HL Deb 13 March 1884 vol 285 cc1314-25
THE MARQUESS OF HUNTLY

, in rising to call attention to the conflict of jurisdiction which had arisen between the English and Scottish Courts of Justice, especially with regard to the Orr Ewing case; and to ask the Lord Chancellor, Whether the Government will introduce a Bill into Parliament with the view of reconciling and determining the law of both countries? said, he hoped it would not be considered impertinent on his part to call attention to this matter in the presence of those who were better informed than he was; but the subject had attracted so much attention on both sides of the Tweed that he felt it his duty to call their Lordships' attention to it. He would, however, try to avoid details. His object was to show that a conflict of jurisdiction on several points had arisen between the English and the Scottish Courts, that the question was of very great importance, and that a necessity existed for immediate legislation. The matter was one of special importance to those who, like himself, had property in both England and Scotland. The case which had excited this interest, or rather which had brought matters to a head—because the interest had been growing for many years—was a case known as the Orr Ewing case. He did not intend to weary their Lordships by going into the long history of the case, but he would endeavour to put the facts shortly before the House. A domiciled Scotchman, Mr. Orr Ewing, died in May, 1878, leaving a large amount of property, 17–18ths of which were in Scotland and 1-18th in England. There were six trustees appointed to administer the property. Four of the trustees resident in Scotland took the necessary steps to comply with the law, and obtained a confirmatory order from the Commissary Court of Dumbarton authorizing them to bring the English asset to Scotland and to administer the estate. According to the law that order had to come to the Probate Court in England to be sealed for the purpose of bringing in the English asset. Two years after the death of Mr. Orr Ewing a question was raised by a minor, who was interested for a small amount, and his next friend or guardian, claiming that the whole estate should be administered under the authority of the Court of Chancery in England. A summons was brought in this Court and was granted. Appeals had been heard upon that summons; the case had gone up to the House of Lords, and it had been decided that this large estate should be brought to the Court of Chancery to be administered. In the meantime the other trustees resident in Scotland brought forward a case in Scotland claiming authority to administer the trust estate in Scotland, and the highest Court of that country had given a decision that the estate must be administered in Scotland. He did not wish to enter into all the points that had been raised; but if their Lordships wished to know all the facts connected with this conflict of authority, he would refer them to a very interesting book that had been edited and published by Sheriff Spens, Sheriff-Substitute of Glasgow, which set out all the facts of the case. In that book would be found very interesting arguments by the Judges of this country as to whether Scotland was a foreign country. It appeared to him, however, that the differences that had arisen were questions of law. If both sides were right in their contention, something ought to be done directly by legislation to decide the difficulty. The difference that had arisen existed chiefly upon the following points:—(1) Did the fact of probate in the English Court (even of a small portion of the estate) necessitate the administration, if claimed, of all the property in England and under English law? (2) Did the claim of any beneficiary to have the estate administered in the Court of Chancery, and upon that Court giving an order accordingly, override the customary procedure in Scotland and in Scottish Courts, and compel the trustees in Scotland to come to England and, under English Courts, to fulfil their duties? To these questions the English Judges said "Yes," and the Scotch Judges "No;" and the highest legal authority in each country—namely, the Lord Chancellor and the Lord President of the Court of Session—had taken diametrically different views. The Lord Chancellor, on the 30th November, in the course of a judgment, said— The argument from the official character of the appellants, by reason of the confirmation of the will by a Scottish Court, may be summarily dismissed. The effect in that respect of confirmation in Scotland (or of probate in Eng. land) is and must be the same, whatever may be the domicile of the testator. It is merely to complete the title of the executors to represent their testator within the local jurisdiction in mobilibus, and the necessity for this is independent of domicile. Those special provisions of the statute in which a Scotch domicile is mentioned affect the inventory only, and not the character of the title obtained by confirmation. The Scottish confirmation requires to be, and in the present case it was, sealed by the English Court of Probate; which sealing, under the statute, has the same operation as if probate had been granted by the English Court. The appellants, therefore, now represent their testator in mobilibus within both jurisdictions, and under the will they are trustees not of part only of the estate but. of the whole. The Court which grants confirmation of probate is not a Court of Administration, though (when there are no executors nominated by the will) it