HL Deb 25 November 1937 vol 107 cc295-305

Order of the Day for the Second Reading read.


My Lords, I propose to explain briefly the provisions of this Bill and then to expound the necessity for it. The provisions of the Bill are, shortly, to enable His Majesty to appoint two extra Judges to the Probate, Divorce and Admiralty Division. One of these appointments will be a permanent one, and one will be only for twelve months, unless a Resolution of both Houses of Parliament be passed praying His Majesty to fill any vacancy that may occur after twelve months: so that there are one permanent addition and one temporary addition created by this Bill. The necessity for the Bill rests on two grounds: first of all, the present state of the business in the Probate, Divorce and Admiralty Division, and, secondly, the anticipation of the increase in that business owing to the Act that was passed last Session, the Matrimonial Causes Act, 1937.

First of all, the present state of business. The Probate, Divorce and Admiralty Division contains, first, an Admiralty jurisdiction, which is of very great antiquity, and then the Probate and Divorce jurisdictions, the latter of which is the lineal descendant of the Ecclesiastical Court, which was handed over in 1857. All these duties—Admiralty, Probate and Divorce—have increased during the last three years. I have the figures for 1934, 1935, 1936, and 1937, but I hope your Lordships will be content if I contrast 1934 with 1937 although the figures for 1935 and 1936 are available, if necessary. In the year 1934, in Admiralty, 227 writs were issued. In 1937 277 writs were issued. This year the actual work of the Court, which it will be observed has not yet felt the full effect of the increased number of writs, has been as follows:—The Court has sat on seventeen days, and eleven further cases are in the list for trial. It is estimated that these cases will take twenty-five Judge days. The total number of days therefore for the term occupied in Admiralty work is forty-two. On these figures it is estimated that by the end of the year forty-five more days will have been occupied in Admiralty work than the average of the preceding three years. Admiralty work is a work of international prestige and importance and your Lordships will agree, I think, not only that justice is administered, but also that the Court has a well-tried reputation for efficiency and despatch, which I hope will be maintained.

I turn to Probate and Divorce cases and classify them together, because the Probate work is negligible and also because it would involve great labour to sort them out. There are undefended, non-jury, and special and common jury lists. In the undefended list at the beginning of Michaelmas Term, 1934, there were 814 cases. The corresponding figure for 1937 is 1,359 cases. Up to November 14 the Court had in 1934 disposed of 355 of these cases, and 459 remained for trial. On the same date in 1937 the Court had disposed of 427 cases—so your Lordships will see that the block is not due to any deficiency in judicial diligence—leaving 932 to be tried. The earliest date of setting down for trial in 1937 was May 13. Between the beginning of Michaelmas Term, 1934, and November 14 that year there were set down 293 undefended cases. The corresponding figure in 1937 was 307, leaving to be tried between that date and the end of the term 752 cases in 1934 and 1,239 in the present year. I turn to the non-jury list. In 1934 there were 227 defended non-jury cases remaining to be heard at the beginning of the Michaelmas Term, and in 1937 512, the earliest case having been set down for trial on January 15. The number of non-jury cases remaining to be heard on November 14, 1934, was 299. The figure this year was 584, just double. I take the special jury and common jury cases together. There were twenty-seven cases awaiting trial in 1934 and fifty-four in 1937. That is also double, but not a formidable increase, though it is noticeable that no common jury ca se has been or will be taken this term.

That is the case for the congestion of the lists under existing circumstances, but the Matrimonial Causes Act, 1937, comes into effect on January 1, and your Lordships will remember what the provisions of that Act are. Section r prohibits the presentation of a petition for divorce within three years of the date of marriage. That looks as if it would be pro tanto a relief to the Court, but, fortunately, only 4 per cent. of all the petitions presented relate to marriages during the first three years. The relief therefore is not very great, and it may be more than counterbalanced by the remaining provisions of this section which will allow a Judge to give leave for presentation of a petition within three years on the ground of exceptional hardship or exceptional depravity, and that will involve the Court in very anxious and careful examination. As to the remaining sections, Section 2 adds to the grounds on which divorce may be granted, desertion for at least three years, cruelty, and incurable insanity, and Section 7 adds to the grounds on which a marriage may be annulled, non-consummation owing to wilful refusal, unsoundness of mind or mental defect or epilepsy at the time of marriage, venereal disease and pregnancy by some other person. Obviously those grounds must largely increase the petitions and will involve very careful investigation by the Judge. Then Section 4 increases the responsibility of the Court to inquire whether there has been collusion, connivance or condonation, and to dismiss the suit or petition unless satisfied that there has not been.

