HL Deb 13 April 1877 vol 233 cc1054-67

Order of the Day for the Second Reading, read.

THE LORD CHANCELLOR,

in moving that the Bill be now read the second time, said, the object of the measure was to authorize the appointment of an additional Judge for the Chancery Division of the High Court of Justice. The circumstances which rendered this proposal necessary would involve a consideration of the state of business in the various Courts; and, as this was a subject which excited very much interest out-of-doors, he would ask their Lordships' permission to occupy them for a short time while he stated why, in the opinion of the Government, the proposal in this Bill had become necessary. At the beginning of the present year his attention was called to the great increase of business in the Chancery Division of the High Court of Justice. He received, among other communications, a letter from the Incorporated Law Society, which he would lay on the Table that evening, because he proposed to allude to certain statements which it contained. Those statements were deserving of notice because of the intelligence and importance of the body from whom they emanated, and because they were made with great care and great accuracy. The representations of the Incorporated Law Society had reference to the three great blocks, or obstruction to business, in the Chancery Division. There were—first, to the causes and matters which stood for hearing before the Judges; secondly, to the business in the Chambers of the Chief Clerks; and, lastly, to the business in the Registrar's Office. Now with regard to the causes, it appeared that, going back to Hilary Term, 1875—one year before the Judicature Act came into operation—there stood on the 11th of January in that year for hearing before the four Primary Judges of the Court of Chancery, 301 causes; and that at the beginning of the Hilary Sittings in the following year there were within 13 of the same number; but at the beginning of Hilary Sittings of the present year —being one year after the Judicature Act had been in operation — there were no fewer than 566 waiting to be heard. He might add that on the first day of the Easter Sittings, which commenced in the present week, the number of causes standing for hearing was 602. It would be a mistake for their Lordships to suppose that these 602 cases included any arrears of causes which stood for hearing at the beginning of the Hilary Sittings of the present year; because he found that during those Sittings, which extended over 66 days, 592 cases were heard and disposed of; so that the whole of the causes standing for hearing at the beginning of the Sittings and some new causes which had been set down subsequently were heard and disposed of before the Sittings closed. The question arose, what was the cause of the great increase?—why, the list of causes, which amounted to 300 in the beginning of 1876, had swollen, under the operation of the Judicature Act, to 600. He believed there were two causes, which were referred to in the letter of the Incorporated Law Society. In the first place, there was no doubt that, under the new system, the hearing of Chancery causes occupied a much longer time than it did under the old one. Formerly the evidence was taken in writing before the hearing of the cause commenced. That, no doubt, was a very unsatisfactory way of arriving at the truth, but certainly it facilitated the hearing of the cause; because the parties came into Court with the whole of the evidence on either side ready to be referred to, and counsel were, from the first, in a position to direct their attention to that portion of it which was really important. Now that the witnessses were examined vivâ voce, he believed the truth was better arrived at; but it was arrived at with a consumption of much greater time than was formerly necessary for the hearing of causes. That was one reason of the great increase. The next was the very considerable influx of business to the Chancery Division of the High Court which had followed the passing of the Judicature Act. In the letter of the Incorporated Law Society some particulars were given as to that point. On an inspection of some returns of the number of actions, including informations, special cases, and administration summonses, commenced in the Court of Chancery from 1864 to 1874, the Council of the Society found that the average was 2,500 a-year. In the year 1875—probably in anticipation of the Judicature Act—the number was 3,932; but, in the year ending the 1st of November, 1876, the number was 5,111; showing an increase consequent on the operation of the Judicature Act to double the normal number. He believed this was largely accounted for by the natural increase of business throughout the country; but there could be no doubt that, to a considerable extent, it was accounted for by the fact that a large number of cases which formerly were tried by what were called the Common Law Courts were now brought to the Chancery Division of the High Court of Justice. Suitors had now the option of choosing the Courts to which they would take their causes, and a great number of them preferred to have their cases tried by the Chancery Division. Now, in noticing the time necessary for