HC Deb 09 May 1877 vol 234 cc586-99

Order for Second Reading read.

SIR EARDLEY WILMOT,

in moving that the Bill be now read a second time, said, that he had had the honour of being a Judge of County Courts for 20 years at Bristol and Chelsea, and therefore he had considerable experience of their working. He had also had many opportunities of conferring with men of experience upon the subject. The Bill proposed in all actions of contract or tort to give the plaintiff the opportunity of bringing his action in the County Courts. The jurisdiction of these Courts was at present limited to £50, except by the consent of the parties, for debt, and £500 in administration actions; but he now proposed that they should have unlimited jurisdiction, with power to defendant to apply to remove the action to the Superior Court on giving security for costs. He pointed out that Lord Brougham, who might be described as the founder of the County Courts, was, up to the time of his death, the zealous advocate of the change proposed to be made by this Bill. The Judicature Commissioners had also approved of it. After receiving evidence from various Courts in the Kingdom, they, in 1872, made their Report, and among other things recommended the extension of the County Court jurisdiction exactly in the way his Bill advised. It might be argued that he was proposing to extend the jurisdiction of these Courts far beyond what they were originally intended to cover; but if this were the first time that their jurisdiction had been increased something might be said on that point. The fact, however, was, that the jurisdiction of these Courts had been very considerably enlarged since their formation in 1846. He contended that the County Court Judges might be safely entrusted with the extended jurisdiction proposed to be given to them. Bankruptcy cases in the provinces were now dealt with by the County Courts to any amount, and only the other day a case involving liabilities to the amount of £100,000 was brought into one of the County Courts. They had now jurisdiction in Admiralty cases and salvage cases to the extent of £300 and also in certain eases of title. The time had now come to extend their jurisdiction, and to give the plaintiff what he might call free trade in law. It was rather hard, if a man living in a distant part of England had an action for £51 just after the Assizes, that he should be compelled to come to London at a great expense and considerable delay. In support of this Bill he would just refer to two cases to show what the costs were in each. In one case at Huddersfield, which occupied 28 days, and when the verdict was for the plaintiff with 40s. damages, the costs were £10; and in the other, which occupied about 11 months from beginning to the end in a Superior Court at Westminster, and where the result was 40s. damages, the costs were £540. He thought it was clear that suitors would be spared the expenditure of large costs if their actions were tried in the County Courts. It was, moreover, desirable to relieve the block of business in London, and this Bill would have a tendency to lessen the pressure upon the Superior Courts. He regretted to find that the Bill was to be opposed by the hon. and learned Member for Beaumaris (Mr. Morgan Lloyd), as it was a Liberal measure and was accepted by the country generally. The hon. Gentleman concluded by moving the second reading of the Bill.

MR. FORSYTH

seconded the Motion.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir Eardley Wilmot.)

MR. MORGANLLOYD,

in moving that the Bill be read a second time that day six months, said, that as a matter of feeling he would have been glad if he could have agreed with his hon. and learned Friend the Member for South Warwickshire, but he could not, as he conscientiously believed that the passing of this Bill would be very injurious to the country generally. No doubt the County Court system required amendment, and he would not object to see a thorough amalgamation of the High Court of Justice and the County Courts, but that would be a matter which would require very serious consideration, and could not be dealt with at present. The County Courts were originally established because it was found inconvenient and expensive to have cases of great importance and also actions to recover small debts disposed of by one and the same tribunal. In their working the County Courts had proved to be most beneficial to the country. The expense to the suitor was comparatively small, and justice was not only cheaply, but speedily obtained. If, however, the jurisdiction of those Courts was greatly extended—and the extension would be unlimited under the Bill before the House—they might as well abolish the County Courts altogether, and leave all cases, great and small, to be determined by the Superior Courts. The ordinary business of the County Courts would be set aside if the Bill were passed and the system recommended carried out, and thus their peculiar value and usefulness would be greatly impaired, if not altogether destroyed. If the subject was to be taken up at all it would be better to create additional Judges at Westminster for the purpose of facilitating the despatch of the legal business of the country. Local Courts were good for local purposes; but if Parliament attempted to make Superior Courts of them they would ruin them for all time. What was really wanted was an improvement and extension of the Circuit system and the localizing of actions in the Superior Courts. If that were done the County Court Judges would be more trusted, and would be more responsible to public opinion. Those Judges should not always go to the same places, but should go through the districts as strangers, and. then they would not be disposed to show any undue favour to suitors. He trusted that that subject would not be lost sight of by Her Majesty's Government, more especially having regard to the present press of business in Westminster Hall. He begged to move that the Bill be read a second time that day six months.

