« ΠροηγούμενηΣυνέχεια »
of necessity interests a meeting of lawyers, and is all that is desired. I am not of that opinion, but I need no excuse for dwelling at some length on think that the answer is that our procedure does not this subject. It is a matter of common knowl. satisfy the requirements of business men. An inedge that the volume of business in the superior stitution to flourish in a free country must offer to courts, more especially on the common law side, the people the thing that they want. Our legal has greatly diminished of late years, and that procedure is far too complex, too dilatory and unthere is among the public a strong and widely certain as to time, and too expensive for the requirespread feeling of dissatisfaction with the procements of business men in ordinary transactions at dure for administering justice in civil proceedings the end of the nineteenth century. I say advisedly, in the superior courts ; and the causes are not “for ordinary transactions; for however complex, I think, far to seck. Many and important improve expensive and dilatory procedure may be, people ments have been made in procedure since the in who have sensational libel cases to bring before the troduction, in 1873, of the first Judicature Act public, cases where questions of character are inand among these improvements are two which stand | volved, or cases involving very large sums of money, out pre-eminently beyond the rest; I mean, of will not be deterred by any considerations of excourse, the facilities for summary judgment, given pense and difficulty from bringing them before the under Order XIV., and the power under Order LV. most suitable and competent tribunal to which they of obtaining expeditiously and cheaply judgment can resort. But ordinary business men, having a upon questions arising in the administration of a dispute to settle, arising in the ordinary course of trust, without the necessity of an administration in business, have for many years past been found to court of the whole trust estate. I hope that the prefer to resort to lay arbitration, and other unsatistime is not far distant when we shall at least see factory methods of settling their disputes, rather the provisions of Order XIV. greatly extended, a than submit to the expense and delay involved in course which has, as you know, been strongly l'ec recourse to the tribunals of the country. The obommended by the committee of our society, which ject of procedure is to settle disputes; disputes reported in 1892 on suggested changes in our legal must and will in the course of business arise, and procedure. But though much has been done in the they are a necessary evil. They interfere with right direction, it is impossible for any of us who business, and all time and money expended in conare engaged in large practice to maintain that our sequence is from an economical point of view system meets with or merits the approval of those “waste, and the problem which those who are for whose benefit it should be designed, namely, responsible for settling the procedure of our law our clients, the igants themselves. The whole courts bave to set themselves is, how to place manner in which commercial business is conducted before the public a machinery for satisfactorily in this country has changed enormously of late determining these disputes with the least possible years, and men of business are accustomed to trans waste of time and money. I shall have something act their business rapidly, and expect to have their to say later on with reference to the recent estabordinary business transactions settled up promptly lishment in London of a separate court for the and expeditiously. Can it be said that the improve- trial of commercial cases, in respect of which ments in our procedure have kept pace with the a giant's stride has been made in the right ever-changing conditions under which business is direction ; but for the moment I am dealing carried on, or that our system is, to use a slang ex- only with our system generally, and I desire to pression “up to date ” ? At no time in the history call your attention to what I consider some of the of this country has the confidence of business men most salient defects in it, and in doing so I must in the ability and integrity of our judges been remind you that the views which I express must be greater than it is at present at no time have we considered as personal to myself, and that the bad a more distinguished Bar and as to our own president for the time being in delivering his anbranch of the profession, who is there who is ignor-nual address does not in any sense speak as repreant of the strides which have of late years been senting the views of his colleagues on the council made in meriting and obtaining public esteem ? If
over whom he has the honor for the year to preside. therefore, the public, as they have, have full confi- (1) Our procedure is regulated by the Judicature dence in those who administer the law, how is it Acts 1873 to 1894, and the rules (more than 1,000 that business men have for many years been more in number) made under them, forming altogether a and more shy of resorting to our tribunals for the of complex provisions constantly being settlement of their disputes ? We have heard changed, and in the interpretation of which it is many explanations offered. Some optimists among inevitable that doubts and difficulties will from us have been known to put it all down to depres time to time arise. These difficulties when they sion in trade, and to assert that our legal procedure | arise are not determined by the rule-making au
thority for the benefit of litigants is a whole, but close their doors; nor do the railway companies reare judicially settled at the expense of particular fuse to carry us during a close time of over ten litigants, so that a plaintiff and defendant who em
weeks every summer, to say nothing of other holibark in litigation may not only have to pay the ex days in the year.
