HL Deb 25 July 1890 vol 347 cc847-57

House in Committee (on re-commitment) (according to order).

Clause 1.

* THE SECRETARY TO THE BOARD OF TRADE (Lord BALFOUR of BURLEIGH)

The Amendment in the 2nd subsection of Clause 1 is one which it was indicated to the Standing Committee would be necessary. The Amendment has now been agreed upon, and the words proposed to be inserted in my name are the words which have been agreed. They are words which bring the phraseology of this Bill into harmony with the County Palatine of Lancaster Act which was passed during this Session.

Amendment moved, in page 1, line 13, to leave out the words "unless the registered office of the," and insert the words, "or in the case of a."—(The Lord Balfour of Burleigh.)

Agreed to.

Clause 3.

* LORD BALFOUR OF BURLEIGH

The Amendment here is also one which was indicated as being desirable in the Standing Committee, and is really for the purpose of improving the phraseology. It is suggested that this will remove objections which were then taken to the large powers of transfer from one Court to another, which might be exercised by an individual Court. I call the attention of the noble and learned Lord opposite to the phraseology of this Amendment, and I hope it will meet all the objections which were taken in Standing Committee. I move, in the first place, in this Clause, at page 2, line 33, leave out ("any proceedings in") and after ("company") insert ("or any proceedings therein"); also leave out from ("by any Judge") in line 35, to ("conditions") in line 38, both inclusive; lines 38 and 39, leave out ("by the like authority.")

Amendments agreed to.

Another Amendment moved, after line 41, to insert— The powers of transfer given by the foregoing provisions of this section may subject to, and in accordance with, general rules, be exercised in accordance by the Lord Chancellor or by any Judge of the High Conrt having jurisdiction under this Act, or as regards any case within the jurisdiction of any other Court by the Judge of that Court."—(The Lord Balfour of Burleigh.)

THE LORD CHANCELLOR

Before the noble Lord puts that, I would call his attention to the fact that he has hardly carried out what I have no doubt he intended. The effect of that is that if a County Court Judge does not like to carry on a proceeding he may order it to be transferred to the next County Court. I am quite sure the noble Lord does not mean that.

* LORD BALFOUR OF BURLEIGH

It is to be "in accordance with general rules." It is subject to that. The intention is to bring them all within the rules.

THE LORD CHANCELLOR

But it does not do so. It is not only— By the Lord Chancellor, or any Judge having jurisdiction under this Act; but As regards any case within the jurisdiction of any other Court, by the Judge of that Court. That may be the County Court. I only call attention to it that at the next stage of the Bill we may frame words that will do.

* LORD BALFOUR OF BURLEIGH

Then I will withdraw that Amendment at the present time.

Amendment (by leave of the Committee) withdrawn.

Clause 7.

* LORD BALFOUR OF BURLEIGH

The Amendment on this clause is at page 4, line 37, after "company" to leave out "by the Court." This is the first of a series of Amendments to leave out the words in various clauses, "by the Court" and "by the order of the Court." These Amendments are rendered necessary if the decision which was come to in the Standing Committee be adhered to, to strike out Sub-section 2 of what was then Section 29. The Amendment of the noble and learned Lord opposite raises a question whether that sub-section should not be put in in a different form. In fact, it proposes to put it in in a form in which it was introduced into the other House of Parliament. If the House accept that Amendment then all the series of Amendments standing in my name to leave out the words "by the Court" and "by the order of the Court," in the various clauses of the Bill, will become unnecessary. But the position of matters, as noble Lords who were on the Committee are aware, is that in the House of Commons it was altered very materially by inserting a negative which governed the whole sub-section. Those words "by the Court" and "by the order of the Court" were devised to cover both the case of companies which are wound up under the supervision of the Court and those definitely wound up by order of the Court. The Bill, as brought into the other House of Parliament, proposed to make the procedure subject to those provisions, both in cases under the actual order of the Court and under supervision. The effect of the decision of the Standing Committee the other day was to leave it doubtful whether companies which were being wound up only under the supervision of the Court were intended to be included in certain provisions of this Bill. The Amendment of the noble and learned Lord opposite would put that beyond all doubt, and would include for this purpose companies being wound up under the supervision of the Court as well as those being wound up directly by order of the Court. If his Amendment is not accepted then there would be an ambiguity by leaving in, in other clauses of the Bill, those words. Under these circumstances, I think it would be desirable that my noble and learned friend should state the reasons which had induced him to put down the Amendment which stands in his name, and then, from the feeling of the House, we shall be able to judge whether it is advisable or not that I should press these Amendments.