This puts an additional burden on the Courts and will greatly increase their work. These are briefly the grounds on which I bring this Bill before the House. It passed in another place and there certain suggestions were made of alternative methods to deal with the difficulties. It was suggested that the King's Bench Division should be asked to deal with petitions at Assizes, and it was argued—I think this would be would be very undesirable—that divorce cases should be heard in County Courts. It was also suggested that Divorce Judges should go on circuit. This Bill, if it passes, will do nothing to prevent either the King's Bench Judges trying cases on circuit or the Divorce Judges being asked to do so, but I am bound to say that the arguments presented in another place, which did not commend themselves to the House, would be largely destructive. This is a statement which I do not endorse, but which I read as one of the arguments brought against the Bill by Mr. S. Silverman: … all the important Assize centres to-day, including those where divorce business is taken, are so crammed and choked with business that it is impossible for justice to be effectively carried out even in respect of the work that now has to be done at Assizes. I think that it is a grave exaggeration. It is not true that the Assize Courts are crammed or choked with business, but they are having as much to do as they can with the present King's Bench business and the divorce business which has already been entrusted to them.

I had this morning an application from the Lord Chief Justice to appoint a Commissioner to help on the Northern Circuit because the Judges there were unable to get through their business, and therefore it is not a very hopeful thing to send divorce business to Assize Courts where they have enough to do already. There is nothing to prevent divorce business being sent there except the fact that the Assize Courts already have a plethora of work. I mention that fact because I gather that it was the gravamen of the objection to the Bill, but I hope that your Lordships will not accept that argument and will give the Bill a Second Reading. I beg to move.

Moved, That the Bill be now read 2a.—(The Lord Chancellor.)


My Lords, I rise not to offer, at the present stage at any rate, any opposition to the proposals in this Bill, but I wish to call the attention of your Lordships to the very disturbing and distressing circumstances in which these proposals have become necessary. The congestion in the Divorce Court has led to these proposals. As appears from the figures which my noble and learned friend has just read, and from the statement which was made by the Attorney-General in another place, the trouble is due to the congestion in defended cases. I do not believe your Lordships can have the faintest idea what the present rule is about the trial of cases in the country. It has been one of the boasts of our jurisprudence for generations that in this country justice is taken to the door of the litigant, so that the poor person, or indeed the rich person, can have his civil rights determined in some place reasonably convenient where, without excessive expense to himself, his case can be tried. In respect of divorce cases, what has happened is this—and I venture to call it very serious and almost grotesque: In the case of undefended cases, any case can be tried on circuit, with certain exceptions, which I will mention presently, and already the divorce cases on circuit, by reason of the undefended cases, exceed in number the whole of the cases of any kind or description in civil work that are tried on circuit. There are, I believe, 1,70o divorce cases to about 1,600 civil cases.