What in the nature of the case pense of settling their own particular dispute, but is there which makes lawyers different in this remay find themselves involved in a heavy expense in spect from every other class of workingmen in settling what is the meaning of some statutory pro- England, and why should the establishment which vision or some rule of procedure. I find that in the we all co-operate in carrying on be administered on Annual Practice for 1895 there are between seven such unbusiness-like principles as these?
We are and eight thousand reported cases referred to as all so used to our long vacation that some of indicating the effect and construction of the exist us think that we could not live without it, and ing rules, and where rules have been altered to we are astonished that outsiders should consider meet difficulties which have arisen, a reference to its continuance in its present form a blot on the case is of course no longer necessary; and there our institution. Believe me the long vacation as are, moreover, a number of cases wbich are never such is an anachronism, and the sooner it is done reported in which litigants have had to pay ex away with the better for us and the clients whom penses for determining obscure points of procedure.
(4) The fourth point I will refer to is From the mere fact, however, that there are up- this, and I will only devote a few words to it, for it wards of 7,000 reported cases which it is necessary to is a matter only too well known and recognized; I refer to in order to ascertain what the existing rules mean the great waste of judicial strength arising mean, some idea may be formed of the number of out of the present circuit system. The remedy has cases which have arisen and the enormous expense been pointed out again and again; but we are, I to which litigants have been put in determining not fear, as a nation, slow, only too slow, in applying their own particular disputes, but what is the mean kuown remedies to known defects. This is a ing of the complicated procedure under which they matter which I feel cannot and will not be alhave to work if they desire to bring their disputes lowed to remain in its present unsatisfactory position. for settlement in the High Court. Is not this in (5) The next point in reference to our present itself enough to deter would-be litigants ? (2) system to which I would call attention is that of Then the course of litigation is, or may be, the the relations between counsel and client. It is, of same whether the amount involved is large or
course, a subject of some delicacy, and upon which small, whether the case is a simple one or complex, I desire to speak with all consideration for the whether the facts are really disputable or not, and, other branch of the profession, among whom are except in the limited application of Order XIV., numbered some of my most valued and intimate there is no summary process by which in an ordi. friends; but I for one think that the relations of nary action a defendant having no defense, or a the bar to the client are one of the other anachronplaintiff having no case, can be prevented at an isms in our system. In theory the services of early period from putting his opponent to the ex counsel are gratuitous, and their fees are honoraripense and delay involved in carrying the action theory has been left in the lurch by practice. In through all its possible stages. (3) The third point reality, counsels' fees are bargained for by their I wish to refer to is the long vacation. How in the clerks. The junior counsel requires a fixed proname of common sense can it be expected that the portion of the leader's fee, however eminent the public will voluntarily patronize an establishment, leader may be, however junior the junior. The the doors of which, in addition to other “vaca clerk of the leading counsel on the side where, pertions,” are substantially closed from the 12th of haps, fecs are marked lower than by the adversary, August to the 24th of October in every year? What requires to have his master's fee raised to the level other business establishment conducts its affairs in of that of his opponent, and so on through a variety this fashion? Bear in mind that in our own offices of phases with which we are all familiar. I have we carry all our administrative work at all times of nothing to say against the practice of a professional the year, and it is only in respect of litigious busi man demanding for valuable services as much as he ness that we have a long vacation. In the city of can get, as much as the public will pay him. But London we have probably as much general work let it be done openly by the master, and not by a then as at any other time of the year. Each and clerk acting ostensibly against his master's orders every hard worker in every branch of life requires and in violation of the gratuitous service and sufficient and regular holidays. The officers and honorarium theory which are said to rule the relathe staff of all great banking institutions, of all tions between counsel and client. Though the railways, all without difficulty get their proper barrister cannot sue for his fees, the bar can and do periods of repose from work, but the banks do not | bring the pressure of the society to bear upon
solicitors who are members with the view of com
