HL Deb 19 June 1871 vol 207 cc208-16

Order of the Day for the Second Reading, read.


, in moving that the Bill be now read the second time, said, that the object was to put certain restrictions upon the right of appeal to their Lordships' House. The grounds on which he asked their Lordships to accede to the Motion were, first, to preserve the dignity of the House as a Court of Appeal, and, secondly, to repress unnecessary and vexatious litigation, and for the first purpose it proposed to take away the right in cases where the money sought to be recovered was of inconsiderable value, and for the second cases where the judgment of a Court of First Instance has been affirmed by the immediate Court of Appeal. Their Lordships would perhaps be surprised to hear that during the last four years the number of appeals from the Scotch Courts exceeded those from the Courts of England and Ireland together. Now Scotland was comparatively a poor country, with a population of only about one-tenth that of England and Ireland—showing that they must be eminently a litigious people, although they had the reputation of being a canny one. The number of appeals from the Scotch Courts during the period he referred to had been 119, whilst those from England and Ireland together were only 118. Of these 119 appeals would be found litigation of the most trifling, frivolous, and vexatious description—their Lordships were frequently called upon to decide appeals which related to matters of not greater importance than those which were daily decided by our County Courts. The annoyance of having to hear such cases had called forth repeated expressions of dissatisfaction from their Lordships—a feeling which was experienced by himself in an intensified degree, for it was monstrous to reflect that while there were about 400 cases of great magnitude for hearing before the Judicial Commit too of the Privy Council, the time of the Law Lords—the most important Judges of that Court—should be occupied by some trumpery litigation. He would give their Lordships one or two illustrations. In one case the matter in dispute was originally of the value of 5s., but it was carried through the whole range of the Scotch Courts, and finally came before their Lordships, the last appeal, involving a cost of between £700 and £800. In another case the owner of a sheep sought compensation from the owner of a dog for injury caused to his sheep by the latter. The owner of the dog contended that the dog was sufficiently harmless and inoffensive, and that the sheep must have been at fault. The case was submitted in turn to the Sheriff's Substitute, to the Sheriff's Deputy, and Lord Ordinary, and ultimately came to their Lordships' House, where the litigants must have expended at least £800 over a sheep whose carcass could have been purchased for 40s. The next case in the Reports to which he referred was of a similar character. Its original value was only £80, yet it had been carried through every Court, and finally brought up to waste their Lordships' time. It really was a lamentable thing that such enormous expenses should be incurred in reference to such a matter. Such things as these would excite their indignation but for the fact that they occurred day by day. In a case where the cause of action was almost equally trifling, his noble and learned Friend on the Woolsack had thus expressed himself— My Lords, flint your Lordships' time should have been occupied, to the great detriment of other suitors, with such a case as the present is, perhaps, one of the least grievances of a litigation which has been going on now for about seven years and a-half. I can, therefore, my Lords, only say that this lady is greatly to be pitied for the course into which she has been dragged, evidently without any consciousness on her part of the extreme folly of these proceedings. We can do nothing else than reverse the decision which has been come to by the Inner Division of the Court of Session. In another case the property contested was not worth more than 5s. intrinsically. The matter was argued at great length, and was productive of infinite expense and misery before a determination of the suit was arrived at. He appealed to his noble and learned Friends in the House whether these cases were not a fair specimen of a great portion of the litigation which came before them? Surely, then, it was right that their Lordships should come to the rescue of their own tribunal, and emancipate it from being concerned in the determination of such trilling matters. Their Lordships' time was of infinite value in determining the most important appeals from the most distant portions of the Empire, and far too valuable to be wasted on trifling appeals from Scotland. At all events, some relation ought to be preserved between the value of the property in dispute and the expenses of the appeal. Appeals in the Court of Equity were limited to any time within two years; but upon Writs of Error they allowed appeals for an indefinite term—for he knew of no limitation except that imposed by the Statute of William III. In cases where two years were allowed, to say whether there should be an appeal, two years more would probably elapse before it was decided, so that all that length of time would be allowed for the incurring of expense and for the growth of the worst feelings which were excited by litigation. The fees of their Lordships' House, he was happy to say, were very moderate; but the expenses incurred in litigation outside the House were necessarily very considerable. There must be first a petition, then the case must be prepared for their Lordships' House, and large fees to counsel were usually given. The case must be printed, and a certain number of copies furnished—a proceeding which in itself seldom cost loss than £100. Then there was the preparation of the appeal, the fees to counsel, and the charges for the attendance of solicitors. He thought that if they had a tribunal, an appeal to which involved charges such as these, such an appeal should be reserved for cases of the greatest importance; and this would have the indirect effect of preventing a losing party to a suit revenging himself upon his adversary by carrying his case to the last Court of Appeal. Upon these grounds he thought that their Lordships would agree with him that some limit should be placed upon appeals, the effect of doing which would be to relieve their Lordships from a considerable part of their present duties, and would enable them to spare from time to time one of the Law Lords to assist the Judicial Committee of the Privy Council in the decision of important points of law. He therefore proposed that it shall not be lawful to appeal to the House of Lords from the judgment of any Court of Law or Equity in England, Scotland, and Ireland, in cases where the property claimed or the title to be decided does not exceed the sum of £1,000. There were exemptions to this enactment, the propriety of which would be obvious—namely, when the judgment is in a suit brought to try a title to any real estate, or incorporeal hereditament, of greater principal value than £1,000; when the Judge certifies that some important question of law is involved; cases of divorce and judicial separation, and cases of legitimacy. He proposed further that where a judgment of the Court of Common Law has been affirmed by the Court of Exchequer Chamber, or of the Courts of Equity, by the Court of Appeal in Chancery, or of the Courts of the First Instance in Ireland or Scotland by the proper Courts of Appeal, there shall be no further appeal to the House of Lords, except in cases where the Court which had determined the appeal from the Court below should give leave for a further appeal. He thought that these restrictions would prevent a great number of idle and useless appeals from coming before them; and they would also impose some restriction upon rich men who might desire to carry their causes to a variety of tribunals, the expense of which might be a mere nothing to them, but ruin to their opponents. It had been said by someone that law was a luxury—and a luxury it undoubtedly was if one had to pay for it the large sums he had mentioned—but as a luxury it should be restrained by sumptuary laws, by laws judiciously founded on considerations of the public good and general expedience. He should observe that the whole language of the Bill applied only to civil cases. It would be desirable to define what was meant in the Bill by the word "affirm," because whilst a decision might be affirmed in substance, there might be some alteration of the language or some added condition. He would insert some words to prevent ambiguity arising upon this head. If their Lordships should think that this was a matter of too much importance to be committed to the discretion of a private Member, he should be content if their Lordships would give the Bill a second reading, with a view to a careful consideration of the whole subject, so that whatever legislation might be found expedient might be proceeded with next Session.

