HL Deb 09 December 1920 vol 39 cc8-15

Order of the Day for the House to be put into Committee, read.

Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL of DONOUOHMORE in the Chair.]

Clause 1:

Power to try matrimonial causes at assizes.

1. Any commissioner acting under a commission of assize or any other commission granted under section twenty-nine of the Supreme Court of Judicature Act, 1873, shall, subject to rules Of court, have power to try and determine matri- monial causes of any prescribed class and any matters arising out of or connected with any such causes, and shall for that purpose have all such powers and duties as are vested in the Probate, Divorce, and Admiralty Division of the High Court under the enactments relating to divorce and matrimonial causes.

For the purposes of the foregoing provision, the expression "prescribed" means prescribed by the Lord Chancellor by order made with the concurrence of the Lord Chief Justice of England and the President of the Probate, Divorce, and Admiralty Division of the High Court.

THE EARL OF READING

My Lords, I desire to offer some observations on Clause 1 of this Bill, and more particularly to direct the attention of your Lordships to the true effect of the clause, which I think has been subject to some misconception outside this House. May I say that I am in complete accord with the Lord Chancellor as to the provisions of this Bill. He has called me into consultation on various occasions in respect of matters that more particularly appertain to the King's Bench and generally to the administration of justice, and the only remarks that I intend to make upon this clause are to correct what I cannot but think is a possible misconception.

As I understand the object of my noble and learned friend on the Woolsack in Clause 1, it is not at this moment to transfer matrimonial causes to the Assizes for the purpose of trying them at Assizes, but it is to give power to the Commissioner, acting under a Commission of Assize, to try such causes of any prescribed class its shall be transferred; and then occur these words— The expression 'prescribed' means prescribed by the Lord Chancellor by order made with the concurrence of the Lord Chief Justice of England and the President of the Probate, Divorce, and Admiralty Division of the High Court. In the present state of the lists in the Divorce Division it is obvious that the President, will naturally be desirous of having these causes transferred, so that they may be disposed of elsewhere and that the congestion in his Courts may be relieved, as my noble and learned friend on the Woolsack would also naturally desire to give the President that assistance; but it cannot be done under this Bill unless there is the concurrence of myself as the Lord Chief Justice. I ant very anxious that it should not be thought that this concurrence is a mere matter of form. On the contrary, before the Lord Chief Justice could concur in transferring these causes to Assizes he must be satisfied, first, that the condition of business at Assizes will enable the causes to be sent there without unduly prolonging the stay of Judges on Circuit, and consequently their absence from London, where there is already a very congested list awaiting trial.

I would make one further observation upon it which I trust your Lordships will bear in mind in case it becomes necessary on a later occasion to introduce further legislation—namely, that I do not think it ought to be assumed that Parliament should impose upon the Judges of the King's Bench Division the duty of trying matrimonial causes unless the Judges of the King's Bench Division are willing to accept that jurisdiction. There are many (I am not speaking for a moment merely of judicial persons) who object, of course, to divorce. There are Judges who will most certainly have a dislike to trying divorce cases on Assizes. The Judges of the King's Bench Division are not appointed for that purpose; it is not part of their work. When a member of the Bar has accepted the position to which His Majesty has appointed him as Judge of the High Court, King's Bench Division, it is no part of the Judge's duty under the law as at present constituted to try divorce cases, although it is perfectly true that during the congestion that has existed for some time some of the Judges have been ready to lend their assistance and have, at the request of the Lord Chancellor and with my concurrence, transferred their services to the Divorce Division.

I do not desire to say anything further upon it beyond this, that I do not think this duty ought ever to be imposed on the Judges unless the Judges are themselves willing to undertake it. When I say that I am reminded that the Lord Chancellor at one period did say that in a certain limited class of case the Judges had expressed their willingness. It was perfectly true, because I myself communicated it to him as the result of a meeting of the King's Bench Division when we were considering the position of poor persons who were in the difficulty that they could not very often provide money to bring witnesses from Lancashire and Yorkshire to London to have their case tried. In order to meet the case of poor persons. which was the matter under discussion, the Judges of the High Court did express their willingness to try these causes if it became necessary and if the state of business in the King's Bench Division permitted it. Save in that respect I trust it will not be thought that the Judges have undertaken the duty, although they are always ready and willing to consider any representations that may be made by the Lord Chancellor and will naturally give every possible consideration to them with the desire of facilitating any course he may suggest; and I need not say that I shall always most willingly concur if concurrence is possible.