Defended cases can be tried on circuit, but which defended cases? Defended cases between poor persons. But a defended case in which the parties are not technically poor cannot be tried on circuit at all. Can your Lordships conceive a more grotesque arrangement than that, or one that works greater hardship upon people who are just on the verge, as many people are, of the limit which enables them to be regarded as poor persons for this purpose? Most pathetic cases arise, and I have been permitted to see a letter which I should like your Lordships to hear. It was sent to my honourable and learned friend the Member for Montgomeryshire, who takes a great interest in this matter and who spoke in another place upon it. This is a letter, dated this month, from a man who says: I beg that you will excuse me for writing to you when I am a stranger to you and you are not my local member. In the House last week you made a speech for justice, particularly for those who are not exactly poor and who will suffer under the new Matrimonial Causes Act. I am a young professional man, and my wife intends to bring an action against me under this new Act. I must defend it for two reasons. First, because I am innocent; second, because if I lose it, which I should do if the case was not defended, I will lose my job and all chances of another in my profession. I cannot pay for my defence as I have no money, and I am told I should not be counted as a poor person. He says that his income is £4. a week and that he is now making provision for his wife. His letter goes on: I have written this in the hope that you would be able to give rile some advice and point out some way in which I can get assistance to defend myself. He then goes on to give some details of his case, with which I need not trouble your Lordships, and he ends his letter with these words: I hope that you will be able to help me in some way, and in any case, I wish you success in your efforts to gain an opportunity to obtain justice for every man. My honourable and learned friend had to write back to that man that he knew no way of helping him, and that in accordance with our law he ran the risk not only of finding the whole of his own expenses of bringing his witnesses to London from the North country, but of paying the expenses of his wife as well, though I think it is possible that, on that statement of means, he might be relieved, at any rate, of that liability. When asked if he would allow his letter to be used, he wrote back: I thank you for your kind letter. The future looks rather black for me at present, but I must keep hoping and trusting in God. If over you feel that the substance of my letter is of any use to you, I would be pleased for you to use it. Some other unfortunates will be in a position similar to mine, and one day they will receive just treatment. This is a crying grievance. It appears to me to be a real scandal in the administration of justice, and the cry has come up from every part of the country. Practitioners practising in every part of the country have endorsed this, and I venture to think there can be no conceivable justification for the position that you can try on circuit defended cases between poor persons, but you cannot try defended cases between semi-poor persons, who cannot bring their cases to trial at all unless they have that relief.

Let your Lordships imagine the position of a man with an income of £400 or £500 a year. How is he to bring witnesses and pay the expenses of a trial in London, where those witnesses may possibly have to wait two or three clays until their case comes up for trial? I venture to think that is a grievance, and I hope very much that, before this Bill comes on for Third Reading, my noble and learned friend will be able to give some assurance to the House that some steps are being taken with a view to remedying this undoubted grievance. My noble and learned friend said, I think inadvertently, that it was possible to order cases to be tried on circuit. At present that is not so. It has to be done by Rule, and the Rules provide as to what cases can be tried on circuit. The only power to order an action to be tried on circuit is subject to the Rules, and the only Rule which exists at the present moment draws a distinction, as I have told your Lordships, between poor persons and other cases. I think my noble and learned friend will find that that is correct.

But the matter does not stand there, because not only is the defended list in the Divorce Court cluttered up with these cases, which ought: to be tried in the country where the litigants come from and where their witnesses are, but we have what I think is really the strangest thing of all. Even undefended Cases, which must be started in London, though they would afterwards go normally to the country, if they are cases where discretion has to be exercised, or cases where the allegation is of adultery with an unknown woman in an hotel, this remarkable Rule says are not to be tried in the country at all, but must be kept in London and tried in the defended list. The result is that you have this long list of cases in London. You could release a very large part of them, if they could be tried where they ought to be tried in accordance with what I suggest is the first principle of justice. Your Lordships will readily see what is the result. If there is a dispute between two persons with means approximating to those to which I have just alluded, the man cannot defend his case, nor can either a man or his wife bring a case as long as it is defended. We have heard a great deal about collusion. What do your Lordships think is the result of a position such as that? I have told your Lordships that it is a crying grievance, and it is voiced by innumerable persons all over the country.

I was rather surprised to hear my noble and learned friend say that the circuit towns were full up with work. What are the Judges for, except to deal with the work? If there is a great deal of work in a circuit town, the real remedy is that the Judges should sit until they have dealt with that work. There are not limited hours or days on which Judges are to administer justice in the country. They ought to stay until their work is done, and to their credit I think they are prepared to do that. The trouble is, of course, that there is pressure brought on them to bring them back to London to do the work here. The true remedy for this and a good many other difficulties is that the Judges of the King's Bench Division should be increased. In that way you would be able to spare time for them to stay on circuit and do the work which they are employed to do—namely, to adjust the civil rights of His Majesty's subjects—and to stay as long on circuit as is necessary for that very important purpose. Therefore, I hope very much that we shall be able to hear from my noble and learned friend on the Woolsack the arrangements that he rather suggested might possibly be made in pursuance of a Bill, the contents of which he knows but nobody else knows, in respect of dealing with the rest of the business of the Common Law Assizes. I trust very much that it will be found that some arrangements have been made by which this real grievance of His Majesty's subjects has been adjusted.

