KING'S BENCH DIVISION—ADDITIONAL JUDGE. (Hansard, 29 July 1907)

§ *THE LORD CHANCELLOR
My Lords, I rise for the purpose of moving that an humble Address be presented to His Majesty representing that the state of business in the High Court of Justice is such as to require the appointment of an additional Judge, and praying that His Majesty will be graciously pleased to appoint a new Judge of the said High Court in the King's Bench Division thereof, in pursuance of the eighteenth section of the Appellate Jurisdiction Act, 1876.
I ought first to explain to your Lordships why it is that we are proceeding by an Address instead of by a Bill. The fact is that the Act of 1876 enacted that when two out of the four Judges of the Appellate Council, as they were then, died or resigned it should be competent upon an Address for the Crown to appoint an extra Judge of the High Court, and to make a similar appointment on the death or resignation of the other two. All the four Judges mentioned in the Act of 1876 have died or resigned, but only one extra Judge has been appointed by an Address, at the instance of my noble and learned friend Lord Halsbury. That was, I think, in the year 1899, and the point now is whether your Lordships are prepared to present an Address to the Crown for the appointment of a second Judge so as to exhaust the powers created by the Act of 1876. That, of course, depends upon whether the state of business in the High Court is such as, in the opinion of Parliament, to require that this appointment should be made.
Our ideal should be as far as we can to see that there are no arrears in any Court; it is a high ideal, but one at which we should aim, and I believe that 386 in substance, with an adequate number of Judges, it might be attained. In many instances the delay of justice is almost equivalent to the denial of justice, and it is a very lamentable state of things that there should be long lists of unheard cases which are the occasion of great expense, uncertainty, and continued mortification to His Majesty's subjects. In the Chancery Division there are at present substantially no arrears, but it was not always so, and some eight years ago there was a block of business in that division. In order to remove that block one of the two Judges mentioned in the Act of 1876 was appointed, and the Judges of the Chancery Division are able frequently to assist the King's Bench Division in getting rid of their work. In the Probate and Divorce Division also there are substantially no arrears. Such arrears as there are may be partly due to the continued absence of the President, who deserves the thanks of the community for the assiduous way he has devoted himself to assisting the Court of Appeal in a time of great difficulty.
Next comes the King's Bench Division, and I am glad to see the Lord Chief Justice present, for Lord Alverstone is the highest authority in regard to the business of that division. There is now substantially the same amount of arrears that there has been for the last ten years —that is to say, about 500 cases still remaining unheard. I do not know how long a period of waiting that may mean, but I do know it would be much better— and I am quite sure the Lord Chief Justice would agree with me—if the whole of those arrears could be swept off. They have been existing for about ten years and have continued substantially at about the same level; therefore, it may be fairly inferred that if once that incubus were removed the King's Bench Division would be once more in smooth waters. There is no question that the circuit system, to which reference was made in the debate in the House of Commons, does involve some difficulty, and I think the system admits of great improvement. I hope those improvements will be carried out. I hope also it will be remembered that it is desirable that His Majesty's Judges should 387 be seen in the country in different towns administering justice as they have been from time immemorial.
I come next to the Court of Appeal. I do not see my noble and learned friend Lord Collins in his place. He could speak with very great authority in regard to the business of that Court, which he has only recently quitted, but the business of the Court of Appeal is blocked, and has been blocked for some years. The block has been substantially the same for some years, and, unfortunately, it shows no tendency to diminish. On the contrary, the tendency is towards an increase. In justice to the learned Judges of the Court of Appeal, it must be said that this state of things is in no sense due to any want of energy, devotion, or of high capacity on their part. It is one of those things which it is the duty of all interested in the administration of justice to remove as quickly as possible. Last year I myself sat for three or four weeks in the Court of Appeal endeavouring to assist my brethren in the Court in disposing of business. But I am sorry to say, with the best goodwill imaginable, it is almost impossible to expect any one holding my office to be able to find an appreciable amount of time for the purpose of sitting in the Court of Appeal. There is the business of your Lordships' House and of the Privy Council, which has prior claims on the Lord Chancellor's time.
Unless some legislative change is made I see no way of removing the arrears in the Court of Appeal. A Bill has been passed through this House authorising two Judges sitting as a branch of the Court of Appeal to take such cases as might be assigned to them by the Master of the Rolls with the consent of the Lord Chancellor. What the fate of that Bill may be in the House of Commons with its block of business I do not pretend to say. I am afraid it is only one of the numerous instances in which the public do unquestionably suffer by the unavoidable pressure of business in the House of Commons. The present condition of business in the Court of Appeal is a justification for the Address your Lordships are now asked to sanction. The appointment of an additional Judge 388 would diminish the arrears of business in the King's Bench Division, and would release for the Court of Appeal, if necessary, either the Lord Chief Justice or the President of the Probate and Divorce Division.
