HC Deb 03 July 1940 vol 362 cc945-50

9.23 p.m.

Mr. Rhys Davies (Westhoughton)

I beg to move, in page 4, line 3, at the end, to add: (4) In any proceedings which the court considers have been brought unreasonably and where leave to enforce a judgment has been refused, the court shall, and in any other case may, having regard to any offer made by the defendant which has not been accepted, order the plaintiff to pay the whole costs of the proceedings from their commencement, including the defendant's taxed costs and also the costs of the application under the principal Act. I am at a very serious disadvantage in dealing with a legal problem, and all that I can do is to bring my common sense to bear upon this matter. It may be that common sense is very much more powerful than legal knowledge, and frankly, I have seen that proved more than once. Let me try to state in a few words what my Amendment means. I need hardly say that I did not draft it, but I understand that it has been found in the administration of the original Act that owners of property are, if anything, a little vindictive in some cases against the debtor, and that where the court finds that the debtor has made a reasonable proposition to pay his debts, it transpires, even in that case, that the debtor has to bear the costs, which, in our view, ought to be borne by the plaintiff himself. It seems strange that when a debtor has proved to the court that he has made a reasonable offer and is carrying it out, that he should also have to bear the costs or part of the costs of the action against him brought by the plaintiff. As I have said, I am not a lawyer, and I do not know that I would ever aspire to be one, but I am sure I have convinced the right hon. and learned Gentleman—who has not listened to a word of what I have said—that the proposition I am making is one for his favourable consideration.

Mr. Tinker

Do I gather from my hon. Friend that the Government will accept this?

Mr. Davies

I should be sorry if they did not.

9.26 p.m.

Mr. Tinker (Leigh)

I thought there was some agreement. However, I want to support the Amendment, because I think there ought to be some provision made whereby a man who takes an unreasonable claim to court ought to pay some penalty. If the court is satisfied that his case ought not to have been brought, and that it is causing a lot of trouble to the defendant, something should be done to stop that kind of thing. This seems a reasonable and fair suggestion, of which the Government should take notice. I do not know what objection will be offered—I see no objection myself—and I trust the right hon. and learned Gentleman will give adequate reasons if he sees fit to oppose it.

9.27 p.m.

Mr. Glenvil Hall

I want quite briefly to support what the hon. Gentleman the Member for Westhoughton (Mr. Rhys Davies) has said tonight and to remind the Attorney-General of what he obviously knows already, that the people most affected by this particular Clause will be a class of people who are in great difficulty because of the war and because their liabilities have outrun their income. I think he will probably say, when he comes to reply, that again you have to leave a good deal to the discretion of the courts, but I would ask him to accept, for once in a while, this form of words proved by my hon. Friend, and put into the Bill definite instructions to the courts that in the view of this House these costs should be met without a shadow of doubt by the person who has brought the unreasonable litigation.

9.28 p.m.

The Attorney-General

One of my troubles with this Amendment was that until I heard the speech of the hon. Gentleman opposite I was not quite sure what he meant. The ordinary rule is that if a claim is brought and fails, the plaintiff has to pay the defendant's costs. They do not always cover everything the defendant has had to pay, but that is the normal practice. But that is not what is in mind here at all. These cases are cases where a plaintiff has a claim against the defendant to which, in law, there is no answer. He is entitled to judgment, but the question is whether, under the Courts (Emergency Powers) Act, owing to the inability to pay due to war circumstances, a court ought to step in and stop him enforcing his judgment. When, therefore, I read the opening words of the Amendment: In any proceedings which a court considers have been brought unreasonably … a court, I think, would never say, and could never say, that the proceedings have been brought unreasonably if the plaintiff was clearly right and was entitled to judgment. Some people may resort to law a little precipitately, but we proceed on the legal basis that a man having a legal right can go to court to enforce it. The Amendment goes on to say: Where leave to enforce a judgment has been refused … In most cases, rather than an absolute refusal, there is a refusal subject to conditions. I was not quite sure how the Amendment would deal with that matter, but I imagine that what is really at the back of the hon. Gentleman's mind is the following. Suppose that a man, having got his judgment, then asks for leave to enforce the judgment, as he has to do under the Courts (Emergency Powers) Act, and it then turns out that he ought to have known that the court would refuse leave, or would allow the judgment to be enforced only subject to conditions—for instance, the defendant makes an offer to pay by instalments—then if the plaintiff had been reasonable, he would never have troubled the court with the application to enforce the judgment. There may well be cases in which, in those circumstances, costs have been given against the plaintiff for any extra expenses incurred in making the application. However, I cannot accept this Amendment, because it is really very obscure, and I am not quite sure how far it is meant to go.