Amendment moved, in page 4, line 37, after the word "company," to leave out the words "by the Court."—(The Lord Balfour of Burleigh.)

* THE EARL OF SELBORNE

I am ready to take that course; and I will state my reasons very briefly for moving the Amendment of which I have given notice. But before doing so, I may, perhaps, mention that if the House should look favourably upon the Amendment, I should be quite disposed to make a little alteration in the phraseology of it. Perhaps it may be thought the words here are a little too wide, because I find in the Act some provisions which are not applicable where there are liquidators of a Company; and if it should come to my moving the Amendment, therefore, I would propose to move it in this form— For the purpose of such provisions of this Act as are applicable to a Company of which liquidators have been duly appointed and subject to general rules. My reason for moving the Amendment is this: I think there are valuable provisions in this Bill which would be as applicable when the Company is being wound up under the supervision of the Court as to any other case. Perhaps I ought to explain to those who may not know exactly what is meant by the company being wound up under the supervision of the Court. There are three modes in which a company may be wound up. One is a purely voluntary liquidation which, upon proper application to the Court, may be superseded or controlled by the Court, but while it is going on the Court does not interfere at all. The other ordinary form is to wind up compulsorily, in which case the Court regulates the whole operation. But between those two comes the particular case which this Amendment is intended to meet. An application may be made to the Court that a liquidation which is voluntary may be changed into one under the authority of the Court. If the Court thinks fit upon that application, it may make an order in either of two forms, either to take over the matter itself (a case with which we are not at present concerned), or that the voluntary winding-up shall continue under the supervision of the Court. Now, it is necessary to understand the effect of that as defined by the 151st section of the Companies' Act of 1862. That section is to this effect: That the liquidator of such a company, when that order is made, may subject to any restrictions which may be imposed by the Court exercise the same powers as if it were altogether voluntary. But the section goes on thus— But save, as aforesaid, the order shall for all purposes be deemed to be an order of the Court for winding up the company by the Court and shall confer full authority on the Court to exercise all power which it might have exercised if an order had been made for winding up the company altogether by the Court. In substance, therefore, the Court has full control over that class of cases, but except as far as the Court may think fit to intervene, they may be conducted in the same manner as if they were voluntary. Now, bearing in mind that scheme of the Act of 1862, I cannot help thinking that the clauses of this Bill which are applicable to that state of things may with great advantage be applied to it. To give reasons at length is not necessary, but I will only mention shortly three clauses which I think the House will at once perceive may be quite as usefully applied in these cases of supervision as in cases of winding up under the Act. The 8th clause of this Bill requires as soon as may be a Report to be made to the Court of the Capital, assets and liabilities of the company being wound up, and if it has failed, the cause of its failure; and it contains consequential provisions as to proceedings which may be taken against promoters, directors, or others, if it appears to the Court that there has been misconduct. Then to take another clause of this Bill, the 11th clause, that requires that subject to certain authority balances in the hands of liquidators shall be paid into the Bank of England. I cannot help thinking that such a provision is equally applicable to companies under supervision. Then to take one more; the 15th Clause requires that when the winding-up has not been completed within one year, yearly Reports of the proceedings and position of the winding-up shall be made to the Court. If possible, that seems to me to be a provision which is even more necessary in the case of supervision than in the case of winding-up by the Court itself; because in the latter case the authority of the Court would have been invoked from time to time in the ordinary course of things, and the Court may be taken to have a knowledge of the state of the proceedings; whereas in these cases of supervision, except so far as the Court does exercise its power and authority, the thing goes on out of Court, and that is a case in which I think it is eminently important there should be forthcoming periodical reports. I cannot help thinking it is possible that one reason why in the other House this change was made in the Bill, which I wish should be re-considered, may have been that on the face of the Bill there are some few provisions which would not be applicable to the case; and, in order to meet that, I propose to alter the words of the Amendment in the manner which I mentioned at the beginning. I do not know what course my noble Friend thinks it best should be taken, but I cannot, in point of form, move my Amendment on Clause 30 until all his which come before it has been disposed of. If my noble Friend thinks the House will approve of the principle of my Amendment, perhaps he will propose not to move his now, reserving to himself, of course, power to do so if he should think it necessary at a later stage of the Bill.

