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410 Remuneration of Solicitors.--Debate on the Despatch of Business, Court of Chan. Bill. connected with the particular measure be- stances fifty or more. Then the present Lord fore the House—that measure requiring to Chancellor and the other Judges have rebe expeditiously passed, and the investiga-cently enlarged the fee for proceedings in the tion of the other being one of great diffi- Judges' Chambers from one to ten guineas. culty, if not altogether impracticable. Their The principle of discretion is therefore esLordships, however, distinctly admitted the tablished; and we trust it will be extended desirableness of improvement in the mode to instructions for bills, answers, cases and of assessing the charges of Solicitors, and other proceedings, requiring great care and their willingness to concur in the appoint- attention in preparation and arrangement ; ment of a Select Committee, if a prac- and that directions will be given to the ticable plan for effecting the object could Taxing Masters in Chancery, (as were given be devised.
in Hilary Term, 1853 at Common Law,) So far the “ventilation" of this im- to make such allowances for superior skill portant matter has not been fruitless. The and diligence as the nature and circumgrievance is admitted, and if perfect justice stances of the several classes of cases may cannot be done, some approach to it may require. be made. It is scarcely sufficient to say that we must take the “rough with the smooth," and be content with a sort of
DEBATE wild justice administered, sometimes at the
ON THE DESPATCH OF BUSINESS expense of the client and sometimes of the attorney. Let us try at least to diminish COURT OF CHANCERY BILL. the evil if we cannot remove it altogether. There are various ways in which an ex
Lord Lyndhurst said, this Bill related to and periment might be attempted. The Lord
was connected with very important matters Chancellor is right in saying, that it would all of which it would be very desirable to have be absurd in a transaction of 100,0001. to referred to a Select Committee. He had two pay the same per centage as on a small petitions to present in favour of such a course amount. No such thing is proposed, but of proceeding-one from a very important it would not be unreasonable that a higher body, the Incorporated Law Society, which charge should be allowed for the respon- in the Profession and the other petition from sibility and additional precautions taken where the property dealt with was of great the Bill. The present Bill had for its object
the clerks referred to in one of the clauses of amount.
the more speedy and effectual despatch of Where, also, the outlay for the fees of business in the High Court of Chancery, and counsel, the fees of Court, and the expense other purposes ; and chiefly proposed to faof witnesses is large, and the repayment cilitate the despatch of business in the Chamlong delaved, surely it is not unreasonable bers of the Judges of the Court of Chancery that interest should be allowed at a mode- by an additional number of junior clerks. rate rate.
This plan, it was considered, would not only Now, both these modes of remuneration suitors of the Court. By the Act of Parliament
not be beneficial but would be injurious to the prevail in Scotland ; why should they not under which Chamber practice was established, be adopted in England ? 'To some extent, and by the General Orders of the Court of indeed, there is already a precedent for a 16th October, 1852, and those of 3rd June
, different scale on this side the Tweed, both 1850, the Legislature and the Court sought to in our Superior Courts and in the County establish for all Chamber business, consecutive Courts. In the Superior Courts, under 201., proceedings instead of the old practice by the scale is less than above that sum ; and hourly warrants, but it was found that in the in the County Court there are various scales Chambers of some of the Judges great delays according to the sum recovered.
arose, as an appointment, or an adjourned hear
ing, could not be obtained at a less period than Again, in regard to the discretionary from two or three to even four or five weeks. power of the taxing officer to regulate the These delays, however, were not found to amount of the fee in proportion to the ex- arise from the want of junior clerks but from tent of skill and labour (apart from respon- the amount of work by which the senior clerks sibility) – the Common Law Masters are
were overwhelmed-consequently the increase authorised, instead of the former limited Bill would not tend to put an end to the delays
of junior clerks proposed under the present fee of 138. 4d. for instructions for a brief, complained of, unless, indeed, it were intended to allow whatever they think just and right. that references in Chambers should be proFive, ten, or twenty guineas are often al- ceeded with before such junior clerks—but it lowed, and we understand, in some in. was felt that such a plan would be most obo Debate on the Despatch of Business, Court of Chancery Bill.
