§ Again considered in Committee.
§ [Mr. ROBERT YOUNG in the Chair.]
§ Postponed Proceeding resumed on Clause 1.2355
§ The CHAIRMAN
The next Amendment stands in the name of the right hon. Member for Camborne (Mr. Leif Jones).
§ Mr. HOPE SIMPSON
On a point of Order. I understand that you rule this Amendment out of order on the ground that milk was excluded at the time of the Ways and Means Resolution. May I draw attention to the Ways and Means Resolution? It will be noted that it refers to three separate kinds of charge. In the first place, it refers to charges made for or in connection with the grant of licences or permits issued or purporting to be issued in pursuance of the said powers. The second kind of charge is one made in connection with the control of the supplies or of the prices of certain commodities. It is there that the words "other than milk" are included. The third kind of charge relates to charges for services rendered. This Amendment does not deal with the prices charged for milk, but it deals with the twopences that were charged by the Food Controller for licences to sell milk. It, therefore, comes under the first of the three conditions and not under the second. From that it would appear that the twopences in regard to milk are not ruled out of consideration on the Committee stage of the Bill, because they are not included in the second class of charge, but are in the first class of charge. At the end of the first Clause we did not have the words "other than milk." Therefore, I submit for your consideration that these twopences charged in regard to licences to sell milk, not being excluded under the Resolution, we are at liberty to move Amendments with regard to them.
§ The CHAIRMAN
I have considered this Amendment very carefully, and I have come to the conclusion that in the Ways and Means Committee it was determined that all reference to charges connected with milk whatsoever should be ruled out by the Money Resolution, and the Minister was instructed to bring in his Bill based on that Resolution. For that reason, I declare the Amendment to be out of Order.
§ Mr. SIMPSON
May I point out that it in the Bill as it stands, when you read it the Preamble, it is perfectly clear that the words "other than milk" only apply to those charges which are included in "B" in the Preamble. If you look at line 7 on the next page you will find that that is so. It has nothing to say to the charges for licences for the sale of milk which come under the first heading, and, therefore—[HON. MEMBERS: "Order!"]
§ The CHAIRMAN
I cannot accept the opinion of the hon. Member in relation to this matter. I am clearly of opinion that the decision of the House of Commons was that there should be nothing in this Bill in relation to the milk question, and nothing was to be validated in relation to milk charges.
§ The CHAIRMAN
I have given my ruling. The next Amendment, in the name of the hon. Member for the Stone Division of Staffordshire, which relates to milk, is out of Order for the same reason.
I beg to move, in page 2, line 38, to leave out paragraph (ii), and to insert instead thereof:(ii) where any such proceedings were instituted before the first day of September, nineteen hundred and twenty-two, any order made therein for the payment of costs to the person by whom the proceedings were instituted shall continue to have effect and shall be treated as being an order for payment of costs as between solicitor and own client, and where any proceedings so instituted are pending at the date of the passing of this Act, the person by whom the proceedings were instituted shall, unless the Court or a Judge of the Court or the tribunal dealing with the case thinks just to order otherwise, be entitled to an order directing payment of his costs of the proceedings as between solicitor and own client.This Amendment is to carry out the undertaking which I gave on the Second Reading of the Bill.