The last observation I want to make on the state of the Lists is this—it may not be known, and I think it necessary I should state it—that at the present moment the number of causes entered in the King's Bench Division (that is to say, the number of causes awaiting trial), is much larger than it has been for any period during the last ten years, and this notwithstanding the fact that appointments were made in consequence of the power given by Resolution in your Lordships' House and in another place to appoint two new Judges. The moment those two new Judges of the King's Bench Division were appointed I rejoiced at the prospect of having them added so that the arrears could be got rid of. But one was immediately borrowed, by virtue of some arrangements under an Indemnity Act, to preside over the War Losses Commission, and the other has been lent ever since to the Divorce Division. Your Lordships will see that although two new Judges were appointed to the King's Bench. Division their services have never yet been given to the King's Bench Division. I trust that this will be remembered.

THE LORD CHANCELLOR (LORD BIRRIENHEAD)

My Lords, I agree entirely with what the noble and learned Earl has said as to the present state of the Lists. It is causing me anxiety, as it must be causing him anxiety. It is perfectly true that whereas Parliament gave me the power of creating two new Judges some months ago their efforts have not been available to assist the noble and learned Earl in his duties in the Courts of Justice; and it is a very serious circumstance that what was justified and intended by Parliament to go in relief of the arrears in the King's Bench Division should not have been available for that purpose. I am carefully watching the state of the Lists and the work also upon Circuit. It may well be that if the tenure of the services of Mr. Justice A. T. Lawrence, who was lent to the tribunal which deals with property taken under various war legislation, proves to be of indefinite duration I may have to come to Parliament again and ask that they should make good that which was intended when the two new Judges were appointed.

The state of the Lists is very serious indeed, and it is due, as far as I can judge,, to the circumstance that the conclusion of the war brought about very complicated litigation of all kinds. There were many persons who did not think it worth while, and many who were physically unable, to resort to litigation while the war lasted. You cannot introduce into this or any other country the completely novel code of procedure by which our business arrangements were in many cases governed for five years without making certain that a great crop of litigation will result. Any one who is responsible for the conduct of litigation in this country must at the present moment be feeling very great anxiety.

Let me add a word as to the particular points made by the noble and learned Earl. He called attention to the fact that the Bill provided that it would be necessary for the Lord Chancellor, before prescribing any class of case as one capable of being dealt with on Circuit, to obtain the concurrence of the Lord Chief Justice and the President of the Probate, Admiralty, and Divorce Division. When I thus directed that any action by myself in this regard should be made dependent on the concurrence of the Lord Chief Justice and the President of the Probate Division, I was fully aware that the concurrence was to be a substantial one, and that it was not in the least likely I should obtain it unless they were satisfied that their own duties rendered it proper that they should give it.

I am not sure that I am able entirely to accept what the noble and learned Earl said as to the position of Judges in relation to the discharge of duties in matters relating to divorce if they should be called upon under the circumstances prescribed in this Bill; but I do not propose to discuss that. No one would ever dream of attempting to make regulations in relation to the Judges of the King's Bench Division, apart from any statutory provision, without the complete assent and concurrence of the Lord Chief Justice, who has the primary responsibility, which I have not. The circumstance will not arise. Among the King's Bench Judges, whose devotion to duty is well known, there will be a sufficient number, if it is the wish of Parliament, to undertake these duties.

Clause 1 agreed to.

Clause 2:

Trial by jury in the High Court.

