CONGESTION OF HIGH COURT BUSINESS (Hansard, 2 June 1921)

§ THE LORD CHANCELLOR (LORD BIRKENHEAD)

My Lords, I am glad to take the opportunity, which is afforded me by the Question of my noble and learned friend, to make a statement as to the position of business in the Supreme Court, The great importance of the matter to all classes of His Majesty's subjects cannot, of course, be questioned. Unhappily, it; cannot be denied that the facts are such as to cause grave apprehension to those who are principally responsible for the administration of justice in the Supreme Court.

Events have so fallen out that the attention of the public has been drawn primarily to the divorce lists. The situation with which we were faced in the Divorce Court was, of course, alarming. It was the result of years during which the flow of petitions gradually increased to an extent which was incredible. In nine months of 1913 the Divorce Court had to deal with 918 petitions. In nine months of 1919, before the situation became quite unmanageable, the comparable figure was 4,201. I will not trouble your Lordships with further figures. It is enough to say that, as a result of the efforts which have been made, the arrears have been entirely cleared off, and that with the continuance of those efforts on the reduced scale which is appropriate to the lessened need, it is confidently estimated that by the end of these Sittings matters will have returned to their normal course. My noble friend said that this was magnificent, but it was not war. He has admitted that it is magnificent, and I assure him that it is war. It has destroyed the only enemy The enemy were the arrears, and of these there will be nothing left by the commencement of the Long Vacation.

My noble friend spoke of expedients, as contrasted from permanent methods of improved organisation. I am not quite 423 sure how far he intended his observations to extend, but I would point out that what has happened is an illustration of the flexibility and adaptability of that great machine which was created by the Judicature Acts under the fostering care of Lord Selborne and Lord Cairns, and perfected by the recent Statute under which retired Judges have been permitted to place their experience and skill at the service of that high, perhaps the highest, function of government, the administration of justice.

It may be that the future normal state of the Division may be such as to impose too great a strain upon that machine. The recent flood of petitions will certainly not continue in its full volume. There are signs already in the Divorce Court of a considerable diminution in the number of new petitions. The effects to which attention has been called have been more striking by reason of the fact that the commencement of the war coincided with the inauguration of the system of Poor Persons litigation. When that system became known many persons applied who, in ordinary circumstances, would not have done so, and it may be that until recently there has been too great a tendency to interpret the Poor Persons' Rules in a somewhat too generous spirit.

It is not necessary, I think, that I should deal further with the subject of divorce, and I can pass on to consider the position in the King's Bench Division. As I have already said, the fact that the work of the Probate Division touches the lives and homes of so many thousands of the citizens of this country, while the work of the King's Bench Division, great and important as it is, is concerned in the main with property, arouses a more lively interest in the former, at any rate in the public Press, than does the work at Nisi Pries. Speaking, however, to your Lordships, I need not labour the vast importance to the community of the work of the King's Bench Division, whether in civil or criminal matters, and the necessity that the litigant who comes there should receive a prompt and efficient hearing of his cause, and that the criminal should not be kept for an indefinite period in prison awaiting trial.

The work of the King's Bench Division during the war dwindled as remarkably as the work of the Probate Division increased. Upon the Armistice the circumstances in the former Division were at once 424 reversed. Not only did crime return to, and indeed exceed, our previous experience, but the actions set down for trial in the King's Bench Division multiplied to an extent unprecedented in recent years. Subsidiary causes—the withdrawal of Judges for duties that were not strictly judicial, the loan of Judges to the Probate Division—formed some slight element in the accumulation of the work to be done, and I found myself obliged, in the course of last year, to ask Parliament to pass Resolutions under the Statute which allows the number of Judges of the King's Bench Division to be increased to 17. Those Resolutions were readily passed by both Houses of Parliament, and. a similar Resolution was repeated when the retirement of Lord Reading and the promotion of Sir Alfred Lawrence rendered it necessary.

In spite of these measures we are now in the presence of the following facts: In 1909, at the commencement of Trinity Sittings, the time of year at which the Division hopes to have got well abreast of its work, so that Judges can easily be spared for the Summer Assize, 646 actions were entered for trial in the King's Bench Division. At the same date, in successive years after 1909, there was a continuous decline, accelerated by the war, until the number dropped in 1915 to 91. Very slight increases were apparent in 1916, 1917 and 1918. In 1919 the figure went up with a rush to 568; in 1920 it was 681, and at the commencement of Trinity Sittings of this year it was 1,258—a figure nearly 100 per cent greater than that of 1909, and 200 per cent above the average of the twelve years taken under review. And this is unfortunately not the worst. Yesterday, June 1, after a week of the Sittings had elapsed, that figure, which ought to be falling, was still rising, and had reached 1,266. Actions are being set down for trial at the present moment in the King's Bench Division at the rate of 20 per day. The Circuits are now entering upon their fullest period of activity, and from now until the end of June we shall get no assistance by the return of Judges from Circuits, nor, until the end of the Sittings, will the Division be again at even 50 per cent of its strength.