the disposal of cases, it must be borne in mind that in respect of business ordinarily brought before the Court of Chancery, it was not finally disposed of when the cause was decided by the Judge. Generally, some further proceedings in regard to account or inquiry had to be taken in Chambers. It was not so in respect of cases ordinarily tried in the Common Law Courts, because such cases generally ended with the hearing in Court. As to the 602 causes now standing for hearing, he had no doubt that owing to the assiduity of the Judges they would all be disposed of within a reasonably short time; but he was bound to say that, having regard to the pressure on the time of the Judges arising from petitions and motions, he was afraid that all those causes, with the additional ones which would come on during the Sittings, could not be dis- posed of before the Long Vacation; and therefore he was of opinion that the Incorporated Law Society were warranted in saying that the judicial power of the Chancery Division of the High Court of Justice was inadequate. In those circumstances, Her Majesty's Government came to the conclusion that it was their duty to propose to Parliament the addition of one Judge to the ordinary Judges of the High Court of Justice. The Bill provided for the appointment of the additional Judge; and it proposed that, in the first instance, that additional Judge should be assigned to the Chancery Division. Of course, like all other Judges appointed since the passing of the Judicature Act, the new Judge would be liable to be transferred to any other Division than the one to which he was first appointed, in the event of the business in the latter being such as that his services were no longer required in it. The Incorporated Law Society referred not merely to the state of business in Chambers and in the Registrar's Office. The Judges of the Chancery Division had at present three Chief Clerks and a considerable number of ordinary clerks. The Government did not propose that the Judge to be appointed under this Bill should have any Chamber clerks or should be charged with the conduct of business in Chambers. He would explain the reason why. The Incorporated Law Society, speaking of the business in Chambers, expressed themselves in this way— In reference to the Chief Clerks' Office, the Council would only desire to say that they frequently receive complaints of the difficulty and delay in getting inquiries prosecuted in Chambers; of the assiduity of the Chief Clerks there can be no question; but they, like the Judges, cannot keep pace with the increase and accumulation of business, and the fact is that it is not practicable in most of the Chambers to obtain any appointment for a sufficient length of time to make any real progress in an inquiry except at intervals of a month, and often more. It is manifest that the only practicable mode of relieving the pressure on the Chief Clerks is by relieving the pressure on the Judges. The Government proposed that the Judge to be appointed under this Bill should hear those cases which, before the passing of the Judicature Act, would probably have been brought in the Common Law Courts and which did not require to be dealt with in Chambers; but if he found that from the pressure of business in the Chambers of the other Judges additional assistance there would be required, it would be his duty to propose it. he was bound, however, to say that, after careful inquiries, he could not see any block of business or any serious delay in the Chambers of the Chancery Judges. He had referred to the learned Judges themselves, and he would read for their Lordships one of the reports made to him from each of the Chief Clerks of those learned Judges. From one of the Chief Clerks of Vice Chancellor Bacon he had this statement— There is no block in the business of these Chambers. It can be worked through expeditiously if solicitors are desirous of doing so. If an appointment of two or three hours is required, the longest time solicitors have to wait is a fortnight, but generally such appointments can be given within a much shorter time. Short appointments (that is, not exceeding half-an-hour) can always be given within three or four days of the application. In pressing matters arrangements are always made for the immediate disposal of them, whether a long or a short appointment is required. The time allotted to each appointment is sufficient to dispose of as much evidence as the solicitors are prepared to produce. By one of the Chief Clerks of Vice Chancellor Hall this report was given— Notwithstanding the additional work thus created, there is no ' block,' as it is termed, here. An appointment to proceed for one or two hours on any special inquiry or account could be given, after the Easter Recess, for a day as early as the 25th of April, and similar appointments could be procured after that day. Special appointments at a quarter-past 10 in the morning for three-quarters of an hour could also be given for as early a date as the 19th of April. From the Chamber of Vice Chancellor Malins there was this statement— Before the Chief Clerk. — Half-hour appointment.—Before 11 on April 12 and at and after 1 on April 18. One hour appointment.