§ Sir H. NIELD
I do not propose to object to this Amendment, but I would like to call attention to what happened on the 5th May. The right hon. Gentleman the Member for Hendon (Sir P. Lloyd-Greame) said:I would make this plain here and now—and it would be satisfactory if we could have a firm assurance on it from the right hon. Gentleman—that in all cases where litigation has been begun and carried to any stage, whether it is before a single Judge in a 2357 Court, or whatever may be the expense, the Government should give a complete indemnity against all costs. I do not mean taxed costs, but that they will repay to every single claimant who has taken action the full costs incurred. If the right hon. Gentleman will give an undertaking of that kind, it will be easier to come to a decision when the Bill gets into Committee.Mr. WEBB: I can give, on behalf of the Government, the fullest possible undertaking on the lines he has indicated with regard to the costs."—[OFFICIAL REPORT, 5th May, 1924; col. 170, Vol. 173.]It is a denial of justice which this House should be slow to sanction that the word "instituted" should be put into this Amendment. The word means, technically, only those cases in which the authorities have been kind enough to permit a fiat to an action before September, 1922. I had to be away keeping an engagement, but I am told that the Attorney-General was pleased to be facetious at my expense. [HON. MEMBERS: "Oh!"] I do not care for the cries of that subordinate claque. I am here to assert my right as a Member of this House, and I will do so, notwithstanding any Minister on that Bench of a pretended Government—
§ Sir H. NIELD
I assert my right to say that an undertaking of that sort should not be cut down by a limitation of words which will shut out a great number of these persons, who legitimately tried their utmost to institute their cases by getting their petition of right sealed within the time mentioned in the Resolution. I beg the learned Attorney-General to give me, at any rate, credit for possessing a modicum of brain. I shall examine the OFFICIAL REPORT with some interest tomorrow morning, in view of his attack and suggestion that I had wholly misinterpreted and misunderstood the arguments I was putting forward. I do understand the difference between right and wrong. I do understand the limit which allows Litigants who are at the mercy of the Crown to institute their proceedings, because it is necessary they should have a fiat. I do understand the necessity to recognise their efforts as equivalent to having instituted proceedings. I protest, on behalf of persons who are absolutely apart from politics, and who endeavoured to get recognition of their rights long before the date mentioned in the Resolution. It is most unjust at this moment that the undertaking in regard to 2358 costs should be cut down to a comparatively few persons, and that those persons who, but for the indemnity, would have a perfectly just case for recovering their claims, should now be deprived even of their costs because of the technical meaning which attaches to the word "instituted." I am not going to move the Amendment, but I have felt it my duty to make this protest. I have been in this House 18 years and I have never known it do an act of injustice such as it is about to perpetrate now.
§ The ATTORNEY-GENERAL
Clearly, the right hon. Gentleman the Member for Ealing (Sir H. Nield), if he will excuse my saying so, is under a particular misapprehension. I certainly did not intend to be facetious at his expense, and, certainly, I did not endeavour to make any suggestion that he was not quite aware of what he was doing. I ventured to point out that he was really making an attack, not upon me, but upon my predecessor, the late Attorney-General. He suggested quite plainly that the late Attorney-General, having been asked on the 6th October, 1922, to grant a fiat, delayed doing it until the 17th January, 1924. What I ventured to point out is that the facts about that, as far as I know them, are that on the 6th October, 1922, my predecessor was asked about a fiat, and his answer was that, inasmuch as there were proceedings then pending before the War Compensation Court, he could not see his way to grant the fiat until either those proceedings were dealt with, or were abandoned and new proceedings instituted. In spite of that advice from my predecessor, he heard no word of any sort or kind from the persons who wanted the fiat till January, 1924. So far from delaying matters, all he did was to give a perfectly right and proper opinion, which was not acted upon, and, consequently, it was entirely the fault of the clients in question that the fiat was not granted till January, 1924.
§ Sir H. NIELD
Will the learned Attorney-General admit that in April, 1923, Lord Justice Scrutton, in delivering judgment in this very case, used severe words of the right to demand that the proceedings in the War Compensation Court should be made a petition for granting that fiat.
§ The ATTORNEY-GENERAL
It is not fair to suggest to me that I should ad- 2359 mit that a learned Judge used certain words, for I cannot recall what particular words were used by learned Judges on different occasions; but if the right hon. Gentleman says the Judge said it, I would certainly accept that from him. I am quite satisfied that if the learned Judge had been told what I have just told my right hon. Friend, he would have said it was entirely the fault of the person who was complaining that he did not make some communication to the Attorney-General between the 14th July, 1922, and January, 1924. If any person has been deprived of his right to get these costs by reason of some default of any Attorney-General in granting a fiat, that is to say, if the application for a fiat was made prior to 31st August, 1922, and the only reason why the proceedings were not started was the unwarranted delay of any Attorney-General, I shall certainly advise my right hon. Friend that that person should have the benefit of this Bill. I know of no such case, but if anyone will tell me of one, with the necessary evidence, I shall certainly take that course.
§ Sir P. LLOYD-GREAME
The only point before the Committee is that we all want to be sure that the words which are inserted in the Bill completely implement the undertaking. I am not lawyer enough to know whether the words, even as they stand, are sufficient to cause what the House wants. I am clear as to what I meant when I made my proposal. It was this: that whenever anyone had incurred legal expense of any sort in connection with his claim, he should have complete indemnification in respect of all his legal expenses, whatever they might be. It is a plain and simple procedure which the House wishes to adopt. It is for the lawyers in the House to satisfy us that we have the right words to make that certain.
