HC Deb 22 July 1938 vol 338 cc2623-43

12.48 p.m.

Mr. Silverman

I beg to move, in page 13, to leave out lines 5 to 11.

The purpose of this Amendment is to delete the proviso to the Clause. I said of the previous Amendment that we objected to it for the reason that even if we are dealing with this subject by a process of shreds and patches we might as well apply a whole patch. In this case the objection to the Clause with the proviso is that we get an invisible patch which leaves the gap exactly where it was. I often wish that it were possible—and in this instance I wish it more than ever—that those who decide these issues in the Division Lobbies could be limited to those who have heard and appreciated the arguments from both sides. I am told that the voting would be poor, but if it were poor in numbers, it would be good in quality, because those who then walked through the Division Lobbies would know not merely what they were voting for but why it was they voted.

Whatever may be the fate of this Amendment when we come to divide upon it, I submit that no case can be made against it either in logic or common sense. What the Clause purports to do is to extend the jurisdiction of the county court, but what I should like to convince the House of is that the Clause as it stands, including the proviso, limits the juirisdiction. Why is it that everyone who has concerned himself with the question feels that it is desirable to extend the jurisdiction of the county court? Because it is impossible under our judicial system for poor people to get access to the High Court at all. I say that with a full sense of responsibility. I know that there are the poor persons' committees and the poor persons' rules and that the advantage is taken of them, and that in such cases a measure of justice is achieved, but the poor persons' rules are strictly limited. In the first place, anyone with more than £2 a week is not entitled to a poor person's certificate at all.

Mr. Foot

Oh, yes, there is discretion.

Mr. Silverman

Even though it is true that the poor persons' committees have discretion to extend the limit the discretion goes no further than permitting them in suitable circumstances to grant a certificate to a poor person whose total income does not exceed £4 a week. I say that almost everyone agrees that that leaves a very wide margin of the poorer, though not perhaps the poorest, people in the community without any means of access to the High Court. If we make justice so expensive that it is beyond the means of the people, we deny justice to them. I do not need to repeat all the arguments directed to show that even where people have sufficient means to take their cases to the High Court they are deprived of adequate justice by reason of the congestion of the courts. Most people who have approached this problem, have approached it from the point of view that one method of relieving the congestion in the High Court and approaching the ideal of making justice available to everyone irrespective of his means is to extend the jurisdiction of the county court.

The Peel Commission recommended unanimously that the jurisdiction of the county court should be extended. It is true that they were careful to point out that under the extended jurisdiction there should be no compulsion upon people to go to the county court, they preserved the right of a person to go to the High Court if he chose. I am all in favour of that. It was not to be compulsory, but the jurisdiction was to be extended. In order to realise how the jurisdiction may be extended and how this Clause proposes to extend it, let us see what the position is without the Clause at all. The position without the Clause is that if you have a cause of action in a matter where the amount at issue is £100 or less you may begin it in the county court and drive it through that court without a "By-your-leave" to the court, the defendant or anyone else. Where actions are commenced in the High Court they may, in certain circumstances, be remitted to the county court and, by agreement between the parties, they may, whatever the amount at issue, be tried in the county court. In that case there is no limit.

The limit of £100 was fixed in 1903, when the value of money was approximately twice what it is now. Bearing all those things in mind, the Peel Commission recommended, without compulsion, that the jurisdiction of the county court should be extended from £100 to £200. Had the Clause been drafted without the proviso which we are now seeking to omit, that recommendation of the Peel Commission would have been satisfactory.

The Attorney-General

I know that the hon. Gentleman does not wish to mislead the House, and I would like to point out that the Peel Commission recommended that the jurisdiction of the county courts should not be extended.

Mr. Silverman

It is true that the Peel Commission thought that that jurisdiction should be extended not to £200 but to £300, but I have said already that they did not think that it ought to be compulsory. I have said that repeatedly, and I do not want to add to it by saying it again. The Government are proposing to extend the jurisdiction to £200, but the effect of their proviso is that that extension of jurisdiction becomes completely nugatory. You may commence your action in the county court, and all that the defendant has to do in order to stop the extended jurisdiction of the court is to say: "No, I will not have it." He need not give any reasons to satisfy the plaintiff, the court or anybody in the world, that his objection is founded on a just cause or upon any cause at all. He needs only to say: "I do not want it tried in the county court", and the action must then be sent by the court to the High Court. The extended jurisdiction has disappeared.

These matters are of vast importance. The administration of justice in this country ought not to take second place to anything. Here we have an opportunity of making a big step forward with the result that the courts would be available to everyone without distinction of means, but by the proviso the Government are not altering the position at all. They are proposing on the one hand to give something to a plaintiff who has a £200 claim, and to take it back immediately in their proviso, if the defendant chooses to say so. The only ground on which I have heard the proviso defended, in Committee, on Second Reading, or anywhere else, has been that you must not extend the jurisdiction of the county court too much, because it is the poor man's court, and ought to deal with small matters, and if you overload it you will prevent it from carrying out its functions of dealing with claims of £5, £10, or £20. If that is a sound contention, surely there should be a way more prudent and discreet of selecting the cases that shall be heard in the county court than by giving defendants the right to determine whether the county court's jurisdiction shall or shall not be extended.

