§ (1) Leave may be given to issue a writ of summons in the High Court for service on an enemy out of the jurisdiction or of which notice is to be given to an enemy 1921 out of the jurisdiction if the Court or judge is satisfied that the case is a case to which this Section applies, and the Court or a judge may, on an application made at the time leave is so given, or at any subsequent time, if satisfied that the writ cannot promptly be served or brought to the notice of the enemy defendant by any of the usual means, make an order (in this Act referred to as an enemy service order) directing substituted or other service of the writ or the substitution of notice for service by means of advertisement or otherwise; and on that order being complied with, all proceedings may be taken on the claim as if the writ had been served on the enemy defendant by the usual means.
§ (2) The Lord Chief Justice shall give directions for expediting proceedings and regulating procedure generally in a case where an enemy service order has been made and the enemy defendant does not appear; and any directions so given shall have effect as if they were included in the rules of Court for the time being in force.
§ (3) The Court or judge, where an enemy service order has been made and it appears not to be practicable to obtain the best evidence of any document which is, in the opinion of the Court or judge, material to the case, may admit such other evidence thereof as appears proper in the circumstances.
§ (4) The Court or judge shall have power, where an enemy service order has been made and the enemy defendant does not appear, to order the plaintiff, though successful, to pay the whole or any part of the costs of the proceedings, if he considers that it is just to do so in the special circumstances of the case.
§ (5) The fact that, for the purpose of obtaining the benefit of this Section, a writ of summons has been indorsed only with a claim for a declaration in accordance therewith shall not prevent any other declaration or any consequential or other relief being claimed in other proceedings, or prevent the case being dealt with, although no such other declaration or consequential or other relief is claimed.
§ (6) This Section applies to cases where—
- (a) the plaintiff is a British subject and is entitled for the time being to bring an action in the High Court; and
- (b) the defendant or one of the defendants is an enemy; and
- (c) the writ is endorsed only with a claim for a declaration as to the effect of the present War on rights or liabilities of the plaintiff or defendant under a contract entered into before the outbreak thereof; and
- (d) there is written evidence of the contract.
§ Lords Amendments: In Sub-section (2) leave out the words "Chief Justice shall give directions" and insert instead thereof the words "Chancellor may make such rules as he thinks fit."
§ Mr. POLLOCK
I desire to ask why this alteration has been made? If I recollect rightly very great care was taken to draft this Bill in order that it might have as much elasticity as possible, and after the consideration which I am quite sure the Attorney-General gave to these words, it was decided to give the Lord Chief Justice power to make directions for expediting procedure and for regulating it. That is no formal process. When rules are required it is usual to give power to the Lord Chancellor to make them, and there must have been some express purpose in giving it to the Lord Chief Justice in this particular Bill. I assume that purpose was to make the proceedings and rules more flexible. The Bill which we are now asked to pass is one which may be of some use, or it may be of very little use. It is very important indeed we should keep in view the end aimed at. We have before us the fact that the whole basis of the Bill depends upon whether it is worked with due elasticity; whether the hitherto rather stringent protection given to defendants should be relaxed for the advantage of the British subjects, and whether we shall have an opportunity of proceeding against alien enemies who are in foreign countries by means of substituted service.
The object of the Bill is to ensure flexibility, and that will be better secured by placing this power in the hands of the Lord Chief Justice, who is more familiar with the manner in which business is conducted at the Royal Courts of Justice. If it is left in the hands of the Lord Chancellor, and if we are to have the rules made as hitherto, we shall once more get ourselves into the old trouble; possibly the rules may become the subject of appeal, and, instead of getting an easy and speedy remedy for the British subject, we may 1923 involve him in a number of appeals which certainly is not to be desired. I regret very much the alteration which is now proposed, because I have some misgivings about it. I had hoped that the Attorney-General would adhere to the words which were proposed in this House, and I trust he will explain the reason why he is prepared to sacrifice those words, because, for my own part, I feel the change is by no means advantageous to the Bill. I foresee that, in the stringent rules which may be laid down, it may be quite possible for this Bill to become of very small value indeed. I believe the House at large would regret that. I should myself have preferred the Lord Chief Justice to be the authority for giving the directions to deal with difficulties that are under his cognisance without having to refer the matter to another very important and very much respected legal authority who cannot, however, have the same familiarity with day to day proceedings in the Courts of Justice.
§ Sir CLIFFORD CORY
I would ask whether the Lord Chancellor has not already made rules under the Trading with the Enemy Amendment Act which are so ambiguous that it has made it necessary to bring in this Bill. I endorse the remarks which have fallen from the last speaker. I trust the Attorney-General will keep the provision in the Bill, whereby the Lord Chief Justice and not the Lord Chancellor will make the rules. I am advised that the proceedings under the Act will take place in the King's Bench Division. The Lord Chief Justice is head of that Division, and it is therefore only consistent that he should draft the rules. I agree that the Bill is an excellent Bill as far as procedure goes, but we are anxious to see the Amending Bill promised by the Attorney-General with the object of enlarging its scope. At present it only applies to claims for a declaration as to the effect of the present War on rights or liabilities under a contract entered into before the outbreak of War, and does not enable a British creditor to claim from an alien enemy debtor for debt or damages. Consequently, it is of little or no use. I hope the Amendment Bill, therefore, will soon be introduced.
