STANDING ORDERS RELATING TO APPEALS. (Hansard, 23 May 1916)

§ THE LORD CHANCELLOR (LORD BUCKMASTER)

My Lords, the Motion which stands in my name is a Motion asking your Lordships to vary one of the Standing Orders of your Lordships' House and to repeal another. They both relate exclusively to Judicial business, and I trust that I shall be able to satisfy your Lordships that the proposed alterations will be of great benefit. The first of the two Standing Orders dealt with by the Motion is the Order which limits the time for presenting appeals. The time allowed in which to appeal from a decision of the Court of Appeal to your Lordships' House now stands at twelve months; it is proposed to change that period to six months.

The times fixed for presenting appeals have varied in a remarkable degree. At one time there was no fixed period at all; at another the period was five years; and ever since 1876 the period has been one year, and it has been within the competence of your Lordships' House, if you thought fit, to alter that period by Standing Order. I think it may be that the experience of any of your Lordships who have had the misfortune of litigation will lead you to agree that one of the greatest anxieties which litigation involves is never knowing the time when it will come to its final conclusion. I must say that it has often appeared to me that, apart from the cost and trouble which litigation involves, the greatest anxiety which a litigant can suffer is in never knowing the length of time within which his troubles are coming to an end. At the present moment if a judgment is obtained in favour of a litigant in the Court of Appeal, twelve months may elapse before his opponent need take any steps whatever to bring the matter before your Lordships' House; and after he has taken that step, it is then open to him, owing to the liberality and indulgence with which applications relating to matters before your Lordships' House are always dealt with, still further to prolong by six or twelve months the time before which the appeal is heard. To my mind that is a great hardship upon the litigant who holds the judgment in the Court of Appeal. During the whole of this time he can never be at rest; he can never know whether the litigation, which he had hoped was ended, is not going once more to break out. Cases have come within my own knowledge where 73 nearly the whole of a man's fortune has hung upon the hazard of the judgment of the Court; and it is, I think, a great hardship that the period during which this uncertainty should last should be prolonged beyond that which is amply necessary for the purpose of satisfying the requirements of justice. I trust that your Lordships will think that six months is a sufficient time in which a litigant who has had a judgment adverse to him can make up his mind whether he is going to pursue his action into the final Court.

I should not have brought this matter before your Lordships' House without taking steps beforehand to ascertain—what I feel sure your Lordships would desire to know—the way in which such a proposal as this is regarded by the legal profession. It is, of course, almost impossible to ascertain how it is regarded by the public outside except by ascertaining how the legal profession view it, and there has been a most remarkable unanimity of opinion in favour of the alteration which I am asking your Lordships to make. The Lord Chief Justice of England, the Master of the Rolls, and every member of your Lordships' House who takes part in the Judicial business of the House—apart from one great and notable exception, whose dissent I sincerely regret, Lord Halsbury—approve of the proposed change. The Bar Council have unanimously passed a resolution in favour of it, and the Incorporated Law Society have done the same. From Scotland I have obtained the approval of the Lord President of the Court of Session, the Dean of Faculty, the Deputy Keeper of the Signet, the President of the Incorporated Society of Law Agents, and the President of the Incorporated Society of Solicitors. I have also attempted to ascertain the opinion in Ireland, and I find that the Lord Chancellor of Ireland, the Attorney-General, and the President of the Incorporated Law Society are in favour of this proposal. I may add that there is not one single body or person whom I have approached who has to do with the administration of legal affairs who is not in favour of this proposed change, with the one great and venerated exception whose name I have mentioned. I therefore trust that the proposed alteration is one which will commend itself to your Lordships' favourable notice.

The second alteration deals with an Order which has been part of the Standing 74 Orders relating to the Judicial business of your Lordships' House for a long time. It is certainly in part antiquated, and I trust that your Lordships will think that it is altogether obsolete. It provides that where a judgment has been given against a person who is either in prison, or a lunatic, or an infant, or a married woman, a further time should be given within which his or her right to appeal may exist beyond what may be defined as the period of disability. If you take the obvious case of the married woman, at the present moment this provision is clearly absurd. A married woman has to-day exactly the same power of litigating with regard to her separate estate as a man; and that when she has a judgment against her in the Court of Appeal she should be able to wait until she becomes a widow, and then within a certain period after that time appeal against the judgment in your Lordships' House, is so unreasonable that I hope your Lordships will not think that this right should continue any longer.