How would the Government's proposal work? A poor man may have just sufficient means to bring his case in the county court, but not sufficient to bring it in the High Court. He commences his action in the county court. His wealthy and powerful defendant, knowing that his opponent would not have the means to pursue him in the High Court, and knowing also that his own case is poor, or for other reasons not wishing it to be tried, can take the step of entering his objection. By so doing he secures not merely that the case is remitted to the High Court, which is the formal consequence, but the practical consequence of depriving the plaintiff of the right of having the action heard at all. If you compel the plaintiff to go from a court in which he can afford the proceedings to a court where he cannot, you deprive him of the right to pursue his claim. That would be the effect of the proviso.

I hope that the House will consider this matter with a full sense of responsibility. The administration of justice ought not to be a matter of party politics. I know no one on any side in politics who desires to maintain the position that a man's right to be heard in the courts shall be according to his means. The whole purpose of extending the jurisdiction of the county court is to make that distinction less true than it was. We want our administration of justice more universal and more accessible to all but if we leave the proviso as it stands and give a defendant the right to object without submitting his reasons to anyone we deprive the great mass of the people who ought to have free access to the courts of any access to the courts at all.

There was an Amendment in the Schedule which proposed to leave out two words that are to be found in Magna Charta because a vast amount of legislation culminating in the present Bill had made those two words unnecessary; but it was felt on all sides in the Committee that it was better not to touch Magna Charta and better to leave the two words in, for the sake of preserving tradition, even though the words had become meaningless. I am asking the House to preserve not the letter but the spirit of Magna Charta, one aspect of which was that the law should be equally available to all. If you leave this proviso in, you aggravate the present position whereby a man's right to have his case defended in the courts is dependent, not solely on the justice of his case, but upon the depth of his pocket.

1.4 p.m.

Mr. Lyons

I beg to second the Amendment.

I do so in the temporary absence of my hon. and learned Friend the Member for Montgomery (Mr. C. Davies). This matter is highly controversial. The Peel Commission made no recommendation for extending the jurisdiction of the county court, but the extension conceived by the Bill is taken away by the proviso which the Amendment seeks to leave out. I would remind the House that the county court judges have to deal with workmen's compensation cases, and I know of nothing more difficult than the decision, which the county court judge is the peculiarly chosen instrument for making, whether a man is a workman, whether what is before the court amounts to an accident, and, if so, whether it arises out of or in the course of the employment. These issues have been entrusted by this House to the county court judge as a fit tribunal to try them, and I cannot accept the view that the learned judge who tries these important issues should not try issues which are more simple.

I do not accept the proposition stated just now that the High Court is not accessible to poor people. I hope it is not right, and I think it is not right. But we all know that there is a big congestion of work in the High Court, and one of the ways in which that congestion can be eased and justice made more ready and accessible would seem to be by an extension of the jurisdiction of the county court judge. Some of the cases that are clogging up the lists in the High Court are what are known as running-down cases—claims for damages arising out of the driving of motor cars and so on—and a great deal of the work which comes into the county courts to-day also consists of claims of a running down character. I fail to see how it can be said to any court that, while it is fit to try issues involving a claim for£90 for personal injuries resulting from negligent driving of a motor car, it is not fit to try such an issue if the claim is for £150. The issues are precisely the same whether the action is for £75 or £175.

The Bill proposes, on the one hand, to give to the county court an extended jurisdiction up to £200, but, on the other hand, to give the defendant the right to take it away. I do not like this jurisdiction only by consent of the defendant. I should have thought that, if the right were to be given to anyone to say whether the jurisdiction should be kept in the county court or not it should be given to the county court judge. The object of the Amendment is that nobody shall be given the right to say that a case in which the amount claimed exceeds £100 shall be taken out of the county court and transferred to another court which is more inaccessible and where the procedure is more lengthy. There are county courts established all over the country, giving cheap and ready access to a system of justice in which people have confidence, and which is a uniform system, not differing from one place to another. In 1903 the limit of jurisdiction of the county courts, which before that time had been £50, was fixed at £100, and I venture to think that now, in 1938, this House should reconsider the matter and say that what was good enough in 1903 is not necessarily good enough in 1938 as the limit of the jurisdiction of the county court judge. In courts possessing Admiralty jurisdiction the limit is, I believe, £500, and in bankruptcy matters it is a good deal higher, although these matters may give the county court judges very difficult questions to decide.

Injustice might arise if the defendant is given the right to say, without assigning any reason and without satisfying the judge on the matter. "I object to this trial." That means that he will get a far longer time to put forward defences which may not eventually be found tenable, and time, probably, to perpetrate some kind of injustice on the man who has brought his claim in the county court in the first instance. I welcome the proposed extension of the jurisdiction of the county court judge; I think it is a good step for the administration of justice throughout the country; but I hope that those responsible for the Measure will accept the Amendment, and, while accepting the £200 jurisdiction, will agree that the defendant shall not have the right, by a mere statement of objection, to oust the jurisdiction of the county court judge.

1.12 p.m.

Mr. Foot

On this occasion I hope that the Government will not accept the Amendment. It seems to be assumed, by those who want a compulsory increase in the jurisdiction of the county courts, that if the Bill goes through in its present form that provision is going to be a dead letter. I certainly do not take that view. I think it will be found that a considerably larger number of actions will be started in the county court if the Bill goes through in its present form. It frequently happens nowadays that a plaintiff brings an action in the High Court, and, after he has issued his writ, or after he has issued his statement of claim, the defendant applies for the action to be remitted to the county court on the ground that the plaintiff has not sufficient visible means to meet his costs if his action should fail. That happens almost every day, and I think it would be found that quite a number of defendants, particularly if they were insurance companies, as they always are nowadays in running-down cases, would hesitate to drag a plaintiff into the High Court when he himself had elected to go to the county court.