* LORD BALFOUR OF BURLEIGH

I shall be glad to accept the principle of the Amendment indicated by the noble Earl. In fact, it was in the Bill, as originally introduced in another place. It was, however, there altered contrary to the wish of the Government, and the clause, struck out in Standing Committee of this House, inserted. But, as I pointed out before, that has caused an ambiguity, which must be met in some way or other. If the legal Members of the House approve of the suggestion made by the noble and learned Lord, especially as now altered by him, I, on behalf of the Government, should be glad to accept it, and to see that it is replaced in the Bill, subject, of course, to any objections which may be brought forward hereafter. Under those circumstances, I propose not to move these Amendments which stand in my name.

Amendment (by leave of the Committee) withdrawn.

Clause 8.

* LORD BALFOUR OF BURLEIGH

This sub-section I propose not to put in as Sob-section 9, but as Sub-section 10, after the present Sub-section 9. The object of it is that it shall take the place of a sub-section which has been struck out in Standing Committee, it having been pointed out by the noble and learned Lord opposite that that subsection gave too general powers of delegation which were generally objected to in Standing Committee. It was agreed, therefore, that that sub-section should be struck out and a sub section inserted specifying to whom the powers to be delegated should be granted. This, I hope, will be the view of the noble and learned Lord, but if not, I should be glad to accept any amendment of it on the same lines that he can suggest. I propose to move it, putting the Judges of County Courts before the Official References and other officers of the Supreme Court.

Amendment moved in page 7, at the end, to insert— (9.) The powers of the court under this section may, subject to and in accordance with general rules, be exercised by any officer of the Supreme Court being an official referee, master, registrar, or chief clerk, or by any judge of county courts, or by any district registrar of the High Court named for the purpose by the Lord Chancellor, or by any registrar of a palatine court."—(The Lord Balfour of Burleigh).

LORD HERSCHELL

This is undoubtedly a great improvement from my point of view in comparison with previous proposals, but there are one or two points here which I do not feel quite sure about. I do not know why the noble Lord has not inserted the Registrars of the Bankruptcy Court, who are in the habit of taking examinations in strictly analogous cases. If it is because they are too busy, my noble Friend has, it seems to me, inserted a class of officials who are far more busy still, that is the chief clerks. I have great doubts about the expediency of inserting the chief clerks, having regard to the ordinary character of their duties, and in addition to that, I think it is likely to cause serious delays in the Court of Chancery, because they are the officers belonging to the different Chancery Courts who have to deal with the details of matters pending in those Courts. If you occupy them in duties of this description, their time may be so much occupied that it would be difficult for them to perform their ordinary duties. There is no class of officers, interference with whose ordinary duties may delay or put a stop to so many proceedings as the chief clerks, because they have before them a number of suits at different stages, and if you take them away from their ordinary duties you may interfere to a greater extent with business than by taking other officers. I should have preferred very much that the Registrars of the Bankruptcy Court should have been inserted rather than the chief clerks.

THE LORD CHANCELLOR

I think my noble and learned Friend is in error in supposing that the Registrars in Bankruptcy are not included. The Officers of the Supreme Court named are "an Official Referee, Master, Registrar, or Chief Clerk," and the word "registrar" would, therefore, include those in Bankruptcy.

LORD HERSCHELL

But there are Registrars in Chancery also, and having regard to the fact that they perform very different duties, I doubt whether they would be proper persons. I thought they might be the Registrars intended.

THE LORD CHANCELLOR

All I meant to point out was that Registrars in Bankruptcy would be included, because they are not only "officers of the Court," but actually "Registrars."