§ The ATTORNEY-GENERAL
What these words are intended to mean, and do mean, is that the highest scale of costs will be paid to every person who did start proceedings against the Crown prior to 1st September, 1922. Under the Indemnity Act they would be entitled to nothing after that date.
§ Mr. JOWITT
I am sure that it was the intention of the right hon. and learned Gentleman, and the the intention of the 2360 President of the Board of Trade to see that people who brought their actions before this date should have a complete indemnity against costs. I suggest to the Attorney-General that he might, on the Report Stage, introduce some such words asshall be completely indemnified against all costs properly and reasonably incurred.
§ The ATTORNEY-GENERAL
We will consider it. May I say to the lawyers in the House that we all know the problem which always arises about indemnities for costs. An offer of solicitor and own client costs is one which I have never yet known to fail to be entirely satisfactory to the solicitor on the other side, who is always the most difficult person to satisfy. The difficulty about solicitor and own client costs is that there is taxation on the highest scale known to the law and if you have an indemnity then you have all sorts of unexpected agreements made between clients and solicitors under which exceptionally high costs have been agreed to in exceptional cases. I really think, however, solicitor and own client costs should be satisfactory.
§ Mr. LEIF JONES
I do not want to enter into a lawyer's quarrels about costs but I do not yet understand the point about the date. The right hon. Gentleman put his question explicitly to the President of the Board of Trade. In the Amendment the date 1st September, 1922, is inserted which bars certain claims. The Attorney-General says they are all barred by the Act of Indemnity, but on the last Amendment we were told the Act of Indemnity did not bar these claims.
§ The ATTORNEY-GENERAL
What I told the Committee on the last Amendment was this: I warned them they must not take it as established beyond question that the claims were barred. At the moment, the law is that they are barred but it is impossible to say definitely whether they are or not. There is a risk either way. As the law at present stands they are barred.
§ Mr. JONES
Then there is a doubt whether the claims are barred or not. How, then, can the Attorney-General fail to commiserate the fate of these people who put in claims too late—claims on which he himself admits there is reason- 2361 able doubt. It seems rather hard on these people if there is some doubt as to whether the claims are valid or not, that they should be barred out when we are passing legislation of this kind.
§ Sir P. LLOYD-GREAME
I am bound to say I think my hon. Friend who spoke last is right. It is a little difficult to follow this argument. What I understood I was proposing last time was that everybody who had brought any sort of action should have a complete indemnity against any costs. I understood the Attorney-General to say: "You need not indemnify people who brought actions after a certain date; they could not conceivably have won and had no claim." In the same breath the hon. and learned Gentleman warns the Committee that this is not finally settled and that had these claims been pursued to judgment from court to court, it is as like as not they would have succeeded. I do not think he should stand on both grounds. The fair thing to do is to accept his advice that it is by no means settled what is the final law on this matter and treat the action which has been begun as an action which might have been carried to final judgment in the highest court and every single person who brought an action ought to receive a complete indemnity. We ought to make a clean sweep, once and for all, of all this in the fairest possible way. The only fair thing to do is to take the whole of the claims, wherever they were lodged, at whatever time they were begun, and give a complete indemnity.
I am not inclined at this moment to take the responsibility of making such a universal affirmative as has been suggested. The proposal to indemnify people for costs can only have reference to suits which are in some way connected with subjects in this Bill. Then we must consider the date, because there may be some people beginning to put in claims now. Since this Bill has been in the House is surely notice enough. Quite frequently the operative Clauses of a Bill are dated back to the date of the introduction of the Bill. I am not prepared to say that any man who commenced an action yesterday should be entitled to be indemnified As far as I understand it, the terms of the proposed Clause as to costs are sweeping enough except on this one point of date, and the Attorney- 2362 General has already promised to consider, if they are not sweeping enough, what words can be put in. Now there is the question of date. I do not think we ought at this moment to consent to leave out the date altogether. I do not think it is reasonable. I think there must be a date, and I will undertake to have it considered between now and the Report Stage, with the intention of really compensating anyone who has taken proceedings which, so to speak, he had any moral right or justification to take, but I do not feel inclined at this moment to agree to pay law costs to anyone who has entered a suit against the Crown at any date whatsoever. I want to assure the Committee that I am prepared to agree to put in the necessary words to make the fullest possible indemnity to anyone whose right we are taking away by this Bill, and I am not quibbling about it. I will ask the House to leave it there, on the understanding that it will be reviewed before the Report stage.