Although this proviso will not achieve everything that the Mover and Seconder of the Amendment had in mind, I think it will result in a substantially larger number of cases being tried in the county court, but if the Amendment were carried it seems to me that certain objections would arise. Reference has been made to the congestion in the High Court. None of us would deny that congestion, which, indeed, was the subject of an animated debate in the House only a few nights ago, but it does not seem to be sufficiently realised that there is also a problem of congestion in the county courts. Those of us who occasionally go into the county courts in the Metropolitan area are frequently made aware of this. It often happens when a case is in the list in the county court, and counsel, solicitors, litigants and witnesses are all there, they spend more than half the day there, and it then becomes apparent that their case will not even be reached. They have to go away, not until the next day, but, it may be, for several weeks. It is also a common experience that, when a case has been started, say after the midday adjournment, it is a long case and it is impossible to finish it. Then there is an adjournment, again not until the next day, but until a date three or four weeks later. I think everyone will agree that that is a most unsatisfactory way of treating any case. It is impossible for the judge to retain clearly in his mind the impression he has formed at the first sitting when he comes to give his judgment on the second day three or four weeks later. That is a position which very often arises when cases of any length and complexity come to be tried in the county court.

Of course, if these larger claims are to be brought before the county court, they will for the most part take rather longer to try than the smaller claims with which the county courts habitually deal. As matters stand, the Amendment, if carried, will not effect any reorganisation of county court business. If it were proposed that there should be some reorganisation, entirely different considerations would arise. We are proposing to put this additional burden on the county court system as it now exists. What is the position? A litigant in one of these cases has the choice, if the Bill passes in its present form, if he has a claim of less than £200. Either he can go to the assizes, in which case his action will be tried and finished during the duration of the assize—

Mr. Lyons

It may not be reached.

Mr. Foot

That is so. But if the action is reached at all it will be disposed of before the end of the assize. If it is not finished on one day it will be resumed on the next day. But if he goes to the county court he is likely to find himself in the difficulty I have mentioned, that he will have this very long adjournment. I hope that at some time in the near future we shall have an inquiry into the despatch of business in the county courts, and that we shall overhaul the whole system of county court circuits. But we have not reached that position yet, and, therefore, we should be in this difficulty. The hon. Gentleman who moved the Amendment said that the difficulty arises when a man has to take his action in the High Court and cannot afford it—that justice is denied him because he cannot afford it. That is a problem, of course, that is constantly arising; and we shall not get rid of it even if this Amendment be passed. I should certainly support the hon. Member if he were to propose at any time that we should have a searching inquiry into the delay and the expense of litigation. I hope that that matter will be fully inquired into before long on the lines of which the hon. Member for Oxford University (Mr. A. Herbert) and others have spoken and that we shall, before many years have passed, be able to bring about a substantial reduction in the expense of proceedings. But it seems to me that this Amendment is only a second best, and that if it were carried, as things are now in the county courts, it would create more difficulties than it would solve.

1.18 p.m.

Mr. Morgan

I apologise for intervening at this stage, because I know the House wants to get on with other business; but I understand that the Amendment to which I have put my name—in page 13, line 11, at the end, insert:— Provided also that if the action is in respect of loss or damage caused by mining subsidence to a dwelling-house of which the rateable value does not exceed forty pounds the judge may, if he thinks fit, having regard to the relative means of the parties and irrespective of the amount claimed, order that the action shall not be transferred to the High Court.— which was to be moved by the hon. Member for Kingswinford (Mr. A. Henderson) is not likely to be called. Therefore, I shall have to content myself with supporting the Amendment which has been moved by the hon. Member for Nelson and Colne (Mr. Silverman). It would, perhaps, be misleading to speak of any form of court as being popular, but the people do think that in the county courts they are able to obtain justice quickly, and within the reach of their pockets. I could give a number of typical cases brought into the county courts which, I think, would have appealed to the Attorney-General and the Government. Take, as an illustration, a workman's compensation case. A man applies for £500 damages. He cannot go on with that if the other side object.

Mr. Foot

But that is a case which must be brought in the county court in any case.

Mr. Morgan

Then suppose it is the case of a miner's cottage which has been wrecked by subsidence. The man wishes to take it to the county court. It may cost many hundreds of pounds to prepare his case. Is it proposed to take him to the High Court if the county court is competent to deal with the case? It may be that an unfeeling, rich employer or colliery owner may say "I will give him a run for his money," and that the man may not, in that event, be able to fight the case because of the limitation of his own pocket. But if a county court Judge could take the case, there should be no need for him to go to the High Court. It is only a matter of technicalities, of hearing evidence from experts, and the county court Judge is easily able to reach a decision on it. I cannot see why it should be considered that there is anything in the atmosphere of the county court which makes it possible for them to try a case involving £100, and not to deal with a case involving £200. That is the sort of thing that puzzles me—I speak as a layman—and I hope the Attorney-General will give some solid reasons for refusing this Amendment.

1.22 p.m.