matter on a satisfactory basis, but I do not think pelling payment of fees in arrears. We hold, that this is the case. To the question what costs and bave always held, that it is unbecoming a should a successful litigant be able to recover from member of our society not to pay his counsel's his opponent, the answer must be, "all that he has fees; and though fees are not recoverable at reasonably and properly incurred in the litigation." law, they can, to a great extent, be, in fact, re And what does the rule say on the subject ? Only covered as effectively as if they could be sued for, that the taxing master is not to allow costs “not and I doubt whether there is any other vocation in necessary or proper for the attainment of justice, or which so small a percentage of bad debts is made which have been incurred through over-caution, as in the case of counsel fees. It is time, I think, negligence, or mistake, or merely at the desire of that these anomalies should cease to exist; then, if the party.” No alteration of the rule seems necesthe fees are payments for services contracted for, it sary. No one, I suppose, will desire to make an would follow that the services would be performed unsuccessful litigant pay costs for work “not necesor the fees returned, and we should no longer have sary for the attainment of justice,” or “incurred the unedifying spectacle of counsel holding briefs through over-caution, negligence or mistake," or in cases they cannot possibly give attention to, or “merely at the desire of the party.” In theory the putting in an appearance for short periods at inter- rules are all that can be desired ; but where the vals during the hearing of a case. Believe me, shoe pinches and where alteration is needed is in there is nothing in the administration of justice the practice and application of the rules in the with which the lay client finds so much fault as masters' offices. This was the view acted on by the paying for services the benefit of which he does not committee of judges in 1892, who spoke of the obtain, and knowing that in the most favorable cir- matter as “the practice as to the taxation of costs cumstances he must needs feel anxiety as to whether which at present distinguishies costs as between or not counsel, to whom he has paid heavy fees, will solicitor and client from costs between party and attend to and conduct his case. (6) Another strong party,” and who did not suggest that any alteration deterrent is to be found in the very strict and tech- in principle was needed or that any new statutory nical rules of evidence acted on in our courts. powers were required. And, if my memory serves Something in the right direction has, you know, me, the late Sir Ilenry Jackson, who some years been done in this respect, but much remains to be ago brought a bill into parliament on the subject, done before business men will come to our courts found on consideration that the grievance could be and risk failure in litigation, in consequence of the remedied without legislation ; but unfortunately rules of evidence in reference to facts, which, to
the grievance exists, and no effectual steps have their lay minds, admit of no dispute, or in respect | been taken to remedy it. The taxing masters, fol. of which they are in the habit of acting upon ma
lowing the practice of many years and various terials which the courts, at present, refuse to look decided cases which they are bound to follow, at as evidence. Consider, too, how much unneces
take far too narrow a view of what is necessary expense and delay arises in practice from the
sary for the attainment of justice, and if the necessity of having, in some cases, to prove, under
powers that be would see that the rules a commission abroad, facts which are notorious and
more liberally interpreted and would lay down documents which are recorded. (7) Then there is regulations for the guidance of the taxing masters, the well founded grivance as to party and party successful litigants would more nearly attain the costs, and much dissatisfaction exists as to the prac- indemnity to which they are entitled from their tice in taxing costs as between party and party. unsuccessful opponent. It must not, however, be A distinguished member of the Court of Appeal overlooked that the more competent the practialluded, at a public meeting in June last, to this as tioner and the more calm-headed the client, the less the principal deterrent cause which keeps the public is the difference between party and party and soliaway from the law courts. A successful litigant citor and client costs. It is, in my judgment, not a thinks he should have a complete indemnity from his practical suggestion that an unsuccessful litigant unsuccessful adversary in respect of all costs reason should be expected to pay for the incapacity of his ably and properly incurred by him in the litigation, opponent's advisers, or for any and every fancy of and so he should. In theory the court gives him a nervous adversary. The principle laid down in this; but when he comes to the taxing master's the rules is in this respect good enough. What we office he finds by experience that he only gets about want is a liberal and proper interpretation of the two-thirds of what he has been obliged to spend. rules in practice. I have indicated some of what I Sone misapprehension, I think, exists in many quar- think are the most salient defects of our system of ters as to this subject, and I have heard it procedure, and some of these defects can easily be suggested that legislation is required to place the remedied. It would be a simple remedy to have all
questions of practice settled without litigation by a are, of course, some cases in which it might be diffismall rule committee, whose duty it should be to cult to arrive at a just conclusion as to the merits remedy all defects, and clear up all doubts arising without formal pleadings and particulars, and within practice on the rules, and to do this as the points out going through the processes of discovery and inarise, and without cost to the litigants. There terrogatories and all the rest of it; but in nine cases should be no great difficulty (in spite of the opposi- out of ten -- in, I would almost say, ninety-nine tion from small places), in rearranging the circuit cases out of a hundred -none of this is necessary; system so as to prevent the present waste of judicial only a very small percentage of actions commenced strength. The Council of Judges, in reporting to really proceed through all the preliminary stages to the Secretary of State in 1892, indicated how this trial and judgment -- in many cases the parties could be best done, and added that, unless the cir- know perfectly well beforehand what are the points