2.—(1) Where, in any action or other matter whatsoever requiring to be tried in the High Court, the court or a judge is satisfied, on an application made by either party to the proceedings in accordance with rules of court, that the action or matter cannot as conveniently be tried with a jury as without a jury, the court or a judge shall, subject to the provisions of this section, have power, notwithstanding anything in any Act, to order the action or matter to be tried without a jury:

Provided that—

  1. (a) no order for trial without a jury shall, except with the consent of both parties, be made under this section where the action or matter is one in which fraud is alleged or in which there is a clam in respect of libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise of Marriage; and
  2. (b) nothing in this section shall affect the right of any party under section twenty-eight of the Matrimonial Causes Act, 1857, to insist on having contested matters of fact tried with a jury, or the right of an heir at law, cited to appear in or otherwise made a party to a probate action, to a trial with a jury if he makes an application for the purpose in accordance with rules of court.

(2) Provision shall be made by rules of court for enabling the plaintiff in any action or matter in which an order for trial without a jury may be made under this section to signify his desire to have the action or matter tried without a jury, and for providing, but without prejudice to the discretion of the court or a judge, that where the plaintiff so signifies his desire an order shall be made for trial without a jury unless any party makes an application to the contrary.

(3) This section shall come into operation on the date on which the Juries Act, 1918, expires, or, if His Majesty by Order in Council so direct, on such earlier date as may be specified in the Order, and if any Order is so made section one of the Juries Act, 1918, shall cease to have effect on the date so specified.

THE EARL OF READING

My Lords, I desire to supplement what I said on Clause 1 relating to the state of business in the Courts by directing the attention of your Lordships to the effect of Clause 2, which imposes very limited restrictions upon the right to trial by jury in civil Courts. It is not a subject that it is necessary for me to discuss at this moment. The clause has been most carefully drafted. The language—almost the very words—was accepted by a Council of all the Judges, presided over by the Lord Chancellor, when this matter was considered. It is, perhaps, desirable to notice that there is power under the Rules to make some such provision as this, but it was thought better—and think my noble friend particularly took that view, and I agree with him—that when introducing this restriction on the right to trial by jury it should be done by Statute so that Parliament may have the opportunity of expressing a view upon it, rather than by Rule, which is done by those of us who are members of a Rule Committee, when there is so much less opportunity either for publicity before the Rule comes into operation or for discussion upon it.

The one essential element to consider is, of course, that what is desired is to do the best in the interests of justice, and this limited right of restriction which is now asked is not intended in any way to interfere with that class of case in which above all others juries should always be called. That is, the well-known case of defamation and actions of the same kind in which there are allegations of fraud and where personal character is seriously involved. Of course not. Those are expressly exempted. The limited restriction does not apply to those cases. There the right to trial by jury remains, and is preserved by the proviso to the clause. The clause in itself will apply merely to that class of case where it is found that on the whole the case cannot as conveniently be tried with a jury as without.

I would desire also that those who may hear, or may read, the observations that I have made upon this clause will bear in mind that prima facie the best tribunal to dispose of facts, not only in the opinion of myself but of Judges, is a jury. But you may have cases, and you do have cases, in which, by reason of prolonged investigation, it becomes necessary to try the case by the Judge who has documents before him and who has an opportunity of refreshing his recollection upon the matters from time to time, which a jury has not. I think the clause is most carefully drafted, and, so far as I am aware from such discussion as I have been able to have with those who are interested in it, apart from the litigants themselves, there is a general consensus of opinion that some restriction is necessary if we are to proceed with the trial of our causes as the List at present stands.

May I add further that a Committee—Lord Mersey's Committee—sat on this very matter, discussed this question, and came to recommendations which go considerably further than those embodied in the Bill which my noble and learned friend has introduced. They give a much wider discretion; but it has been thought better, as I gather, by my noble friend (and I agree with it) to give a much more restricted and limited right of curtailment of trial by jury than was proposed by that Committee.

THE LORD CHANCELLOR

My Lords, I find it necessary to add hardly anything to the observations made by my noble and learned friend, because I am naturally in complete agreement with them; but it is worth while, I think, to point out—because these matters occasion great interest in the legal profession—that at the statutory meeting of the Judges which I summoned this year, and at which this subject was discussed very elaborately, their assent and approval were given to the proposals contained in this Bill. I need scarcely say that their experience and their advice in such a matter ought to carry the greatest possible weight.

Clause 2 agreed to.

Remaining clauses agreed to.

Bill reported without amendment.