Moved, "That the Bill be now read 2a."—(The Lord Westbury.)


said, his noble and learned Friend needed no apology for bringing this subject forward, as the evil sought to be remedied by the Bill had undoubtedly become extremely great. He was afraid, moreover, that it was not the only evil connected with their Lordships' jurisdiction—other important remedies ought to be applied to grievances with reference to the hearing of appeals, and, therefore, he was glad that his noble and learned Friend had brought forward this Bill rather as a subject of discussion than with a view of passing it during the present Session. It was certainly desirable that professional and general opinion should be brought to bear on the subject. For his own part he thought there could be no reasonable objection to that portion of the measure which related to the limit of amount—indeed, his noble and learned Friend had scarcely stated the case with so much fullness as he might have done, being, no doubt, desirous not to protract the discussion. On three consecutive occasions—unless he was much mistaken—the House was occupied with three appeals from Scotland of the most trifling character—one being that to which his noble and learned Friend had referred, and was founded on the singular grievance that a man had, as alleged by the appellant, one sale on his premises and no more; another being a dispute about a few perches of land of no particular value in an agricultural district; and a third, which, though it related to a legacy of £600, was so protracted in consequence of the mass of evidence adduced as to the state of the testator's mind, and which filled two enormously thick volumes, that the cost must have amounted at least to £1,400 or £1,500. It would, in his judgment, contribute to the welfare of all suitors if a reasonable limit of amount were imposed in regard to carrying cases to the Court of ultimate Appeal. In a country like this, where legal tribunals were so numerous, a Court of ultimate Appeal was necessary in order that the law might be made fixed and certain; but owing to a variety of causes, into which he need not now enter, the present machine was far too cumbrous and expensive to discharge the ordinary duties of determining from time to time the conflicts that arose between private parties where no great questions of right were in dispute, or points of law which it was necessary to settle for the benefit of the general community. He might remark, in passing, that in County Court and Bankruptcy eases, as well as those under the Winding-up Acts, there was a limit on appeals in regard both to amount and time. This was justifiable on principle; and it would be desirable to apply similar regulations to appeals to the House of Lords. In regard to the second part of the Bill, however, he did not entertain so favourable an opinion. If an intermediate appeal were allowed at all, he doubted whether it would be expedient to say that when a Court of Appeal had affirmed the decision of the Court of First Instance there should be no further appeal except with the leave of the Court which last determined the case. He thought this would give rise to inconvenience where the Courts below had differed in their judgments, or where the Judges of the intermediate Court had differed among themselves. There were no less than three tribunals at common law which might take different views of a subject, and in Chancery there might be appeals from one Judge to another single Judge; and satisfaction would not be obtained unless there was the right to a still further appeal. There were instances of the decision of the Court below, although confirmed by the intermediate Court of Appeal, being over-ruled by the House of Lords, and the Judges had afterwards, moreover, acquiesced in the soundness of their Lordships' decision. Then it was worthy of consideration whether the time for appealing ought not to be abridged, and also whether a suitor in the House of Lords ought to be allowed to conduct his own case. Much time was usually wasted by suitors who pleaded their own cases, and great injury was done to themselves. Such persons took a prejudiced and sanguine view of their own cases, and were often induced to come to their Lordships' House, although they would probably refrain from doing so if they obtained the advice of an intelligent solicitor. One gentleman, the author of several able novels, successfully pleaded his own cause; but with this solitary exception he could not remember a single case of a suitor who pleaded for himself gaining the victory. Their Lordships sitting as a Court of ultimate Appeal, had a right to be assisted by counsel, and to have the cases brought before them argued in the best possible manner. In the last place—and it was a matter of the very highest importance—an appeal to the highest Court should be as much as possible confined to matters of law, just as an appeal to a superior Court of Common Law was when the facts of the case had been decided by a jury. Even on the Motion for a new trial, the facts were dealt with only as they bore upon the question whether there ought to be a now trial or not. Means could be devised by which the facts could be separated from the law and decided by the Court below, and the highest Court left to adjudicate on the law alone. While he was glad that the noble and learned Lord did not mean to press the Bill this Session, he certainty approved cordially the principle of the first part of it.


