Lords Sitting of 30 April 1891

TRUSTS AMENDMENT (SCOTLAND) BILL.
Brought from the Commons; Read 1a, and to be printed.—(No. 108.)
ARMY SCHOOLS BILL.—(No. 83.)

  THIRD READING.
  Order of the Day for the Third Reading, read.
  LORD NORTON:My Lords, I merely wish to call your attention to the fact that in this little Bill—and I may point out to your Lordships that there are an unusual number of little Bills of one or two clauses this Session—it has been found necessary to have a definition clause showing what the object of the Bill is. I called your Lordships' attention to the absence of definition in a similar Bill last week, when it seemed to be considered that there is no necessity to define the object.
  Read 3a (according to order), and passed.

  CHARITIES (RECOVERY) BILL. (No. 84.)
  Amendment reported (according to order); and Bill to be read 3a tomorrow.
  MERCHANDISE MARKS BILL. (No. 86.)
  Read 3a (according to order), and passed.
LONDON (CITY) TRIAL OF CIVIL CAUSES BILL.—(No. 103.)

  THIRD READING.
  Order of the Day for the Third Reading, read.
  LORD COLERIDGE:Will your Lord ships permit me to say a few words upon this Bill? They are not exactly out of order, if somewhat out of time. Had I known that my noble and learned Friend to my left was going to make some observations on this Bill the other day when it was last before the House, I should certainly have made it my business to be present; but I did not know
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  it, and therefore was not here. I should, therefore, be glad, with your Lordships' permission, to say a few words in order to explain the position of affairs as far as I am concerned. The noble and learned Lord on the Woolsack was good enough to consult me about this matter, and he told me that he had received from different persons applications for a change in the direction proposed by this Bill; that it was thought a desirable thing that causes arising in the City of London should again, as formerly, be tried in the City of London; that the present state of the law providing for the trial of these, like other causes in the Royal Courts of Justice, should be amended; and that it should be possible again to send these causes for trial at Guildhall. Personally, I do not much believe that the change which the Bill effects would have the result which is anticipated of bringing back mercantile causes to the Law Courts. So far as this business has passed from the Law Courts—which undoubtedly it has to some extent—I believe it has done so from causes not touched or affected in any manner by the Bill. I believe it has passed away because the mercantile community desire to have their cases rapidly, well, and inexpensively decided by persons acquainted with the subject-matter—in whom they have trust, and who discharge their duty, an onerous and difficult duty—of dealing with these large interests, as a whole, in a manner satisfactory to the mercantile community. I, myself, do not think, as the mercantile causes did not, in my judgment, leave the Law Courts from any causes which this Bill will affect, the mere change of the place of trial will make much change as to the subject itself, but, at the same time, I am bound to admit that other persons, as competent to judge of the matter as myself, do not share my view, and are of a different opinion. Many eminent Judges, upon being Consulted, intimated to me that on their part they had not the least objection, and as, on my own part personally, my objections were not worth pressing, I said, when I was consulted in regard to the Bill, that, as far as I was concerned, I would not stand in the way for a moment, and that if it was thought any good would come

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  of taking the causes back to Guildhall, I would lend the proposed scheme all the assistance I could as an experiment. My noble and learned Friend will permit me to remind him that if at the end of the year nothing has happened to change the position, and matters still remain very much as they are now, he must allow me the privilege which is generally, I believe, accorded to the other sex, of saying " I told you so." But, subject to that belief on my part, I certainly did not wish to interfere with the plan which my noble and learned Friend on the Woolsack proposed, and which he is entirely entitled to the credit of carrying into effect. There is one other matter which I desire to speak of. According to the reports which I have seen in the newspapers, which my noble and learned Friend says are not quite accurate, he is reported to have spoken the other day of the block of business in the Law Courts in the Strand. I can only speak as the representative of the Queen's Bench Division. As to the Chancery and Probate Divisions and the Court of Appeal, I do not pretend to possess any special information, and, not having any information, it would ill become me to express any opinion on the matter; but with respect to the Queen's Bench Division, I am in possession of facts which enable me to state to your Lordships that no such block exists as is supposed, and as, when questions have been put elsewhere on the matter, has, I think, in the speeches of right hon. Gentlemen, been too much assumed. The position of matters in the Queen's Bench Division is easily stated: there is absolutely no block of business. Speaking for my own Court, I may say that I was obliged the other day to stop a particular class of business because there was no business to do, and I believe we shall easily finish the business now remaining before the sittings are over. There are, it is true, at the present time about 1,000 cases at nisi prius standing for trial, but to simply look at that figure does not lead to any correct conclusion upon the the facts. I ought to tell your Lordships that, as anyone acquainted with the subject will know, it is not fair and not correct simply to look at the number of cases standing for trial. The only way of properly testing the state of
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  affairs is to find out the time which elapses between the setting down for hearing and the actual trial of cases. The non-jury cases, which have largely increased of late, are at present more in arrear than any others; but even they are not four months behind, and the Middlesex jury cases are little more than three months behind. This state of things I do not think can be rightly described as arrears. I do not myself think if a man puts his case down, and it is tried within 9 or 10 weeks from the time it was put down, that can be called anything like, substantially, being in arrear. Another matter which may perhaps interest your Lordships is this: People talk about there being 1,000 causes standing for trial, but they do not all come on for hearing. I have information here, which is at the service of any noble Lord who takes an interest in the matter, ranging back over a period of 40 years, which enables me to state to your Lordships that upon a fair computation a list of 1,000 causes standing for trial has represented for the whole of that time down to the present moment only 500 causes that are tried. The same thing happened in the old Courts at West-minster and at Guildhall as is now the case in the Royal Courts of Justice—they do not have to dispose of more than half the causes which stand for trial. Practically speaking, of the London causes those that are set down are tried during the same sittings, and with them, while there is no arrear, the rule obtains almost absolutely which I have mentioned as occurring in other cases—that only half of them come to trial. I mention that to show that it is not from despair of getting them tried that mercantile cases have, to some extent, left the Courts, for those cases which have only recently been set down are just as likely to be withdrawn as those which have been set down previously. So steady is the rule that only half the cases come on for hearing that the Treasury some years ago made an arrangement in respect of fees on the footing that only half the causes set down are tried. That arrangement has been found to work on that basis, and has been going on now for a considerable number of years as between the Treasury and the officers of the Law Courts, My Lords, I beg, therefore, to

