SUPREME COURT OF JUDICATURE ACT (1873) AMENDMENT BILL—(No. 56.) (Hansard, 16 June 1874)

§ LORD PENZANCE
said, that by this clause the First Divisional Court of the Imperial Court of Appeal was to consist of three ex officio members—the Lord Chancellor, the Lord Chief Justice of England, and the Master of the Rolls in England; of any number not exceeding three of the additional Judges of the Imperial Court of Appeal, and three of the ordinary Judges of that Court, or of any five or more of them. He objected to this, that all these Judges, with the exception of the three ex officio members, were to be nominated to sit for a term of three years. Their nomination was only to have effect for that period. This was a new principle in our judicial system. These temporary Judges might reverse the judgments of the other Imperial Courts of which they were members. Again the Court which reversed decisions should be something superior to the Court whose decisions it reversed; but, as the Bill stood, the members of the various Divisions of the Court of Appeal would be all placed on the same footing; for the whole of the 17 members would be shifted about from one Division to another, and those in the First might be reversing the decision of those in the Second or Third Division. This system was not calculated to secure public confidence in the decisions of the highest Court of Appeal. He must remind their Lordships that the Irish and Scotch, as well as the English, Ecclesiastical appeals, and Colonial appeals, were all to go to this First Division of the Imperial Court; and many of these raised questions which required special knowledge and varied experience; and his second objection to the constitution of the First Division was, that no sooner might one of these shifting Judges be supposed to have acquired some experience in the business of the Court than he would cease to be a member, and would be returned to another Division, where his judgments were open to appeal 1670 to a Court to which the Judges had only just been transferred from the inferior Divisions. The result must be that the judgments of the Court could never have that certainty which was at the very foundation of legal decision, and delay and expense would be multiplied. He would propose an Amendment which would to some extent remedy the evil he had pointed out.

THE LORD CHANCELLOR
said, the first objection of his noble and learned Friend (Lord Penzance) was the most plausible one; but it was entirely fallacious. His noble and learned Friend laboured under a misapprehension as to these triennial appointments. The Judges of the First Division were not to be appointed for three years. Like all other Judges, they were to be appointed for life, or until an Address from both Houses of Parliament removed them from office. His noble and learned Friend confused two very different things. It was one thing to appoint a Judge for three years; it was quite another thing that Judges appointed in the usual way should be enabled to manage among themselves the duty of hearing by rotation the appeals in the First Division of the Imperial Court of Appeal. This principle was not new. It was now acted upon in the case of Election Petitions, for the trial of which certain of the Judges were appointed Election Judges each year, the nomination for that particular duty being only for one year, and at the end of that year other Judges were nominated. And so in the Imperial Court of Appeal certain of the Judges of the other Divisions would be nominated to sit in the First Division, and at the end of three years would return to their Divisions, and other Judges would succeed them. The two next objections of his noble and learned Friend were antagonistic to each other. The first was that the Judges of the First Division might over-rule the decision of those of the other Divisions, and that the Judges of the latter would be in a subordinate position. His noble and 1671 learned Friend went on to say that he objected to the system of nomination proposed in the Bill, because its effect would be to preserve an equilibrium as between all the Judges. It was impossible his noble and learned Friend could stand by both these objections. What proposal would his noble and learned Friend make? He must wish for one or other of these two arrangements. One of these plans would be, that Parliament in creating this Appellate Court should say nothing as to how the three Judges were to be chosen; in which case they would arrange it among themselves, and the effect would be that one day one set of Judges would sit in the First Division and the next day another set would take their places. That would be fatal to the organization of the Court. Then there was the other proposition—the one which his noble and learned Friend had moved as an Amendment—namely, that Judges once appointed to the First Division should continue to sit on it during the whole tenure of office as Judges of Appeal. Such an arrangement as that would at once draw a broad line between the Judges of the First Division and the Judges of the other Divisions, and the Judges of the Second and Third Divisions would be placed in a subordinate position. He thought the proposal in the Bill steered clear of both difficulties.

§ LORD SELBORNE
said, he would prefer that the period of appointment to the First Division should be two years instead of three, and that the appointment should come in turn to all the Judges, rather than be by nomination.

§ LORD PENZANCE
said, he would not persevere with his Amendment, as his noble and learned Friend on the Woolsack was not willing to accept it. His noble and learned Friend who had just spoken was perfectly consistent in wishing the Judges of the Appeal Court to be all equal in position, because he was in favour of one appeal only, and deprecated any further hearing after the Appeal Court had once decided. But his noble and learned Friend on the Woolsack was inconsistent, for he proposed a second appeal from one Division of the Court to another Division of the same Court, and this could not be effected without placing the First Division of the Court, which was to entertain this second appeal, in a position of superiority 1672 over the other Divisions whose decisions it was to reverse. It was not in the nature of things that this superiority should not exist, and it was useless to struggle to maintain an equality in the different Divisions of the Court under such circumstances. It was for this reason that he objected to the plan of shifting the Judges backwards and forwards between the Superior and Inferior Divisions of this new Court.

§ LORD PENZANCE
said, he thought the provisions for a re-hearing did not go far enough. As the clause stood, the 9th Sub-section provided that Any appeal heard before any Divisional Court other than the first, in the decision of which the Judges of the Court are not unanimous, shall, if any party to such appeal so desire, he re-heard before the first Divisional Court. This, he thought, was narrowing too much the right of a second hearing. It might be that the Appeal Court, even if unanimous, would be only three Judges over-ruling the judgment of three Judges in the Court below. Besides which, it was by no means the case that erroneous judgments were not arrived at unanimously. On the contrary, it often happened that the entire Court were most strongly and rapidly impressed by a particular view, and those were the really dangerous cases. He had given Notice of an Amendment to strike out the words "in the decision of which the Judges of the Court are not unanimous." But as he saw no chance of carrying that Amendment he now begged to move after the word "unanimous" the insertion of these words, "or where such decision in any question of law reverses a material part of the judgment or order appealed from."

THE LORD CHANCELLOR
said, he did not think that there should be in all cases a right of re-hearing. Where both the Courts—those of Primary Jurisdiction and the First Divisional Court of Appeal—were of the same opinion, then the litigation should stop; but when there was a difference of opinion between those Courts, or where the judgment reversed any part of the judgment appealed from on any question of law he thought the right to a re-hearing should be given. He had received various representations from the 1673 Incorporated Law Society and from members of the Bar on the subject of this second hearing, and under all the circumstances he did not object to the Amendment now proposed by his noble and learned Friend with a slight variation.

§ LORD SELBORNE
said, he was not for multiplying the opportunities of appealing unnecessarily. He thought the proposal of the Amendment which left the right of re-hearing, in all cases, to the decision of one of the parties objectionable, and thought it should not be allowed, except in the special cases proposed by the noble and learned Lord on the Woolsack without the permission of the Court itself.

§ LORD COLERIDGE
also doubted the advisability of the Amendment. Finality and equality were the objects to be achieved by the new Court of Appeal. To give the right of appeal in all cases would lessen the authority of one Division and increase that of the other, and the chances of finality would be diminished as facilities for going from one Division of the Court to another were granted to suitors.