may appoint administrators; nor are the executors (in any sense exclusive of the jurisdiction of any other forum, in a case in which it might otherwise attach) officers of that Court. That was the opinion of the highest authority in this country. On the other hand, the Lord President of the Court of Session, on the 29th of February, 1883, laid down the law as follows:— The defenders having in the Commissary Court of Dumbartonshire given up on oath, an inventory of the whole of the deceased's personal estate, including the funds and effects situated in England as well as those situated in Scotland, and having exhibited to the Commissary the trust-disposition and settlement of the deceased, the Commissary pronounced his deliverance confirming the nomination of the defenders as executors, and giving them 'full power to uplift, receive, administer, and dispose of the said personal estate and effects' (i.e., the estate and effects contained in the inventory, both Scottish and English), "to grant discharges thereof, if needful, to pursue therefore and generally every other thing concerning the same to do that to the office of an executor-nominate is known to belong.' Now this is the sole grant of right to administer the estate of the deceased which the defenders have obtained. They require no other. No doubt, to give it the effect of an active title to recover from English debtors or to uplift English funds the seal of the Probate Court of England is directed by the statute to be impressed upon it. But the official of the Probate Court cannot refuse to impress the seal. He has no discretion in the matter. His act is not judicial, but a mere statutory formality. The seal is impressed not because the Probate Court or its official has seen the nomination of the executors or the inventory of the estate, or the oath of the executors confirmed, not because the executors have taken any oath in the Probate Court or undertaken any duties in that Court, or found there any security for their just and true administration, but simply and solely because the officer of the Probate Court has had presented to him what bears to be a confirmation sealed with the seal of the Commissary of Dumbartonshire, together with a certified copy of the interlocutor of the Commissary, pronounced in terms of the statute. He, as ordained by the statute, affixes the seal which gives the confirmation force and effect in England solely because the Commissary of Dumbartonshire has given the executors the power and right to ingather that portion of the estate which is situated in England. And after the seal is impressed the statute requires that the confirmation shall be returned to the person producing the same,' so that neither the confirmation nor the sealing of it is required to be made matter of record in the Court of Probate. To hold that the Scotch confirmation when sealed, and because it is sealed by the officer of the Probate Court, becomes an English grant of probate in a question of jurisdiction, seems to be much the same thing as it would be to hold that a judgment of an English Court registered in Scotland and put to execution there under the Judgments Extension Act, becomes, in a question of jurisdiction, a judgment of a Scotch Court. He would ask their Lordships to consider what the effect of this was. There were judgments given by the two highest authorities in England and Scotland diametrically opposed to each other in their terms—distinctly and entirely contradictory; and the state of the case was this, that they had the Law Courts of England and Scotland in direct conflict. He would appeal to their Lordships whether this was a matter which should he allowed to continue on its present footing, and whether this grievance regarding both countries should not be removed? Scotchmen certainly would not be inclined to allow that their jurisdiction was to be overridden by the Court of Chancery in England. They would hardly be willing to allow the suppression of the jurisdiction of their own Court, and there was a very natural reason for their not doing so. They had only to turn to the Act of Union to see that most strongly in that Act of Union it was laid down that the jurisdiction of the Scottish Courts would continue. The 19th Article of the Act of Union said— No causes in Scotland shall be cognoscible by the Courts of Chancery, Queen's Bench, Common Pleas, or any other Court in Westminster Hall; and the said Courts, or any other of a like nature, after the Union shall have the power to cognosce, review, or alter the Acts or sentences of adjudicature within Scotland, or stop the execution of the same. In the face of this fact, and with the knowledge that there was this ancient custom and ancient law in Scotland as to the jurisdiction of the Scottish Courts, most Scotchmen would feel that there was a growing tendency in England to make some sort of onslaught upon a Scottish jurisdiction. The feeling might be wrong; but there could be no doubt that the feeling did exist very strongly, and that it was a growing feeling. Because this Orr Ewing case was not the first case of the kind that had attracted the attention of the public. It was very well known that the case of the late Sir William Stirling-Maxwell called forth a great deal of comment. In that case, one of the trustees of the estate of the late Sir William Stirling-Maxwell, by his action, brought the whole of the deceased's estate to be administered in the Court of Chancery, when the property in England really consisted of a house in London—a very small