cuit system be rearranged, “all the other sugges- in dispute — what, if any, are the material facts tions (for the improvement of legal procedure) will upon which there may be doubt; and in many cases be of little effect, and the most valuable part of the the rights of the parties depend merely on the conproposed reform in the present administration of struction of some written instrument; there are; the law will be frustrated.” The long vacation and under the existing rules some facilities for obtainthe present anomalous re'ations between counseling a speedy decision in such cases; but the existand client will probably die hard; but, in my judg- ing rules and the manner in which they are ment, go they must if we are to have any efficient interpreted are not, I think, such as to satisfy reform such as to render our system likely rather in this respect the reasonable expectations of the to attract than, as it does now, repel suitors. public. Compromises and settlements of litigation I trust that the strong views held by Lord usually arise in consequence of one party to an Justice Smith on the subject and his influence action learning something which he has not before will have the effect of regulations being laid known, or has not appreciated, of the strength of down for the taxing masters, so that a successful his opponent's case. If a settlement of the dispute litigant may, on taxation, be allowed all his costs in the carly states of a litigation is an object, as I and expenses reasonably and properly incurred. think it is, to de desired, it is important that each But there are other important reforms which are, I litigant should as speedily as can be learn something think, imperatively called for. Our system, which of the strength of his opponent's case, and I should we call procedure, is a far too highly polished and like to see what I will call the underlying principle complicated machine for the requirements of every- | of Order XIV extended to every kind of case, and day cases. It is a terrible weapon in the hands of I would give to every litigant, be he plaintiff, an unscrupulous litigant. In theory it is all simple defendant, applicant or respondent, the right imenough; we have our summons for directions and mediately that all necessary parties are before many other apparently useful rules; but we know the court to apply to the court in a summary way that, except in cases wbich the courts consider to for any judgment to which he may think himself come under Order XIV, a defendant who has in entitled in reference to the subject-matter of the reality no title of a defense can keep his adversary litigation ; and to do this on such materials as he months, and, in some cases and under favorable cir- | may then be able to bring before the court. There cumstances, years, from getting a judgment, and are a vast quantity of cases in which a short investhat either party can, for an undue length of time, tigation performed by an able judge would show put off the inevitable moment of coming face to that the applicant had no reasonable ground for his face with his adversary before the court. Much has application, or that the respondent had no such been done in the right direction by Order XIV, grounds for objection ; and it should be the duty much by order LV; much has been done by the es of the judge to enter judgment on the materials tablishment in London of a court for the trial of com before him either for the applicant or respondent, mercial cases, hampered in practice by no technical or in such manner as he thought just, unless for rules of procedure and presided over by judges whose special reasons he should consider that the particuwhole lives have been spent in the conduct of com lar case ought to be carried through in the manner mercial cases, and who possess the confidence of prescribed by existing rules ; but I would let it be men of business. If such a tribunal had been estab- possible to make such judgment a provisional judg. lished twenty years ago we should have heard less,ment only, and allow the aggrieved party, on givif anything, of the commercial classes refusing to ing security for costs, or on such other conditions resort to our courts for the settlement of their dis as the court might impose, to have the action or putes, and inserting in their sale and purchase con- proceeding tried or brought to hearing in the tracts clauses for compulsory reference to lay arbi- ordinary way. I am confident that, if the court trators. With respect to litigation generally, there possessed such a power as this,' and if the parties
were at an early stage of the proceedings brought rules which in some cases make the solicitor's face to face before the court, a settlement between remuneration payable in an inverse ratio to the the parties themselves would in the vast majority of responsibility and labor involved; for instance, it cases take place, or a satisfactory judgment would is more remunerative to a solicitor to instruct be pronounced, and further proceedings avoided. a counsel to attend in chambers than to attend and I cannot leave the question of legal procedure with conduct his case himself. On the question of legal out saying something on the subject of “costs.” procedure I have, I am sure, said enough to show Much misapprehension, I am sure, exists on the sub- you that our house wants putting in order, and ject — the word costs ought, perhaps, only to be when those in authority think that the time has used to indicate the solicitors' fees and disburse come lor doing so, I hope that some alteration of ments, but it is often used to indicate the whole of
our fees will be effected by which, at least, we the expenses of litigation, and few, except those shall be adequately rewarded for all necessary work, who have made a special study of it, know how and in which there shall be no temptation to any small a part of the
practitioner to increase his client's disbursements of litigation represents
expenses the solicitor's own renumeration for his services.