In the provinces accidental circumstances render this situation even more perilous than appears at first sight. General reports from the country of the causes and 425 criminals for trial at the Assize towns are extremely gloomy. So heavy a civil list was there at the short Assize last commenced in Lancashire, that one of the two Judges who went upon the Assize at Easter will have barely concluded his list of causes at the time when it is necessary for him to start upon his travels for the Summer Assize upon the same Circuit. When the Judges of that circuit reach the last town—Manchester—they will find not only a sufficient list of ordinary civil and criminal business, but some thirty prisoners indicted for treason felony, whose trial must form a substantial addition to the ordinary work of the Assize. The bulk of the work thus described, though the sum total does not contain such numerous items as the Divorce list, is, in truth, far heavier, and it is far more difficult to improvise assistance for the. Division.

What expedients, then, are open to us to deal with the situation? In the first place, the Judges who remain in London have, with one accord, abandoned for the time being the practice of not sitting on Saturday mornings. This is a point upon which I desire to say a word to your Lordships, and with some degree of emphasis. The common view of the Judge's work is that he approaches it in a more or less leisurely manner at half-past ten, and rises about four o'clock to return immediately to leisure, with a free Saturday and a free Sunday. The reality, of course, is far otherwise. You must add to the continuous strain, which only those who have undergone it can appreciate, of listening with close attention for many hours at a time to debate and discussion, calling for all such learning, and all such patience, and all such ingenuity as happen to be assembled in the particular brain, on vast issues, and involving sometimes large stuns of money, and sometimes the life and reputation of the litigant, the fact that the Judge, when the Court rises, must keep his mind in touch with legal problems as they arise in Courts other than his own, and must study the documents and prepare his judgment.

Once a week on Mondays three or more Judges of the King's Bench sit in the Court of Criminal Appeal. Each of those Judges must devote one day in the previous week to a minute study of the cases which are to come before that Court, and Judges, from the necessities of the case, are no longer in the first flush of youth. I am quite satisfied, with some considerable experience at the Bar, and some experience 426 on the Bench, that, if the Judges are to retain freshness of mind and equability of temper, they must abstain on one working day of the week from the labour of sitting in judgment, though, from what. I have already said, it will be understood that this does not mean that they have one week-day for leisure. The institution, therefore, of the Saturday morning sitting ought, in my view, to be looked upon as an emergency measure, and as one not to he persisted in the moment it is apparent that it is not a matter of absolute necessity.

Though, perhaps, I should have placed it first, I have to acknowledge the services rendered by Sir Arthur Channell in returning, of his own free will, to sit at an advanced age as a puisne Judge of the King's Bench Division. It is a fact worthy of attention that it was from Sir Arthur Channell that the suggestion first came which was the germ of the provision in the Bill passed by your Lordships last year, which has rendered it possible for him to sit now in the King's Bench. 'Words of eulogy for what he has done and is doing would, I believe, be distasteful to Sir Arthur Channell, but I cannot refrain from mentioning the matter to your Lordships.

In the next place, we have been obliged to call upon the Chancery Division for help. Mr. Justice Astbury will, I believe, be able to give sonic three weeks or a month of judicial time to the King's Bench Division, and 1 hope that this does not, exhaust the amount of assistance which the Judges of that Division may find themselves able to give, without unduly impinging upon their own immediate task. In the Chancery Division the figures, though encouraging enough to those who think that a flow of business and a ready acceptance by the litigant of what the Courts have to give him is the best proof of health and strength, are somewhat depressing to those who are responsible for dealing with the lists. But there is no such over- whelm Mg flood of work on that side as would justify alarm. Beyond this, little remains in existing circumstances for us to do. We shall endeavour to lighten the business on the Northern Circuit, to which I have already referred, by the despatch of a Commissioner, and 1 am sending a Commissioner on part of the Oxford Circuit. When these measures are taken I must await events.

But I cannot but agree with my noble friend when he suggests, though with 427 that reticence that one would expect from him, that something more is called for, and that a further remedy must necessarily be applied. I have on more than one occasion expressed to this House my view that the Circuit system, as at present organised, imposes an undue strain upon the judicial machinery, and that we shall not reach even such finality as can be expected by the administrator and the legislator until towns which receive the visit of a Judge, for reasons which are partly mediaeval, and partly something more than modern, are denied that privilege, if it he a privilege. On this matter I have in the past addressed arguments to my colleagues which, I am sorry to say, have not proved successful. I am sure that they are moved by a sentiment with which all of us quite sympathise— extreme devotion to antiquarian considerations. However that may be, I shall continue, as and when time and temper permit, my efforts in the same direction and, as I believe, with sympathy from those of your Lordships' House who, while they have equal respect for historical associations, may still think that it is somewhat more important to come into touch with the actual realities and needs of the moment.