The Attorney-General

We have had four speeches on this Amendment—three in favour and one against. I advise the House not to accept the Amendment, largely for those reasons given by the hon. Member for Dundee (Mr Foot). The hon. Member for Nelson and Colne (Mr. Silverman) started by saying that there was no case in reason, logic or common sense for the proposal in the Bill, and my hon. Friend who has just spoken said that he cannot understand it. The hon. Gentleman, perhaps, was carried away by that eloquence which we all enjoy, because, after all, the proposal in the Bill differs from that of the Commission only by the difference between £200 and £300, which is not very great. Apart from that, the proposal in the Bill is the proposal of the Peel Commission which very carefully considered the matter in all its aspects. They recommended that the jurisdiction—and there one means compulsory jurisdiction—of county courts should not be extended. In order to facilitate the bringing of cases before the county court by consent, however, the plaintiff should be allowed to initiate proceedings in the county court in cases of a type now within the jurisdiction of that court where the sums involved are not less than £100 and not more than £300, with an absolute right in the defendant to transfer to the High Court. The Peel Commission deal with the matter in considerable detail in paragraphs 188 to 205 of their report. I do not propose to go over those considerations in detail, but I would commend them to hon. Members who feel that there is some lack of reason or common sense about the proposals in the Bill. They did not come to the conclusion they did through any doubt as to the capacity of county court Judges to try cases up to £200, or up to £300. It has never entered anyone's head that the Judges were not fully capable of trying them. Their reasons were based on the best interests of those for whom the county court is primarily intended and the sort of case for which the county court is primarily intended. That case is the small money claim, very often brought by people who are representative persons and who employ solicitors. They

came to the conclusion that the compulsory addition of claims, whether for £200 or £300, would impede that work of the county courts by adding a very large number of cases which might be argued at greater length than perhaps smaller claims, and more likely to have counsel appearing. For these reasons, and having regard to the proximity of assizes in most places, and to the existence of poor persons' procedure, which applies to the High Court and not to the county court—and I agree that there are a number of arguments on both sides—I support the arguments which have already been made by saying that the Commission considered with very great care all the arguments on one side or the other and came to the conclusion that, on the whole, the best interests of justice could be served by the proposal in the Bill.

Question put, "That the words proposed to be left out, to the word 'shall' in line 10, stand part of the Bill."

The House divided: Ayes, 130; Noes, 81.

Division No. 317.] AYES. [1.28p.m.
Agnew, Lieut.-Comdr. P. G. Guinness, T. L. E. B. Nall, Sir J.
Allen, Col. J. Sandeman (B'knhead) Gunston, Capt. Sir D. W. Nicholson, G. (Farnham)
Anderson, Sir A. Garrett (C. of Ldn.) Hambro, A. V. Nicolson, Hon. H. G.
Anstruther-Gray, W. J. Hannah, I. C. Peake, O.
Astor, Hon. W. W. (Fulham, E.) Hannon, Sir P. J. H. Peters, Dr. S. J.
Baillie, Sir A. W. M. Harris, Sir P. A. Ponsonby, Col. C. E.
Barclay-Harvey, Sir C. M. Haslam, Sir J. (Bolton) Raikes, H. V. A. M.
Bossom, A. C. Heneage, Lieut.-Colonel A. P. Reed, A. C. (Exeter)
Briscoe, Capt. R. G. Hepworth, J. Reed, Sir H. S. (Aylesbury)
Brown, Col. D. C. (Hexham) Herbert, A. P. (Oxford U.) Robinson, J. R. (Blackpool)
Brown, Rt. Hon. E. (Leith) Herbert, Major J. A. (Monmouth) Ross Taylor, W. (Woodbridge)
Brown, Brig.-Gen. H. C. (Newbury) Hoare, Rt. Hon. Sir S. Royds, Admiral Sir P. M. R.
Bull, B. B. Hope, Captain Hon. A. O. J. Russell, Sir Alexander
Bullock, Capt. M. Hudson, Capt. A. U. M. (Hack., N.) Russell, R. J. (Eddisbury)
Carver, Major W. H. Hume, Sir G. H. Russell, S. H. M. (Darwen)
Cary, R. A. Hunloke, H. P. Samuel, M. R. A.
Chapman, A. (Rutherglen) Hurd, Sir P. A. Sandeman, Sir N. S
Chapman, Sir S. (Edinburgh, S.) Hutchinson, G. C. Seely, Sir H. M.
Clarke, Colonel R. S. (E. Grinstead) James, Wing-Commander A. W. H. Shakespeare, G. H.
Clarry, Sir Reginald Kerr, Colonel C. I. (Montrose) Shaw, Captain W. T. (Forfar)
Colville, Rt. Hon. John Kerr, J. Graham (Scottish Univs.) Smiles, Lieut.-Colonel Sir W. D.
Conant, Captain R. J. E. Lennox-Boyd, A. T. L. Smithers, Sir W.
Cooke, J. D. (Hammersmith, S.) Liddall, W. S. Somervell, Rt. Hon. Sir Donald
Cooper, Rt. Hn. T. M. (E'nburgh, W.) Lipson, D. L. Southby, Commander Sir A. R. J.
Courthope, Col. Rt. Hon. Sir G. L. Llewellin, Colonel J. J. Strauss, H. G. (Norwich)
Crooke, Sir J. Smedley Lloyd, G. W. Stuart, Hon. J. (Moray and Nairn)
Crookshank, Capt. H. F. C. Looker-Lampson, Comdr. O. S. Touche, G. C.
De Chair, S. S. Loftus, P. C. Wakefield, W. W.
Denman, Hon. R. D. Mabane, W. (Huddersfield) Wallace, Capt. Rt. Hon. Euan
Doland, G. F MacAndrew, Colonel Sir C. G. Ward, Lieut.-Col. Sir A. L. (Hull)
Dugdale, Captain T. L. Macdonald, Capt. P. (Isle of Wight) Ward, Irene M. B. (Wallsend)
Eastwood, J. F. Macmillan, H. (Stockton-on-Tees) Warrender, Sir V.
Edmondson, Major Sir J. Macquisten, F. A. Waterhouse, Captain C.
Ellis, Sir G. Magnay, T. Wayland, Sir W. A
Fildes, Sir H. Margesson, Capt. Rt. Hon. H. D. R. Williams, C. (Torquay)
Foot, D. M. Markham, S. F. Williams, H. G. (Croydon, S.)
Fremantle, Sir F. E. Mayhew, Lt.-Col. J. Willoughby de Eresby, Lord
Fyfe, D. P. M. Mellor, Sir J. S. P. (Tamworth) Winterton, Rt. Hon. Earl
George, Major G. Lloyd (Pembroke) Mills, Major J. O. (New Forest) Wise, A. R.
George, Megan Lloyd (Anglesey) Moore, Lieut.-Col. Sir T. C. R. Young, A. S. L. (Partick)
Gluckstein, L. H. Morgan, R. H.
Goldie, N. B. Morrison, G. A. (Scottish Univ's.) TELLERS FOR THE AYES.—
Greene, W. P. C. (Worcester) Morrison, Rt. Hon. W. S. (Cirencester) Mr. Furness and Major Harvi
Griffith, F. Kingsley (M'ddl'sbro, W.) Muirhead, Lt.-Col. A. J. Watt.
Grimston, R. V. Munro, P.
NOES.
Adams, D. M. (Poplar, S.) Garro Jones, G. M. Oliver, G. H.
Adamson, W. M. Grseen, W. H. (Deptford) Paling, W.
Alexander, Rt. Hon. A. V. (H'lsbr.) Greenwood, Rt. Hon. A. Parkinson, J. A.
Ammon, C. G. Grenfell, D. R. Pearson, A.
Attlee, Rt. Hon. C. R. Griffiths, J. (Llanelly) Pritt, D. N.
Banfield, J. W. Groves, T. E. Quibell, D. J. K.
Barnes, A. J. Guest, Dr. L. H. (Islington, N.) Ridley, G.
Barr, J. Hall, G. H. (Aberdare) Riley, B.
Bellenger, F. J. Hall, J. H. (Whitechapel) Ritson, J.
Benn, Rt. Hon. W. W. Hardie, Agnes Silverman, S. S.
Brown, C. (Mansfield) Henderson, A. (Kingswinford) Simpson, F. B.
Buchanan, G. Henderson, J. (Ardwick) Smith, Ben (Rotherhithe)
Burke, W. A. Henderson, T. (Tradeston) Smith, E. (Stoke)
Chater, D. Hills, A. (Pontefract) Smith, T. (Normanton)
Cluse, W. S. Hopkin, D. Sorensen, R. W.
Cove, W. G. Jones, A. C. (Shipley) Stephen, C.
Daggar, G. Jones, Morgan (Caerphilly) Stokes, R. R.
Dalton, H. Kennedy, Rt. Hon. T. Taylor, R. J. (Morpeth)
Davidson, J. J. (Maryhill) Lathan, G. Thorne, W.
Davies, R. J. (Westhoughton) Leach, W. Thurtle, E.
Davies, S. O. (Merthyr) Macdonald, G. (Ince) Tinker, J. J.
Dobbie, W. McEntee, V. La T. Viant, S. P.
Dunn, E. (Rother Valley) MacLaren, A. Watkins, F. C.
Ede, J. C. Mathers, G. Windsor, W. (Hull, C.)
Edwards, A. (Middlesbrough E.) Maxton, J. Woods, G. S. (Finsbury)
Edwards, Sir C. (Bedwellty) Messer, F.
Gallacher, W. Morrison, Rt. Hon. H. (Hackney, S.) TELLERS FOR THE NOES.—
Gardner, B. W. Noel-Baker, P. J. Mr. Whiteley and Mr. Anderson.