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  say that it is an entire mistake to suppose there is this supposed block in the Law Courts. It does not exist; and even in the present state of things, the interval of three months, which now elapses between the setting down and the trial of causes, would not exist but for reasons over which nobody could possibly have had any control, and which may, or may not, recur—I mean the long and serious illness of two Judges within the last two years, and the withdrawal by Parliament itself for a year and a half of two of the most vigorous and active Judges of the Queen's Bench from their ordinary duties to form a tribunal for the trial of a very important political dispute. Such occurrences, of course, do diminish the force for the time at the disposal of the Courts very much; but those causes have now been removed. I may mention that, as my noble and learned Friend knows, so completely are we masters of the business in the Queen's Bench Division—so well forward is our work there during the last 10 days, I have offered him, and he has accepted, the services of two of the Judges of the Queen's Bench Division—one to sit in Chancery and the other in Probate. I think, therefore, I am entitled to say that, so far as the division which I have the honour to be connected with is concerned, it does its work properly and well and to the satisfaction of the suitors.
  LORD ESHER:My Lords, I think I ought to say, with regard to the Bill which is at present before the House, that from the moment the effect of the change made in transferring the trial of the great mercantile causes from the City to the New Law Courts began to develop itself, I have been pressed by a large number of people in the City, whose opinion on the matter I have always considered to be of great weight, both professional (speaking in a legal sense) and unprofessional people—professional lawyers and unprofessional merchants—to endeavour to get the trials of the great mercantile causes sent back to the City, on the ground of the inconvenience which they found in the trial of those causes at the Royal Courts of Justice, both from the distance they had to go when their cases were actually coming on and from the time they were unavoidably kept with their witnesses, most of them being mercantile men in
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  almost every instance, waiting at the Royal Courts of Justice away from their offices and business. It was unavoidable. Whereas formerly, under the old system, their offices being close round the Guildhall, when their cases were called on, they could have messengers sent to them, and could go there immediately for the trial of their own cases. More than that; they have always told me, and I have always considered, that the mercantile community had great faith in the tribunals which they obtained at Guildhall, the juries being composed of mercantile men who perfectly understood the business sent for trial. It is true that such juries are to be obtained also at the Royal Courts of Justice, but there you have, in addition to the inconvenience to the suitors themselves, the fact that the mercantile men whom they would like to have for jurymen are obliged to be at the Royal Courts of Justice, and are kept waiting there at a distance from their offices for the case to come on, at the trial of which they will be called upon to act as jurors. I am told that the result has been not only that mercantile causes from the City have been largely withdrawn from the Royal Courts of Justice, but that a new trade or business has arisen—the profession or calling of paid arbitrators, so that where those mercantile suitors would no doubt prefer to be in the position, and should be in a position, to have their causes tried by the Judges who are paid by the country and in the ordinary administration of justice by the Courts, the mercantile community are paying for Judges of their own, and are employing these arbitrators. Some people seem to think that an arbitrator constitutes a better tribunal than an ordinary Judge and jury; but let those who please think so; I am strongly of the other opinion. I have had now, I am sorry to say, 30 or 40 years' experience, and I have formed a very strong opinion that that is not true. I believe a far safer and better tribunal is to be found in a Judge of the land, and a jury, doing their work well and efficiently in a Court where the public can have their causes tried rapidly. But what signifies that if it entails really enormous inconvenience on the suitors and witnesses? This Bill, as I have told your Lordships, and as my noble and learned Friend on the Woolsack has told