§ Mr. HARNEY
I think we are getting into some confusion. I cannot see what the date has to do with it, or the various scales of costs. The position is surely this: Some years ago persons who admittedly then had legal, good claims against the Crown were entitled to assert these claims, and their assertions cost money. They had to go to a solicitor, the solicitor had to employ counsel, and so on, and while all this expense was being incurred, rightly, that stage had not been reached when the proceedings were instituted, because proceedings are instituted only after the Attorney-General has given his fiat, but long before he gives his fiat costs are incurred, and rightly incurred, in this case. I want to know what justification there can be for saying to A: "Mr. A, you have properly gone to a solicitor and incurred costs, but you have been fortunate enough to get the fiat of the Attorney-General before August, 1922. Therefore, you will be refunded all the expense that you have incurred in rightly asserting your claim; but, Mr. B, you had also a claim. You also went to your solicitor at the same time, and incurred the same kind of expense, but you have not been fortunate enough to get the fiat of the Attorney-General before August, 1922. Therefore, you will get none of these expenses." What has the question of whether the Attorney-General has or has 2363 not given his fiat to do with the rightfulness of A and B taking these proceedings?
I would like to appeal to the hon. Member. The point he is making has already been covered, and an undertaking has been given to include any person who failed to get the fiat of the Attorney-General in circumstances when he ought to have had it. If there has been any lapse at any time, that is made good.
§ Mr. HARNEY
That is no answer to me whatsoever. I am not concerned with a fiat or any excuse. What I am concerned with is this simple fact. Two persons, A and B, admittedly and rightly, run up a Bill with their solicitor. A happens to have got a fiat; B happens not to have got a fiat. That has nothing whatever to do with the original expenses they incurred. Then why fix this date of August, 1922? It is bad enough to say that claims that were legal rights convertible into money are wiped away retrospectively, but what you are doing now is to say, "We do not merely retrospectively wipe away property, but we retrospectively make wrong that which at the time it was done was quite right." Can any Member of this Committee deny that a person was justified in going to his solicitor and incurring costs when the law says that at that time he had a valid claim? Of course, no hon. Member can deny that. Why, then, are these people to be deprived of their expenses which they rightly incurred because the claim is wiped out? The answer given to the late President of the Board of Trade by the present President of the Board of Trade was quite right. The question put to him, as I understand the English language, was simply this: Will there be any difficulty in all those who have put forward claims against the Government being paid their costs? The answer was, "There will be no difficulty." We were told, indeed, that there was to be the greatest difficulty for those who came after a certain date and instituted proceedings: that those who were lucky enough to get the fiat of the Attorney-General before the date would be all right, and that those who were unlucky enough not to get the fiat would be deprived of their costs. The President of the Board of Trade makes this distinc- 2364 tion. He says: "Oh, well, there may be persons putting in claims now: are they to get their costs?" I say "Yes." I do not think the Committee ought to recognise these declarations. It is not the items that may be exposed here, but the Act that is the test. If claims made now are justified under the law persons ought not, in pursuing those claims, to be deprived of the expenses they are put to in pursuing what the law says they are entitled to pursue.
