HC Deb 17 July 1861 vol 164 cc1034-9

Order for second Reading read.

MR. CAIRD

, having presented a petition from the Edinburgh Chamber of Commerce in favour of the Bill, said, the object of the Sheriff Small Debt Courts Extension Bill is simply to extend the summary jurisdiction of these Courts from £12 to £25. It allows actions of greater value to be tried by consent of parties, admits the attendance of agents, settles the amount of fees, and provides an appeal on points of law. The Bill is, therefore, merely an extension of the existing system, and the adoption of certain principles sanctioned by seventeen years' experience of the County Courts in England. But each point now introduced was proposed when the present Act was discussed in 1853. It is not correct, therefore, to say that there is anything new, crude, or merely technical in the change now proposed. When the English County Courts were first established, the summary jurisdiction was limited to £20, but after four years' successful trial that limit was raised to £50. In Ireland it had been gradually raised from £10 to £50. Now the Scotch resident Sheriff is an educated lawyer, and holds a similar position to that of a County Court Judge. He is reckoned competent to decide summarily in cases up to £12, and, if so, is equally competent to decide cases up to £25. For the importance of a correct decision on a question of £12 is surely as great to a poor man as is £25 to a man in better circumstances. Moreover, the jurisdiction of the Sheriff in his ordinary Court is unlimited in amount, so that it can hardly be argued that the present Sheriffs are not competent to deal summarily with cases up to £25; but in Scotland we have a system of double Judges in our County Courts which does not exist in England, and which does not exist in England, and which leads to great expense and delay. It introduces the most objectionable practice of appealing the whole facts and circumstances of a case by written pleadings from the Judge who has heard the evidence and seen and examined the witnesses to one who has not had that opportunity. The expense and delay thus caused in cases up to £25, is out of all proportion to the value of the sum in dispute, and is in many cases practically a denial of justice. In the Summary Court, the Judge's decision up to £12, as compared with the tedious processes of the ordinary Court in all cases above £12, is, in cost and delay, as shillings to pounds, and days to months. I have obtained returns of the actual cost and delay in several of the most important Scotch Courts from the year 1853 to the present time, from which it appears that, on litigated cases between £12 and £25 in value, the average amount of expenses found due by the unsuccessful party was about £15, and the average duration of the cases about ten months; that is to say, that, by the present system, it costs £15 in expenses, and takes ten months to establish a claim of between £12; and £25; in the Sheriffs' ordinary Courts. But, whilst that is the average delay, a litigant who is fighting for delay may stave off a decision for two years. I have had a case sent to me in which the arts of the system are very foreibly illustrated. The sum at issue was £13 14s. The first proceedings were taken on the 27th July, 1859; proof in March, 1860; judgments given in September, 1860, and January, 1861; and final judgment on the merits in March, 1861. But this did not end the matter, for the case was still in Court on the question of expenses, the amount on which, on one side, was between £60 and £70, and this, too, when the original sum in dispute was only £13 14s. It may be stated broadly, that in no litigated case can a decision be ob- tained in the ordinary Court in less than six months, or at a less cost than the whole amount in dispute up to £25, the proposed limit of this Bill; whereas by this Bill all cases to that amount may be settled in a few days, and at a cost of a few shillings. But there is a peculiar hardship in cases where no defence is made, and these comprise more than 60 percent of the whole. In the Summary Court, such cases, "decrees in absence", cost 3s. 7d. each; in the ordinary Court between £2 and £3. Now, as the number of such "decrees in absence" in the ordinary Courts amounts to upwards 6,000 in the course of a year, this Bill will effect a saving, in such cases alone, of utterly useless expense to the amount of near £12,000. By this Bill I propose to continue the system of allowing no appeal up to £12, but to give an appeal on points of law above that sum. This system, but with no appeal up to £20, has worked admirably in the County Courts in England, in which 5,440,000 plaints have been entered between 1847 and 1857, involving a sum of upwards of £16,000,000 sterling, and from which there has been only 177 appeals to the Courts at West minister. I regret that the Government have not themselves taken up this question, which has long been most anxiously desired by the people of Scotland. Petitions in favour of it have been presented from the most important seats of industry—from Glasgow, Edinburgh, the county of Lanark, Forfarshire, Aberdeen, and the Convention of Royal Burghs, and I have this day presented one from the Chamber of Commerce of Edinburgh. In 1852 the whole country was agitated on the subject, and the claim was then for extension to £50. The Lord Advocate passed a Bill in 1853 which raised the summary jurisdiction from £8 6s. 8d. to £12 only. In England after four years' trial it was raised from £20 to £50. I now ask that in Scotland after eight years' trial it should be raised from £12 to £25. In so moderate a measure I trust that the House will be guided by common sense, and by the experience both of England and Ireland. It is no fault of mine that the measure has not been brought forward by the law officers of the Crown, and the House will, perhaps, recollect that the County Courts Act, from which England has derived so much advantage, was originated by a private Member, and was at first opposed by the legal advisers of the Crown. This is a question of principle, on which laymen are quite as capable of judging as lawyers; there are no technical points of detail, and such Amendments as are required can be introduced in Committee. I regret that, owing to the late period of the Session, I cannot now hope to carry through this measure. But I have been anxious to state its object; and, as it has been very favourably received in Scotland, I shall now give notice, in withdrawing the Bill this year, that early next Session I shall introduce a measure with the same object.