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  you, is introduced at the request of the merchants of the City of London. I have myself been requested to try and get these cases sent back to the City for trial, and, therefore, I have constantly pressed, not only the noble Lord who at present occupies the Woolsack, but every Lord Chancellor I have known, to endeavour to get for the merchants of the City of London that return to the old system which they desire.
  LORD HERSCHELL:My Lords, I have, of course, no objection to this experiment being tried. But I would remind your Lordships that what I have called attention to was the fact that the present state of things was established by enactment as the result of an inquiry by Royal Commission, which after inquiry reported on the advantages of concentrating all trials under one roof. This measure, of course, is a departure from that system; and it certainly struck me, when you have so important a departure from a policy arrived at after inquiry by a Royal Commission, and upon their Report, that it was desirable to have what I may call some public grounds—that is, grounds which could be shown to be urged and appreciated by the public—for making such a change. That was all I was desirous of calling attention to, and my noble and learned Friends have stated the requests they have received from those who they state have had experience in the trial of City causes. My noble and learned Friend (Lord Esher) has just given your Lordships his own experience in favour of this Bill. On the other hand, I have received information from those who have been in the habit of conducting these causes at Guildhall. I mean solicitors of experience, who take the entirely opposite view, and who do not think the change proposed would be of any advantage, or that the transfer of all trials to the Royal Courts has had anything to do with the diminution of these causes. It is, of course, for your Lordships to decide. You have the opinions on the one side and the other. For my own part, I may be allowed to say that I have no objection to the experiment being tried in order to see what the result may be. My own impression is that it will turn out that it has not really been the cause of the preference of
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  suitors in the City for their particular tribunals of arbitration in lieu of the Courts, but some light will, no doubt, be thrown on that point by the trial of this experiment.
  LORD DENMAN:My Lords, having noticed the course of business between the City and the West End, I may be allowed to remark that the great preponderance has always been in the City of London. I find that in 1832 there were in the King's Bench 700 London causes for trial, and 500 for Middlesex. The great convenience of having Courts near the offices and counting-houses of suitors and jurors is not to be over-rated. The effect of this Bill will be to afford great convenience to the general public. I think the 1,000 causes which have been spoken of had much better have been brought in three separate sets of Courts, as under the former system; but there are now only a number of Courts of Queen's Bench, I, am sorry to say. You have now Courts No. 1, No. 2, and so on; causes are transferred from one Court to another, and, nobody knows when his cause will come; on, or where. It was a great mistake to, abolish the old Courts of Common Pleas and Exchequer. An advantage, it was supposed, would result from having all trials in one place, so that the counsel engaged in cases could attend; but there are generally two counsel in a case, and if the leader is away, the' junior has an, opportunity of distinguishing himself and doing full justice to any cause. I earnestly hope this Bill may pass, and that the experiment may prove successful. I think the change will be found to work well, and that no inconvenience can result.
  THE LORD CHANCELLOR:My Lords, I should have desired to say no more on this matter, but I must correct a misapprehension on the part of my noble Friend the Lord Chief Justice as to what I said. I did not say there was a block in those Courts which he represents, but in some others there has been a block, though there are , perhaps circumstances in the modern administration. of justice which he has not given sufficient weight to, when he goes back over', a very long period of years, for, the purpose of establishing a Sort of canon of how causes are tried, In the first place, the new procedure under the judicature

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  Acts has had certain results. Order 14 has had the effect of striking out a great many cases which are not to be tried now, and the procedure that goes on in Chambers practically reduces the list of causes to be tried. I quite agree with my noble and learned Friend they are not all tried, as was also the case in former times, but the proportion in modern days is a little higher than he supposes. There is one more circumstance which must be borne in mind in considering the period over which causes last. Within his memory I am sure, and in mine too, I am sorry to say, there were such things known as " short" causes. Parties were not capable of being called as witnesses as they are now, and by witnesses being called on both sides naturally cases are made twice as long as they used to be. Though there is no desire to prolong causes, the result is that there is a larger proportion of really effective causes in the list than there used to be formerly. Then, on the other hand, there are undefended causes which, though they occupy a place in the list are, of course, practically not defended. Now, I very much doubt taking these causes over the long period of 40 years which my noble and learned Friend has referred to, whether you would find the result to be the same. I have only spoken, of course, in reference to possible future events, and not with reference to anything my noble and learned Friend has said, because what he said was, it appears to me, in regard to this Bill being in the highest degree satisfactory, and he expressed his opinion that we should all rejoice at it. With respect to the only criticism made by my noble and learned Friend Lord Herschell, I would only observe that what the Master of the Rolls has said I think entirely justifies me in endeavouring to meet an acknowledged inconvenience by trying this experiment. The noble and learned Lord Chief Justice has been good enough to tell your Lordships that he reserves his right in case he should be in a position hereafter to say, " I told you so." If that should be the case, the experiment can be discontinued. I will not be tempted to retort upon him that if it be successful, as I trust it will be, I shall he in a position to say, " I told him so." But in any event the experi-
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  ment will be tried. One may anticipate the possibility of failure on either side to some extent, but I only hope the public will be benefited by bringing the administration of justice nearer to our great commercial centre.
  LORD COLERIDGE:I only desire to add a few words to explain that when I spoke of assistance being rendered from the Queen's Bench to the other Divisions, I referred simply to a present emergency.
  On Question, agreed to; Bill read 3a accordingly, and passed.
  House adjourned at five minutes before Five o'clock, till To-morrow, a quarter past Ten o'clock.