219

A.—4

12 June, 1911.] Imperial Appeal Court. [7 th Day. The LORD CHANCELLOR— cont. Something was said about conflicting judgments arising between the House of Lords and the Privy Council. In substance the personnel of the two Courts is identical and I am not aware of any case in which there has been a conflict between the Privy Council and the House of Lords. I think that is a mistake; I am not aware of a single case in which there has been a difference of opinion between the House of Lords and the Privy Council. Dr. FINDLAY : It arises in connection with dicta of the Judges in the respective tribunals; we sometimes have in our courts the dicta of the Judges of the House of Lords cited which apparently are at variance with the judgments expressed by the Judicial Committee. The LORD CHANCELLOR : I am very much obliged, and I can understand that because I am sorry to say that is constantly occurring in England between the different dicta of the different Judges in the House of Lords itself. That leads me to the other point that was referred to about having one judgment. In the House of Lords and in all our English courts and in the courts of the Dominions too, in fact it is our custom, each judge delivers his own judgment. Sometimes they differ in opinion, but even when they do not differ in opinion they sometimes agree for different reasons, and one of the perplexities of the law at the present time and one of the disadvantages of our system, which has its own merits too, is that there is always scope for an ingenious critic to take a sentence from this judge and a sentence from another and suspend them for animadversion as being contradictory and inconsistent one with the other. I am afraid that is a habit that is ingrained in human nature, and it is particularly developed in the practice of the law. But as regards this point of one judgment as against a number, there are differences of view I know, and I do not at all pretend that in my view I am sustained by the whole volume of authority, but my view is that it would be better in every court if there was only one judgment as the judgment of the court which rules the particular subject of litigation, and I think there would be more coherence and more consistency if the practice of the Privy Council was extended to other courts as well. But, as far as that goes, that is not a point upon which I think any of us would be disposed to make a difficulty. If the wish is that there should be successive judgments by the different Lords in the Judicial Committee I do not think there is any reason for us to adhere, contrary to the wishes of the Dominions, to the practice that already prevails. The PRESIDENT : I do not know whether you have observed, but I think I have noticed, that the practice now in the Supreme Court of the United States, which is the nearest analogous body, is for the actual judgment to be given by one judge and if there is dissent, then the dissentient judge expresses his views. The LORD CHANCELLOR : I know the practice is to give the decision by one judge, and very likely you are right about the dissent. Sir JOSEPH WARD : It is the same in New Zealand too; the dissenting judge gives separate reasons for his dissent. The PRESIDENT : I know in two recent cases there was one dissentient judge and he expressed his dissent. It is a sort of midway house between the two practices. The LORD CHANCELLOR : I see no objection to that. I mean it is not a thing upon which any of us in this country would make any difficulty in the Judicial Committee at all. If the real desire is either to have a series of judgments or to have one judgment with a faculty of dissent on the part of any member who does not agree with it, I am sure we should not make any difficulty at all provided that the Conference makes up its mind that it would prefer that course.