LORD HERSCHELL

I think it had better be made clear that Registrars in Bankruptcy are intended. I certainly do not think that Registrars in Chancery would be suitable for this purpose. Then with regard to District Registrars. Many of the District Registrars are solicitors practising in their Districts, and I think they would in general, certainly, be very unsuitable persons for this work. I see it is to be confined to such District Registrars only as are designated by the Lord Chancellor; and probably if that limitation were always to be borne in mind, that objection might be obviated.

* LORD BALFOUR OF BURLEIGH

I certainly believe that the Registrars in Bankruptcy would be included under this definition; but if not, we are willing to make it clear. And if, as the noble and learned Lord thinks the Chief Clerks are too much occupied, I shall be willing to accept an Amendment deleting that class of officials.

* THE EARL OF SELBORNE

I cannot help thinking that of the London Registrars the only Registrars who ought to be placed in this position are the Registrars of the Bankruptcy Court. To use those words would be a very simple way of amending that. Then with regard to the Chief Clerks. I hesitate to agree with my noble and learned Friend for this reason; that the Bill provides that the Judges in the Chancery Division may have a portion of this jurisdiction assigned to them; and if they have they will naturally discharge it with that assistance from their Chief Clerks which they now have. I cannot help thinking that the Chief Clerks would be perfectly competent persons to do this duty; and that in some circumstances, in regard to proceedings in the Chancery Division it might be inconvenient not to be able to do the work with their assistance. The whole matter will be subject to general rules, and I should myself incline to the opinion that you had better leave the Chief Clerks in.

LORD HERSCHELL

I would move after the word "Registrar" to insert the words "in Bankruptcy."

THE LORD CHANCELLOR

Then I think the grammar of this Amendment will require a little alteration, otherwise it would primarily mean that the District Registrars are to be named by the Lord Chancellor or by any Registrar of the County Palatine Court. I think that will have to be looked into.

* LORD BALFOUR OF BURLEIGH

That will be put right at a later stage.

LORD HERSCHELL

If you put in the words "Registrar of a Palatine Court" before "District Registrar of the High Court" that would do, and they would naturally come there, as he is a higher functionary.

Amendment moved to the proposed Amendment after the word "Registrar," in line 4, to insert the words "in Bankruptcy."—(The Lord Herschell.)

Agreed to.

Amended, as amended, agreed to.

Clause 26.

* LORD BALFOUR OF BURLEIGH

The purport of this Amendment was indicated to the Standing Committee, and it was approved of. The words have been subsequently agreed upon by the Lord Chancellor and by the authorities of the County Palatine Court of Lancaster; and I move accordingly, at page 15, at the end of the clause, to insert— (5.) All rules made and directions given by the Lord Chancellor under the foregoing provisions of this section shall he adopted by the authority for the time being empowered to make rules for regulating the practice or procedure in the chancery court of the County Palatine of Lancaster, but as so adopted shall have effect with the substitution of the words. 'vice-chancellor' for the word 'judge,' and the word 'registrar' for the words' chief clerk.

Agreed to.

* LORD BALFOUR OF BURLEIGH

After Clause 29 there is a new clause in, my name, which tells its own tale. It is necessary to have a new clause of this kind, because there is no clause which covers the ground, and it is necessary to have a ready means of dealing with certificates or documents issued by the Board of Trade.

Moved to insert after Clause 29—

  1. "(1.) All documents purporting to be orders or certificates made or issued by the Board of Trade, and to be sealed with the seal of the Board, or to be signed by a secretary or assistant secretary of the board, or any person authorised in that behalf by the president of the board, shall be received in evidence and deemed to be such orders or certificates without further proof unless the contrary is shown.
  2. (2.) A certificate signed by the President of the Board of Trade that any order made, certificate issued, or act done, is the order, certificate, or act of the Board of Trade, shall be conclusive evidence of the fact so certified."

Agreed to.

Clause 30.

* THE EARL OF SELBORNE

I will now move the clause of which I have already spoken, as altered in the way proposed.

Moved, after Sub-section 1, to add as a new sub-section— (2.) For the purposes of such provisions of this Act as are applicable to a company of which liquidators have been duly appointed and subject to general rules, a company shall be deemed to be wound up by order of the Court, if the order is to continue a winding up under the supervision of the court.

Agreed to.

Report of Amendments to be received on Tuesday next; and Bill to be printed as amended. (No. 229.)