as a means of adding to his own fees.
I propose in conclusion to say a few words on two It would, I know, astonish some persons to be told,
of the more important duties of our society, and on but it is a fact, that from ten to twelve per cent of its organization and its finances. It was so long the costs of litigation is what represents the solici ago as 1877 that the whole control of the examinator's own renumeration that is to say, he must tion of articled clerks passed into the hands of the bave work passing through his hands costing in the society. Previously to this the council, as delegates aggregate £1,000 in order that he can earn for his of the judges, bad practically had charge of the exown renumeration £100. In some special circum- aminations, but since 1877 the responsibility for, stances, such, for instance, as in a small office where
and the whole conduct of, the examinations has
been vested in the society; and a very important the solicitor himself does all the work performed
duty this is, and the thanks of the profession are in larges offices by clerks, or in a very large office
due to the Examination Committee of the Council with a numerous staff and an unusually large for the exemplary and painstaking manner in which amount of work, the percentage may be higher, they superintend and regulate this department of but about ten per cent is all that a solicitor usually the society's function. It is a satisfaction to myself gets as his net renumeration, including interest on personally, and I think it will be so to many of us, the capital in his business. The expenses of ordi- that we are getting year after year a larger propornary litigation, and which are vulgarly referred to tion of graduates, and men who have passed the as costs, include — (a) court and judicature fees; (1)) London University Matriculation Examination, comcounsels' fees; (c) witnesses' renumeration; (d) the ing into our ranks – when young men have to un
dergo a five years' service under articles, there is solicitor's charges and disbursements. The court unfortunately too great a temptation for them to and judicature sees represent a very considerable leave school at an early age. -- a University degree amount; in administrative actions they are very delays only by one year the date of admission, and heavy. Counsels' sees have increased with the the advantages, where they can be afforded, largely altered value of money, but they have also increased in my judgment overbalance the disadvantage of to a very great extent beyond this, and they consti- | beginning professional life a year later. I may tute a very large percentage of the expenses of liti- mention that in 1864 the number of graduates and gation. Payments to witnesses, especially skilled | four-year men was only seven and one-third per witnesses, may and do form another important in 1874 the proportion had risen only to nine and
cent of the whole number of members admitted ; heading of expense. The solicitor's
two-thirds per cent, in 1884 it had increased to fifnumeration is in the main based upon a scale
teen per cent, and last year it was nearly twentyof allowances fixed in the year 1807, and which three per cent. Turning now to the duties imposed have undergone no increase; and if, in 1807, they upon us respecting disciplinary control over memwere adequate allowances for the work done and the Ders of our profession, it was in 1888 that under skill employed, they are certainly not
the Solicitors Act of that year was transferred to Money has decreased in value, the remuneration of
us from the masters practically the whole of the all other professional men bas been increased; we
work of investigating into and reporting upon alone have to content ourselves with a scale fixed charges of misconduct on the part of members nearly a century ago, and this notwithstanding that Committee is now vested the duty of hearing in the
of our profession, and in the Statutory Discipline the average education of solicitors has enormously first instance of all complaints agaiust solicitors. increased, and the practice of our profession has the satisfactory manner in which this duty bas certainly not become less anxious or more easy with been performed leads me to hope that the time is the altered times; our remuneration in litigious not far distant when we shall be vested with ret matters is a bare pittance, and we are hampered by fuller powers over our members, and that those who