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may take instructions and represent his solicitor
client's case to the Court.) A recent example of an
unfair burden being placed upon solicitors is the
case of
Pearson
v
Pearson.
The Court, if it is to be
able to exercise its discretion in a suitable case,
must obviously be in possession of the facts. But
surely there are easier ways of eliciting them than
by requiring a solicitor to go on asking embaras-
singly difficult questions of his client up to the
very day of the trial? A simple procedural amend
ment could save this. The Court itself could be
required to ask the parties if there is anything
further to be disclosed. There was, however one
satisfactory aspect of
Pearson v Pearson,
and that
was the recognition by the Court of the
locus stand!
of The Law Society. This was probably the first
judicial pronouncement on the value and import
ance of the Court having before it the views of the
solicitors' branch of
the profession, expressed
through its governing body, of the practical con
sequences that may flow from decisions of the
Court, even though it is regrettable that in this
case the Society's views were not heeded. Their
intervention did, however, successfully protect the
firm of solicitors in the case upon whom damaging
aspersions had been cast; the Court cleared them
entirely. All credit to The Law Society for their
efforts. Solicitors are tired of being made scape
goats for any failures in the administration of
justice. Their work is, at best, hazardous, and they
are entitled to be protected from unreasonable
hazards.
(The Law Guardian,
September3 4969).
SECRET JUSTICE
THE GOVERNMENT propose that the Judges
of the Commercial Court, when sitting to take
the Commercial list, should be empowered to try
cases in secret and to reach decisions upon the
basis of evidence which is not admissible under
the general law of the land. The open administra
tion of justice according to known laws is one of
the greatest safeguards of the quality of justice
and thus of liberty. One would therefore have
expected that the Government's proposal would
have
provoked
considerable
discussion
and
debate. The Administration
of
Justice Bill,
in which the proposal
is contained has, how
ever
passed
through
the House
of Lords
without
the
proposal
being
debated
and
without
a whisper of
protest
appearing
in
the press. There
is, fortunately, still
time for
protest and for debate in the Commons. Most
litigants no doubt would prefer not to expose their
private disputes to the public gaze, but
their
natural feelings must give way to the maintenance
of the public benefit, which includes, although they
may not realise it, their own. The Commercial
Court, like any other Court, already has power to
sit in private if to sit in public would defeat the
ends of justice as, for example, where the trial
involves the disclosure of a secret process. No
further power is required and no further power
should be given. No Judge should be permitted to
sit behind closed doors save where justice cannot
otherwise be done. As to evidence, the parties are
already free to admit facts without any proof at
all or to accept something less than strict proof.
The power, therefore, is unnecessary unless one
party objects. On what possible basis can a party
be deprived of his right, at the discretion of the
Judge, of being able to insist that the case against
him is proved according to law? The manner of
putting the proposals forward may account for the
lack of discussion and protest. As so often happens
now, Parliament is merely told that it is proposed
to confer upon some Minister, or Committee, or
other body, a power to make an Order in Council,
or Regulations, or Rules of a general nature. In
this case it is proposed to give the Rules Com
mittee the power, by rules, to confer upon the
Commercial Judges the power with or without
restrictions and conditions to sit in private and to
admit inadmissible evidence. The Lord Chancellor
stated that he would like to regard it as a limited
experiment, and that it would be for the Rules
Committee to decide how far, if at all, there should
be any limitation on the proposed power. In some
cases this method of legislation may be justifiable.
In the present case it is not. We are here dealing
with the invasion of a constitutional principle.
(The Law Guardian,
December, 1969).
STIFF EXAMINATIONS IN NEW
TRAINING FOR BARRISTERS
By our Legal Correspondent
A NEW scheme of education and training for
Bar
students, published
by
the Council
of
Legal Education, involves stiffer examinations and
practical exercises in advocacy designed to pro
duce better-qualified barristers.
106