said, he was glad there was nothing in the appeal business of the House of Lords which rendered the passing of this Bill an urgent matter, for the House had now entered upon the causes which had been set down this year, and it was possible that the list might be disposed of before the House rose for the Recess. He admitted that it was important to prevent, if possible, frivolous and vexatious appeals, not only for the sake of maintaining the dignity of the House, but also to save litigants themselves from ruinous expenses. He entertained a doubt, however, whether the best way of preventing those appeals was to fix a pecuniary limit, below which it should not be competent to appeal. At all events, if such a principle were adopted, great care must be taken not to fix the sum too high; because, while £1,000 or £500 might be an insignificant sum to one person, the principle involved might be important to another, and the Courts might have decided against him upon a question of law upon which probably there might be a divergence of opinion in the profession. In such a case it might be wrong to deny the opportunity of an appeal by fixing an unchangeable pecuniary limit. It was also important to take care that cases of great importance were not prevented reaching the House; and by way of illustration he would instance an insurance case, in which an action was brought upon a policy against an underwriter, who was only one of several responsible for the total amount insured, the aggregate of which might be several thousand pounds. Before 1747 a person appealing to this House was bound to find proper security; but in that year the requirement was abolished by Order, and a person was able to appeal upon entering into his own recognizances. It seemed to be the object of that rule not to check appeals, but to facilitate them by increasing the opportunities for entering them.


said, that security might be taken for costs.


said, only the security of the appellant himself, which might be of no value; but he only mentioned the matter as one for further consideration. As to preventing an appeal to this House in a case in which the judgment of an inferior Court had been already affirmed by a Court of Appeal, the Court of Exchequer Chamber was a Court of Appeal from the superior Courts, and it often happened there that judgments were affirmed by slender majorities—sometimes by a majority of one; and was it to be supposed that in such a case an appeal to this House was to be impossible? The other day there was an appeal to that Court from the Court of Queen's Bench; it was an action by a shipowner against the consignee of certain goods; there were three claims—for demurrage, freight, and detention. The Court of Queen's Bench decided in favour of the first claim, and against the second and the third. The Judges of the Exchequer Chamber were divided upon each of the three claims. In such a case as a divergence of the judgments between two such Courts, an appeal to this House ought not to be denied. The Scotch Courts seemed to have been the corpus vile for which the experiment was to be made; and in the Scotch Courts there were frequently similar differences of opinion. Perhaps it would be right to say that where the judgment of the Court below was unanimously approved by the judgment of the Court of Appeal, there should be no further appeal to this House.


said, that while the protection of life and property and the redress of wrongs was the great end and purpose not only of Courts of Law, but of civil government, it was right to limit the range and cost of litigation, regard being had to the nature or value of the matter in dispute. The reasons that had been assigned for such limitation were sound, and the sum to be fixed upon was a matter of detail. The Scotch were familiar with the principle, which was applied to limit appeals from their County Courts, and the limitation had given such general satisfaction that it had been proposed to extend it, and a Commission had endorsed the recommendation. But part of the proposal in this Bill was so doubtful and hazardous that more time ought to be afforded for consideration; at present there were great doubts as to its expediency. That the number of appeals from Scotland was so large had been remarked upon as singular, considering the thrifty and patient character of the people of that country; but he thought this was explained by another trait in their character—namely, that while they were not more given to commence litigation than the people of England, yet when they engaged in a conflict of any kind whatever, they would not yield so long as they thought there was the slightest chance of success.

Motion agreed to; Bill read 2a accordingly.

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