MR. COLE

said, he had much pleasure in seconding the Amendment as he had seldom seen in such a few lines a Bill which if passed would do more injury. He believed that one consequence of the passing of the Bill would be the practical repeal of the Judicature Act of 1875, as by it any action might be brought in a County Court, and could not be removed into the Superior Courts unless the damages claimed amounted to £50, while some of the most important actions were not brought to recover damages at all. To extend the jurisdic- tion as proposed by the Bill it would be necessary to have fresh machinery, because the office of Judge of a County Court was not generally filled by the most distinguished members of the Profession. Nothing could be more valuable in the shape of a Court of Justice than the County Courts, as tribunals for the recovery of small debts; but to make them, in effect, Superior Courts with a widely ,extended jurisdiction would be to create delay in the obtaining of justice, to greatly increase expense, and generally to interfere with the proper function of an excellent institution. The Bill was not made to apply to proceedings in Chancery. Why? He should give the Bill his most strenuous opposition.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(.Mr. Morgan, Lloyd.)

MR. FORSYTH

said, that he believed that the principle of the Bill was good, and that the measure if passed would be of great benefit to the country. The arguments he had heard urged against the measure had been used against the original proposal to establish County Courts. All kinds of evil had been predicted to the Bar and to the country as likely to arise if the new system were set up; but he ventured to say that no more useful measure had been adopted within the present century than the County Courts Act had proved to be. The original Act limited actions to £20, but in 1856 the jurisdiction was extended to £50 in all cases of contract, and by agreement it was unlimited, except as regarded some particular actions. He maintained that the House would be proceeding in the right direction by now enacting that cases of contract and tort should be tried in the County Court without limit as to amount, except in such cases where a Judge thought the case should not be tried in the County Court. It seemed to be thought that County Court Judges were not fitted to try cases where large sums were involved, but the Recorder of London could try such cases, and they were tried at the Passage Court at Liverpool, and he believed at the Toolsey Court, in Bristol, if the cause of action arose within the jurisdiction. He did not wish to praise unduly the County Court Judges; but from the reports of cases which he had read. in The Law Times he was much impressed with the great ability which they displayed in dealing with the cases that came before them. He thought that the County Court Judges should be paid higher salaries. The arrears in our Courts were appalling, and unless something was done to relieve the congestion of the Superior Courts our judicial business would come to a dead-lock. If more important cases were brought before the County Court Judges he believed that greater care would be taken in selecting men to fill the office of Judge. At present, a great deal of the work of the Courts in undefended cases had to be disposed of by the Registrars, and he thought that their jurisdiction might be extended in small cases. It seemed so be thought by some that justice existed for the Bar of England; but he believed that the Bar of England existed for the purpose of allowing justice to be administered to all alike. Ho would never allow that the Bar should stand in the way of what he considered a been to the public—that of obtaining cheap and speedy justice. He looked forward to the time when the great mass of the legal business of the country would be begun in local centres, instead of being brought up to London. In conclusion, lie expressed a hope that the House would sanction the principle of the Bill by affirming the second reading.

MR. NORWOOD

said, that the County Courts were a valuable institution, as they dispensed even-handed justice at a small expense at the doors of the humblest suitors. He had endeavoured to enlarge their jurisdiction, and would have no objection to see it still further extended, but he did not approve of this Bill. It was not sufficiently comprehensive, and it contained some objectionable propositions. He complained that the Judges were not selected for their legal attainments, but as a means of patronage for faithful services. He thought that the Registrars had too much power, as every subject of the Queen had a right to have his case tried before a Judge, and not by a Registrar. This was a sweeping and revolutionary measure, and he should vote against the second reading.

MR. GREGORY

said, that if he regarded the Bill solely in the interests of his Profession he should support it, but in the interests of the public he must oppose the second reading. The Alpha and Omega of the Bill was to give unlimited jurisdiction to the County Courts. The present law in respect to County Courts had several defects. He objected, for instance, to the power which the Judge possessed of appointing another person to act for him, who might be more or less qualified. The Registrars, again, who might be practising solicitors, had too much power. It was said the County Courts were a cheap tribunal; but, according to his calculation, the costs amounted to fully 40 per cent of the amounts recovered. This Bill would not amend these defects, but would take away from the defendant his Common Law right of having the plaint against him tried in a Superior Court, for that was what the provision calling on him to give security for costs amounted to. The tendency of litigants was more and more to have recourse to the Superior Courts. This, he thought, was a certain test of the confidence reposed by the public in those Courts, where cases were tried in a more satisfactory manner than they were by the inferior tribunals. This was a good reason for not extending the jurisdiction of the County Courts. If they now gave that unlimited jurisdiction they would have to pay the Judges much higher salaries than at present.