When, on the last occasion, I had the opportunity of speaking in the House on this subject, I expressed the hope that same relief for the High Court might be found in a further devolution to the County Court, and it was in that hope that I pressed upon your Lordships the passing of the County Courts Act, 1919. That hope has been most fully justified. Figures are not yet available, but throughout the country I hear from the County Court Judges that the actions which they have tried under that Act have increased in number very largely, and that the amounts at stake are very much increased in money value Had this step not been taken, and had the consequences which I have described not followed, our position, hazardous as it is, would have been already disastrous. For the present I do not think we can look for further relief in that direction.

I ought, I think, before I sit down, to make an observation upon one other point which has been much pressed upon my attention—namely, that the length of the Long Vacation should be, to some extent at least, curtailed. The observations 428 which I have already made with reference to the Saturday sittings apply in a measure, though not to the same degree, to the proposal that there should be at any rate any considerable interference with the Long Vacation. It must, of course, be borne in mind, not as decisive but as an important circumstance, that, I suppose, in no other occupation in the world is it true, as it is true of a Judge, that the man who, having reached the age—I should suppose it to be almost the average age—of sixty, has attained to the very top of his own profession, as the Judges nisi prim have, is so little his own master while he is at work. If your Lordships take the case of a man of sixty who is engaged in business, or in politics, or even in Ministerial duties, it is possible always for all such men during the period of their working time—certainly to the successful men in all these callings—to take a day's holiday here or a day's holiday there, or to allow themselves some relaxation by some sacrifice of part of the working day. In the case of a Judge no such relaxation is in any way possible. The obligation to be there from the moment the Court sits until the Court rises is one of those iron obligations which cannot be departed from Therefore, I think every one will agree that a much longer holiday is required by the Judges than would be pronounced necessary in the case of any other body of men.

There are, of course, other considerations which are to be borne in mind and given their due weight. There is the circumstance that many solicitors themselves feel the immense pressure during the year when the chamber work is carried on under its most acute pressure, and they find a considerable vacation to be not only convenient but, in fact, necessary. There is, however, a supreme interest to be considered, and that is the interest of the public. But even here the case is not so one-sided as your Lordships might be inclined to think from some of the articles which have appeared in the Press Reference is frequently made to the fact that a Commission which dealt with the whole subject some ten or twelve years ago reported in favour of a curtailment of the Long Vacation. That is true, and certainly I am the last person who ought to consent or would consent to speak with any disparagement of the admirable labours of that Commission. It is, however, unfortunate, from this point of view, that the 429 only member of the Bench who, I think, was a member of the Commission was Mr. Justice Darling, and that distinguished Judge has, I believe, long held views upon the subject of the Long Vacation which are of a subversive and even revolutionary character, so that the recommendations would have carried more weight, I think, if they had come from a member of the Bench who brought to the Commission a mind which offered more field for the processes of conversion.

It must not, however, be supposed that this subject is, or can be, banished from my consideration. My colleagues in the Government who, I think to some extent in consequence of my repeated representations to them, are fully alive to the difficulties with which we are dealing to-day—my colleagues, or some of them, have called my attention in a most pointed way to the recommendations of this Commission, and I am bound most deeply to consider the feelings which they have expressed to me. I therefore propose, when I hold the annual meeting of all the Judges, which will take place in the ordinary course at a comparatively early date, to go into the whole matter with them. I will only say this, that although it has been my misfortune to have to address to learned Judges, particularly to the Judges ofNisi Priusmany requests to undertake novel and harassing burdens, I have never yet met with the slightest indication of unwillingness, or a tendency to complain on the part of these learned Judges. We may well take a pride in the quality of those who to-day at first instance are administering justice in our Courts. I do not believe that they have ever stood higher in the respect of all classes of the community than they do to-day.

It is should appear, after all those efforts have been made, that the increase is an increase which is to be regarded as a new feature in our lives—if, in other words, every remedial measure which I have indicated proves to be vain and the arrears continue to grow—I should assuredly, as I have said elsewhere, come to Parliament and make the whole ease, and I should do so with a confident expectation that if I satisfied Parliament everything has been done by the Judges which they can reasonably or fairly be asked to do, and, in spite of that, it is impossible to deal with the arrears, Parliament would not refuse further help.

430 The primary function of all government is not merely to provide justice, but to provide speedy justice. If justice is delayed for a year or eighteen months it very often happens that the whole object of resorting to the law has been withdrawn from a man who had a real grievance. I shall not make any such request to your Lordships until full time has been given to measure the result of the steps that are about to be taken I am sorry that I cannot give to my noble and learned friend a more sanguine answer. But we should be wrong to close our eyes to the fact that the condition of business in the King's Bench Division at this moment is, in my judgment, graver than it has ever been at any period in the history of the administration of justice in this country.