411 jectionable, as it would remove the hearing labour were performed in the presence of of matters still further from the Judge and the officer (whose time was consequently bring them before an inferior class of officers. wasted), the Solicitor received the payment In proposing that this Bill should be referred that was otherwise denied to him. Thus, ala to a Select Committee, it was scarcely necessary though speed and simplicity were the Clients' to remind their lordships that the Act by which interests; dilatoriness and intricacy were the the Masters’Office was abolished was principally interest of the Solicitor. So, again, with reowing to the inquiries made by a Select Com- spect to conveyancing: if a Solicitor drew a mittee appointed by this House, in 1851, on a deed or will of a given number of folios, he Bill for giving primary jurisdiction to certain was entitled to a certain fee; whereas if he sat cases to the Masters in Chancery.
down and, by bestowing great pains upon the An important point to which he would document, succeeded in abridging its length by advert was the present highly objectionable one-half, he would lose half his remuneration. mode of remunerating Solicitors--a mode A premium was therefore held out to verbosewhich urgently demanded revision. In sup-ness, and the Solicitor's interest was made to port of this view, his lordship cited the stand in direct antagonism to that of his Client. opinion of very eminent and competent autho. Further, when a Solicitor gave advice in the rities. His noble and learned friend (Lord progress of a suit he received no fee; but if he Brougham), after referring to the divided saved himself the trouble and responsibility of responsibility which the system of Masters giving such advice, and laid the papers relatcreated, as one great cause of delay and ex- ing to the cause before counsel, he was entipense in the Court of Chancery, expressed tled to charge several guineas for his profit. himself thus before the Committee of the And if a plaintiff's Solicitor appeared before a House of Lords, which sat on the Masters in Judge in Chambers and argued against counEquity Jurisdiction Bill in the session of sel on the other side, he would only receive for 1851:
doing his own work and that of a counsel “My opinion is clear that the other cause is the 21. or 3l.; whereas the defendant's Solicitor, perfectly faulty mode of remunerating profes- who perhaps only sent a young clerk with sional men, Solicitors especially, but I do not counsel would obtain 61. or 71. Could anyexcept Counsel. This opinion is the result of my thing then be more absurd, unequal, unjust, or whole professional experience and observation, impolitic than such a mode of remunerating and it is not confined to proceedings in equity. professional men? A change of system was The subject is one of great difficulty, but it is obviously demanded, and the remedy would one of yet greater importance, and I feel as- be found in an approximation towards the sured that whatever changes are effected to im- principle of quantum meruit, under which the prove our system, whether of Equity or Com- laxing Master should have regard to the acmon Law, a large proportion of the evil will tual skill and labour employed and responsiremain, unless this difficulty shall be grappled bility incurred, instead of merely allowing one with and overcome.”
uniform fixed fee to Solicitors for the same Another distinguished authority was that of nominal services. Without this all attempts Lord Langdale, the late Master of the Rolls, to make the administration of justice speedy who, in a letter dated the 10th of November, and efficient would be thwarted. 1842, addressed to the Board of Taxing Mas- This matter was one closely connected with ters, and a copy of which the noble and learned the speedy and efficient administration of juswriter also transmitted to the Incorporated tice in the Court of Chancery,--was one Law Society, stated
which ought to be thoroughly investigated, “That the system gives to the Solicitor, and and could not be better investigated than by every other legal practitioner, a direct interest referring this Bill to a Select Committee. to increase the length of documents and the number of steps or proceedings in the transac- The Lord Chancellor agreed that the question tion of business ;” and “ has in many cases of the remuneration of solicitors was of the greatmade it almost compulsory upon the Solicitor, est importance; at the same time it was one in his own defence, to put his client to very of very considerable difficulty, and he thought great and unnecessary expense, for the purpose he had some right to complain that his noble of obtaining some remuneration for services in and learned friend had not communicated with respect of which he cannot otherwise make a him previous to bringing it under the notice of lawful demand."
