JUDICATURE BILL [H.L.] (Hansard, 23 April 1907)

§ THE LORD CHANCELLOR
My Lords, it will perhaps be expected that I should say one or two words to explain why this Bill, which I described as urgent, has not been brought forward for Third Reading before. The reason is that some controversy has apparently arisen; and I have received communications indicative of hostility, which I cannot say is unusual in the legal profession towards legal reform. My desire is that objections should be considered maturely and upon their merits, and there is nothing I should like less than to hurry through Parliament a Bill to which exception is taken. Therefore I postponed the Third Reading until now.
It is possible that this Bill will now embark upon a more stormy course than it has hitherto experienced. I can only say the object of the Bill is not to split the Court of Appeal into Courts consisting of two members each. It is a Bill merely to provide for so doing where the Lord Chancellor is satisfied that there is a special cause. It is not a Bill intended to affect the work of the Court of Appeal as a regular rule, but only temporarily to deal with an emergency which everybody admits—namely, the unfortunate block of business in the Court of Appeal, an accumulation that is still slowly increasing rather than diminishing. I am sure that anyone responsible for the management of the judicial business of the country would feel bound to take some step in order to meet this great difficulty. I do not propose to suggest any Amendments at this stage. But I desire to treat this Bill as an uncontroversial measure, and so long as its main effect is not impaired, the Government will be inclined to consider impartially any improvements that may be suggested.

§ THE EARL OF HALSBURY
My Lords, I am entirely in favour of this Bill, treating it as a measure designed to meet an emergency. My judicial experience has convinced me that if two people sit together and form the same judgment, 1540 the other side has not so good an opportunity of being heard as would otherwise be the case. I have been struck by the; admirable manner in which the work of the Court of Appeal has been done; and. I wish to bear my testimony to the extreme care with which even trivial cases have been sifted and adjudicated upon by that tribunal.
It is impossible, owing to the altered condition of things, to make a comparison between the Court of Appeal and the old Court of Exchequer Chamber. I think a certain absence of familiarity with the condition of things that then existed has led to an unfavourable comparison being made between the two Courts. It is not easy to bring to the attention of your Lordships, although some of you are lawyers, the technical difficulties that surrounded the Court of Exchequer Chamber. The Court of Exchequer Chamber only heard what are technically known among lawyers as errors, and I suppose not one case in twenty of those that are subject to appeal could be brought before the Court of Error.
Certain regulations were made in relation to the higher Courts. By an Act of William III. the Exchequer Chamber and others were regulated, and finally I think, in 11 George IV. and 1 William IV., there was some improvement made, but one difficulty existed. Until 1852, when what is known as the Common Law Procedure Act was passed, there was the whole cumbrous proceedings of writ of error, joinder in error, assignments in error, every one of these steps expensive and delaying; and the Court of Exchequer Chamber itself had no certain time to sit and no certain constitution of its members, and one reason why the Court of Exchequer Chamber was not very slow in disposing of its business was that there was no business to do. The people who complained of judgments could not get there. But in 1852, under the Common Law Procedure Act, there was a little more approximation to judicial determination of every question in dispute brought before the Courts.
The principle of two Judges disposing, of matters on appeal certainly has been tried under very favourable circumstances. Lord Justice James and Lord Justice Mellish, two of the most eminent 1541 lawyers who ever sat on the English Bench, gave entire satisfaction sitting as a Court of two. I do not, however, support this Bill on the ground that I think two Judges should constitute a Court permanently. I have thought it right to say these few words not only because I am a member of the Court of Appeal myself, but because I think undue complaint has been made of the Court of Appeal. The delay arises in a great measure from an increase in litigation, and people do not seem to remember that a great deal of the law has been altered. When I was first called to the Bar the people whow knew most about the question in dispute were excluded from the witness box, and the art of nisi prius at that time was a cunning game of chess. But wiser counsels have since prevailed. The result is that you have doubled and trebled the amount of litigation that was possible under the old system, and this has led to a block of business in the Court of Appeal. That Court has most diligently and ably fulfilled its functions, and is in no way deserving of the criticism which has been passed upon it.

§ *LORD ALVERSTONE
My Lords, I am sure it will be a great satisfaction for the legal profession to hear the statement which the Lord Chancellor has repeated this afternoon, that there is to be no permanent reduction in the number of Judges in the Court of Appeal. That particular matter has been the subject of representations made to me, and I know to other members of the Bench, from persons who are absolutely friendly to His Majesty's Government and have the strongest faith in everything which my noble and learned friend on the Woolsack may do; but the experience of the last few weeks has shown us that difficulties may arise from Courts of two, and I am sure that the announcement that the Lord Chancellor has made to-day will very much assist in another place the passing of this Bill, which I believe to be absolutely necessary. I am afraid that on the last occasion I availed myself of the opportunity of uttering a cry in the wilderness. But the numerous communications that I have received and the study which I have given to this project confirm me in the opinion that the subject must at no late date be looked at from a larger standpoint. It will 1542 really be necessary to consider whether the number of Judges is sufficent to deal with business as it is now conducted. Whether or not the number of cases can be reduced I am not sure, but I am quite sure that the matter cannot be dealt with permanently as in this Bill, and that some further reforms will be absolutely necessary.

§ THE LORD CHANCELLOR
I agree with the noble Earl in regard to what he said about the Court of Appeal. We would indeed be ungrateful if we did not recognise the immense self-sacrifice and labour which have been exhibited by that Court, but they really have been of late over weighted, and I am anxious to relieve them. That is the purpose of this Bill. With regard to what my noble and learned friend the Lord Chief Justice has said, his cry was not a cry in the wilderness; on the contrary, since he made his speech, it has been pondered over and thought over by myself. I agree with him that the larger aspects of this question must be considered, and I contemplate considering them without delay, with a view of seeing whether some further amendment of a permanent character may be needed. I do not know whether it is so or not, but I think it might very fairly be carefully considered, in order to see whether some further steps are needed.