1.35 p.m.

Mr. Silverman

I beg to move, in page 13, line 10, to leave out "shall," and to insert: or the court may, if the judge or court having regard to all the circumstances of the case thinks fit so to do. The point of this Amendment is a very short one, and I think I covered it on the general argument on the last Amendment. If the right to try these cases of between £100 and £200 is not to be an absolute one, if there is to be a discretion to have these cases remitted from the county court to the High Court, then do not let the sole discretion be that of the defendant himself, but let it be the discretion of the court. The words in which we propose to secure that condition are the precise words which are included in the County Court Act with regard to actions remitted nom the High Court to the county court. The analogy is taken from those cases where defendants in the High Court desire to have cases commenced in the High Court tried, on grounds stated, in the county court. In those cases the defendant has not the absolute right to have the cases remitted to the county court. He may apply, and when he applies the court can, in its discretion, having regard to the circumstances of the case, decide whether the case shall proceed in the High Court or be remitted to the county court. Why should not that discretion in corresponding cases where it is sought to transfer cases from the county court to the High Court equally apply? Why leave it to the pure discretion of the defendant? Let him make his application and state his reasons, and then let the court decide whether it will accept the extended jurisdiction. That is much better, much wider and more practical than the provision in the Bill, and it is not in conflict with anything which the Peel Commission intended.

Mr. Pritt

I beg to second the Amendment.

1.38 p.m.

The Attorney-General

The hon. Member for Nelson and Colne (Mr. Silverman) said that his proposal was not in conflict with the recommendations of the Peel Commission. I disagree. The Commission said that there should be an absolute right in the defendant to proceed in the High Court.

Mr. Silverman

I do not think they meant it.

The Attorney-General

If the hon. Member has some powers, unknown to me, whereby he can penetrate into the minds and into the meaning of the Peel Commission, other than is expressed on paper, I cannot, of course, compete with him.