About two or three months ago I asked a number of distinguished gentlemen to sit upon a Committee for the purpose of considering the whole of our judicial business, and of making proposals for reform or amendment. Lord Macnaghten is president, the chiefs of all the Courts are members, and there are also on the Committee distinguished Judges, barristers, and some solicitors. I trust the result of the labour of this Committee will be to organise and improve, not only the circuit system, but the administration of business in London, and also to provide for the improvement of the intermediary proceedings between the commencement of an action and the time when it comes to trial, so that there shall be more speedy justice, for in regard to giving justice I think Bis dat qui cito dat. I beg to move the Motion standing in my name.
Moved, "That an humble Address be presented to His Majesty representing that the state of business in the High Court of Justice is such as to require the appointment of an additional Judge, and praying that His Majesty will be graciously pleased to appoint a new Judge of the said High Court in the King's Bench Division thereof, in pursuance of the eighteenth section of the Appellate Jurisdiction Act, 1876." — (The Lord Chancellor.)

§ LORD ALVERSTONE
My Lords, I desire, in the first place, to thank the Lord Chancellor for his courtesy in allowing this Motion to be postponed to a day when I could address a few observations to your Lordships without interfering with the business of the circuit on which I was engaged. My noble and learned friend's speech makes it unnecessary for me to add more than a few words. It is perfectly true that the King's Bench Division has been struggling for the last four or five years to reduce the arrears. In several kinds of work there has been an. increase, and it has become impossible to give that prompt hearing of causes set 389 down for trial which is desirable. An additional difficulty has been created by the Court of King's Bench being called upon to aid other Courts. The Lord Chancellor has referred to the fact that the President of the Probate and Admiralty Division has rendered excellent assistance to the Court of Appeal; but that has necessitated a Judge of the King's Bench Division being withdrawn to meet the absence of the President of the Probate Division, and, as the Lord Chancellor has observed, it has been necessary from time to time to ask the Chief Justice to go to the Court of Appeal in order that there might not be an absolute stoppage of one division of the Court of Appeal. Therefore the case made by the Lord Chancellor admits of no argument; it is absolutely essential that there should be an additional Judge of the King's Bench Division. I trust that the result of giving to the King's Bench Division an additional Judge will be that the work of the Division will be brought in a few years to the condition that the Lord Chancellor has referred to.
It has been suggested in the course of the discussion on this question in another place that a great part of the difficulty in grappling with arrears in London is due to the circuit system. It has been said that there is a deplorable waste of time and energy on the part of the Judges in connection with the circuit system, and that a slight alteration in the business of the King's Bench Division would make this Motion unnecessary. All I can say is that, if a slight modification of the business in the division over which I have the honour to preside would make the appointment of a new Judge unnecessary, it would be a great discredit to those who have to do with the King's Bench Division if that slight modification was not carried into effect. But, unfortunately, those who have expressed that opinion, some of them not having much experience of the circuit system, have not told us what that modification is. If the country is led to believe that by a modification of the circuit system any substantial increase of judicial time can be obtained, they will be very much mistaken. It has been asserted that the Judges go down to circuit towns to receive white gloves, 390 and that they occupy their time, which might be more usefully employed, in going about the country. For that suggestion there is absolutely no foundation. Owing to their having fixed days in advance, a system which has the full support of the Lord Chancellor, in order that there might be no public inconvenience, it is a fact that on rare occasions there are one or two idle days. But the public do not know that the business of the circuit at the present time is only got through by the Judges of the King's Bench Division sitting much earlier and also later than they sit in London. They constantly sit at 10 a.m., and continue sitting until six or seven o'clock in the evening.
We have also heard suggestions made by persons who do not know the facts of waste of time on Commission days. There is no greater mistake. Commission days are the days in which the Judges travel from one town to another. I think no single circuit has occurred in which I have not had to sit on Commission day. On nearly all the circuits one or more of the Judges have travelled "in their own time" in order to be able to finish the work at one place before going on to the next. I give these simple facts in order that, on my own authority and on behalf of my brethren, whom I have consulted, it should be distinctly stated that there can be no gain of judicial strength for London or the other great centres by modifying the circuit system.