What we are looking into is this sort of point. Obviously, it is desirable that when proceedings are taken for the judgment, in those proceedings, where-ever they may be, the court or the Master should be able to deal with the defendant's inability to pay, if it exists, and say what conditions are reasonable under the Courts (Emergency Powers) Act, having regard to the circumstances of the defendant. It is very undesirable, if it can be avoided, that there should be one set of proceedings resulting in the judgment and then another application, with another attendance of solicitors and possibly counsel, to decide the Courts (Emergency Powers) Act point. The position under the Rules is that the plaintiff can serve a notice with his writ saying that be intends to ask for leave to enforce, and when that happens, the defendant has notice, and he can put in his affidavit, and the judge or Master can deal with the whole thing at the same time. At present that depends upon whether the plaintiff serves a notice. We did this because there are possible cases where a man may want a judgment simply to protect himself against the Statute of Limitations, or something of that sort, and, knowing the defendant and his circumstances, may not want to enforce it.

We are considering whether we could alter the Rules so as to make certain that there is, so to speak, only one bite at the cherry. I think this would to a very large extent mitigate the difficulty as to costs. I do not think it would be right to say that a person who has a legal right should have to pay to go and get his judgment. I think we should reduce the opportunity of extra costs to a minimum, and if one can get the whole thing disposed of at one hearing, a good deal will have been done to meet this grievance. We will look into the matter on those lines, and I hope that, with that assurance, the hon. Member will not press the Amendment.

9.34 p.m.

Mr. Rhys Davies

I hardly thought there was as much in the Amendment as I have gathered from the Attorney-General's speech. I see now that it is a very important Amendment, and as the right hon. and learned Gentleman has been good enough to promise to see that the Rules will be altered on the lines he has suggested, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Rhys Davies

I beg to move, in page 4, line 3, at the end, to add: (4) Section one of the Principal Act shall apply to proceedings under the Small Tenements Recovery Act, 1838. I have put this Amendment down merely to enable the right hon. and learned Gentleman to tell us whether such an Amendment is really necessary in connection with these proceedings, and whether what is suggested here is already covered.

9.36 p.m.

The Attorney-General

No, it is not covered. This Courts (Emergency Powers) Amendment Bill deals with proceedings for possession in default of payment of rent. The whole scheme is directed to the man who is unable to pay and the Small Tenements Recovery Act does not deal with claims for possession in default of payment. Its main purpose is to provide a summary procedure for recovery of possession when the tenancy has come to an end, and not arising from non-payment of rent. The Amendment therefore would not fit into the structure of this Bill, which deals with possession in default of payment of rent and the relief Section of which directs the court to have regard to inability to pay. Of course, the position at the beginning of the last war was slightly different, in that there were no Rent Restrictions Acts. In so far as the tenements covered by this Act are dwelling houses, they, of course, come within the Rent Restrictions Act, and even at the end of the tenancy the tenant is protected against eviction subject to the provisions of the Rent Restrictions Acts. The Small Tenements Act, of course, also covers small business premises. They are not within the Rent Restrictions Act. We could not accept this Amendment within the structure of this Bill, because it is quite inappropriate, in that it has nothing to do with ability to pay. If the hon. Gentleman wishes to take the matter further, it would be by way of suggestion to the Minister of Health that business premises should be included in the Rent Restrictions Acts. It is really outside the scope of this Bill, and so far as I know I have not heard of any particular demand for the alteration of the law in that respect.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.