Mr. Silverman

If they meant it, they were wrong.

The Attorney-General

It is clear what they meant. They meant that in trials for over £100 the defendant should have the right to have his case tried by the High Court, if he so desired.

Mr. Silverman

In the Clause as it stands the defendant only has the discretion.

The Attorney-General

It is clear that the Commission intended that there should be this absolute right. The hon. Member said that there were other objections besides those dealt with on the last Amendment. The analogy he gave of a man seeking to get a case remitted from the High Court to the county court is not a complete one, because when that is done he is not suggesting that the High Court is not a fit and proper court to try his case. The Amendment would produce a rather unfortunate and untenable state of affairs. The defendant would have to make an application which would mean that the county court was not a proper court to try his case; that the court was not good enough to try his case, and not on the grounds that the case would involve a difficult point of law, or that it was a test case, requiring a number of expert witnesses, and that the High Court was the more proper tribunal. The Amendment would mean the setting up of machinery under which a man would apply to the court and say, in effect: "I want my case tried, not by you but by a court which is more highly qualified." On the grounds we discussed on the last Amendment and also on the grounds I have mentioned, which I hope the hon. Member will appreciate, I trust he will see his way not to press the Amendment.

Amendment negatived.

1.40 p.m.

Mr. Silverman

I beg to move, in page 13, line 16, at the end, to insert: (3) Any person who obtains a certificate as prescribed by the rules of the Supreme Court (Poor Persons) shall be admitted to take or defend or be a party to any legal proceedings which by virtue of this section may be commenced in a County Court and which could not previously have been so commenced or any legal proceedings which, whether by virtue of this Act or otherwise, are remitted by the High Court to the County Court. One of the objects repeatedly advanced in Committee for making the extended jurisdiction of the county court an absolute one was that in the High Court the poor persons' rules were available to the defendant, whereas in the county court there was no procedure or means whereby people, without means even to pursue their case in the county court, could obtain assistance. The purpose of the Amendment is to make the poor persons' rules as they now exist in the High Court apply to the county court, but with limitations. It is not suggested that we should in this Bill make the poor persons' rules apply in the county court absolutely. What is suggested is that in cases, whether under this Bill or otherwise, which are remitted from the High Court to the county court, there shall be power to the poor persons' committees, under the poor persons' rules, to grant a certificate that will enable persons without means to get assistance, to be excused from court fees, and be able to bring their cases in the county court exactly as they can in the High Court. I hope this is an Amendment which the Attorney-General will be able to accept.

1.42 p.m.

Mr. Pritt

I beg to second the Amendment, which is a very important one. It unfolds to the layman one of the major hypocrisies of the law as it stands at present. The modest Amendment is designed only to see that that major hypocrisy is not made worse. The hypocrisy has been to tell the general public that you have established a system under which poor persons' cases can be conducted, but you establish that principle in the High Court alone, although 95 per cent. of the poor man's litigation goes to the county court. Therefore, as things stand at present, the provision for the civil litigation of poor persons is as to 5 per cent. a reality and as to 95 per cent. hypocrisy. It is made all the worse in that with regard to county court you not only do not give a poor person assistance in the conduct of his case, but you insist on his paying the court fees, which are grossly out of proportion to those in the High Court, in relation to the sum involved. There is a Statute which says that "to no one will be denied, and to no one will be sold, justice."

What is proposed to be done is this. You proceed to extend the county court jurisdiction up to£200, a very good thing in itself, but because these people are poor and do not matter, and, there- fore, they ought to be treated as dirt, you do not trouble in your legislation to say: "We realise that by doing that we are taking the 5 per cent. of poor people who do get their litigation attended to and cutting the percentage into two, so that 2½ per cent. are actually being deprived of what right they have at present." That is really a monstrous thing to do. Every litigant who has a claim, say, for £150, on the average, can go to the High Court and get proper legal assistance and be spared his fees. You are saying to him by the Bill, "We are enlarging the jurisdiction of the county court, and whereas last week you could try your case of £150 with a lawyer and have your fees remitted, next week you shall pay your fees and you shall not have a lawyer." That means a denial of justice. I know that the Attorney-General does not want things to be made worse, and, therefore, I hope he will accept the Amendment.

1.46 p.m.

The Attorney-General

If the hon. and learned Member for North Hammersmith (Mr. Pritt) had been present in the earlier proceedings of the Bill, he would not have made the statement he has made in the last part of his speech. I agree that it is an important point. The question earlier in the proceedings was: will the poor persons committee say or feel that they ought to say to an applicant for a claim of £150 we cannot help you because you can now commence your action in the county court. An assurance was given, which I can repeat, that in the case of actions between £100 and £200 the position of an applicant who applies to the poor persons committee and is proposing to start his procedure in the High Court will in no way be adversely affected by the Bill. The Amendment deals with a different point. Remitted actions are already covered in the poor persons procedure. The hon. Member for Nelson and Colne (Mr. Silverman) was speaking of cases of £150 which an applicant starts in the county court or would like to start in the county court. If he wishes to proceed, as he could have proceeded last week, he can so proceed, and his case will be considered by the poor persons committee exactly as it would have been considered last week; but there are other cases which have to be considered, and the hon. Member for Nelson and Colne knows that I cannot accept the Amendment.

The work of the poor persons procedure depends on the voluntary cooperation of solicitors and up till now it has been confined to the High Court. No extension could be made except with their consent and after full consultation with them. I cannot, therefore, accept as an Amendment to the Bill an extension which might be regarded as a very big extension of the principle to the county court. I hope the hon. Member will appreciate the reasons and will not press the Amendment. An assurance has been given that cases started in the High Court will not be in any worse position than they are. The question of the extension of the principle of the poor persons procedure is one which, obviously, cannot be discussed now, but is one which will require consideration in the future.

