§ (1) Where the acquiring authority has made an unconditional offer in writing of any sum as compensation to any claimant and the sum awarded by an official valuer to that claimant does not exceed the sum offered, the official valuer shall order the claimant to bear his own costs and to pay the costs of the acquiring authority incurred after the offer was made.
§ (2) If the official valuer is satisfied that a claimant has failed to deliver to the acquiring authority a notice in writing of the amount claimed by him giving sufficient particulars and in sufficient time to enable the acquiring authority to make a proper offer, the foregoing provisions of this Section shall apply as if an unconditional offer had been made by the acquiring authority at the time when in the opinion of the official valuer sufficient particulars should have been furnished and the claimant had been awarded a sum not exceeding the amount of such offer.408
§ The notice of claim shall state the exact nature of the interest in respect of which compensation is claimed, and give details of the compensation claimed, distinguishing the amounts under separate heads and showing how the amount claimed under each head is calculated.
§ (3) Where a claimant has made an unconditional offer in writing to accept any sum as compensation and has complied with the pro visions of the last preceding Sub-section, and the sum awarded is equal to or exceeds that sum, the official valuer shall order the acquiring authority to bear their own costs and to pay the costs of the claimant incurred after the offer was made.
§ (4) Subject as aforesaid the costs of the arbitration under this Act shall be in the discretion of the official valuer who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and the official valuer may in any case disallow the cost of counsel.409
§ (5) An official valuer may himself tax the amount of costs ordered to be paid, or may direct in what manner they are to be taxed.
§ (6) Where an official valuer orders the claimant to pay the costs, or any part of the costs, of the acquiring authority, the acquiring authority may deduct the amount so payable by the claimant from the amount of the compensation payable to him:
§ Provided that if the amount of the costs so ordered to be paid by the claimant exceeds the amount of the compensation payable to him, the excess shall be recoverable from him by the acquiring authority summarily as a civil debt.
§ (7) For the purpose of this Section, costs include any fees, charges, and expenses of the arbitration or award.
§ Mr. SPEAKER
The Amendments standing in the name of the hon. Member for East Grinstead to leave out Subsection (1) and to insert after that Subsection the words "unless the official valuer otherwise orders," are incompatible.
§ Mr. CAUTLEY
I beg to move, at the beginning of Sub-section (1), to insert the words "unless the official valuer otherwise orders."
I had given notice of an Amendment to leave out Sub-section (1), but I do not propose to move that now. My Amendment relates to the question of the cost of proceedings before the official valuers. My contention will be that the provisions as they stand, by enforcing a cast-iron rule, will lead to great hardship, and that the Bill would be very much facilitated if we were to adopt some system which would give reasonable discretion to the official valuer in dealing with these cases. Let me explain first what are the provisions of the Lands Clauses Act on this subject, and then come to Clause 5 to show the variations made in the present Bill. Under the Lands Clauses Acts, if the acquiring authority made no formal offer to the claimant, that acquiring authority had to pay the whole of the costs of the arbitration. If, on the other hand, the acquiring authority made a formal offer to the claimant, and the amount ultimately awarded was either less than or equal to the offer, the claimant had to pay his own costs, and the acquiring authority had to pay its own costs. In other words, the claimant was never made liable for the costs of the hearing before the arbitration. The reason I suggest was that the proceedings were in no case due to the action of the claimant. His land was being taken compulsorily, and as there 410 was no other means of assessing the compensation except by arbitration, it was a fair thing that the person who put the process in motion should pay the costs. The present Bill goes on a different principle, and it recognises that the private owner of land has to give up such land as may be required for public purposes as and when it is required, and to such an extent as may be required. The Bill goes further on the principle that, fair compensation as laid down by the Bill should be provided, and no more than fair compensation. The whole of the Lands Clauses Acts remains in force except so far as this Bill alters it. Therefore the power is still left to the acquiring authority to make an offer, and the proposal in the Bill is this, that if the amount awarded is less than or equal to the amount offered by the local authority, the claimant shall then pay not only his own costs but also the costs of the local authority. But the Bill goes further and also provides that if the amount awarded is greater than the offer made by the local authority, it does not have the co-relative consequence that the local authority should pay the whole costs before the arbitrator, but it leaves that subject to the discretion of the arbitrator.
Before the Committee I moved what is really the first Amendment, of which I gave notice and which I do not propose to move to-day. That would have given the arbitrator an absolute discretion on the question of costs. I incline to think that that would have been the very best way of arriving at the barest justice between the claimant and the acquiring authority. I still incline to think if these men who are to be appointed arbitrators are to be trusted with settlements between the parties amounting to hundreds of thousands of pounds, they might have been trusted also to deal with the question of costs. Some arbitrations by public authorities run to some very large amounts. The London County Council, for instance, have some claims of £200,000 or £300,000 to deal with. All this would take place under this Bill, and I still think it would have been fairer to have left the whole matter of costs to the discretion of the arbitrator, but what I now propose is to preface the whole arrangement as to costs with the words "unless the official valuer other- 411 wise orders." That would leave the provision in the Bill as drawn, that if the amount awarded is less than or equal to the amount offered, the claimant shall primâ facie be responsible for the costs of both parties, but it gives a discretion to the arbitrator. Think for a moment who the claimants will be. They will be people ignorant as a rule of all procedure either in the Law Courts or formal arbitrations. A great many of them will be trustees. A great deal of land in this country is tied up under settlement, belonging to trustees or executors for widows and children, and I venture to say that in far the largest number of cases that will come forward the claimants themselves can only leave the matter to their own advisers. The claims will be very varied and will involve composite claims for loss of business, for removal, for mineral rights, timber rights, water rights, injurious affection, and so on, all of which are extremely difficult questions. With a view to cutting down the cost of these proceedings, we have limited the amount of expert advice that can be taken by these claimants, and these trustees, or single owners in many cases, can only trust these people, but out of these cases very large awards may have to be made, as there will be large claims, under the Electricity Act, for instance, running into hundreds of thousands and perhaps millions of pounds. As the Act stands, with a cast-iron rule, if there is an offer of £100,000 and an award of £99,000, the whole of the costs of both sides are going to be put on the claimant, without any power to the arbitrator to exercise his discretion. Take a composite business claim, where the evidence of the claimant has been accepted and the acquiring authority's evidence has been wrong, yet on the sum total of the award the amount happens to be a few pounds less than the offer. I urge that having a cast-iron rule like this will lead to very grave injustice.
