CLAUSE 6.—(Finality of Award and Statement of Special Cases.) (Hansard, 26 June 1919)

§ Sir F. BANBURY
I beg to move, in Sub-section (1), after the word "shall" ["but the official valuer may, and shall"] to insert the words upon reasonable and proper request made by one of the parties, or. I believe in every case, except in some small County Court cases under £2, there is an appeal to the High Court. Why should this be an exception? We are going to deal with vast amounts of property, and we are going to put in valuers, who may be excellent men but 438 who, after all, have not been trained in the Law Courts and have not had the experience the judges have had, and we are going to say there is not to be an appeal from their decision upon a reasonable case being shown by one of the parties. The Attorney-General, I think, will reply that he cannot accept the Amendment because his object is to diminish costs as much as possible.

§ Sir G. HEWART
indicated dissent.

§ Sir F. BANBURY
Perhaps the right hon. Gentleman is going to accept the Amendment?

§ Sir G. HEWART
I entertain an even bolder hope. It is to persuade the right hon. Baronet that his proposal is already in the Bill.

§ Sir F. BANBURY
I am very glad to learn that it is, but I cannot see it.

§ Sir G. HEWART
In Sub-section (l) of this Clause there is a two-fold condition for a statement of a case. First of all the official valuer may state, at any stage of the proceedings, in the form of a special case for the opinion of the High Court, any question of law arising in the course of the proceedings. So that whenever the official valuer thinks it is reasonable and proper to state a case he may state it. Secondly, supposing he does not think so, he shall, if the High Court so directs, state a case. Suppose we were to insert the right hon. Baronet's words and say "on reasonable and proper request," someone would have to decide whether the request was reasonable and proper. If the arbitrator is to decide it, that is already in the word "may." If he decides it wrongly it goes to the High Court. The Bill already so provides.

§ Mr. CAUTLEY
I beg to move, at the end of Sub-section (2), to insert the words except by leave of the High Court. The Clause provides that the decision of the valuer shall be final except on a question of law, when he can state a case which is to go to the High Court. Then there is to be no further appeal. I think there ought to be a right of further appeal if the Court before whom the case comes think there is a proper case for appeal. This Bill deals with cases that will involve very large sums of money, and it also deals with cases involving smaller sums of money, but still of vital importance to the 439 owner of the property that is being taken. I desire to give in such cases the constitutional right of every subject who is aggrieved to pursue the remedy which is given by our system of jurisprudence. It may be thought that the Courts of Appeal ought to be diminished, and there may be something in that, but so long as these Courts continue nobody ought to be deprived of his constitutional right to resort to those Courts. It seems a little absurd that a man who starts an action in the County Court over a small matter involving ten, twenty, or fifty pounds, may go from one Court to another by leave of the Courts right up to the House of Lords. We know what enormous advantages the right of appeal has been in the settlement of difficult questions of law which have arisen under various Acts passed by this House. I might mention the Workmen's Compensation Act. The whole policy and principle of that Act were laid down in a series of decisions by the House of Lords, which quite upset the previous decisions of the judges of the Lower Courts. Seeing that the cases that will come before the valuers will involve large sums of money, I submit that in every case of substance involving a question of law, which as a rule affects some broad principle, and not merely the particular case before the Court, it would be an advantage to have an authoritative decision by the higher Court. I limit the provision to the extent that there should only be this right to go to the Higher Court if the Court which has heard the case considers that the matter is one of such importance that the point of law ought to be decided by a higher tribunal. The proposal is a reasonable one, and a constitutional one, and ought to be accepted.

§ Sir J. BUTCHER
I think this Amendment ought to be accepted, because in these cases the appeal is to be made, not because the parties think proper, but because the Court thinks proper. Many cases come before the Court where there is a conflict of judicial opinion. The Court, perhaps, is undecided itself, and the disagreeable duty falls upon it of deciding which of the former decisions in dispute it right. In many cases it must be within the Attorney-General's knowledge that the Court is only too glad of the opportunity of getting the matter decided by a higher tribunal. I agree with the view which, I understand, animates those who originated this Bill—that there should be 440 no unnecessary cost. But inasmuch as under this Bill you will have land of enormous value transferred from one owner to someone else, and in many cases important questions of law will arise on which hundreds of thousands of pounds or less sums will be involved, it will be only reasonable that where the Court is satisfied that it is a matter which ought to be taken to the higher tribunal, the opinion of that higher tribunal should be taken. Otherwise, a question of law may arise and the Court may say, "Here is a conflict of opinion upon which I should like to have the guidance of a higher tribunal." But the Attorney-General says to the Court: "No; you shall not have the guidance of the higher Court. No one shall have that guidance. The matter must be left where it is." Perhaps in confusion. Inasmuch as this provision in the Amendment will not involve increased cost unnecessarily, and will not involve delay, but will, perhaps, facilitate the acquisition of land, I hope it will be accepted.

§ Sir G. HEWART
As a lawyer, if there is one thing more than another that appeals to me, besides the question of costs, which we have been discussing earlier this afternoon, it is the subject of appeals, which we are discussing now. I suppose, naturally, one would desire that there should be the greatest possible number of appeals and the greatest possible number of court, but the object of this Bill is to prevent expense and delay and to secure, in the words of the ancient maxim, a speedy end to litigation. A parallel has been suggested between the Workmen's Compensation Act and this Bill, but I am quite sure that my hon. and learned Friend (Mr. Cautley), who suggested that comparison, is well aware that under the Workmen's Compensation Act there is an immense variety and an immense complexity of legal problems. This Bill deals with one question and one question only. It deals with the ascertainment of compensation. The legal questions which are likely to arise in such matters are not comparable in point of number or in point of complexity to the other questions. As the Bill now stands, what is it that is open upon questions of law? The arbitrator may and in a proper case might cite a case for the opinion of the High Court. If that case is stated the arbitrator has the advantage of a decision which may be of one of His Majesty's judges or it 441 may be of more. That is as far as the appeal goes. It is now proposed that there should be a further right of appeal.

§ Sir J. BUTCHER
Not a right, only an appeal if the Court thinks proper.

§ Sir G. HEWART
A right of appeal by leave of the High Court. My hon. and learned Friends have experience in these matters, and I ask them to put themselves into the shoes of the learned judge who has been dealing with the question of law raised by a special case by the arbitrator either upon his own motion or because he has been so ordered by the High Court. As soon as it is found that there is a real question of law to consider and that there will be an appeal, is it to be expected that the learned judge would say no? The normal course, I think, would be for him to say, "Yes. If there is, as there is, a real question of law to consider, and as there is a desire to appeal, I shall be quite willing to have my opinion reviewed by another Court." That would be the natural disposition. Therefore, to say that there is not to be any further appeal, "except by leave of the High Court," is really to open the door to the Appeal Court. The words of this Amendment would go further. It would not be that there would be merely an appeal to the Court of Appeal by leave of the High Court, because if you go to the Court of Appeal and if you satisfy the Court of Appeal that there is a real question of law still to be considered, they would say, "By all means go to the House of Lords." It is that kind of multiplicity of procedure which the Clause, as it is framed, is designed to prevent, but if this Amendment, innocent as it looks upon the face of it, were accepted, the door would be open to that kind of continuous litigation of which we have had sad experience during the last few generations.