MR. HIBBERT

said, that while he was ready to support any fair proposal to extend the special jurisdiction of the County Courts, he could not vote for so sweeping a measure as that which was now under the consideration of the House. He hoped that the Government would fully consider the whole question, either by reference to a Committee or in some other way. A Bill might, with advantage, be brought in to extend the jurisdiction of County Courts from its present limit of £50 to £100, or thereabouts. Whether the Bill passed or not, he thought the Government would do well to take into account the additional work which had been thrown upon many of the Judges of late, and propose that their salaries should be increased. Since those salaries were fixed in 1865 the amount of their judicial work had been doubled. When the Bankruptcy Bill was before the House in 1869 he brought forward an Amendment which had reference to the increase of the salaries of County Court Judges. He had the assistance of his right hon. Friend (Mr. Cross), now the Home Secretary, who seconded the Amendment; but they were not able to carry it, as the question was then under the consideration of the Judicature Commission. Since that time various Acts had been passed throwing additional duties upon County Court Judges, but no addition had been made to their salaries. He did not say that a case could be made out for the increase of the salary of every Judge, because there was a great difference in the amount of work which they had to perform in the various circuits of the country, but he thought it deserved the consideration of the Government whether they could not reduce the number of the circuits, and out of the saving to be effected give increased salaries to the remaining Judges.