On the other matter, the actual proposals of the Bill, I understood my noble and learned friend to say that the proposal was that there should be two Judges, one appointed permanently and the other appointed only for a year. That is not the position. Two Judges are to be appointed, and until there is a vacancy in the Probate, Divorce and Admiralty Division, these two Judges will remain. The present Judges are, I am glad to say, of quite moderate age, and very strong, and I hope they will be there a very long time unless one of them is moved up to the Court of Appeal, which is something that some of us would be very glad to see. But, apart from that, these two Judges may remain for another ten years trying nothing but divorce cases, because the Admiralty side of the Division is admirably equipped. The whole strength and value of the Probate, Divorce and Admiralty Division rests in the Admiralty side of it. It is a Court of international reputation, a Court by which the reputation of justice in this country has always been maintained. So much is that the case that foreign shipowners have constantly in the past, and I dare say now, preferred their cases here rather than in foreign Courts where they might bring them. There are now two skilled and trained Admiralty Judges, and it is impossible to suppose that Judges will be appointed who are required to help in any way on the Admiralty side.

I would only make this further remark on the suggestion regarding the trial of divorce cases by Common Law Judges. I think it was suggested at one time that these cases could not be competently tried by Common Law Judges. That is the most extraordinary delusion that ever entered into the brain of man, I venture to think! The first Judge who ever was appointed to the Divorce Courts was a Common Law Judge. The second Judge, Lord Penzance, was a Common Law Judge, the third Judge, Mr. Justice Hannen, was a Common Law Judge. Two of the Presidents have been Common Law Judges: the late Lord Mersey and the late Lord Sterndale, and every single President of the Division has been a Common Law practitioner. Of all the three men who now staff the Divorce Courts so admirably, I do not suppose any one had more than two dozen divorce cases in all his life before he was put on the Bench. Two of them were Admiralty practitioners and the other was a very distinguished Solicitor-General who certainly did not practise in the Divorce Courts. I certainly do not think, therefore, that it can be suggested that there is anything in Common Law work inconsistent with a man being able to perform the simple duties of Divorce Court work.

Those are the reasons which I hope your Lordships will think justify me in addressing you—I hope not at too great length. I feel that there is a real public grievance at the present moment, and I have ventured to call the attention of your Lordships' House and of my noble and learned friend in particular to its existence with the most strenuous and earnest prayer that it may be remedied.


My Lords, I am sure that your Lordships have all listened to the excellent speech of my noble and learned friend Lord Atkin; it was an admirable example of lucidity. It is always a pleasure to hear him advocate any cause, but I hope that he will forgive me for saying that, although I rejoice that I have given him an opportunity of making his speech, it had nothing to do with the merits of my Bill. The Bill is designed to meet the urgent and pressing necessity to deal with existing arrears and with anticipated work in the Probate, Divorce and Admiralty Division. Of course, as my noble friend knows, there is nothing to prevent the loan of a Judge of the Probate, Divorce and Admiralty Division to the King's Bench Division, just as there is nothing to prevent the loan of a King's Bench Division Judge to the Probate, Divorce and Admiralty Division. Therefore, if these two Judges are appointed and if, as I gather my noble and learned friend thinks, there is no work for them to do in the Divorce Courts, there is nothing to prevent the Lord Chief Justice from asking the President to lend the services of one or more Judges to help the King's Bench Division.

Therefore I hope that my noble and learned friend will not think I am discourteous to him if I do not discuss his suggestion that the King's Bench Division should be strengthened and should be empowered to deal with defended cases on circuit. Of course, if that be done it is very important that the Matrimonial Causes Act, which comes into force on January 1, should be administered by a skilled body of Divorce Judges so that the principles on which the discretion ought to be exercised shall be worked out, standardised and laid down. Naturally they will be followed on circuit or in the King's Bench Division hereafter. I hope that your Lordships will give a Second Reading to this Bill. I have no doubt that my noble and learned friend's observations will be taken into consideration not only by myself but also by the Lord Chief Justice and the President of the Divorce Division.

On Question, Bill read 2a, and committed to a Committee of the Whole House.