—Before 11 on April 14, and at and after 1 on April 18. Two hours appointment.—On April 20. Before the Junior Clerks. One hour and upwards on April 16. From the above dates the books are clear. From the Chamber of the Master of the Rolls there was this statement— It is the practice to divide the day into two nearly equal parts, and to devote the first part to summonses, and the second to appointments, varying from ten minutes to two hours in length. As regards the accounts and inquiries, I do not think that any additional delay has arisen. As regards summonses the case is different. The usual return for a summons is the third day from that of its date, and until recently it was found practicable, with rare exceptions, to make all summonses returnable on the third day. It is still practicable to do this with the simpler kind of summonses, such as those for time, for production of documents, for payment into court of purchase-money, and the like; but for special summonses it has been found necessary to make the return longer, and they are now commonly made returnable at ten, and sometimes at 14 days, and this is still a growing evil. The above is the result of my experience in my own Division, but I have reason to know that it corresponds in the main with the experience of my colleagues. He had been anxious that their Lordships should know the information he had received as to the state of business in the Chambers of the Judges. He had not the least objection, if a case were made out for it, to advise Parliament to strengthen the staff in the Judges' Chambers; but he had a great objection to make any such proposition unless there was a clear case of emergency, and he was not satisfied that there was any such case. Without appointing an additional staff, care would be taken to lighten the business in Chambers. Under the Judicature Act, power was given for the appointment of Official Referees; but he found that the business referred to those officers had not been sufficient to occupy their time. It was said that this was owing to the scale of fees payable in the case of reference to the Official Referees. He thought there was ground for the allegation, and a change would be made in that respect by which in proceedings before the Official Referees only one single fee would be taken, The Judges in the Court of Chancery were prepared to assign to the Official Referees business which would much lighten that now discharged in Chambers. The third point to which the Incorporated Law Society directed attention was that relating to the Registrars' Office. In their letter there was this statement— In regard to the Registrar's Office, as to the delay in which there have been so many complaints in the public papers, the Council have made inquiries and learn that those complaints are only too well founded. And the reason is not far to seek. It appears that in 1866 the number of orders drawn up was 13,400, in 1875, the number was about 12,000; but in the year ending the 1st of November, 1876, the number had suddenly risen to 18,400, showing again the enormous increase following the operation of the Judicature Act. And it should be stated that this large increase of business has had to be borne by an actually decreased staff of Registrars, a vacancy there not having been filled up. He believed that the decreased staff might have had something to do with the pressure. He had purposely refrained from filling up the vacancy in the Registrars' Office after the passing of the Judicature Act, in order to see whether it would be really necessary to fill it up; but, after an experience of two years, he had found from the increase of business that it would be necessary, and the vacancy had been filled up. Having spoken of the state of business in the Chancery Division of the High Court of Justice, he thought he would be wrong if he sat down without stating to their Lordships what was the state of business in the other Divisions of the Court. The Court of Appeal had been sitting in two Divisions, and had disposed of the business satisfactorily. He found that at the beginning of the Hilary Sittings of the present year there were 142 appeals waiting to be disposed of, and that at the end of those Sittings the Court had disposed of 156 cases; so that it had disposed of the whole of those which were waiting for hearing at the beginning of the Sittings, and of 14 more which had been subsequently set down. At the commencement of the present Easter Sittings there wore 141 appeals waiting for hearing. These must have been set down for hearing since the commencement of the present year. he thought that was a very satisfactory state of things. In the three Common Law Divisions—the Queen's Bench, the Common Pleas, and the Exchequer—the number of jury cases set down for trial at the commencement of the present Sittings was—for London 241, and for Middlesex 900—including both Common and Special Juries—making a total of 1,141. No doubt that was a very large list, and so far as he knew it was a larger one than had been set down on any former occasion. It was to be borne in mind, however, that Easter had fallen somewhat earlier than usual this year; and, consequently, owing to the Spring Assizes having commenced earlier, the continuity of the