Mr. Pritt

Who gave the assurance that these very patient and devoted bodies who consider these cases will never have it in their minds that the case may not be started in the county court?

The Attorney-General

The assurance was given by my Noble Friend.

1.50 p.m.

Mr. Silverman

I would willingly withdraw the Amendment if I felt that its object could be achieved by other means. By rejecting the Amendment the Attorney-General is saying to people who have no means at all, "You must commence your action in the High Court," while if they had some means they would be entitled to commence it in the county court. That is the effect of the argument. A poor person does not get his expenses paid in the county court. He has to pay the witnesses, bring his doctor, he has to have his case properly prepared, and a great deal of disbursements are involved, quite apart from those which he is excused under the poor persons' rule, and the effect of rejecting the Amendment is to compel a man who has no means at all, and because he has no means, to carry on his action in the most expensive of the courts.

The other objection of the Attorney-General was that you can only carry out the poor persons' procedure by the voluntary co-operation of both branches of the legal profession. That is true, and it is freely rendered. It is the generosity of both branches of the profession and their co-operation which makes it possible in the case of the High Court. What reason has the Attorney-General to suppose that the same voluntary co-operation and generous service will not be rendered in the county courts where it is easier for the practitioner to enter and in exactly the same kind of case. You are not adding to the number of cases. The Amendment only affects cases which can be commenced in the county court under the Bill, but which would otherwise have to be commenced in the High Court. We are only proposing to say that the voluntary co-operation which has made the system work in the High Court shall be carried into operation in the county court. I cannot see what the difficulty is.

1.53 p.m.

Mr. Foot

I am disappointed that the Attorney-General has not seen his way to accept the Amendment. He resisted it on one ground, and that was that he had not had time for consultation with those who, in fact, carry on poor persons' work. Is there any reason to suppose that they will be opposed to the Amendment going into the Bill? It is not proposed to impose any additional burdens on them at all. It is just as easy—it may be easier—for them to commence and carry on proceedings in the county court as in the High Court. Where they have to go some distance to an assize court, the county court is on their own doorstep, and it means that they would be saved a great deal of trouble which is involved

for the solicitors' branch of the profession in conducting poor persons' cases. But if we do not have an Amendment of this kind, we are putting ourselves in a rather absurd position.

It frequently happens that when a plaintiff who is a poor person brings his proceedings in the High Court the defendant, knowing that he will not be able to get his costs, immediately applies to have the action remitted to the county court on the ground that they are the authority. You would have this situation, that in order to get the poor persons' certificate the plaintiff in an action between £100 and £200 will proceed in the High Court in the hope that he is going to be remitted to the county court, where he will get the advantage of the poor persons procedure. You would have cases in which both sides were anxious that the matter should be heard in the county court, but it could find its way there only after this quite unnecessary process of issuing a writ in the High Court, and possibly have High Court pleadings, and after that the defendant having to go, at some expense to himself, to make application to the Master for the action to be remitted to the county court. For those reasons, it seems to me that no substantial reason has been given as to why this Amendment should not be accepted and why this obvious convenience should not be given to the class of litigants with whom we are now concerned.

Question put "That those words be there inserted in the Bill."

The House divided: Ayes, 89; Noes, 126.