asset compared with the large estate he had in Scotland. There was another point to which he wished to call their Lordships' attention. If this were really good law, that any trustee, if he wished, could call upon the other trustees to bring the property in Scotland to be administered in the Court of Chancery, although there might he only a small amount of property in England, would it not be dangerous to legatees in the future, and especially was it a danger which loomed largely in the future to those who, like himself, owned properties in both England and Scotland? The property might be left in trust to six executors, all of them in Scotland; one of them might change his residence and go to England; yet, simply by the whim of that executor, the whole property might be brought to England to be administred, for that really was the bearing of the law brought to its logical conclusion. Now, what he thought Scotchmen would insist upon was this—that a domiciled Scotchman ought to have a right to insist upon his property in Scotland being administered entirely according to the Scottish law and custom, and in that country, after his decease. He did not wish to go into any other grievances which had arisen, but one which was very largely felt in Scotland was the grievance in connection with the service of writs. Up till the year 1875, when the Judicature Act was passed, there was no power of service upon Scotchmen under a process in the English Court. That Act, however, gave the power, and since then the Rules of Court had put in the discretion of the English Judge the issuing of these writs. This was felt in Scotland to be a very great hardship, because ever since Scotland was a nation, up till 1875, no such thing was known. There was a case which he saw reported in The Times this morning—the case of a merchant in Aberdeen who was summoned by foreigner, without any residence in this country, to come to London to defend himself in the action. That case being sub judice, he did not wish to enter on it at the present moment; but he wished merely to say that this question of the service of writs was felt to be a very great grievance. What was felt in Scotland was this—these questions were so grave that they would simply be argued about and continually discussed, and very great grievance and hardship created, unless some settlement were carried out by the definition of the law. It had often been said that Solomon's judgment was a very severe one when he ordered the baby to be cut in two parts and divided between the two claimants. The result here was worse than in Solomon's judgment, because in this case it appeared that the property would be given away entirely to a third party, and that third party the lawyers. The public, he believed, thought that that Learned Profession already had enough; and, unless these estates were to be eaten up in litigation, some measure should be brought in to settle the matter. He, therefore, appealed to the noble and learned Lord on the Woolsack whether he would not bring in a Bill to settle these vexed questions, and to bring to an end this conflict of jurisdiction? That would certainly be a way out of the difficulty, and remove the scandal and heartburning which at present existed.

THE LORD CHANCELLOR

My Lords, I can only assure my noble Friend that if there is, or is likely to be, a conflict of jurisdiction between the English and the Scottish Courts, there is no one in your Lordships' House or elsewhere who would regret it more than I should do. My own feeling has always been one of high respect for the Scottish Courts, for the Scottish law, and for the Scottish people; and I have no less respect for the Courts, and the law, and the people of this country; and I should have thought that, as time went on, there would be a general sense of the desirableness of co-operation, and not conflict, between the Courts of both countries, each recognizing the necessity of the jurisdiction which the other exercises in its own country, and being not unwilling to give assistance to the other upon all proper occasions. The tendency of modern legislation has been in the same direction; the Mercantile Law of both countries has been assimilated, and facilities have been given for the execution of the judgments of the Courts of each country in the other, and in many other ways, consistent with the preservation of the peculiar law and jurisdiction of Scotland by the Act of Union, the administration of justice has been drawn together for the public advantage in both countries, as far as might be. The final Court of Appeal, also, from both countries, is your Lordships' House, and this has exercised a clear, and, on the whole, I think it will be admitted by Scotchmen as well as Englishmen, a beneficial influence towards diminishing unnecessary conflict, at all events, between the laws of both countries and their administration. And I own, as far as I am acquainted with the views of English Judges and English lawyers both in and out of this House, I think they share the views which I have expressed, and that there is no tendency whatever towards encroachment on the Scottish jurisdiction, and no jealousy whatever of that jurisdiction. Whatever may be legal within our own jurisdiction in matters in which Scotchmen resident in England may be interested, we should undoubtedly not complain if exactly the same thing were done in Scotland in matters in which Englishmen resident there were interested—of course, assuming that the Scottish law and the practice in Scottish Courts might