Sittings in London and Middlesex had been broken. He thought, however, that with six Courts sitting daily for about 11 weeks, there was no reason why the list might not be got through before the Long Vacation. He deprecated any change at present in regard to the number of Judges of the other Divisions of the High Court of Justice, and he did so for various reasons. They were in the middle of a most interesting experiment, the whole bearing of which on the other Divisions could not yet be fully ascertained. Their Lordships had sanctioned an arrangement under which the Judges of the Common Law Divisions sat singly for the disposal, not merely of questions of fact before a jury, but of questions of law; and it would take some time before the effect of that legislation was fully known. He believed, however, great economy of judicial time would. result from that arrangement. Until the new Courts of Justice were completed it would be quite impossible to realize the amount of business which could be done by the present number of Judges. When accommodation for a great number of Courts was provided in one place the time of the Bar and of solicitors would not be consumed, as it was at present, in passing from one place to another. At present there was the greatest difficulty in providing accommodation for all the Courts of Nisi Prius; but the great expenditure which would be required to do away with that would be too great for a provision intended only for at most a few years. He believed that the experiment now being made had up to this been very successful. But he did not think we were at the end of the changes. He doubted, whether there was not a great waste of judicial strength in the business of the Assizes. He alluded more particularly to the criminal business of the Assizes. The Judicature Commission made a most important recommendation, which was that the area of the Central Criminal Court should be enlarged, and that prisoners should be brought to trial at that Court from a greater distance than at present. The Commission also recommended that prisoners should be committed for trial at Quarter Sessions to a greater extent than at present—that there should. be a schedule of offences, and that except for those of a very grave character prisoners should be committed for trial at Quarter Sessions. He believed that would very much lighten the business at the Assizes. From Lancashire—from the great towns of Manchester and Liverpool—there was a loud complaint as to the trial of civil cases. In those places, the list of civil actions was too long for the time at the disposal of the Judges to get through them satisfactorily. Another arrangement different from the existing one as to criminal business would much facilitate the transaction of the civil business in such towns. He could not but refer to another subject which was occupying much attention at present. A good deal had been done to obviate the inconvenience and hardship to which untried prisoners were subjected; but he could. not think that even yet their position in this country was what it should be. he believed that if the Quarter Sessions were made more use of than they were at present for the trial of prisoners, the grievance of untried prisoners would be to some extent remedied. Again, if the Central Criminal Court were used more, that would have the same effect. There was another subject of considerable importance connected with the administration of the Criminal Law. He believed that we should not have so satisfactory an administration of criminal justice as we ought to have until we possessed either a Code or a Digest of the Criminal Law of the country. He wished. there was a reasonable prospect of the whole of the English law being reduced to a Code or Digest; but he felt perfectly certain there was no reason, if time could be procured for the purpose, why a Criminal Code should not be prepared. When he said a "Criminal Code" he meant not merely a Code in regard to the definition and punishment of offences, but also a Code of Criminal Procedure. It did astonish him that while we had shown the greatest energy in endeavouring to reform our Civil Procedure, we had done so little in the way of reforming our Criminal Procedure. He thought he was right in saying that not long ago a prisoner named Banner Oakley was indicted at the Central Criminal Court for obtaining money or securities under false pretences. The indictment against the prisoner was framed under the most careful advice, and although the gentlemen who drew it up felt the absurdity of it, they thought it would not be safe in any other form. Well, that indictment consisted of 140 counts, and the parchment roll on which it was transcribed was 80 yards in length. It was conceived, however, that for the purpose of avoiding those pitfalls which existed in the Criminal Procedure it was necessary to have an indictment of that kind. As regards our Criminal Law and Criminal Procedure, he trusted Her Majesty's Government might be enabled to take steps to produce improvements which would be advantageous for the purpose for which they were intended, and would also save a considerable amount of judicial time. In conclusion, he moved that the Bill be now read a second time.