That brings me to a far more important point. We have heard a great deal about London, Liverpool, Manchester, Leeds, Bristol, and other great centres, and of course they ought to be considered. But the rights of the counties have also to be considered. The Lord Chancellor has already said that he entirely supports the view that the Judges of the King's Bench Division should go year by year into the counties to administer justice in the assize towns. It is most important that that system should be continued. We have to consider this question, not in regard to the number of cases, but in regard to the class of cases, that have to be tried. There are questions of boundaries and 391 rights of way, actions for defamation, local breaches of contract, and local accidents. It is the right of a man to have his case tried locally, and it is of enormous importance to a man whose character has been defamed to have a local trial. It is of the essence of our system of civil justice that a Judge of the High Court should go down to the counties, that a man might have his rights determined and his wrongs redressed in the place where he is known and where witnesses can without difficulty and expense come and give their testimony.
I have been quite recently at Dolgelly in North Wales. Two of the cases put down as not being worth going for included a right of way action promoted by the district council, and involving the calling of sixty witnesses. That case was heard in a day and a half. I ask, what would have happened if these assizes had not been held, and the witnesses had been compelled to be taken at considerable expense to a distant Court? That system of local trial, which I believe is for the general advantage of the community, cannot be maintained unless at regular intervals the Judges go into the counties so that justice may be administered locally.
Somebody has suggested that Commissioners should be appointed to go down to do criminal work. On that matter I appeal to the experience of my noble friend on the Woolsack, and if he were here I might appeal to the long experience of Lord Halsbury. Apart from the appointment of Commissioners in cases of illness, in order to remove great pressure, it is not a system on which we ought to rely for the administration of justice. It is desirable that absolutely independent Judges should go down and try these cases. The reason for the confidence that is felt in the administration of justice, is, I think, that, almost entirely, the Courts have been presided over by men who have no connection with the locality. Valuable as their services have been, the Commissioners would be the first to admit that it is not a system to which resort ought to be had more than is absolutely necessary.
392 Sir Henry Fowler, for whose opinion I have great respect, has spoken about the extension of the jurisdiction of the County Courts. I desire to say that in my opinion the jurisdiction of the County Courts has-been extended as far as it can go; I do not know whether it has not gone too far. Difficult points of law may arise where only a few pence are involved. County Court Judges will themselves agree that it is not their function to deal with the long and important cases that can only be tried in many hours, and sometimes in days, which are now tried at assizes. Any attempt further to extend the County Court jurisdiction would tend not only largely to impede the useful performance of the duties of County Court justices, but would also certainly tend to a much larger block of the business of the higher branch of the Court by the necessity for the revision and consideration of cases on appeal. I hope and trust that it is now coming to be recognised that appeals are too numerous, and might, without disadvantage to the public, be curtailed.
I trust that the Committee which is now sitting will be able to make a Report which will save official time, and tend to the cheapening of legal procedure. But I am quite certain that the Courts cannot do their work effectively with the present number of Judges. I will not forecast what would be necessitated by other work which would be thrown upon them. All I say is this, that this instalment—and I am very grateful to the Lord Chancellor for being good enough to support it—is one which is absolutely necessitated by the existing condition, of things. I trust that, whatever may be the demands upon judicial strength and whatever may be the requests made to the country to provide additional Judges, no attempt will be made to depart from the system by which Judges of the High Court are sent down to the counties twice a year to deal with both civil and. criminal work. I believe that has been one of the main reasons why our judicial system has been so thoroughly satisfactory to the public.

§ LORD JAMES OF HEREFORD
My Lords, there is one matter in connection 393 with this subject which my noble and learned friend did not mention, but which I am anxious to state to the House Reference has been made to the desirability that there should be no congestion in our Courts, and I think it is worthy of mention that at the end of to-morrow's sitting there will be no cause remaining unheard in your Lordships' House, and the same observation may be made in respect to the Judicial Committee of the Privy Council. That is a record. I believe once before a Lord Chancellor claimed that he had achieved this, but there was a little inaccuracy in that claim. I believe that my noble and learned friend on the Woolsack has now achieved a record. This satisfactory state of things is mainly due to the manner in which my noble and learned friend has presided over us and performed the duties of his office; and in that he has set an example for other Courts to follow. In making this acknowledgment I desire to say that this is not a matter of comparison between my noble and learned friend and other Lord Chancellors, for I could also bear testimony to the good work done in this direction by Lord Halsbury and to the great knowledge and ability he displayed in presiding over us. I do not wish to enter further into this discussion; but, while I agree with my noble and learned friend the Lord Chief Justice as to the principle of maintaining the circuit system, still I think that the waste of judicial strength under that system is very great and is detrimental to the interests of justice.