the House, as he then should have been able The noble lord illustrated the manner in to enter into the subject more fully. Shortly which the system worked by pointing out the after his acceptance of the Great Seal he had tendency of the existing inadequate scale of been waited upon by a deputation from the sofees paid to Solicitors for conducting Chan- ciety referred to, and, in consequence of the cery business. For example, in the case of a representations then made to him, he had complicated account, or an intricate pedigree, thought it his duty to look into the subject to -- to enable the Judges' chief clerks to get see if he could devise any more satisfactory through it in one sitting required, perhaps a plan by which the remuneration of solicitors whole month's previous preparation by the So- should be calculated upon the scale of merit, licitor. For such preliminary labour, how- which ought, in truth, to be the object of all ever, no fee was allowed; and yet if that systems. The noble and learned lord said
Debate on the Despatch of Business, Court of Chancery Bill. that the remuneration ought to be calculated clerk under them, were often obliged to do on the scale of quantum meruit, but the diffi- work which would properly fall to the lot of a culty was how to ascertain the quantum meruit. junior clerk to attend to, and it was thought The scale of fees at present in force had been advisable that extra assistance should be affixed by his predecessor in office after great forded them by the appointment of a second consideration, and no doubt it would be ex junior clerk in each office. tremely inconvenient to be changing the fees every year, so that persons would never know He originally introduced the Bill with what it was that they were to receive. It very that sole object; but his attention was then often happened that the interest of the client called by persons connected with the Court conflicted with that of the solicitor, and, if of Chancery to the fact that there was one proceedings were to be paid for by their length, office, that of Master of Reports and Ennot very honourable practitioners would be tries, the abolition of which had been reoccasionally tempted to lengthen the proceed- commended by a Committee of the House ings, in order to increase their remuneration. of Commons, but that was not adopted by The proposal to pay them according to a per- the Act passed three years ago, although centage of the value of the property involved other recommendations of that Committee were appeared to him perfectly preposterous, for adopted. The reason why the recommendation sometimes a question involving 100,0001. he had mentioned was not adopted was, that his might occupy a very short space of time. In noble friend Lord Truro thought that that was a like manner, it would be impossible to look hasty recommendation—that the office was into each separate case to see what remunera- useful—that, if necessary, its duties might be tion should be given for the particular service increased; he, therefore, thought it was better performed. He thought he was justified, it should remain. But it had since been found therefore, in saying that the matter was full that the office did not work well. The Office of insuperable difficulties, and he had been of Clerks of Records and Writs, in which most obliged to leave it as he found it, with the of the business of the Court of Chancery was exception of making some slight alterations. carried on, could transact more business, and
This was in the spring of 1853, but since then more effectually, if it were separated from the the Master of the Rolls had informed him that Office of Reports and Entries in the way in he had gone into the subject, but had not suc. which it now existed. It was, therefore, sugceeded in framing any plan which would gested as desirable, practically to abolish the exactly meet the views of all parties. It was Office of Reports and Entries, the present customary for the Judges of the Court of holder of that office to be called upon to perChancery to meet together, in the evening of form other duties, with the same salary, during the first or second day of each Term, to con- his life, and that the duties he had hitherto dissult as to any alterations of practice which charged should be transferred to the Clerks of might have been suggested by the proceedings Records and Writs. He had made it his duty of the previous three months, and at one of to go and inspect the office of the Master of | these meetings, at the beginning of Michaelmas Reports and Entries, and he must say that it or Trinity Term last, it was represented to him was in a most discreditable state. The place by all the Judges of the Court of Chancery was crowded with documents so as to defy all that it would be of great advantage if largely attempt at arrangement, and the whole floor increased remuneration were given to solicitors was covered with papers that were of the in cases where, by their having got the facts greatest importance. into a neat and intelligible form, a long inquiry By the Act of the 15 & 16 Vict. four was superseded, and the hearing compressed clerks were appointed to perforin the duties into an hour or two, instead of being spread of Clerk of Records and Writs. One of those over two or three days. This was an alteration appointments fell vacant the other day. The which he had been of opinion could safely be Master of the Rolls had not felt it to accord made, but he owned he entirely despaired of with his views to fill up that vacancy, so that ever arriving at any general system of remu. three clerks were now discharging the whole neration which should exactly satisfy the wishes of the duties of that office. It was proposed of all parties.
that they should continue to do so, and that if If his noble and learned friend would it should appear to the Lord Chancellor that more for a committee to inquire into that the additional duty cast upon them deserved subject, he should be the last man to op- additional salary, he (with the advice and as. pose it, but he certainly could not consent to sistance of the Master of the Rolls) was emsuch an inquiry being tacked on to this Bill, powered to give it, so that the whole amount with which it had nothing whatever to do. paid for such salaries in any one year should With respect to the present Bill, the original not exceed, if divided equally, 250l. for each object in introducing it was to obtain power to clerk. appoint additional junior clerks to assist the Under the Act which abolished the Massenior clerks in the Judges' Chambers, it hav- ters' offices, power was given to the Lord ing been represented to him hy the Judges that Chancellor to let or sell the Masters' offices, the business in their offices was greatly im- but, further powers being thought requisite, he peded by the want of such clerks. "The senior proposed that the piece of ground in Southclerks, it appeared, having each only one junior ampton-buildings and the buildings thereon Debate on the Despatch of Business, Court of Chancery Bill.