I have subsequent Amendments, one of which is that the same rule shall apply to the acquiring authority as to the claimant. The only logical reason that can possibly be given for mulcting the claimant with costs, if the amount awarded is less than the offer, is that primâ facie the claimant has been unreasonable in not accepting what was ultimately decided to be a fair offer and has therefore been the cause of 412 the arbitration proceedings. If that is so, the same ought to apply equally on the other hand to the acquiring authority in that it makes an offer which is shown to be inadequate, and thus causes an arbitration to be held. If the words are prefaced with the discretion that I suggest, the rule would remain that primâ facie the loser has to pay the costs, but there would be the discretion. It is the tendency in all Acts of Parliament now to entrust the judge with discretion as to costs, because with elasticity as to costs greater justice can be secured. A False analogy was raised by the Attorney-General in the Standing Committee when he referred to the Law Courts. In the Law Courts when a claim is made it is open to the defendant in putting in his defence to pay money into Court and to say to the plaintiff, "If you are right £1,000, or £500, as the case may be, is enough; take that and stop the action," and if the case goes on for trial and the amount awarded is less than that sum, the plaintiff will have to pay the costs, but if it is larger than the amount paid into Court the defendant would pay all the costs. The false analogy I suggest is this, that in that case the defendant has been in the wrong, while here the claimant has never been in the wrong, and there has been no breach of contract or tortious act. It can only be said that he committed an error of judgment in not taking the offer that was made. The two things are not comparable at all, and I think the Bill as it stands would not do justice but would do considerable hardship. We are told that our Colonies are rather in advance of this country, but I find that in the Australian Commonwealth Act entitled the Property for Public Purposes (Acquisition) Act they have the provision which I am suggesting. I therefore hope the Government will accept my Amendment.
§ The ATTORNEY-GENERAL (Sir G. Hewart)
It is sometimes said that there is no rhetorical device so successful as the device of suspense, and I noticed with some interest, that my hon. and learned Friend kept us on tenterhooks for a considerable time before making quite clear whether he was speaking to-the first Amendment in his name or to the second. But there came a moment when my anxiety was relieved, and I found he was speaking only upon the second Amendment.
§ 5.0 P.M.
§ Sir G. HEWART
It is not without significance that when he put his Amendments on the Paper he was in some doubt whether he should not propose to leave out the whole of this transaction. In fairness to him, let me add that if that Amendment had been moved and carried, he has on the Paper consequential Amendments the total effect of which would be to leave the whole discretion as to costs in the hands of the official valuer. The proposals in the Bill represent the result, I will not say of a bargain, but of a compromise in the Committee. What was the object of the Government in making not, indeed, this proposal, but a proposal very similar to it? One of the main objects of this Bill is to diminish expense, and closely connected with that object is the object of discouraging idle litigation. That is an object which, as every Member of the House will admit, members of the legal profession, like my hon. and learned Friend, always have at heart. As the law stands, under the Lands Clauses Consolidation Act of 1845 it is open to the acquiring authority to make a statutory offer, and if in the result the amount which is awarded to the claimant is not more than that statutory offer, the whole penalty which the claimant suffers for his persistence in continuing the controversy after the offer was made is that he does not collect his costs from the acquiring authority. In other words, it is one of the vices of the existing system that the vendor may carry on a kind of gamble. If he thinks he has some chance of getting more than the amount which is stated in the statutory offer, ho can go on, with the assurance that if he succeeds the acquiring authority will pay the costs of both sides, and if he fails he will not have to do more than pay his own costs. So far as I am aware, there is no other department of litigation in which that one sided advantage is given to one of the parties, and the analogy which I suggested—which does not commend itself to my hon. and learned Friend—of payment into Court and what happens after payment into Court is, as I submit, perfectly sound. What happens where, in some other litigation, a plaintiff makes a claim? The defendant may pay money into Court, even though there is no real claim at all, even though there has been 414 no fault committed or contract broken, and from that time forth the litigation is conducted at the peril of the party who refuses to take the money out of Court. If in the end the plaintiff recovers no more than that sum—a sum which may not be mentioned to the jury—he is responsible from that moment not only for his own costs, but for all the costs of the litigation. Why? Because from that moment on, that which has rendered the continuance of the controversy necessary has been his obstinacy, and nothing else. It was suggested, and it is suggested again, that it is enough to leave that matter in the discretion of the official valuer.
§ Sir G. HEWART
No, I should think not. I should think the official valuer ought to be in the position of a judge, but, however that may be, the alternative proposal was that complete discretion should be allowed to the official valuer, and the complaint was made that we were being no less one-sided in the proposal we made than is the existing law one-sided in favour of the vendor. Perceiving the force of that, I undertook to formulate words which now are Sub-section (3) of this Clause, so that what is sauce for the acquiring authority is sauce for the claimant, and vice versa.
§ Sir G. HEWART
My hon. and learned Friend says it is not. I think I can show in a moment that it is. What is the position? Under Sub-section (1) of this-Clause, if the claimant recovers no more than the amount of the offer, then it is the duty of the official valuer to order the claimant to bear his own costs, and also the costs of the acquiring authority incurred after that offer was made. The importance of that imperative direction is this—that it gives clear notice to everybody concerned. It was said that if you are doing that as against the claimant, you ought to do it also as against the acquiring authority, and that is done so far as it can be done by Sub-section (3). The point which is now in dispute is whether this shall be imperative, or whether the valuer shall have a discretion. If you take away the imperative character of this discretion, you will deprive it of 415 more than half its value. If Sub-section (1) and Sub-section (3) are read together the result is perfectly fair. For these reasons I cannot accept this Amendment.
§ Sir F. BANBURY
I do not quite understand the argument of my right hon. Friend the Attorney-General. As I understand it, he has stated that at present, under the Lands Clauses Act, if a person, who receives a certain offer, refuses that offer, and a less sum is awarded than the original offer, it is not fair that the person making the offer should be allowed the costs of himself and of the person who has refused that offer.
§ Sir F. BANBURY
Surely that is the Bill. Under Sub-section (1) of this Clause, if he gets less than the offer which was made, and which was refused, he has to pay for his own costs and the costs of the acquiring authority. That is what I meant to say, and the Attorney-General says that the reverse was the case under the Lands Clauses Act, and that that was not fair. I do not agree with the Attorney-General. The reverse ought also to be enacted—namely, that if the claimant receives morn than the acquiring authority has offered, then the acquiring authority ought to pay not only their own costs but the costs of the claimant. The Attorney-General says that is so under the Bill. Am I not right?
§ Sir G. HEWART
What I was referring to was a correlative provision in the case where the claimant says he is willing to accept a certain sum and the authority does not pay that sum, and then the claimant gets that or more. If the right hon. Baronet will be good enough to look at Sub-section (3) he will see what the correlative provision is to which I refer.
§ Sir F. BANBURY
I say that it is not correlative in any kind of way. The correlative proposal is that where an authority has made an offer and the valuer awards a larger sum than that offer, then the authority should pay their own costs and the costs of the claimant. That would be the correlative position, but that is not what is laid down in Sub-section (3), which is a totally different thing. Subsection (3) deals with a claimant who has made an unconditional offer in writing to accept any sum as compensation. I do 416 not know that I quite understand what that means. Does it mean that where, say, I am a claimant, and I have said to the Corporation of the City of London, for instance, "I will take any sum you like to give me,'' without making any statement as to the amount—
§ Sir F. BANBURY
It may not mean that, but the words are these:Where a claimant has made an unconditional offer in writing to accept any sum as compensation.