enable the same thing to be done. As far as I am aware, I am not in a position to say that any conflict of jurisdiction has at present arisen. The noble Lord seems to have authentic information upon points on which I cannot for the present profess to have information. I know what has happened in this House, and I will state presently what has taken place here with regard to the jurisdiction of the English Courts. Whether the decisions in Scotland are in conflict with what has taken place here I cannot possibly say, and that for two reasons— first of all, because it may be that the decisions of the Scottish Courts out of which this conflict is supposed to have arisen, or to be in danger of arising, may be brought by way of appeal to your Lordships' House, and I should be forgetting my duty if I said a word which could interfere with the proper judicial consideration of those matters, if brought here by way of appeal. I have at present no real authentic information as to what has happened in Scotland. If the case is brought here by appeal, that information will necessarily be furnished to those who may have to decide the appeal; and I feel perfectly confident that they will recognize it as their duty to decide any such question according to the law of Scotland as they find the law of Scotland to be, even if the result should be to show a conflict of jurisdiction, making some legislation necessary; but until that takes place, I cannot admit that there is any such conflict of jurisdiction, or any necessity for legislation. Another thing may happen, as to which I have at present no information whatever. When this House had the case which the noble Lord described as the "Orr Ewing" case before it, there was only one litigation; there was a suit in the High Court of Justice in England, and no suit in Scotland. The Scottish Courts had not then exercised any jurisdiction over the matter at all. Nothing done in England has interfered in the slightest degree with anything done by the Courts in Scotland. No conflict did or could arise out of those proceedings, simply because there were no proceedings elsewhere which could come into conflict with them. But since the decision of your Lordships' House proceedings have been taken in Scotland, and, as I understand, the Court in Scotland has appointed over the trust-estate in question what is called in Scotland a Judicial Factor, or in England a Receiver. I suppose that is equivalent to the Scottish Court taking upon itself the administration of this trust-estate. Well, the proper way, I should conceive, under these circumstances to ascertain whether there is to be any embarrassment through the concurrent litigation in the two Courts, would be for an application to be made, if the Scottish Court thinks it ought to be made, to the Court in England for a stay of proceedings. Whether that application will be made, or what the result of it may be if made, I do not know. If there be no such application, or if there be such an application, until it is ascertained that the English Court does not see its way to stay the proceedings in this country, and to leave the administration of the trust to be entirely done in Scotland, I do not see how there can be any conflict of jurisdiction at all. This English Orr Ewing case, which appears to me to have been misunderstood, as far as I can make out, was of a very simple description. It did not turn upon any technicality at all. It was the case of a Scotch gentleman leaving an extremely large personal estate, worth about £500,000. By his will he divided the bulk of that estate between six nephews and nieces. One of these, who would be entitled to about £80,000, lived with his guardian in England. Of the trustees, who, I think, were six in number, two were ordinarily resident in England, and carrying on business in this country. The third was accustomed to spend half of every year in England, and the other three ordinarily resided in Scotland. The guardian of the child in England entitled to this large sum of about £80,000 thought the trust should be administered—not that all the estate should be brought from Scotland to England—under the direction of the Chancery Division of the High Court of Justice so that the amount of the child's interest might be ascertained and the proper accounts taken, and information obtained as to the way the estate was being administered. For that purpose a suit was instituted in the English Court, and the writ was regularly served upon those three of the trustees who were actually in England by the next friend of the child, who was also resident in this country. Notice of the action was also served, under orders of the Court, upon the three trustees who were in Scotland. If those trustees had objected because they lived in Scotland, or because the case was one in which they ought not to be sued in England, or if, for any other cause, they had protested against the service of the writ, and could show sufficient grounds for their objection, they would have been at liberty to ask the Court in England that the order for service upon them should be discharged. They did no such thing. Of course I do not say, that if they had done so, they ought to, or would, have succeeded. The probability is, that they acted under sound and good advice. They appeared, and submitted to the English jurisdiction exactly in the same way as if they had been personally in England, and regularly served in England. Not only so, but they raised the question whether it was for the benefit of the infant plaintiff that