MR. WHEELHOUSE

assured the House that it was not without something like pain he felt himself obliged to oppose the Bill of his hon. Friend; but he had come to the determination—one well considered, moreover, before he arrived at it—that so far as County Courts were concerned, and so long as they were constituted as they at present were, the jurisdiction they now possessed was amply sufficient for them. In the first place, it must be remembered that there were, really, two very different classes of County Courts in this country. In the Courts of the metropolis, and of the large manufacturing centres, there was an enormous amount of work, consisting of commercial inquiries, bankruptcies, Admiralty jurisdiction in the port towns, and Equity, more or less, in all of them. On the other hand, there were the country districts, with large territorial interests and acreage, in which the Courts had certainly but very little to do, in the sense of having the larger inquiries referred to them. But while he bore that distinction fully in mind, he, for his own part, could not think it desirable to extend the County Court jurisdiction either in the one case, or the other. It was certainly undesirable to extend it in the larger centres, because, at present, the County Court Judges in those localities had, already, more then enough to do. He was also bound to say—speaking with all due respect for the Judges in the Superior Courts—that in former years it had been the practice of the Courts above to send down to the Judges sitting in the large centres a number of records to be tried which did not belong, properly speaking, to the County Courts as such, but which the Judges of the Inferior Courts were obliged to take, because because they had been sent down to them under statutory order. By these means, the time and opportunities of the Judges, which ought to be at the disposal—or rather for the use of—the poorer class of County Court suitors, for whose cases these Courts, be it always remembered, were introduced and intended, were displaced to make provision for the trial of these records. He was quite aware that of late the Judges of the Superior Courts had been somewhat more careful than formerly in sending down cases to the County Courts, because they knew perfectly well that the County Court Judge generally had more than sufficient work of his own to which to attend. There was another reason why he thought it very undesirable that the jurisdiction of the County Courts should be extended in the direction towards which the present measure seemed to point. The reason had been slightly glanced at before, but it was one which, with all due respect to those hon. Members who had spoken on the measure, he ventured to think they could not, and did not, appreciate as fully as those who had had a large practice in the County Courts. The objection was this, and it went far deeper than the mere superficies—In many localities, a sort of family feeling pervaded, not merely the Court itself, but the people in attachment with the tribunal, from the Judge down to the lowest official, and this feeling rendered it very undesirable to extend the jurisdiction of the tribunal. It was far better, indeed, absolutely necessary, that these things should be thoroughly and widely known. He himself was personally acquainted with one instance, where a County Court Judge, almost simultaneously with his own appointment to office, brought down and established his own son, then a mere boy, as one of the practitioners in his own Court. It was, of course, in a case like this, scarcely possible to put a finger upon any particular instance in which absolute wrong could be proved to have been done to any named suitor; but there was the Judge, and there was the advocate, and it must inevitably be considered desirable to get hold of the latter as counsel wherever it was practicable. It was almost more than mortal to imagine that such should not be supposed to be the result; and, even if there were no reality in the proposition, there was, at least, an undesirable semblance of truth about it. He need not endeavour to impress upon the good sense of the House that this feeling not only might be, but actually was, of more evil consequence than the reality itself. He repeated, there was the father sitting as Judge, and there was the son constantly engaged before him, in the small, and—if he might venture so to name them—the half irresponsible local tribunals of the country districts, and, it was needless to tell the House that, though the justice administered there might be absolutely pure, nothing would induce the litigant who lost, and scarcely anything could convince the outside public, under such circumstances, to believe it so. He would only ask—Could such a state of things be desirable or conducive to the public welfare? For his part, he had no hesitation in pronouncing, from his place in that House, that such occurrences as these were a living scandal. There were, he believed, other instances to which the same principle applied, although, perhaps, not so strongly. Still, however, it did apply, and he was desirous, therefore, that under no circumstances whatever, should there be any chance of such family influences henceforward being allowed to permeate our local Courts of Justice, or that it should be possible, by any accident, to suppose that the fount from which justice sprung was tainted in the slightest degree. He also further objected to every Bill which gave any such power as the present measure sought to do—namely, that of enabling a suitor to throw unreasonable expenses in the way of a defendant. A suitor by a Common Law proceeding—whatever that might be—in a County Court could, at his own instance, although he had not the shadow of a ground of action against a defendant, set the law in motion, and the unfortunate defendant, before he could remove the hearing from the County Court jurisdiction, in order to take the opinion of the Court above, must be provided with the means of offering security for the payment of costs. Was that fair? Was it just? For example, suppose he himself chose to bring an action against any one of his fellow-Members in that House? It was perfectly true, thank goodness, that he had no right to do so, and had, most assuredly, no wish or expectation of doing it to the extent of one single farthing; but if, under such circumstances, he thought fit to do so, under this Bill the defendant, if he were desirous, for any reason, of seeking the opinion of a Superior Court, must first find security for costs. Why should such a system prevail? It was suggested that every plaintiff had some right, and that if he had not some grounds for suing, he never would proceed. His experience told him that this was by no means always the case. A man was too often dragged into a Court to defend something which he ought never to be called upon to answer. Then, there was another objection to this Bill. If anyone supposed that when a man sued, in the first instance, in a Court of limited jurisdiction from which there was an appeal—and in the event of enlarging the extent, they could scarcely do so without granting the right to appeal in such cases as these—he was at all likely to save expense, he counted sorely without his host. The moment the jurisdiction of a County Court was exercised, one side or the other was sure to be dissatisfied with the views expressed by the Judge, or taken by the jury. It was bad enough that any man should be at liberty to sue another really causelessly; but the hardship was intensely magnified when he was enabled to drag his opponent through a long series of Courts, and at no end of cost. But, even that was not the whole of the evil. In the language of this Bill, he did not see exactly how they were to make out the County Courts in which the plaintiff was entitled to sue. Surely a defendant had a right to know where he was to be sued, and under what circumstances he was called upon to answer. It was said this Bill intended that you should confine yourselves to debts and damages; but what about those other cases, the number of which was very great, where debts and damages did not enter. These points ought to be better defined than they were in this Bill. He thought that if this Bill was passed, they would not only repeal the present Judicature Act, but upset the whole system of judicature, and introduce a totally new state of procedure. If anyone knew what these County Courts were like—what they were—what Registrars did—how often there was just the opinion of one person to guide a decision—they would feel that it was not desirable to extend the system as it was at present. If they had a jury in all cases, that, indeed, might mitigate the evil. Then there was another matter arising out of this Bill. He had long thought it was necessary to increase the Judicial power in this country. The sooner they did this, so much the better; but he did not hesitate to affirm that, in his opinion, it was to be done by increasing the Judicial Staff in Westminster Hall. In the meantime, if any action was to be taken, let them, if they so pleased, go to a Select Committee. Instead of having any extension of the County Courts as they existed at present, let them go on totally different lines. There were three or four other matters with which he might deal, but he thought the limit had already been reached in respect to County Court jurisdiction under present arrangements. He hoped that limit would not be extended; but if there was to be any extension, he hoped it would be in an altogether different direction from that proposed in this Bill.