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

LORD COLERIDGE

said, he was exceedingly glad his noble and learned Friend had brought in this Bill, and did not intend to say a single syllable to obstruct the passage of a measure which, in his opinion, was a most useful one. It might, however, be right for him to mention that, in regard to two of the matters which his noble and learned Friend had referred to, while he entirely concurred in one of them, yet, in regard to the other, he could not anticipate that the relief to our present judicial system which he expected might be derived from this measure would be so great as his noble and learned Friend imagined. The statement of his noble and learned Friend as to the state of business in the three Common Law Courts was generally accurate. He trusted that when the Long Vacation arrived the very large number of cases mentioned by his noble and learned Friend might be materially diminished; but he must say he feared that when the Long Vacation arrived there would be a very considerable arrear in Nisi Prius cases both in London and Westminster. He did not think the suggestion that relief should be given to the Chancery Division of the High Court by some of the Judges of the Common Law Division was at all well founded. If the Common Law Judges discharged their own business, and discharged it with a reasonable amount of satisfaction, it was all they could be fairly expected to do. His noble and learned Friend had remarked that in consequence of the changes which Parliament sanctioned last year there would probably be considerable economy of judicial time. At present it was very difficult to tell how far that would be effected; because there was a want of convenient rooms for the transaction of business. He desired the Judges to carry into due effect the changes which Parliament made last year—indeed, there had not been on the part of the Judges the least desire in any way to interfere with the full effect of those changes. It was the duty of the Judges—and he trusted they would always do their duty cheerfully—to give the fullest effect to any change of the law which Parliament made. But the matter of physical accommodation was not an easy one; and in particular he might mention that at the present moment the Judges were temporarily hampered in the discharge of their duties by the accidental destruction of the Clerkenwell Sessions House. In consequence of this destruction, the Westminster Sessions House, which had been practically at the disposal of the Judges at Westminster for the greater part of the year, was now wanted by the Middlesex Justices, and consequently the Judges would be deprived of two Courts at the very time of the year when they most required the use of them. Having been absent for some weeks on a long and laborious circuit, comprising the counties of Northumberland, Durham, and York, he could only say that there was scarcely a single criminal case among those that he tried—and his Colleague was of the same opinion—which was not perfectly worthy of being disposed of by the best judicial power at the command of the country. When he was a younger man he practised at Quarter Sessions; and, although he entertained a great respect for the magistrates and the way they did their duty, yet he should be sorry to see anything like a large or indiscriminate transfer of business from the Circuits to the Quarter Sessions. Perhaps at the Quarter Sessions the business was transacted with less form than at the Assizes, but certainly on the whole with a less competent Bar. There was in connection with the Judicature Act another proposal which, as his noble and learned Friend must be aware, was received with the strongest possible resistance in one important county. The proposal was that in certain cases there should be a tranfer of the business of one county to the tribunals of another. He thought it would be very unwise to make such a change. If the country were prepared to break up the whole of England into provinces, with a centre in each province for the transaction of the purely legal business, there might be something to be said for such a change; but, as matters at present stood, the division into counties by means of which justice was from time to time brought reasonably near to the doors of the inhabitants was, in his opinion, the best—for he did not agree with those who thought that there would be much saving of judicial time effected by a great alteration of the Circuits. He had not, he might add, been on circuit at Liverpool or Manchester, but he believed the business there had been disposed of in a reasonable time; while he could make a similar statement more particularly with regard to Leeds. He wished merely to observe further that he was heartily glad the present Bill had been introduced; but he should be glad that it contained some more distinct provision making the new Judge liable to go circuit in his turn; for if the fusion of Law and Equity was to be anything more than a name, it could only be by means of the Judges of the Court of Chancery from time to time, seeing the working of the Common Law, by going circuit, and the Judges of the Common Law, on the other hand, occasionally sitting in the Chancery Division.