With regard to the other cases, the position stands in this way. Both infants and persons of unsound mind are always represented in their litigation here by a next friend or guardian ad litem. In any case in which an infant's interest is involved, it is nearly always associated with the distribution of an estate. If the next friend or the guardian ad litem of the infant thinks that the judgment is wrong, he can always make an application to the Court for leave to take the matter further, and if the Court thinks it is a case which should be taken further, the case can be so taken. But to allow an infant to have one year after he has come of age for the purpose of challenging a judgment might produce the gravest uncertainty with regard to the distribution of the property. Let me assume that there has been litigation about a separate estate, and that the estate has been distributed under the order of the Court of Appeal. It certainly would be a harsh thing if, at the expiration of what may be a period of fourteen or fifteen years, the matter should be once more challenged and the judgment of your Lordships' House invited to say that the distribution was wrong and that all the people should give back the money they had received. I venture to say there is no reason to-day why there should be preserved in favour of the infant the right which the Standing Order as it stands preserves, and I therefore ask your Lordships, if you think that I have 75 justified the changes, both to permit the alteration in the first Order and to expunge the second. I feel that I ought to apologise for troubling your Lordships at a time when the mind of every one is set on far greater issues with a small matter which relates only to a special branch of your Lordships' work, but I believe that the reform which will be effected by these changes will be useful, and I trust that I shall not have been needlessly occupying your Lordships' time.

§ VISCOUNT HALDANE

My Lords, notwithstanding that the mind of the country is absorbed in the war the administration of justice must go on, and I think that the noble and learned Lord on the Woolsack is well justified in his statement that he has the concurrence of practically the entire legal profession, judicial and otherwise, in the step which he invites your Lordships to take. It is, I think, very satisfactory that we have reached a state of things at last in which there are no arrears of business either in this House sitting in its Judicial side or in the Judicial Committee of the Privy Council, and that is not due to the falling off of business caused by the war. In the Privy Council, for some reason or another, there is more business than I recall at any other time. India, notwithstanding the war, is litigating so far as appeals are concerned more than ever; and from other parts of the Empire business is flowing in. And in this House the amount of business is substantial; yet there are no arrears. Why? Partly because a considerable addition has been made within the last few years to the Judicial strength of this House. Two noble and learned Lords sit here as additional Law Lords under Statute, and two more—my noble and learned friends Lord Parmoor and Lord Wrenbury—have, with the greatest public spirit, devoted their time as a gift to the State to doing the work of Judges just as much as if they were officially appointed and salaried.

The result of this has been to bring into play another measure on which my noble and learned friend on the Woolsack is to be congratulated. He passed the other day unobtrusively a Bill through Parliament which enabled the Judicial Committee to sit in more than one Division. The result is that, although the amount of business there is very large, the Judicial Committee of the Privy Council is sitting in two Divisions; and it can do so because of the addition to the Judicial strength of which I have spoken. There are, therefore, three Supreme Courts of the Empire at present sitting—this House, the Division of the Judicial Committee of the Privy Council which is dealing with the affairs of the Empire other than India, and the Division which is devoting itself to Indian business. As regards this House, it is not an exaggeration to say that anybody who desires his appeal disposed of here can have it done in a fortnight if he is ready with his 77 documents. Practically there are no arrears.

I think such a state of things is without precedent, and it is a very desirable state of things; and the change which the noble and learned Lord on the Woolsack now proposes to make will bring the procedure into harmony with that condition of things. Gross and cruel injustice used to be done by appeals to this House not coming on for years, partly because of the long time which was allowed to appellants in which to elect whether they would appeal or not, and partly owing to the arrears. The second point has been disposed of by the machinery of which I have spoken, and the first point will be dealt with if your Lordships see fit to approve of this proposal. I certainly trust that my noble and learned friend will have the full assent of the House in taking the steps which he proposes.