SIR COLMAN O'LOGHLEN

hoped that the hon. and learned Baronet who had brought forward the Bill would withdraw it and not put the House to the trouble of a division, as it was impossible that he could go to a division with any chance of success. The matter had better be left in the hands of Her Majesty's Government. The hon. and learned Member for Leeds had expressed an opinion that the jurisdiction of the County Courts ought not to be increased. He, on the contrary, thought it ought to be increased very considerably. In matters of debt he would give the County Courts both in England and Ireland an unlimited jurisdiction, as was the case as regarded the Sheriffs' Courts in Scotland. One fatal objection to this Bill was that it contained a clause which would compel a defendant to give security for costs in order to get the opinion of a Superior Court in a case in which he thought he ought to get such an opinion. That clause, no doubt, might be removed in Committee; but the principle of that clause was so much interwoven with other parts of the Bill, that the House ought not to give it a second reading. He certainly thought the salaries of the Judges ought to be increased, and recommended the Attorney General for Ireland to bear in mind in the preparation of his Bill in reference to the Irish County Courts what had just fallen from the hon. Gentleman the Member for Oldham.

MR. MELLOR

denied that the County Court Judges were underpaid. They received £1,500 per annum for two and three quarters' days' work in each week, with travelling and subsistence allowance. He thought they were scandalously overpaid. In fact, the Registrars did all the work, or, at least, a large percentage of it. This Bill emanated from lawyers. He always looked with suspicion on members of that class in the House, because the tendency of all their legislation was to swell our annual expenditure; and unless the measures of lawyers in the House were checked, instead of having a national expenditure of £78,000,000 a-year, it would rise to £90,000,000 in no time.

THE ATTORNEY GENERAL

said, the hon. and learned Gentleman who introduced the Bill did not seem to have had enthusiastic support even from those who, according to the hon. Member who had just spoken, were always ready to support anything that would cause an increase of expenditure. While many hon. Members were in favour of the extension of the jurisdiction of the County Courts, it was admitted that this Bill contained grave defects. In the first place, he questioned if, since the passing of the Supreme Court of Judicature Act, in which Common Law had been swallowed up by Equity, if any such thing as a Common Law action could exist. He considered, too, that the provision calling upon the defendant who might wish to have his case tried in a Superior Court to give security for costs was one in favour of the rich and adverse to the poor client. The principle of the Bill, as he understood it, was to give extended and exclusive jurisdiction to County Courts in all cases where the defendant who was sued could not remove the suit to a Superior Court, and that was, in his opinion, a principle which instead of approving they should altogether discoun- tenance. Reference had been made to the extent to which the business of the County Courts was now in the hands of the Registrars. However small the cause might be, he thought the parties had a right to have it decided, so far as possible, by the Judge, and not by the Registrar; and they ought not, by any Bill like the present one, to intensify the existing evil. If they passed this Bill the time of the County Court Judges would be occupied in trying important cases, and they would be overwhelmed with that business which now found its way into the Superior Courts. It was said that this would relieve the press of business which now existed in these Courts. No doubt that would, to some extent, be the case; and he was not prepared to say that it would not be desirable to extend the jurisdiction of the County Courts to a certain extent. He was not in a position to pledge himself or the Government to such a measure; but it was well worth considering whether, under existing circumstances, they should extend the concurrent jurisdiction of the County Courts to all cases exceeding £50 and under £100, as had been suggested by the hon. Member for Oldham (Mr. Hibbert). That was a very different thing from establishing an unlimited jurisdiction; and rather than take that means of relieving the pressure on the Superior Courts, he would support an increase in the Judicial Staff of the High Court of Justice.

SIR EARDLEY WILMOT

replied, answering in detail the various objections which had been taken to the Bill, and warmly defending the character as well as advocating the claims of the County Court Judges—a class to which he himself had had the honour to belong. He expressed his satisfaction that the hon. and learned Gentleman the Attorney General had given his approval to the principle of extending the jurisdiction of the County Courts to £100. He was ready to withdraw the Bill, the main provisions of which, he believed, would sooner or later become law. That day's discussion, he was confident, would yield solid fruits; and he urged on the Government and the House the expediency of appointing a Select Committee to see how far and in what manner the civil business of our Courts could be more satisfactorily despatched.

MR. WHALLEY

wished to call attention, by way of protest and warning, to the state of civil business in the Courts, which was becoming worse and worse, and which had been aggravated by the Judicature Act. The cause of the block of business and of the delay and confusion in transacting it was due in a large measure to the fact that Common Law had been swallowed up by her sister Equity.

Question, "That the word 'now' stand part of the Question," put, and negatived.

Words added.

Main Question, as amended, put, and agreed to.

Second Reading put off for six months.