§ Sir F. BANBURY
It docs not say so. I only wish Acts of Parliament would be made a little bit clearer, so that everyone would understand them, and then possibly there would not be so many cases go to law. I understand, then, that it means any sum specified. That does not meet the point either, because it says:Where a claimant has made an unconditional offer in writing to accept any sum as compensation and has complied with the provisions of the last preceding Sub-section, and the sum awarded is equal to or exceeds that sum,then, under those circumstances alone, the authority shall pay their own costs, and the costs of the claimant. My point is that where there is a dispute the same treatment should be meted out to both parties. That is to say, where an offer has been made by the authority of, say, £1,000, and £l,200 is awarded, then, under those circumstances, the authority ought to pay their own costs and the costs of the claimant. As the Bill stands, that is not so; but if, where an offer of £l,000 has been made, and the sum awarded is £800, then the seller has to pay not only his own costs but the costs of the authority. That is what is in the Bill. I say it is grossly unfair to inflict on one party an obligation which you do not inflict on the other under exactly similar circumstances. Therefore if the Attorney-General wishes, as he says he does, that the procedure shall be correlative, he is bound to accept either this Amendment or the Amendment of my hon. and learned Friend which comes on later. It is really a very important point, because, after all, we must remember that we are dealing with property which is very hard to acquire in these days, and ought not to be lightly taken away. We hear a great deal about local authorities not being injured, 417 but we have also the right to see that the individual is not injured. The local authority has behind it the purse of the ratepayers, whereas the individual has only his own purse. I hope the Attorney-General, who I know wishes to be fair, will reconsider this matter.
§ Sir G. HEWART
I seem to have failed to make my meaning clear to the right hon. Baronet, and, therefore, if I may, I will add just one word. The correlatives of which I was speaking are these. Certain matters are left to the discretion of the official valuer. Certain other matters have imperative orders. The imperative orders are given in two cases. One is where any authority has made an offer, which is not accepted, and, in the result, no more than that sum is awarded. The costs from the time of that offer, the Bill provides, shall be paid by the claimant. The correlative is where the claimant has said, "I will take such and such a sum," and the authority does not pay it, and in the result that sum is awarded. In that case the fault is the fault of the acquiring authority, and there is the direction that the acquiring authority shall bear the costs. Outside these two cases, there is a considerable margin of doubt and difficulty. The excess may be very small There may be particular circumstances, and so where a case does not fall within one of those two categories, the Bill leaves the costs at the discretion, of the official valuer. How can the right hon. Baronet complain about that? Does he trust the official valuer? His proposal is to leave everything to the official valuer. If that is so, he cannot blame us for leaving these more difficult and debatable matters to the discretion of the official valuer, while you make it plain in the two classes of cases, one upon one side, and one upon the other, that the official valuer shall do a certain thing.
§ Mr. L. SCOTT
The point is one of considerable importance, because there is no doubt that, by wise provision with regard to costs, the expense of the acquisition of land may be greatly cut down. My Committee considered very strongly indeed that, under the present system, one of the greatest abuses has arisen from the fact that, unless the authority made an offer which was greater than the amount awarded, the authority had to pay the whole costs, and that when it did make an offer greater than the amount awarded 418 it still had to pay its own costs. That is, undoubtedly, one of the chief causes of the expense of the system. The view we took was a strong one; that you ought to have a very good tribunal and then give complete discretion to that tribunal under general rules, indicating to the tribunal that they should see that each party acted really reasonably. The essence of these matters is that the parties should try to come to an agreement. That is what is wanted. Nothing will save cost and expense more than the parties coming to an agreement as to what is a fair price to be paid. Therefore what the arbitrator ought to do is to consider the conduct of the parties and to see whether one or other of them has really forced the matter into Court. That party ought to pay the costs. I recognise that by Sub-section (1) of this Clause the Government have endeavoured to state what really obviously should be the leading principle in the exercise of the discretion. Whether it is a left discretion or whether it is made mandatory is a minor question. It does not seem to me, however, that they have acted quite fairly by the claimant in Sub-section (3). For this reason: the claimant is—rightly pursuant to the suggestion of my Committee—called upon to give full particulars of his claim, showing the basis of the claim, and giving the details of the valuation upon which the claim is based. In doing that, therefore, the claimant is forced to put before the authority, not a sort of fantastic fighting figure such as is put before the authorities to-day, but a figure based upon the valuation of those who have advised him. That ought to be a genuine figure. Sub-suction (3) seems to me to involve the tacit assumption that the figure stated the claim is not a genuine figure but figure put forward for fighting purposes. Why do I say that? Because Sub section (3) says:Where a claimant has made an unconditional offer—which, ex hypothesi, will be less than the amount of his claim—because he has already put that forward—and then he gets that figure or a larger figure he is to have his costs. But—save as aforesaidit goes on in Sub-section (4), "the arbitrator is to have a discretion."
§ Mr. SCOTT
The Attorney-General says, "Why should it not be the same figure as that put forward in his claim?" Well, then, it means that there is to be a rule on the one hand that the authority may make an offer not disclosed to the arbitrator at all, and on the other hand, there is the claim of the claimant put before the arbitrator, and if the arbitrator knocks off one penny of that claim the claimant is to lose his costs. That is not reasonable. That is not justice. That is not the object of the proceedings. The burden upon the arbitrator in having to give costs in a certain way would, in my submission, deflect his judgment consciously or unconsciously. He would say, "It is not fair that because I think this claim is exaggerated by a few pounds"—it may be £50 or £100—"that I, by putting the award at the true figure, thereby deprive the claimant of his costs." This is to load the dice against te claimant in an unfair way. I for one—and I know my Committee took the same view—were most anxious to prevent the abuses which have arisen from claims being unreasonable, and in some cases almost blackmail upon the authorities. People made a public authority pay an undue claim because the authority, knowing the cost of arbitration, was willing to pay a substantial sum extra by agreement in order to avoid the cost and trouble of arbitration. That has been done undoubtedly in some cases. We want to stop that. But it is most important, whilst doing all we can to prevent improper claims—to prevent inflated claims, to prevent unreasonable conduct, and to make men reasonable in, so to speak, taking less than they think they arc properly entitled to—on the other hand not to treat them unjustly. Therefore, I do very much urge upon the Government that, as they have made up their minds that they cannot leave the official valuer complete discretion—and I recognise strong arguments both ways on that point—as they cannot do that, that they should make the thing really correlative, and say that the alternative should be that if no offer is made or if an offer is made and more than the amount of the offer is awarded the discretion of the tribunal -should be left absolutely unhampered. My own feeling would be that it is better to say simply that the general rule should be Subsection (1):Less than the offer by the authority the claimant pays the costs, no offer or more than the offer by the authority, the authority pays the costs,420 leaving it subject to the overriding discretion of the tribunal to deal with exceptional cases, because exceptional cases do arise in practice. I very strongly urge upon the Government to take that line, because giving that measure of discretion—a very minor measure of discretion—within the lines of the general rules laid down, whilst strengthening the tribunal, should really achieve the object for which we set out—justice to all the parties.
The Amendment before the House formed the subject of very considerable debate in Committee upstairs. That Debate does not appear in the Bill in its amended form, but so far as my recollection is concerned, unassisted by an official report, my impression is that on the whole what is in the Bill was accepted as being a reasonable position. What is the position? It is that for the last seventy years or more, under the Lands Clauses Act, public authorities have been entirely in a one-sided position. If they have made any error they have had the brunt of it. So far as one remembers, or sees, there is not any great objection taken to that on the part of the people who dispose of land to the public authorities. The Attorney-General said, when this Bill was before the Committee upstairs, the original proposal was to put public authorities into the same position under this Bill as has been the case for the last seventy years under the Land Clauses Act. Upstairs it was pointed out that there was some unfairness in that, and to meet it the Attorney-General came forward with what is now Sub-section (3). As the Bill stands, so far as a layman can understand it, it does seem that the two parties are exactly in the same position. If the local authority makes an offer for less than the amount awarded, then the local authority has to bear the whole of the cost. If the claimant makes an offer, and the sum awarded is equal to or exceeds that sum, then the acquiring authority bears the cost.