the suit should be prosecuted. The Scottish trustees asked the Court to make that inquiry. The English Court did make that inquiry, and found that it was for the benefit of the child that the suit should go on in England, and ordered that it should be so; and from that order the trustees did not appeal. All this time there was no other suit or proceeding. It was a trust, one and undivided, of the whole property. It is quite true that much the greater part of the property was invested in Scotland. I think about £25,000 only was, at the time of the testator's death, invested in England. But it was impossible to separate that part of the trust from the rest, and in such cases the Court of Chancery has always exercised jurisdiction, and in this case it did exercise jurisdiction, although the property was in Scotland; and, in doing so, it was only what it might have done if, in place of Scotland, it had been France, Spain, the United States of America, or any other country in the world. That is the state of the case. The House of Lords and the Court below said that if there had been any competing suit, upon a proper application, proceedings might, probably, have been stayed in England, and those in Scotland allowed to go on. But there was no such suit, and therefore, of course, no such application. The argument really resolved itself into this—that because the testator had been a Scotchman, and because the greater part of the money was in Scotland, therefore the trustees were to be under no judicial control at all. It was even said that the circumstances did not admit of any similar suit being instituted in Scotland. But the Scottish Court has now exercised jurisdiction, and I should think, with a little good sense on both sides, the parties may easily find out in which country the suit would best proceed, and take proper means for having that question tried. As to the noble Lord's remarks about the rights of the Scottish Judicature under the Act of Union, I am wholly unable to understand how those rights can, by anyone, be supposed to have been invaded. The Act of Union prevents any interference of the English Courts with the Scottish Courts. But this was no interference with any Scottish Court. It was simply the exercise of English equitable jurisdiction in England against three defendants resident in England and three others who submitted to English jurisdiction. With regard to the other complaint made by my noble Friend about the service of English writs in Scotland, all I can say is, that, when the procedure of the English Courts was revised last year, the greatest possible care was taken to meet every reasonable objection which had been made to that part of it which relates to the service of English processes abroad, and with regard to Scotland especially some exceptional conditions were introduced. Every case was excluded which it was possible to exclude, for the purpose of avoiding offence to the susceptibilities of the Scottish nation or hardship to Scottish litigants. Until this recent excitement about what has passed in England in the Orr Ewing case, I thought the manner in which the Rules on that subject were now framed was not unsatisfactory to the best judges of the matter even in Scotland. I think we should be making a step backwards towards barbarism, and not towards higher civilization, if all power to serve process, or notice of process, out of England were stopped; and the same would be equally true if no party to a Scottish suit could be served out of Scotland. It would be impossible to conceive anything more likely to multiply unnecessary litigation and expense, and to throw impediments in the way of the proper and reasonable course of the administration of justice on both sides of the Border, than to say that because one man happened to be in Scotland and another in England, both being interested in the same matter, it should be impossible to make them parties to one suit. I care not in which country it happens. So far as we are concerned, we desire that what is proper and reasonable should be done in both countries. If a real and ultimate conflict of jurisdiction were found to exist, which tended to disturb the harmony of the judicial or other relations between Eng- land and Scotland, it would then be well deserving the consideration of the Government whether that conflict could not be got rid of by some reasonable legislative act; but until it is clearly shown what, if any, conflict of jurisdiction has occurred in the present case, I do not perceive the necessity for introducing a Bill.

THE DUKE OF ARGYLL

said, that in Scotland there had certainly been something approaching to a strong national feeling that there had been an invasion of the Act of Union by the action of the English Courts. Now, however, he understood from the noble and learned Lord that no conflict of jurisdiction had taken place. That very morning the newspapers had contained the information that a very strong step had been taken by the Court of Session in the case under consideration by the appointment of a Judicial Factor. The Judicial Factor would keep possession; and unless they heard that that action of the Scottish Court was checkmated by any ultimate decision of this House as a Court of Appeal, the difficulty about which complaints had arisen would probably end. He hoped that the statement of the noble and learned Lord would calm down the excitement which was undoubtedly prevalent in Scotland.

House adjourned at a quarter past Five o'clock, till To-morrow, a quarter past Ten o'clock.