bar. He believed their Lordships' House was the only tribunal in this country at which Irish lawyers were allowed to plead, and that only in Irish cases. If the practice of the Law Courts in the two countries were assimilated, an Irish lawyer might then be brought over to plead here; and, on the other hand, he wished that facilities were given by which eminent counsel from this country might be taken occasionally over to Ireland to plead in the superior courts when knotty and difficult points of law were involved in a case. The noble Marquess concluded by moving, That an humble Address be presented to Her Majesty, praying that Her Majesty will be graciously pleased to issue a Royal Commission to inquire into the following matters with a view to reduce costs to suitors and the expenditure of the public money, and to assimilate, so far as may be practicable, the administration of justice in England and Ireland, in accordance with the recommendations of the Royal Commission of 1855: 1. The Constitution, Establishment, Prac- tice, Procedure, and Fees of the Superior Court of Common Law in Ireland: 2. The Differences between the Constitution and the Forms of Practice, Procedure, and Fees of the Courts of Chancery of England and of Ireland.

LORD WENSLEYDALE

thought that a clear case had been made out for inquiry. Down to 1828 the practice in the Law Courts of the two countries was very nearly the same; but since that time important changes had been made, both in the equity and the common law Courts in England, which had not been extended to Ireland. Under these circumstances it was certainly desirable to inquire which of the two systems at present existing was the better.

EARL GRANVILLE

admitted that the noble Marquess had made out a clear case for inquiry in this matter, and he, therefore, on the parts of the Government, would make no opposition to the Motion. He would, however, suggest the omission of the words "in accordance with the recommendation of the Royal Commissioners of 1855," which might, perhaps, have the effect of unnecessarily restricting the future Commissioners.

THE MARQUESS OF CLANRICARDE

said, he would, with their Lordships' permission, strike those words out.

LORD BROUGHAM

entirely agreed with the Motion. Nothing could be more necessary than that such a Commission should be issued. There was one part of the subject, however, which required no Commission—he meant that of judicial statistics. It was evidently most important that there should exist judicial statistics in respect of Ireland, such as there were in the cases of England and Scotland. Whether the practice of the Courts could be in all respects assimilated, might be a fitting subject for inquiry, and might possibly demand legislation; but by a simple Order of the Treasury the system of judicial statistics might be extended to Ireland at no greater additional expense than the appointment of one extra clerk. Without these statistics it was impossible for Parliament to judge what was the effect of their legislation. One advantage of the assimilation of the practice and procedure would be that it would decrease the difficulties which surrounded appeals from Irish Courts to the Privy Council. That morning the noble and learned Lord on the Woolsack, with the assistance of some other noble and learned Lords and himself, had been engaged in hearing a case from an Irish Court in Which the incon- venience of the different practices of the two Courts was very apparent. In this country the parties were allowed to go on pleading till they came to an issue; in Ireland a totally different course was pursued; the learned Judge there decided on the issue. He trusted that the Motion would be agreed to, and that a direction would be given that measures should be taken to secure for Ireland statistics of its judicial proceedings.

THE MARQUESS OF CLANRICARDE

said, that he entirely approved of his noble and learned Friend's suggestion respecting Judicial Statutes.

Motion, as amended, agreed to.