§ Sir F. BANBURY
May I interrupt the hon. and gallant Gentleman. I think he misunderstands it. It is not that the local authority makes the offer for less than the sum awarded; it is that the person who is the seller makes an offer and gets more for it.
That is putting it conversely. Sub-section (1) says:(1) Where the acquiring authority has made an unconditional offer … and the sum awarded 421 by an official valuer to that claimant does not exceed the sum offered, the official valuer shall order the claimant to bear his own costs and to pay the costs of the acquiring authority,in that case the acquiring authority gets the benefit. In Sub-section (3) it states:Where a claimant has made an unconditional offer in writing to accept any sum as compensation…and the sum awarded is equal to or exceeds that sum, the official valuer shall order the acquiring authority to bear their own costs.
§ Sir F. BANBURY
That is just what I said, but the hon. and gallant Gentleman did not put the matter quite rightly.
Well, it is between the right hon. Baronet and myself. The point is that, as I understand the Amendment, the whole matter is to be left to the discretion of the official valuer.
But if that is done, while perfect jsutice and perfect fairness might be done, there is removed the very purpose for which these two Clauses have been introduced. That purpose is to avoid litigation; to make the local authority consider carefully, and also the claimant, the cost of litigation. That can only be secured if these two Clauses remain. If the Amendment desired by the hon. Member for East Grinstead is accepted, the whole of that disappears entirely. There is always the chance, and the very strong chance, that the sympathy of the official valuer may enable the claimant who has been unreasonable to escape the consequences. But the maintenance of these two Clauses does not rest so much upon the question of fairness. There is a rough-and-ready justice in them. So long, however, as they are in the Bill they will make both parties exceedingly careful how they enter into litigation, because in making any offer, if that offer is not justified by the evidence, they are likely to be penalised under this Clause. As one of the main objects of this Bill is to secure quick procedure and to avoid litigation, this object can only be secured if we adhere to the Clauses as they stand, and the Amendment is not accepted.
My excuse for intervening in this Debate is that for many years before I had the honour of coming to this House I was occupied under the Treasury in the purchase of a very large number of properties which they were acquiring in London under several Bills, and they put 422 the whole matter into my hands. I have listened to this Debate. There are one or two matters with which I could not quite agree. I do not think people understand that nineteen out of every twenty cases which come forward are settled amicably, and never come into Court at all. It is only in the twentieth case that there is any fight. Consequently, everybody seems to imagine that the question of costs is such a very serious matter, and that it is the local authorities, or those exercising compulsory powers, who suffer m consequence. I then always had the Attorney-General or the Solicitor-General at my command for the purpose of carrying out these cases, and that was a very great weight in my favour. I found that many claimants, rather than face the prospects of the costs, accepted my figures because they did not wish to go into litigation. I think some of the points provided for in this Bill are quite good. As to Sub-section (2), that makes a provision which has always been very much wanted. With reference to the previous Amendment for the insertion of the words, "unless the official valuer otherwise orders," I do not think I can agree with that proposal. The second Amendment proposed by my hon. Friend the Member for East Grinstead (Mr. Cautley) is one which ought to be pressed by all the means in our power. The provision in Sub-section (3) is not really a fair one, and it is not equivalent to the scaled offer. The sealed offer was not always made use of by Law Officers when I had the honour of acting with them, and I know Sir Richard Webster, as he then was, very often refused to allow me to submit a sealed offer. He had his own reasons, and I think he was the most experienced man I ever had to do with in compensation cases, and I have no doubt that his reasons were good.
The sealed offer is only known to the purchasing authority. Under Sub-section (3) the offer must be communicated to the arbitrator. It must be a figure which has been made out in consequence of the notice to the claimant as to the lines on which the compensation is to be made out. Therefore, while the sealed offer is hidden from the arbitrator, the offer of the claimant is an open one, and would certainly be detrimental to his interests. Another point here is that only the costs of the claimant incurred after the offer was made are to be paid for. As a matter of fact this Clause is not at all equivalent to the 423 sealed offer, and would give a very unfair advantage to the purchasing authority. Naturally, for old associations' sake, I would like to be on the same side as the Attorney-General on this occasion, but I am sorry to say that if this matter is pressed to a Division I shall have to vote against him.
§ Mr. TOWNLEY
I am one of those who had not the advantage of hearing this matter threshed out in Committee, and I have not had an opportunity of reading what took place there. Consequently, those who, like myself, take a deep interest in this matter, come here with one hand tied behind us. The Attorney-General says that this going to arbitration is in the nature of a gamble. I think it is a gamble in which the Attorney-General would put the best three-card-trick player to shame, and it is a gamble which is largely on one side. We all wish to see the acquiring authority get the land at a reasonable and proper price, but these costs seem to me to be likely to fall heavily on the vendor, and I do not think he is going to be fairly treated. To show that my suggestion about a three-card trick is not altogether wide of the mark, I wish to call attention to the second paragraph of Sub-section (6), which is as follows:provided that if the amount of the costs so ordered to be paid by the claimant exceeds the amount of the compensation payable to him, the excess shall be recoverable from him by the acquiring authority summarily as a civil debt.On the one hand it is impossible for one of the claimants to get costs in excess of the amount awarded. That is to say, the acquiring authority will only get a certain amount of the costs, whereas the selling authority will be in quite a different position. I suggest that that makes it exceedingly hard upon the selling authority, and I sincerely hope that the Attorney-General may see his way to give more power to the arbitrators in this case, so that they may be able to award costs more fairly.
§ Major Earl WINTERTON
As one who was almost a continuous supporter of the Government on the Committee, I hope the House will not think that I am showing any lack of will towards the Government or the Attorney-General when I say that I am not satisfied with his explanation I agree with what has been said by the Member for one of the Divisions of Liverpool (Mr. Leslie Scott), whose autho- 424 rity cannot be disputed on this question. I am not satisfied that the Government are dealing fairly with the seller of land under this Sub-section. In dealing with this Amendment, the hon. Member for Newcastle (Major Barnes) said that for the last seventy years public authorities-requiring land had been treated in such a manner by the sellers as to leave a great sense of grievance. I agree that they have been very badly treated, but is that any reason for doing them an injustice under the present Bill? In these discussions we get hon. Members opposite constantly saying in effect that the landlords have always been blackguards in the past and therefore we ought to treat them as criminals in the future. Even if the first assertion is correct, and I do not believe it, is that any reason for giving an unnecessary bias to the acquiring authority in the future? This is an important point which should be carefully considered at this stage. There are far too many people in. this country and in this House who are inclined to do an injustice in order to repair another entirely different injustice which, has been done in the past.
§ Earl WINTERTON
Yes, done by some other person. That is not only an absolutely rotten form of argument, but it is also perpetuating the injustice that at present exists under the system we have of acquiring land by public authorities, and. it is perpetuating it by placing the burden upon the shoulders of another person. The-point I wish to put to the Attorney-General is that I am not at all satisfied that he has dealt with this matter fairly. The right hon. Gentleman said that under this sub-Clause the valuer is placed in two positions. There are certain matters which are left to his discretion on the one hand, and on the other hand, there are certain things-which are not left to his discretion. The case I wish to put is where the authority makes an offer and the claimant disputes it, and once his case is decided against the authority, as I understand it, he does not get his costs.