§ Mr. BUTCHER
Perhaps the Attorney-General will tell the House the difference between giving directions and making rules? It may not seem a large matter, 1924 but I am not sure it is the same thing. For instance, will the effect of giving the Lord Chancellor power mean that he will have to provide machinery for making the rules with the assistance of the Rules Committee? If so, I can only say that it will make a serious inroad on the usefulness of the measure. It will introduce a great amount of machinery and delay and, probably, deprive the Bill of a good part of the flexibility it now possesses. I thought, in the first instance, that the Rules Committee should make the rules, but the Attorney-General satisfied me that that was too cumbrous a process. Having been so satisfied, I am not prepared to again change my views, unless he can satisfy me that his new proposal is right. I support the protest of my hon. Friend the Member for Warwick and Leamington (Mr. Pollock), and I ask the Attorney-General to stick to his original proposal. What we want is to devise some means of bringing alien enemies before the Court in a way somewhat different from the rather cumbrous procedure which has hitherto existed. We want to put an end to the rigidity of procedure which existed formerly, a procedure which is really inapplicable to the cases to be dealt with under this Bill. I am under the impression that if the Lord Chief Justice gives the directions we should get over those formalities which might delay and impede matters most seriously. If we go back to the formality of the Rules Committee and the Lord Chancellor we shall make a very large infringement on the valuable character of this Bill.
§ Sir J. SIMON
The general object which we all aim at has, I think, been admirably stated by the hon. and learned Gentleman who has just spoken. Certainly we should not make any change in this Bill which would result in substituting something cumbrous, technical, and slow moving for that which we originally had in mind, and which was something flexible and rapidly acting. If I thought that the change made in another place would have that undesirable effect I would join with those who have already spoken in deprecating it. But really that is not so. May I, first of all, point to the change which is proposed? Most certainly it does not mean that the rules are to be what are technically known as Rules of Court made by the Rules Committee. I wish to speak with all proper respect of the Rules Committee, which consists of most eminent judicial authorities, 1925 and with equal respect of the rules which they from time to time make, but certainly that method of making rules would not be suited for the present emergency, for the whole essence of the situation is that we want to have the thing provided for immediately. That ought to be quite understood. I would point out that in substituting the word "rules" which are not Rules of Court, for the word "directions," it is almost a verbal point, but it has its importance, which I will deal with in a moment. Let me say a word about the substitution of the Lord Chancellor for the Lord Chief Justice. My hon. Friends will sympathise with me in not desiring to say anything which possibly could be supposed to take the side of one of those eminent persons against the other. The truth about it is, that it is desirable, or seemed to us desirable, that the making of rules for expediting proceedings should be done by somebody who had a direct responsibility to Parliament. In this House I have, as best I can, to answer for such matters, even though the Lord Chancellor is the supreme judicial and legal authority and sits in another place. It was thought desirable and it is consistent with our constitutional position that so far as may be the matter should be made one for which responsibility should be accepted in Parliament by the Government in case of dispute or criticism.
Secondly, I do not think it is quite clear that all these cases would necessarily be cases in the King's Bench Division. My sympathies are all on the side of the King's Bench Division. I am surprised that the hon. and learned Member (Mr. Butcher) should be so willing to surrender this portion of judicial proceedings to those who practise in Courts, where we do not so often have the privilege of seeing him. You may have cases, I suppose, in which a declaration as to whether a contract is or is not affected by the outbreak of war, might be properly argued before the Chancery Division Whatever the Lord Chief Justice does—I should be the last to belittle his authority—he does not claim to direct proceedings in the Chancery Division. It is for these reasons, which lawyers in the House will see are of some weight, and which are of a rather technical kind, that it was thought right to substitute the Lord Chancellor for the Lord Chief Justice. The other question asked is, why do you say "rules" instead of "directions"? It is not desirable that 1926 there should be put into an Act of Parliament a provision that the Lord Chancellor is to direct the Lord Chief Justice about matters which may very well take place in the King's Bench Division; consequently we use the word "rules." They are not, of course, Rules of Court. Although I have not seen the actual draft, I know it has already been considered.
The rules to be made are rules which might say, so far as the proceedings in the King's Bench Division are concerned, that the Lord Chief Justice will give directions in his own sphere and in the Courts for which he is responsible. It is not a change of great importance, and I hope the House will agree with the House of Lords in making it. I trust I have explained that it does not mean going back to any cumbrous machinery. The substance of the Bill will be exactly as it was before. The Regulations, I believe, are practically ready, and I will make it my business to see there is no delay. If we put in the Lord Chancellor, I quite recognise that the Government would have to be held to blame supposing there were unreasonable delay in putting the machinery in motion. I am sorry my hon. Friend (Sir C. Cory) does not think much of the Bill as it stands. That question is a little beside the narrow point, and I have confined myself to the actual Amendment.
§ Mr. POLLOCK
With the leave of the House I should like to thank the Attorney-General for his explanation. As he offers himself as a hostage we will accept him as a hostage for the flexibility of these rules, and for the assistance the Lord Chancellor is going to give in securing that the Bill really does what it says.
§ Question put, and agreed to.
§ Remaining Lords Amendments agreed to:
§ In Sub-section (2) leave out the word "directions" ["any directions so given"] and insert instead thereof the word "rules."
§ Leave out the word "given" ["any directions so given"] and insert instead thereof the word "made."