§ Sir COURTENAY MANSEL
The only complaint that I have to make against the promises made at the present time by the President of the Board of Trade to deal with this matter on the Report Stage is that he has not, in my judgment, carried out the very clear and explicit promise that he made on the Second Reading. This is of some importance, because I do not doubt that that very clear and explicit promise that he made must here influence votes on the Second Reading. I do not see with what consistency he can ask us to rely upon further promises on Report where he has not carried out his previous promises. I placed an Amendment on the Paper, to the best of my ability, in accordance with the terms of the promise of the President, and in order to carry out the intention of many now here. In a matter like this loss and even ruin may be inflicted upon persons who, however unworthy in the eyes of some hon. Members and supposed to be profiteers, and votes were given on the strength of the promise of the President. That promise decided the judgment of the House. Many hon. Members voted for what they considered an unconstitutional measure because it deprived persons who were supposed to have profited. That makes it all the more important that in a measure of this kind the point should be considered. I think the Bill is a thoroughly dangerous Bill and subversive of the ancient order of things; and it is important that at the opening of the new era and in relation to so important a measure, that a Minister of the Crown should observe his promise with scrupulousness. I earnestly appeal to the President of the Board of Trade in this matter. [An HON. MEMBER: "What was the promise?"] I am asked what the promise was. It is very clear here. 2365 The right hon. Gentleman the Member for Hendon (Sir P. Lloyd-Greame) said:I would make this plain here and now—and it would be satisfactory if we could have a firm assurance on it from the right hon. Gentleman—that in all cases where litigation has been begun and carried to any stage, whether it is before a single Judge in a Court, or whatever may be the expense, the Government should give a complete indemnity against all costs. I do not mean taxed costs, but that they will repay to every single claimant who has taken action the full costs incurred. If the right hon. Gentleman will give an undertaking of that kind, it will be easier to come to a decision when the Bill gets into Committee.And the President of the Board of Trade replied:I can give, on behalf of the Government, the fullest possible undertaking on the lines he has indicated with regard to costs.—[OFFICIAL REPORT, 5th May, 1924; col. 170, Vol. 173.]The President of the Board of Trade also suggested that some of the claims put forward at a later date might be of a trivial or fictitious nature. I am only asking for information, and I take it that the Attorney-General would not give his fiat to claims of such a nature as that. I take it that by giving his fiat he is satisfied that the case has some merit and is of a substantial character. I hope the President of the Board of Trade will adhere to the assurance which he has given to the House. There have been cases before where promises have been made, but not in such clear terms or so explicit, but they were assurances that these matters would be considered, and in deference to those promises actions have been dropped. In many cases no satisfaction has been given, but there has been no single case of so definite a character as this. I hope the right hon. Gentleman will stand by the promise which he has made to the House.
I will certainly stand by the promises I have given, but the hon. Member has misunderstood me. My promise is thatI can give, on behalf of the Government, the fullest possible undertaking on the lines he has indicated with regard to the costs.If the hon. Member will read the actual words used by the right hon. Gentleman (Sir P. Lloyd-Greame) he will find that those lines related to two things in particular, that is to say—that in all cases where litigation has been begun and carried to any stage, whether it is before a single Judge in a Court, or what- 2366 ever may be the expense, the Government should give a complete indemnity against all costs. I do not mean taxed costs, but that they will repay to every single claimant who has taken action the full costs incurred."—[OFFICIAL REPORT, 5th May, 1924; col. 170, Vol. 173.]Those are the lines indicated, and it was on those lines that I gave my assurance, and I will certainly carry that out. The further point which has been raised is the date up to which these actions should be indemnified. The Attorney-General has said, and I have also said the same thing, that between now and the Report stage we will consider whether that can be safely altered. We will consider that point in order that no injustice shall be done. I cannot, however, take the responsibility of saying that the Government will repay any costs without very careful consideration, and we must be careful to see that we are not letting in matters which the Committee would not wish us to let in.
§ Mr. NESBITT
I hope the Committee will agree to accept the statement made by the President of the Board of Trade. There is really no substantial difference between the views which have been put; it is merely a difference in language as between, what I may call, the common view of the Committee and the understanding of those who heard, as I did, the observations of the right hon. Gentleman the former President of the Board of Trade and of the present President. There are two points, and there is really no difficulty about them, after what has been said. The first is the question of the date. It would be quite wrong that any person at any time should be able to receive the indemnity to which the President of the Board of Trade has referred. He might have started his suit yesterday, when he knew perfectly well what was the undertaking and what was in the mind of the House on the occasion of the Second Reading. It seems to me quite plain that some date must be fixed, and I do not think it would be convenient—indeed, it would be dangerous—to fix a date to-night, without consultation with those in the Department of the Board of Trade and others who may have the facts relating to the particular cases which have to be considered. It is perfectly obvious that, as the Attorney-General has said, the intentions both of the right hon. Gentleman the Member for Hendon (Sir P. Lloyd-Greame) and of the 2367 President of the Board of Trade are identical in that respect.