§ Sir G. HEWART
As the Bill stands that matter is in the discretion of the valuer and in practice the costs would follow. The complaint is that that particular matter is left to the discretion of the valuer, whereas the proposal made is, to leave all matters to the discretion of the valuer.
§ Earl WINTERTON
Is there not the other case under Sub-section (3), where a claimant has made an unconditional offer and there you do not leave to the valuer any discretion. Where the authority makes an offer and the claimant disputes it, and the costs are given against the authority, I think the claimant should be entitled to his costs. That is my point, and it is no answer to say that some cases are left to the discretion of the valuer and that now my hon. and learned Friend wishes to leave them all to the discretion of the valuer. What is sauce for the goose is sauce for the gander, and I do not think the Attorney-General has dealt with that point under the Bill. Therefore, unless the right hon. Gentleman is prepared to wave this point, I shall support my hon. and learned Friend.
May I ask the Attorney-General a question? In a case where the amount of the sealed offer is £10,000 and the claimant has agreed under Subsection (3), and made an offer to take £11,000, and the sum of £10,500 is awarded, who pays the costs?
§ Mr. A. SHAW
I intervene in order to try to answer the point which has been made by my Noble Friend (Earl Winter-ton). The answer is twofold. In the first place, he has already what he and his Friends have been contesting for, namely, the discretion of the valuer in cases not specifically covered.
§ Earl WINTERTON
May I state that I have not supported my hon. and learned Friend in a single Amendment which he moved in Committee upstairs.
§ Mr. SHAW
I agree that I ought to have employed a more careful expression, and I should have said the right hon. Gentleman has recently converted the Noble Lord. The first point is that the valuer has the discretion, and the second answer is that there can be no hardship in the position which the Noble Lord imagines, because the ease is covered by the provision in Sub-section (3). He can protect himself quite easily and safeguard his position with respect, to costs by taking the trouble to make a reasonable offer in writing to the acquiring authority. After all, we are not discussing any subsequent Amendment, but the Amendment to insert the words "unless the official valuer otherwise orders" at the beginning of the the Sub-section. What is the position? Speaker after speaker have admitted—I 426 think the right hon. Baronet the Member for the City of London (Sir F. Banbury) admitted—the essential justice of Subsection (1).
§ Sir F. BANBURY
Certainly, if the same justice is applied to all the parties. I do not hold that it is just to lay down rules for one party to the litigation, and then to say that the other party shall be left to the discretion of the official valuer.
§ Mr. SHAW
I am much obliged to the right hon. Baronet, but I do not think that he has added anything to what I have said. He admits the essential justice of Sub-section (1) so far as it covers its subject-matter, and he proposes in the forefront to insert these words. Justice, therefore, is to be done unless somebody otherwise orders. It seems to me that the Government have a perfectly irrefutable case, and I trust that the Attorney-General will not give way.
§ Mr. CAUTLEY
The hon. Member for Newcastle (Major Barnes) rather suggested that in the Standing Committee there was some sort of agreement. The very reverse was the case. My first Amendment, leaving absolute discretion to the official valuer, was defeated by only one vote. My next Amendment, to make what is sauce for the goose sauce also for the gander, and to provide, if the award were less than the offer, that the claimant should pay the costs of both parties, and, if the award were greater than the offer, that the acquiring authority should pay the costs of both parties, was again defeated by only one vote. The Committee was as equally divided on both of these propositions as it could be, and it is now left to the House to decide. I do not think sufficient attention has been paid to one fact. The only case in which for certain the claimant can ever get the costs of the proceedings, however extortionate or unreasonable the acquiring authority has been, is where the claimant offers to take less than his land is worth. Is that a business position in which to put any claimant? Knowing even the capabilities of the right hon. Gentleman the Attorney-General, I go so far as to say that it is a ridiculous proposition for a business House of Commons to say to a claimant, "You shall not for certain get the costs of these proceedings unless you offer to take for your property less than its fair value"
§ Mr. CAUTLEY
Let me read it—Where a claimant has made an unconditional offer in writing to accept any sum as compensation and has complied with the provisions of the last preceding Sub-section, and the sum awarded is equal to or exceeds that sum, the official valuer shall order the acquiring authority to bear their own costs and to pay the costs of the claimant incurred after the offer was made.He is forced into the arbitration, and he has to specify the exact sum or offer to take less. Unless he hits upon the exact sum which the tribunal has to decide or his offer is less than the amount, he can never be certain of getting his costs. That transgresses every rule of equity. He has to make his claim, and that is his offer. Unless he recovers the full amount of his claim, he can never obtain his costs.
§ Sir G. HEWART
The claimant is not deprived of his costs. In that case he has the benefit, which, if my hon. and learned Friend had his way, he would have in every case, of the discretion of the official valuer.
§ Mr. CAUTLEY
What would any judge say on reading this Clause if it is passed into law? He would say, "Here is an expressed provision that where the claimant has made an offer and the award is equal to or greater than the offer he is to have his costs." Does not that mean, and would not any arbitrator say, that if he has not made an offer or if the award is less than his offer he is not to have his costs in full?
§ Sir G. HEWART
I am sure that my hon. and learned Friend wishes to be fair. Sub-section (4) goes on to provide,Subject as aforesaid the costs of the arbitration under this Act shall be in the discretion of the official valuer who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and the official valuer may in any case disallow the cost of counsel.
§ Mr. CAUTLEY
That is what I am endeavouring to say. Where, in an Act of Parliament, you have an expressed provision that the costs are to go in one way, and in other cases you leave discretion to the arbitrator to deal with the question of costs, there is an implication that any 428 judge will invariably follow—that where the condition under which the claimant is to have his costs have not occurred, his discretion must be exercised in another way, and he must not give him full costs, though he may give him some and apportion them. In spite of what the right hon. and learned Gentleman has said, I say that is the view that any judge or official valuer would necessarily take. I maintain that I am right in saying that unless the conditions of Clause 3 are fulfilled and the claimant is put in this position he can never be certain of getting, and never would in practice get, his full costs. It has been suggested by the hon. and learned Member for Kilmarnock (Mr. Shaw) that the claimant could always safeguard himself by making an offer What is the offer that he has to make? It is that he will take less than the value of his property.
§ Mr. CAUTLEY
He must offer to take less or an equal amount of the value of his property. Is that a reasonable position in which to put anyone? The major issue that comes before the aribitrator is: What is the value of the property? So far as the costs are concerned, there is only one question, namely: Is the amount awarded less or greater than the offer made by the local authority? The arbitration only takes place if that offer is not acceptable to the claimant. If it is a fair value, then the claimant has forced the arbitration and has to pay the expenses. If the offer is not the value of the property, then the arbitration has been forced entirely by the acquiring authority and the whole of the expenses have been incurred by reason of them making an inadequate offer. Those are the two things, and what is sauce for the goose is sauce for the gander. The actual Amendment before the House only gives an overriding discretion to the official valuer to try the particular case. I said in introducing it that having laid down primâ facie rules, unless you give some discretion, they will lead to hardship, and if you make the rules as to costs too oppressive and too unfair, you will make the Court that you are setting up hated and detested by everyone who has to go to it, and your Act will fail.