Division No. 318.] AYES. [1.56 p.m.
Adams, D. M. (Poplar, S.) Davies, R. J. (Westhoughton) Harris, Sir P. A.
Adamson, W. M. Davies, S. O. (Merthyr) Henderson, A. (Kingswinford)
Alexander, Rt. Hon. A. V. (H'lsbr.) Dobbie, W. Henderson, J. (Ardwick)
Ammon, C. G. Dunn, E. (Rother Valley) Henderson, T. (Tradeston)
Anderson, F. (Whitehaven) Ede, J. C. Hills, A. (Pontefract)
Attlee, Rt. Hon. C. R. Edwards, A. (Middlesbrough E.) Hopkin, D.
Banfield, J. W. Edwards, Sir C. (Bedwellty) Jones, A. C. (Shipley)
Barnes, A. J. Foot, D. M. Jones, Morgan (Caerphilly)
Barr, J. Gallacher, W. Kennedy, Rt. Hon. T.
Ballenger, F. J. Garro Jones, G. M. Lathan, G.
Benn, Rt. Hon. W. W. George, Major G. Lloyd (Pembroke) Leach, W.
Brown, C. (Mansfield) George, Megan Lloyd (Anglesey) Macdonald, G. (Ince)
Buchanan, G. Green, W. H. (Deptford) McEntee, V. La T.
Burke, W. A. Greenwood, Rt. Hon. A. MacLaren, A.
Chater, D. Grenfell, D. R. Macquisten, F. A.
Cluse, W. S. Griffith, F. Kingsley (M'ddl'sbro, W.) Mathers, G.
Cove, W. G. Griffiths. J. (Llanelly) Maxton, J.
Daggar, G. Guest, Dr. L. H. (Islington, N.) Messer, F.
Dalton, H. Hall, G. H. (Aberdare) Morrison, Rt. Hon. H. (Hackney, S.)
Davidson, J. J. (Maryhill) Hall, J. H. (Whitechapel) Noel-Baker, P. J.
Davies, C. (Montgomery) Hardie, Agnes Oliver, G. H.
Paling, W. Silverman, S. S. Thurtle, E.
Parker, J. Simpson, F. B. Tinker, J. J.
Parkinson, J. A. Smith, Ben (Rotherhithe) Viant, S. P.
Pearson, A. Smith, E. (Stoke) Watkins, F. C.
Pritt, D. N. Smith, T. (Normanton) Windsor, W. (Hull, C.)
Quibell, D. J. K. Sorensen, R. W Wood, G. S. (Fintbury)
Ridley, G. Stephen, C.
Riley, B. Stokes, R. R. TELLERS FOR THE AYES.—
Ritson, J. Taylor, R. J. (Morpeth) Mr. Whiteley and Mr. Groves.
Seely, Sir H. M. Thorne, W.
NOES.
Agnew, Lieut.-Comdr. P. G. Goldie, N. B. Muirhead, Lt.-Col. A. J.
Allen, Col. J. Sandeman (B'knhead) Greene, W. P. C. (Worcester) Nall, Sir J.
Anderson, Sir A. Garrett (C. of Ldn.) Grimiton, R. V. Nicholson, G. (Farnham)
Anstruther-Gray, W. J. Guinness, T. L. E. B. Nicolson, Hon. H. G.
Astor, Hon. W. W. (Fulham, E.) Gunston, Capt. Sir D. W. Peake, O.
Baillie, Sir A. W. M. Hambro, A. V. Peters, Dr. S. J.
Balfour, G. (Hampstead) Hannah, I. C. Ponsonby, Col. C. E.
Barclay-Harvey, Sir C. M. Hannon, Sir P. J. H. Raikes, H. V. A. M.
Bossom, A. C. Harvey, Sir G. Reed, A. C. (Exeter)
Braithwaite, Major A. N. Haslam, Sir J. (Bolton) Reed, Sir H. S. (Aylesbury)
Bris[...], Capt. R. G. Heneage, Lieut.-Colonel A. P. Robinson, J. R. (Blackpool)
Brown, Col. D. C. (Hexham) Hepworth, J. Ross Taylor, W. (Woodbridge)
Brown, Rt. Hon. E. (Leith) Herbert, Major J. A. (Monmouth) Royds, Admiral Sir P. M. R.
Brown, Brig.-Gen. H. C. (Newbury) Hoare, Rt. Hon. Sir S. Russell, Sir Alexander
Bull, B. B. Hope, Captain Hon. A. O. J. Russell, R. J. (Eddisbury)
Bullock, Capt. M. Hudson, Capt. A. U. M. (Hack., N.) Russell, S. H. M. (Darwen)
Carver, Major W. H. Hume, Sir G. H. Samuel, M. R. A.
Cary, R. A. Hunloke, H. P. Sandeman, Sir N. S.
Cazalet, Thelma (Islington, E.) Hurd, Sir P. A. Selley, H. R.
Chapman, A. (Rutherglen) Hutchinson, G. C. Shakespeare, G. H.
Clarke, Colonel R. S. (E. Grinstead) James, Wing-Commander A. W. H. Shaw, Captain W. T. (Forfar)
Clarry, Sir Reginald Kerr, Colonel C. I. (Montrose) Simon, Rt. Hon. Sir J. A.
Conant, Captain R. J. E. Kerr, J. Graham (Scottish Univs.) Smiles, Lieut-Colonel Sir W. D.
Cooke, J. D. (Hammersmith, S.) Lennox-Boyd, A. T. L. Smithers, Sir W.
Cooper, Rt. Hn. T. M. (E'nburgh, W.) Liddall, W. S. Somervell, Rt. Hon. Sir Donald
Courthope, Col. Rt. Hon. Sir G. L. Lipson, D. L. Southby, Commander Sir A. R. J.
Cox, H. B. Trevor Llewellin, Colonel J. J. Strauss, H. G. (Norwich)
Crooke, Sir J. Smedley Loftus. P. C. Stuart, Hon. J. (Moray and Nairn)
Crookshank, Capt. H. F. C. Mabane, W. (Huddersfield) Touche, G. C.
De Chair, S. S. MacAndrew, Colonel Sir C. G. Wakefield, W. W.
Denman, Hon. R. D. Macdonald, Capt. P. (Isle of Wight) Wallace, Capt. Rt. Hon. Euan
Doland, G. F. Macmillan, H. (Stockton-on-Tees) Ward, Lieut.-Col. Sir A. L. (Hull)
Dugdale, Captain T. L. Macquisten, F. A. Warrender, Sir V.
Duncan, J. A. L. Magnay, T. Wayland, Sir W. A
Eastwood, J. F. Margesson, Capt. Rt. Hon. H. D. R. Williams, C. (Torquay)
Edmondson, Major Sir J. Markham, S. F. Williams, H. G. (Croydon, S.)
Elliot, Rt. Hon. W. E. Mayhew, Lt.-Col. J. Willoughby de Eresby, Lord
Ellis, Sir G. Mellor, Sir J. S. P. (Tamworth) Winterton, Rt. Hon. Earl
Fildes, Sir H. Mills, Major J. D. (New Forest) Wise, A. R.
Fremantle, Sir F. E. Moore, Lieut.-Col. Sir T. C. R. Young, A. S. L. (Partick)
Furness, S. N. Morgan, R. H.
Fyfe, D. P. M. Morrison, G. A. (Scottish Univ's.) TELLERS FOR THE NOES.—
Glucksein, L. H. Morrison, Rt. Hon. W. S. (Cirencester) Mr. Munro and Major Harvie
Watt.

Bill read the Third time, and passed, with Amendments.