The second question is in regard to costs. I notice that there is no means whatever of fixing the amount which is to be paid. It is defined in the Amendment as being solicitor-and-client costs, and that is to be altered to "solicitor and own client" costs; but even with this alteration there is great room for dispute, and I should like to call in the aid of those officials to whom I made reference last night in another connection, namely, the taxing masters. I should like to see-inserted, after "payment of costs," the technical words which are well known to those who have experience of these matters:—including payment of costs, charges and expenses as between solicitor and own client, to be taxed in case the parties differ.By "parties" I mean the Crown and the subject. If you have these words in, you will get a complete indemnity, but you will not be making the Government liable for any expenses which, perhaps, may be described as luxury expenses, such as might, for instance, be incurred by a client who wishes to obtain the services of the most expensive lawyers he can obtain, and has to pay the fees which those lawyers think they ought to be paid. Let the taxing master be the tribunal to decide what amount should be paid; let it be such an amount as the taxing master allows as being the costs, charges and expenses as between solicitor and own client in respect of claims for the making of which there was proper justification. I submit that suggestion for the consideration of the Attorney-General and of the President of the Board of Trade between now and the Report stage, when they are considering what precise words can be put in.
§ Sir C. MANSEL
I wish to insist on the modification I have proposed, on the ground that the words of the promise formerly given by the President of the Board of Trade are perfectly clear. He accepts the proposal of the right hon. Gentleman the Member for Hendon (Sir P. Lloyd-Greame) that in any case where litigation has been begun and carried to any stage—
§ Sir H. NIELD
I desire to make a suggestion. I think there is an infirmity in the Amendment as drawn, because it may be, and probably is, the fact that many cases are in the list for trial now. The Amendment reads:any order made therein for the payment of costs to the person by whom the proceedings were instituted.That, I think, would be interpreted as meaning an order made before the passing of this Act, but in many of these cases which are in the ordinary list waiting to come on there may be a subsequent application for costs. I think we ought to consider, between now and Report, some words which would enable a subsequent application for costs to be made in the middle of the proceedings in order to meet this point. I do think that the words should read "Where any proceedings were commenced before the — day of —". I think that would make the matter perfectly clear.
§ Question, "That the words proposed to be left out stand part of the Clause," put, and negatived.
§ Question proposed, "That the proposed words be there inserted."
§ Sir C. MANSEL
I beg to move, as an Amendment to the proposed Amendment, to leave out the wordsunless the Court or a Judge of the Court or the tribunal dealing with the case, thinks just to order otherwise.I have put down this Amendment because it seems to me that the Government are taking advantage of every legal point that is in favour of the Crown, and taking away from the subject all rights that the law gives. If they come to this House and wish to judge this question on grounds which do not depend upon law, it does not seem to me to be equitable that they should take advantage of every legal point. Let them leave the law on one side, and appeal to the mature judgment of this House. I hope the Government will see their way to say that petitioners who have been put to expense should be repaid their expenses. If the President of the Board of Trade, as I understand his remark, assents to 2369 my proposition, that all expenses should be repaid, I cannot see the necessity of introducing into this Clause the words "unless the Court or a Judge of the Court or the tribunal dealing with the case thinks just to order otherwise." The fact of these persons having taken proceedings, and being unable to test their rights, seems to me to entitle them to get their rights. We are asking for a bare measure of justice, and I hope the Government will not deal ungenerously with these people who almost for the first time in English history are deprived of their rights.
§ The ATTORNEY-GENERAL
I really think the President of the Board of Trade has met this matter by saying that this Clause is going to be re-drafted. But I do ask hon. Members to consider the effect of the words which the Amendment proposes to leave out. They are only put in in order to deal with a purely fraudulent or dishonest case which somebody may have started without any justification. There must be some protection in such cases, and those words do no harm to honest men.
§ Mr. NESBITT
I entirely agree with what the Attorney-General has said. I think we should be letting in claims started in the hope of getting something for which there was no justification. I hope when the President of the Board of Trade is considering the question of date he will not consider the omission of these words. No honest claim will be barred The Court will have to be thoroughly satisfied before it says a claimant will not be entitled to costs.
§ Amendment, to proposed Amendment negatived.
§ Clause, as amended, ordered to stand part of the Bill.
§ Clause 2 (Short Title) ordered to stand part of the Bill.