§ Sir D. MACLEAN
I hope that the Government will stand by their opposition to this Amendment. Everyone knows that at a certain stage the question of costs has 429 a great deal to do with whether the litigation is to go on or whether there is to be an amicable settlement. This Clause is inserted to put a stop to it, and it will as it stands be an effective means of so doing. Many Members were not here when the Attorney-General made a clear and powerful exposition of the whole matter, and, as I thought, a perfectly unanswerable case.
Bearing in mind the evils which we seek to remedy hon. Members who have been unfortunate enough to engage in litigation will be able to understand what happens. It has been described as something of the nature of the three-card trick. That trick has been far too long played on the public in these matters. All that this Clause proposes to do is to give to the local authorities—to give the purchasing authority power to say, "Look here, we will make you an unconditional offer in writing." The offer goes in, and the object of this provision is to put a stop to those things which we all know are rampant in arbitrations. The Bill says, and the Government say, that this particular proposal will put a stop to these things. It will certainly largely mitigate the evils which we seek to remedy. If the seller thinks the local authority are not playing fairly with him, he has only to put in his unconditional offer, and, if the award exceeds that offer, it carries with it the penalty that the purchasing authority must pay all the claimant's costs. If the award does not reach that offer then he has to pay the penalty for making an unfair claim. I remember in Committee the attitude taken up by the Noble Lord the Member for Horsham, which induced an hon. Member to refer to him in somewhat severe terms.
§ Earl WINTERTON
I apologise for interrupting the hon. Gentleman, but I would not like it go forth that I was inconsistent in the attitude I took up in Committee. On that occasion the Attorney-General promised to make Amendments which he did subsequently bring in, but I think they do not provide for the cases I ventured to put forward.
§ Sir D. MACLEAN
This is an honest attempt to put down a scandal which has existed in these matters in the past, and I hope that the House will support the Government.
§ Amendment negatived.430
Amendment made: In Sub-section (1) after the words "authority" ["Costs of the acquiring authority"], insert the words
So far as such costs were."—[Sir G. Hewart.]
§ Mr. CAUTLEY
I beg to move, at the end of Sub-section (1), to insert the wordsbut if no such offer is made or if the sum so awarded exceeds the sum offered the official valuer shall order the acquiring authority to bear its own costs and to pay the costs of the claimant.There are two events that may happen. If the local authority makes no offer I venture to say it is clear that it ought to pay the costs of the inquiry which it has brought on by taking this land, and if they do make an offer and the amount of the award is higher then in that case also they ought to pay the costs.
§ Mr. SCOTT
I am prepared to second the Amendment, but I have first to ask a concession from the Mover, namely, that he shall omit from it the words "If no such offer is made or." Without those words, the Amendment provides us with the true correlative of what is already in Sub-section (1). If, however, my hon. and learned Friend is not prepared to drop those words, then perhaps I had better let somebody else second the Amendment.
§ Mr. CAUTLEY
The point is that if the authority makes no offer it forces the hearing, and in that case it certainly ought to pay the costs.
§ Mr. SCOTT
I agree that in some cases the arbitrator would take that view, but there are exceptional cases where it would be wiser, I think, to leave the point to the discretion of the tribunal. Under the circumstances perhaps somebody else had better second the Amendment as I do not quite approve of the, form of it.
I will second the Amendment. I think it very much better to have it provided in the Bill that the proposed purchaser shall make an offer, and if he does not then that he shall pay the whole of the costs. If no offer is made it can only be because the purchasing authority thinks it is going to make a better bargain if it does not put all its cards on the table, and if it does not state what it thinks the value of the property really is. In such a case if it goes into Court, it should do so entirely at its own cost, and not of that of the unhappy vendor, who ought to have his costs because he is compelled to incur them in spite of himself.
§ Sir G. HEWART
I do not propose to take up the time of the House by repeating what I have already said more than once. My observation on this Amendment is that there are cases which offer a proper field for the exercise of the discretion of the official valuer and I am sure that those who are responsible for this Amendment will agree. No doubt in ninety-nine cases out of a hundred where no offer has been made, or where the sum awarded exceeds the amount offered, the official valuer would order that the acquiring authority should pay the costs of the claimant, but in other cases there might very will be discretion used, and I am not going to deny to the valuer that discretion.
§ Earl WINTERTON
I would like to put this point to the House. Hon. Members should realise the position in which we stand by the refusal of the Government to accept this Amendment. As I understand it it is left in these cases to the discretion of the official valuer, but we think that that discretion should exist in all cases. The Government and the House refuse to accept that view. I should like to repeat a phrase which we have often heard in the course of this Debate, that "what is sauce for the goose is sauce for the gander" The Government, by refusing to accept the latter part of this Amendment are not dealing fairly as between the two parties. In practically similar cases costs are to be settled by the official valuer according to law. In this case, discretion is to be left to him. That does not seem to be fair dealing, and that is my reason for supporting the Amendment. With regard to what the Leader of the Liberal party said as to my action in Committee, may I say my endeavour there was to support the principles of right and justice as between the acquiring authority and the seller. I believe that the Government on the whole have endeavoured to carry out these principles and where it has done so I have supported it. But here is a particular case in which I do not think the principles are carried out and for that reason I shall support my hon. and learned Friend if he goes to a Division.
I can assure the Noble Lord, I should be delighted to be converted by him if I considered his arguments or adjectives sufficient for the purpose. He very kindly took some little interest recently in the state of my mind. He suggested that the arguments I had put for-ward were rotten. I do not know whether 432 that is a quite adequate description of them. If I had not been present in Committee, when he made his onslaught on the hon. Member for East Grinstead, I might have been discouraged. He was then described—
The Noble Lord apparently thinks it has nothing to do with the Amendment. He had used such terms as "fatten," and "batten," he has also spoken of my arguments as "rotten." These terms are not arguments. He has suggested that some of us have approached this question of the land with the idea that his ancestors were scoundrels and dishonest criminals. I can assure the Noble Lord that that is very far from being the view which I take on this matter. As far as my respect for any section of Members of this House exist, it exists in a very much larger degree for the Members of the land-owning group to which the Noble Lord belongs, and I may add, in view of the way in which the Noble Lord has come this afternoon to the support of the hon. Member for East Grinstead, it gives me some ground for hoping that at an early date he will rally to ray side with the same vigour and the same eloquence. With regard to the doctrine that what is sauce for the goose is sauce for the gander, I am in harmony with it, and so, too, I think is the Attorney-General, who has endeavoured to frame this Bill so that both the goose and the gander may get equal satisfaction.