MR. ROEBUCK

said, before the hon. and learned Gentleman expresses the opinion of the Government with regard to this measure, I am anxious to address a few words to the House. I am extremely sorry that my hon. Friend has felt it incumbent upon him to withdraw the Bill. The questions involved in it are so simple a character, are so thoroughly understood, and are so desirable, that I think the Bill, late as the Session is, might have been assented to without discussion, and have passed on the spot. For my own part, I must confess that I cannot see why the Judges of the Sheriff Courts in Scotland should not be as capable of performing the duties of Judges in Small Debt Courts as the Judges who now so advantageously preside over the County Courts in England. I believe that the Bill of my hon. Friend merely provides for Scotland that which it fully deserves—namely, a cheap and expeditious mode of recovering small debts. The Bar of Scotland holds as high a rank as that of England; and there is no reason, therefore, to presume that justice could not be as well administered in Scotland under the change proposed by my hon. Friend as is now the case in England. There is consequently, in my opinion, no reason for maintaining a distinction in such a matter as this between England and Scotland; and I cannot conceive that any difficulty could have arisen if my hon. Friend had persevered with the Bill. The only difficulty which could have been anticipated must have been the apprehended indisposition of the House of Lords to pass such a measure at so advanced a period of the Session, and I am convinced in my own mind that that apprehension has really no foundation. The House of Lords fully appreciates the advantages which the establishment of County Courts has conferred upon the people of this country, and I for one have not the slightest doubt that even at this advanced period of the Session they would not have interposed obstacles to the introduction of the same benefits into Scotland.

THE LORD ADVOCATE:

After what has been stated by my hon. Friend (Mr. Caird), that it is not his intention to persevere with the Bill this Session, I shall reserve any opinion I might have had to express in reference to the merits of the propositions contained in the measure until it may be brought forward for discussion in a future Session. At the same time I feel it my duty to say a few words upon the conversation which has taken place in regard to this Bill. The hon. and learned Member for Sheffield, who has just addressed the House, appeared to think that, as the law with regard to the recovery of small debts now stood, Scotland laboured under some considerable disadvantage in comparison with England. Now, my own opinion is that, instead of sustaining any injury, Scotland is at present particularly favoured. There exists in Scotland what I believe has no existence either in England or Ireland—namely, a local jurisdiction, which is reasonably rapid and comparatively cheap. Therefore, before such a change as that proposed by the present Bill is introduced, it behoves us to consider what great advantages would be conferred upon Scotland by an Amendment of the existing law. The present jurisdiction for the recovery of debts, leaving out of the question the Sheriffs' Court jurisdiction, which extends only to debts up to the amount of £12, is not even confined to £20, but is without any limit whatever, and embraces within its scope a great variety of subjects. It is much cheaper than the Queen's Courts, which, before the establishment of the County Court system, were the only resources for the recovery of debts in England. Returns which were moved for some years ago when this question was brought under the discussion of Parliament, showed that the average cost of litigated cases in the Sheriffs' Courts are exceedingly moderate; and as the jurisdiction is summary as well as cheap, there have been no complaints of the law as it now stands. No doubt there are cases between £12 and £25 which may involve as difficult points of law as much larger sums, but at present no difficulty is experienced even upon that point. I fully admit that under the English County Court system the recovery of small debts is both expeditious and economical; and in the large towns of Scotland, the extension of the principle may be attended with advantage; but it is extremely problematical whether, in country towns, where now for a few pounds a decision can be readily obtained from the Sheriff, the same advantages will be derived. If my hon. Friend had simply proposed to raise the small debt jurisdiction to £25, I do not know that there would have been any objection to his Bill; but he proposes to complicate matters by granting an appeal to the Court of Session. I am not prepared to say at present whether that would be advisable or not, but I am fully prepared to state that the machinery which would be introduced under the Bill would be much more cumbrous than that which now exists.

MR. HADFIELD:

I understand that in contested suits the expense now reaches about £15. That is much higher than the cost of a contested suit in this country, under the County Court system; and I think the introduction of a system that would render the process of the recovery of small debts in Scotland more economical would be a great boon. I sincerely trust that the hon. Gentleman will renew his application for a Bill next Session; and I have no doubt that if it succeeds in obtaining the sanction of this House, the people of Scotland will derive great advantage.

Order discharged; Bill withdrawn.