CLAUSE 1.—(Restraint on proceedings under 1 & 2 Will. 4. c. 37, and removal of doubts as to effect of illegality of contracts.) (Hansard, 3 July 1940)

§ Mr. Silkin (Peckham)
I beg to move, in page 2, line 9, to leave out from "to," to the end of line 11, and to insert: the payment to the worker by the employer of the costs of the said action or legal proceeding, unless the Court or a judge shall, for good reason, otherwise determine. The purpose of this Amendment is to make it clear that in all proper cases workers who have instituted proceedings in good faith on the strength of the decision of the House of Lords shall get the costs which they have incurred up to the time of the passing of this Bill. This can apply only to the type of workers who get their food as part of their wage, and, obviously, they will be workers having very small means. If they have been induced as a result of the decision of the House of Lords to take action to recover what the House of Lords decided are their legal rights, I feel that we ought not to deprive them of the costs which they have incurred in so doing. These people who have very small means ought not to be out of pocket as a result of taking such proceedings.
I recognise that the Clause as it stands gives the court or a judge discretion to award costs if they think fit, but I feel that it ought to be made clear that, unless good reason exists to the contrary, the workers ought to get the costs. After all, the discretion is an absolute one, as the Clause stands, and no direction is given to the court or the judge. They might quite properly think, if they have a clear discretion, that these actions have no merits, that they ought not to have been instituted, and that, therefore, the workers ought not to get their costs. Such a view would be within the discretion of the judge, and although the Under-Secretary of State has declared that in his view the judge ought to allow some costs, that of course does not bind the judge. There may be cases in which the plaintiff ought not to get the costs, and I recognise in the Amendment that in such cases the judge would have the right to say that costs should not be awarded. However, I think it ought to be the normal thing, unless there is good reason to the contrary, that the plaintiff in these cases 930 should have the costs awarded to him. I hope that the Attorney-General will be able to accept the Amendment, or, if he does not think the wording is entirely suitable, that he will be able to accept some form of words which will achieve the purpose I have in mind.

§ Mr. Oliver
I beg to support the Amendment. I think that if one of these actions has been started in good faith, and in view of the fact that Parliament is interfering with the normal processes of the law, it is not unreasonable to say that, unless there is some outstanding feature which would justify the judge in awarding no costs, the costs ought to be given to the worker. A point which occurs to me is that if absolute discretion were left to the judge, it would mean that he would need to inquire into the merits of the case, and I cannot see how he could go into the merits of the case unless he had heard many of the facts which normally in these circumstances he would not require to hear. He would not be in a position to judge of the merits of the case unless he had heard a substantial amount of evidence on the basis of which he could form an opinion. Consequently, I feel that, from more points of view than one, this Amendment would assist in getting these cases disposed of.

§ The Attorney-General
I hope the hon. Member for Peckham (Mr. Silkin) will not press this Amendment. In the first place, clearly the words would not be suitable. Moreover, I think I can reassure the hon. Member as to the general position, and point out cases which make it desirable that there should be this discretion. It is true that the discretion is absolute in this as in all cases, but there is a long-recognised practice, of course, that a successful litigant gets his costs. If one takes a case in which a person started proceedings before the passing of this Bill, and if one assumes that the facts are clear and that he was starting proceedings in the exercise of what had been held to be his legal right, then the situation is that Parliament has stepped in and said that he must not go on. I cannot imagine a case in which, on general principles, according to the ordinary practice, the man would not get his costs as a matter of course. But one has to 931 provide for the possibility of a case in which the defendant might say that the proceedings under the Truck Act were started under a complete misapprehension, and that the man had performed work that was outside the Truck Act. In that case there would be no conceivable reason why he should get the costs. The proceedings would have failed, quite apart from the intervention of Parliament.

§ Mr. Silkin
Such a case is met under the terms of the Amendment, which states "unless the court or a judge shall, for good reason, otherwise determine." Obviously, this would be a good reason.

§ The Attorney-General
My view is that the Amendment would leave the matter where it is at present, because the court will always exercise discretion in any case in which it thinks there is good reason for it to do so. There is another point to which my hon. Friend referred in moving the Second Reading of the Bill. The Home Secretary gave a very clear warning on 13th April that this legislation was to be brought forward. It might be that the court should be entitled to take into account the question whether proceedings that were started after that warning should possibly be in a different position from proceedings that were started before the warning was given. That is another matter, therefore, in which discretion should be left. For the reasons which I have given, I hope the hon. Member will not press the Amendment.

§ Mr. Tinker (Leigh)
After the explanation of the right hon. and learned Gentleman that this Amendment would not fit into the Bill, I hope my hon. Friend the Member for Peckham (Mr. Silkin) will withdraw the Amendment. As I follow it, the judges will order a court to examine these cases, and if it is a bona fide case brought forward on general grounds, costs will be allowed.

§ Mr. Silkin
I am in some difficulty. If the right hon. and learned Gentleman tells me that the words of the Amendment do not fit into the Clause, I must accept his statement. However, I feel that the Amendment in some form or another should find its way into the Bill. I would ask the right hon. and learned Gentleman whether he does not think it would be wise to insert the necessary words in 932 the Bill to meet this point. That could be done, of course, in another place, and if he will undertake to consider the matter between now and that time, we are quite in agreement to withdraw the Amendment.

§ The Attorney-General
I will certainly turn the matter over in my mind, but I should be quite wrong if I held out any hopes of any particular likelihood of coming to a different conclusion.

§ Mr. Silkin
It is within my recollection that the right hon. and learned Gentleman said exactly the same thing on another Bill. He said he would turn it over in his mind, although he held out no hope, when in fact at a later stage he came to that different conclusion.