If hon. Members will read Sub-sections (1) and (3), they will find they are in almost the same terms. There is exactly the same procedure for both the local authority and the claimant, and the result is exactly the same in both cases. If it was really desired that this advertising doctrine should apply, the Bill would have been framed so that it would have dealt with the claimant's position as well as the vendor's. Here is an Amendment put down with no idea of maintaining equal dealing between local authorities and the claimant; it is put down here in order to give the claimant an advantage which the local authority will not possess if the Bill is accepted. What happened in Committee? As the Bill was first introduced, the claimant, as the Attorney-General pointed out, had the protection of the law as it stood. I believe that in Committee the Attorney-General 433 expressed the opinion that it was not necessary to incorporate Sub-section (3) as it stands in the Bill, but he put it in to satisfy hon. Members who were taking objection to the Bill as it stood. Without that Sub-section the claimant would have had the protection of the Land Clauses Acts. However, that Sub-section was put in. As the Bill now stands there is perfectly equal treatment between both the local authority and the claimant. [HON. MEMBERS: "NO!"] There is no desire on my part, I can assure the Noble Lord and
§ those who think with him, or, I believe, in any part of the House, to weight the scales against either the local authority or the claimant. All that we desire is fair and equal dealing. We believe that is attained under the Bill. We do not think it will be attained if the Amendment is adopted, and we hope that the Attorney-General will adhere to his decision.
§ Question put, "That those words be there inserted in the Bill."
§ The House divided: Ayes, 38; Noes, 212.435
|Division No. 46.]||AYES.||[6.20 p.m.|
|Banbury, Rt. Hon. Sir F. G.||Hennessy, Major G.||Thomas, Sir R. (Wrexham, Denb.)|
|Benn, Com. Ian Hamilton (G'nwich)||Hunter, Gen. Sir A. (Lancaster)||Thomas-Stanford, Charles|
|Bennett, T. J.||Jackson, Lieut.-Col. Hon. F. S. (York)||Townley, Maximillian G.|
|Blake, Sir Francis Douglas||Marriott, John Arthur R.||Ward, Col. L. (Kingston-upon-Hull)|
|Boles, Lieut.-Col. D. F.||Murray, Major C. D. (Edinburgh, S.)||Wheler, Col. Granville C. H.|
|Bowles, Col. H. F.||Nicholson, W. (Petersfield)||Willoughby, Lt.-Col. Hon. Claud|
|Brassey, H. L. C.||Nield, Sir Herbert||Wilson, Capt. A. Stanley (Hold'ness)|
|Burdon, Col. Rowland||Ratcliffe, Henry Butler||Wilson, Col. M. (Richmond, Yorks.)|
|Burn, Colonel C. R. (Torquay)||Rawlinson, John Frederick Peel||Winterton, Major Earl|
|Coats, Sir Stuart||Roundell, Lieutenant-Colonel R. F.||Wood, Major S. Hill- (High Peak)|
|Colfox, Major W. P.||Scott, Leslie (Liverpool, Exchange)|
|Courthope, Major George Loyd||Shaw, Captain W. T. (Forfar)||TELLERS FOR THE AYES.—Mr.|
|FitzRoy, Capt. Hon. Edward A.||Sprot, Cot. Sir Alexander||Cautley and Mr. Horne.|
|Gretton, Col. John||Terrell, G. (Chippenham, wilts.)|
|Ainsworth, Capt. C.||Conway, Sir W. Martin||Hancock, John George|
|Archer-Shee, Lieut.-Col. Martin||Coote, Colin R, (Isle of Ely)||Haslam, Lewis|
|Arnold, Sydney||Cowan, Sir H. (Aberdeen and Kinc.)||Hayward, Major Evan|
|Bagley, Captain E. A.||Crooks, Rt. Hon. William||Henderson, Major V. L.|
|Baldwin, Stanley||Curzon, Commander Viscount||Hewart, Rt. Hon. Sir Gordon|
|Balfour, George (Hampstead)||Dalziel, Rt. Hon. Sir J. H. (Kirk'dy)||Hickman, Brig.-Gen. Thomas E.|
|Banner, Sir J. S. Harmood-||Davidson, Major-Gen. Sir John H.||Hoare, Lt.-Col. Sir Samuel J. G.|
|Barnes, Major H. (Newcastle, E.)||Davies, Alfred (Clitheroe)||Hogge, J. M.|
|Barnston, Major Harry||Davies, Sir D. S. (Denbigh)||Hohler, Gerald Fitzroy|
|Barrand, A. R.||Davies, T. (Cirencester)||Holmes, J. S.|
|Barton, Sir William (Oldham)||Dawes, J. A.||Hopkins, J. W. W.|
|Beckett, Hon. Gervase||Dewhurst, Lieut.-Com, H.||Hopkinson, Austin (Mossley)|
|Bell, Lieut.-Col. W. C. H. (Devizes)||Dockrell, Sir M.||Hopkinson, Dr. E. (Clayton)|
|Bigland, Alfred||Doyle, N. Grattan||Horne, Sir Robert (Hillhead)|
|Birchall, Major J. D.||Duncannon, Viscount||Houston, Robert Paterson|
|Biades, Sir George R.||Edge, Captain William||Hughes, Spencer Leigh|
|Blair, Major Reginald||Edwards, Major J. (Aberavon)||Hume-Williams, Sir Wm. Ellis|
|Bowerman, Right Hon. C. W.||Edwards, J. H. (Glam., Neath)||Hunter-Weston, Lieut.-Gen. Sir A. G.|
|Bowyer, Captain G. W. E.||Elliot, Capt. W. E. (Lanark)||Hurst, Major G. B.|
|Breese, Major C. E.||Entwistle, Major C. F.||Jephcott, A. R.|
|Briant, F.||Eyres-Monsell, Commander||Jesson, C.|
|Bridgeman, William Clive||Falcon, Captain M.||Jodrell, N. P.|
|Briggs, Harold||Falle, Major Sir Bertram Godfray||Johnstone, J.|
|Broad, Thomas Tucker||Fell, Sir Arthur||Jones, Sir Evan (Pembroke)|
|Bromfield, W.||Fisher, Rt. Hon. Herbert A. L.||Jones, G. W. H. (Stoke Newington)|
|Bruton, Sir J.||Foxcroft, Captain C.||Jones, J. Towyn (Carmarthen)|
|Buchanan, Lieut.-Col. A. L. H.||Fraser, Major Sir Keith||Joynson-Hicks, William|
|Buckley, Lt.-Col. A.||Galbraith, Samuel||Kellaway, Frederick George|
|Bull, Rt. Hon. Sir William James||Gardiner, J. (Perth)||Kenworthy, Lieut.-Commander|
|Butcher, Sir J. G.||Geddes, Rt. Hon. Sir A. C. (Basingstoke)||Law, A. J. (Rochdale)|
|Cairns, John||Gibbs, Colonel George Abraham||Lewis, Rt. Hon. J. H. (Univ. Wales)|
|Campbell, J. G. D.||Gilbert, James Daniel||Loseby, Captain C. E.|
|Carew, Charles R. S. (Tiverton)||Gilmour, Lieut.-Colonel John||Lowe, Sir F. W.|
|Carr, W. T.||Glanville, Harold James||Lowther, Major C. (Cumberland, N)|
|Carter, R. A. D. (Manchester)||Glyn, Major R.||Macdonald, Rt. Hon. J. M. (Stirling)|
|Casey, T. W.||Graham, W. (Edinburgh)||M'Laren, R. (Lanark, N.)|
|Cayzer, Major H. R.||Green, J. F. (Leicester)||Maclean, Rt. Hon. Sir D. (Midlothian)|
|Chamberlain, N. (Birm., Ladywood)||Greenwood, Col. Sir Hamar||Macleod, John Mackintosh|
|Chilcott, Lieut.-Com. H. W. S.||Greig, Colonel James William||M'Micking, Major Gilbert|
|Child, Brig.-Gen. Sir Hill||Griggs, Sir Peter||Malone, Col. C. L. (Leyton, E.)|
|Clay, Capt. H. H. Spender||Gritten, W. G. Howard||Malone, Major P. (Tottenham, S.)|
|Clough, R.||Guest, Maj. Hon O. (Leic, Loughboro')||Martin, A. E.|