413 should be vested in the Lord Chancellor for Southampton Buildings were sold and the the time being for the purposes of the Act. money applied to the new building, the ex
With regard to the proposal of his noble pense would be very small indeed. He thought and learned friend to refer the question of soli- the Government ought to erect the building citors' fees to a Select Committee, he thought suggested, as it was almost essential to the it was going out of their lordships' way, and working of the legislation of 1852. would be doing an act which was not at all As his noble and learned friend retained necessary.
the Master of the Reports and his salary,
he did not object to that part of the bill. He Lord St. Leonards said, that one thing was considered the clerks in the Record Office most obvious, that nothing would be more un- had mistaken the course which they ought wise than to disturb the late settlement on this to have taken, and that, instead of petitioning question without grave consideration. What against the Bill, they should have gone to his he called the late settlement was the Act passed noble and learned friend and respectfully subin 1852, when the new arrangements were made mitted to him any complaint on the subject of with regard to the Court of Chancery, affecting remuneration. Unless the new system were not only the matters referred to in the Bill now watched they would have abuses springing before their lordships, but the whole business up. It was not sufficient to carry measures of of the highest Court of judicature in the king- reform. It was the duty of his noble and dom. He was not disposed to offer any oppo- learned friend on the woolsack, of his noble sition to the present measure, but there ought and learned friend near him (Lord Lyndhurst), to be great forbearance exercised in coming to and of himself-who understood the subjecta decision upon any particular branch of the to give their anxious attention, for the benefit system until they saw how all its parts worked of the suitor, to see that the system worked as together. If their lordships allowed a pressure was intended. from without to have too much influence, they might by and by find it exceedingly inconve- It was said that the attorneys did a great deal nient. Give the system a little time to work, of work and had very little remuneration for it, and whatever evils might be found in it, set but they must take the business altogether, and about and correct them.
consider whether the whole did not proAs regarded the appointment of an addi- duce sufficient remuneration. His noble and tional junior clerk to each chief clerk, it learned friend said the attorneys had the tempwas impossible to resist that demand. He tation to make conveyances of unnecessary agreed with his noble and learned friend, as length for the sake of costs, but he did to the appointinent of an additional chief not believe--though in every profession there clerk, that if not absolutely necessary he would be some persons who would act dishoshould regret its being done. If the Judges nourably and discreditably—that any respectdid not require it, he was sure the chief clerks able professional man would indulge in great did not require it. If there were more chief length for the mere purpose of making charges. clerks, it appeared to him that the great secu- If they altered the fees, that would give an adrity of the whole plan of 1852 would be vio- ditional motive for delay. They could not prelated. That plan was based upon this :—that vent delay except by such arrangements as the clerks should be kept in their proper posi- those of 1852. His argument with the attortion, that they should be men of ability and of neys was that, although the scale of fees was judicial power, but that they should not be not so large as formerly, the facility with which viewed in the same light as the Masters were, cases would be decided and their bills paid would but should depend upon and be under the sole be more advantageous than those long-winded direction of the Judge. The duties of the chief suits in which the interest of their money abclerks, from what he had himself seen, had sorbed a great proportion of their profits. He been well discharged, and he believed the could have no other motive in settling the fees offices were filled by men who had proved of 1852 than that of giving fair remuneration themselves competent for the duties intrusted to the attorneys, standing as he did between to them.
them and the suitors. If it could be shown With regard to the building of new that they were entitled to higher remuneration Courts, he certainly would press upon his he was perfectly ready to join with his noble noble and learned friend the necessity of and learned friend in giving it; but still he taking the subject into consideration without must say they ought to take the rough with loss of time. He rejoiced that he had suc- the smooth-it would not do to take all the eessfully resisted the transferring of the plums and leave the rest of the pudding. The Judges' Chambers to the Masters' offices. attorneys desired to have any expense saved He felt that the locality was extremely pre- by their exertions considered in the amount of judicial for carrying on the business of the remuneration. If that could be done he should Court of Chancery; but, although he did so, not object, but there must be something by he never thought of hiring chambers except as which to measure the value of services, and, a temporary arrangement. There was a spot in therefore, the proposition on the part of the Lincoln's Inn on which two new Courts could solicitors did not seem to him to be practicable, be built, with convenient chambers for the He would not oppose the committee, but he Judges' clerks, and if the Masters' Offices in was bound to declare that he should not go to 414 Debate on Court of Chancery Bill.- Amended Bill for Despatch of Chancery Business. that committee with any hope of ever coming trars') under the superintendence, direction, at a satisfactory conclusion.