LORD SELBORNE

said, he could not feel unmixed satisfaction at anything which made it necessary to appoint an additional Judge, because it was his opinion that the multiplication of Judges beyond what was really and absolutely necessary tended a little to diminish the authority of the Judicial Bench, and to give rise to a greater divergence of judgments. He had, however, no reason to think that his noble and learned Friend and the Members of his Government entertained a different opinion and when they were told by his noble and learned Friend that an additional Judge was necessary, he was prepared to support the proposal. In reference to what had been said by his noble and learned Friend the Lord Chief Justice, he did not think there could be the slightest doubt that the additional Judge would have to go circuit. He had hoped that some relief for the present difficulties might have been found by exercising the power of transfer in the same way that it was now used in the Chancery Division; where, on the Court of one Judge becoming overcrowded, causes were, as a matter of course, transferred to another. Cases of the class mentioned by his noble and learned Friend the Lord Chancellor were certainly very fit to be transferred from the Chancery to the Common Law Divisions; and Judges of the Common Law Divisions might, if at liberty, go into the Chancery Divisions to try such cases. His noble and learned Friend the Lord Chief Justice had anticipated his observation that every Judge of the Common Law Division who could be spared should go into the Chancery Division to assist as an additional Judge, by his statement that no Judge could now be spared for such a purpose. No one could have anticipated anything but an increase of business from any large and comprehensive re-modelling of the judicial system of the country; and none could have anticipated a very great and rapid increase of judicial business without, at the same time, anticipating some block in the present Courts. Still, he did not know if suitors had now to wait longer for a trial of their cases than they had to wait before the Judicature Act was passed. It was also a matter for consideration how far the alteration of the mode of taking evidence in the Chancery Division would necessarily require an increase in the judicial strength. In regard to this question of the economy of judicial time, he could not help thinking that, if those engaged in the administration of justice —Counsel, and even the Judges—would exert themselves a little more to prevent the abuses incident to the oral examination of witnesses than lie feared they sometimes did, they could avoid a great waste of time. he could not help frequently remarking the enormous waste of time there was in connection with the taking of testimony, particularly in cross-examination. It often happened that all sorts of useless and irrelevant questions were asked, and frequently with the effect of strengthening the case it was intended to destroy. Surely the Judges might, without any undue exercise of authority, do something to prevent that waste of time? He also thought that something might be done to relieve the circuits by enlarging the jurisdiction of the Quarter Sessions and the County Courts. How far this could be carried out lie would not undertake to say; but he could not help thinking the subject one that must, before long, engage his noble and learned Friend's attention.

THE LORD CHANCELLOR,

in reply, said, that beyond doubt the Judge appointed under this Bill would be liable to go circuit. The Bill gave the new Judge no exemptions from circuit, but whether he would actually go circuit or not was another question, which would depend not on him, but on those who were responsible for the circuit arrangements. It would be a matter for consideration whether it was desirable that a single Judge sitting in London, with a Court and Bar fully occupied, should be taken away for circuit work, and the Court shut up. It might also be a question whether the fairest plan would not be to give him a share of that work, and let another Judge occupy his place in London during his absence. However that might be, there was, as he had said, no doubt that under the Bill he would be liable to be called upon to go circuit. His noble and learned Friend (Lord Coleridge) seemed to doubt the accuracy of the statement he had made with regard to Lancashire. With respect to Manchester, the following figures showed the amount of the business at the Assizes:—In 1876, at the Spring Assizes, there were 69 causes entered for trial, and only 10 days given to them. At the Summer Assizes, there were 92 causes and 11 days; at the Winter Assizes, 49 causes and six days; and at the Spring Assizes of the present year, 76 causes and 10 days. In the last-mentioned case, only 35 causes out of 76 were tried, 20 were withdrawn—in other words, they did not receive the justice they were entitled to—and the remaining causes were referred to arbitration or abandoned. The Courts were occupied up to the last moment, and a jury was transported to Liverpool in order to complete a case. Under these circumstances, it must be admitted that the arrangements in Lancashire as to civil cases were not satisfactory.

Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday next.