|Clyde, James Avon||Gwynne, R. S.||Mason, Robert|
|Cobb, Sir Cyril||Hallwood, A.||Mildmay, Col. Rt. Hon. Francis B.|
|Colvin, Brigadier-General R. B.||Hamilton, Major C. G. C. (Altrincham)||Mitchell, William Lane-|
|Moore-Brabazon, Lieut.-Col. J. C. T.||Raw, Lieutenant-Colonel Dr. N.||Tickler, Thomas George|
|Moreing, Captain Algernon H.||Rees, Captain J. Tudor (Barnstaple)||Tryon, Major George Clement|
|Morrison, H. (Salisbury)||Remer, J. B.||Vickers, D.|
|Mosley, Oswald||Richardson, R. (Haughton)||Waddington, R.|
|Munro, Rt. Hon. Robert||Roberts, Sir S. (Sheffield, Ecclesall)||Walker, Col. William Hall|
|Murchison, C. K.||Rodger, A. K.||Wallace, J.|
|Murray, Dr. D. (Western Isles)||Rowlands, James||Walton, Sir Joseph (Barnsley)|
|Murray, Hon. G. (St. Rollox)||Rutherford, Sir W. W. (Edge Hill)||Ward-Jackson, Major C. L.|
|Murray, John (Leeds, W.)||Samuel, A. M. (Farnham, Surrey)||Wardle, George J.|
|Murray, William (Dumfries)||Samuels, Rt. Hon. A. W. (Dublin Univ.)||Waring, Major Walter|
|Nall, Major Joseph||Scott, A. M. (Glas., Bridgeton)||Warren, Sir Alfred H.|
|Neal, Arthur||Shaw, Hon. A. (Kilmarnock)||Waterson, A. E.|
|Newbould, A. E.||Shortt, Rt. Hon. E. (N'castle-on-T., W.)||White, Charles F. (Derby, W.)|
|Newman, Major J (Finchley, Mddx.)||Simm, Col. M. T.||White, Col. G, D. (Southport)|
|Newman, Sir R. H. S. D. (Exeter)||Smith, Capt. A. (Nelson and Colne)||Wild, Sir Ernest Edward|
|Oman, C. W. C.||Stanley, Colonel Hon. G. F. (Preston)||Williams, Lt.-Com. C. (Tavistock)|
|Palmer, Brig.-Gen. G. (Westbury)||Stephenson, Colonel H. K.||Williams, Lt.-Col. Sir R. (Banbury)|
|Parker, James||Stewart, Gershom||Wilson, Col. Leslie (Reading)|
|Parry, Major Thomas Henry||Strauss, Edward Anthony||Winfrey, Sir Richard|
|Perring, William George||Sugden, W. H.||Wood, Sir J. (Stalybridge and Hyde)|
|Philipps, Sir O. C. (Chester)||Surtees, Brig.-Gen. H. C.||Wood, Major Mackenzie (Aberdeen, C.)|
|Pinkham, Lieutenant-Colonel Charles||Swan, J. E. C.||Yate, Colonel Charles Edward|
|Pownall, Lieut.-Colonel Assheton||Sykes, Col Sir A. J. (Knutsford)||Younger, Sir George|
|Prescott, Major W. H.||Talbot, G. A. (Hemel Hempstead)|
|Pulley, Charles Thornton||Thomas, Brig-Gen. Sir O. (Anglesey)||TELLERS FOR THE NOES.—Col.|
|Raeburn, Sir William||Thomson, T. (Middlesbrough, W.)||Sanders and Mr. Pratt|
|Raper, A. Baldwin||Thorne, G. R. (Wolverhampton, E.)|
§ Mr. CAUTLEY
I beg to move, to leave out the wordsIf the official valuer is satisfied that a claimant has failed to deliver to the acquiring authority a notice in writing of the amount claimed by him giving sufficient particulars and in sufficient time to enable the acquiring authority to make a proper offer the foregoing provisions of this Section shall apply as if an unconditional offer had been made by the acquiring authority at the time when, in the opinion of the official valuer, sufficient particulars should have been furnished and the claimant had been awarded a sum not exceeding the amount of such offer.I move this in the hope that I may induce the Attorney-General to mitigate the very extreme penalty. The effect of the lines to be omitted is that if the particulars delivered by the claimant are insufficient he has to pay the whole costs of the proceedings, whatever the award, however unreasonable the acquiring authority may be, or however oppressive it may have been, and there is no power of mitigating the penalty. The last Clause having been passed, and the House having refused to give any discretion of any sort to the arbitrator except in the cases specified, and having laid down the Clause in a mandatory manner, he has no power except to Bay that the cost of the whole proceedings shall be incurred by the claimant, possibly because of the omission of some small detail either of his expert witness or his solicitor, which is an extremely onerous penalty. I appeal to the Attorney-General to insert some words to mitigate what may be a great injustice.
§ Sir G. HEWART
I am sure the House appreciates the purpose of this Clause. 436 Where grave difficulty is experienced in the way of acquiring authorities, it arises from the fact that they cannot get adequate particulars from the claimant, and it is therefore, in the view of those who are responsible for the Bill, essential that sufficient particulars in proper time should be delivered to enable the acquiring authority to make its unconditional offer in writing. If those particulars are not delivered, it is quite obvious that some penalty must be assigned for the non-delivery. What more appropriate penalty could there be than to say to the claimant, We must assume that that was done which the failure to deliver particulars has prevented. We must assume that an unconditional offer of a suitable kind has been made. The hon. and learned Gentleman said he proposes to secure some mitigation of the penalty, but he did not suggest what mitigated penalty would suffice.
§ Sir G. HEWART
The hon. Member alternates in the most baffling manner between moments when he reposes everything in the discretion of the arbitrator and moments when he will repose nothing. I should have thought the ideal penalty was that proposed by the Bill.
§ Amendment negatived.
Amendment made: In Sub-section (3), after the word "claimant" ["and to pay the costs of the claimant"], insert the words
so far as such costs were."—[Sir G. Hewart.]
§ Mr. SPEAKER
By virtue of the power which the Standing Orders confer upon me, I must exercise my privilege in this matter, and pass on. I must also ask the hon. Member to presume that he will not move his next Amendment—to leave out the words "subject as aforesaid."
§ Sir G. HEWART
I beg to move, in Sub-section (6), to leave out the wordsProvided that if the amount of the costs so ordered to be paid by the claimant exceeds the amount of the compensation payable to him, the excessand to insert instead thereof the words(7) Without prejudice to any other method of recovery, the amount of costs ordered to be paid by a claimant, or such part thereof as is not covered by such deduction as aforesaid.The alteration is one of form and not of substance. It would seem more appropriate to make this proposal in the form of a separate Sub-section than in the form of a proviso to Sub-section (6).
§ Amendment agreed to.