and control of the registrars, subject nevertheThere were in the scheme of 1852 several less under the superintendence, direction, and things requiring attention, and one was the control of the Registrars, as to all and every operation of the regulation relative to the part of the business now transacted in the examination of witnesses. Care should be Report Office to such rules and regulations taken to see that the expenses were kept as the Lord Chancellor, with the advice and within narrow bounds, and that no special assistance of the Master of the Rolls, may examination was taken without very sufficient from time to time think fit by order to make grounds. There ought also to be some check concerning the same.” upon the number of counsel who attended before the examiner.
The 8th clause is thus altered :
Nothing in this Act contained shall be Lord Lyndhurst said, it is now nine or ten taken to repeal or alter, as far as regards James years since he had washed his hands of the Thomas Fry, the present Master of Reports Court of Chancery, and he had never wished and Entries, any of the provisions contained in to entangle himself again in its folds. He had the sections numbered respectively 34, 35, and to-night presented a petition from the Incor- 36 of the said Act " for the Relief of the porated Law Society, who were more minutely Suitors of the High Court of Chancery,” reacquainted than any other body of men with lating to the countersigning by the Master of the proceedings of the Court of Chancery. He Reports and Entries of notes or cheques drawn had no doubt their statements were correct, and by the Accountant-General of the Court of he had founded his observations upon the Chancery upon the Bank of England, and the statements of that petition.
payment thereof by the same Bank, and direct.
ing that the Master of Reports and Entries The Lord Chancellor had referred to the
pe- well as the duties in the same Act mentioned)
should also perform all such other duties (as tition of the clerks in the Record Office, who had not adopted a perfectly correct course in as the Lord Chancellor should from time to presenting a petition to their Lordships' House time by any order direct, and the same proviwithout previously communicating with the sions shall respectively continue in full force as head of that Court. The circumstance, how far as regards the said James Thomas Fry, and ever, should never be an obstacle in their way tinue the said James Thomas Fry as an officer
the Lord Chancellor is hereby required to conas far as he was concerned, but he must pro- of the Court of Chancery for the performance test against such a course as irregular.
of the duties hereinbefore mentioned, or such Lord Lyndhurst said, that the bill did not
other duties as aforesaid, after and notwithput the clerks of the Record Office on the standing that the abolition of the said office same footing as the other offices, as was re.
may have taken effect under this Act. commended by the Select Committee of the The 10th clause has also been modified House of Commons of 1848.
The House then went into Committee pro forma on the bill.
“In case, upon the abolition of the office of the Master of Reports and Entries taking
effect, any of th persons now respectively AMENDED BILL FOR DESPATCH OF holding the offices of Clerks of Records and CHANCERY BUSINESS. Writs shall be required under this Act to dis
charge the duties of the office of the Master of
Reports and Entries, or any of them, and the The 5th clause has been altered by the Lord Chancellor, with the advice and assistance following additions, which are marked in of the Master of the Rolls, shall deem the duties italics :
then devolving upon the said persons to be too
extensive in proportion to their present salaries, “From and after the time when such aboli- they resectively may receive, in addition to their tion shall take effect, the business of the Re- respective salaries as Clerks of Records and port Office (except such part thereof as is trans, Writs, such salaries, not exceeding the sum acted by the entering clerks) shall be conducted of
pounds per annum each, as the and carried on under the superintendence, di- Lord Chancellor, with the advice and assistrection, and control of the Clerks of Records ance of the Master of the Rolls, shall by order and Writs, who shall thenceforth discharge all direct; but such additional salaries shall cease such duties relative to the Report Office as in the event of the vacancy now existing being may then belong to the Office of the Master of filled up by the appointment of a fourth Clert Reports and Entries, as far as the same may of Records and Writs, or in the event of the said be from time to time necessary or proper to be persons now respectively holding the offices of discharged; and such part of the business of Clerks of Records and Writs being relieded the Report Office as is transacted by the enter- from the duties of the office of Master of Reports ing clerks shall be conducted and carried on by (and Entries." such entering clerks (who shall be thenceforth styled The Entering Clerks to the Regis.