HC Deb 14 February 1949 vol 461 cc889-99
Mr. Ede

I beg to move, in page 10, line 23, to leave out from "persons" to "whose," in line 24.

This Amendment and the subsequent one are drafting Amendments. The subsection to which they apply does not accurately define the City of London special jury. It is the marking of the names that determines liability to serve and not the mere qualifications. A person might be qualified but not marked.

Amendment agreed to.

Further Amendment made: In page 10, line 25, after "London," insert: and marked therein as being the names of persons qualified to serve as special jurors."—[Mr. Ede.]

Mr. Manningham-Buller

I beg to move, in page 10, line 27, at the end, to add: 4. Subsection (1) of the last foregoing Section shall not apply to the trial of an issue within any place or district within which His Majesty shall, by commission of assize or any other commission, either general or special, assign to such judges of the High Court or other persons as are named therein the duty of trying and determining any causes or matters, or any questions or issues of fact, or of law or partly of fact and partly of law which by reason of the technical or complex nature of the questions or issues involved, require trial by a special jury. The Clause provides for City of London jurors in commercial causes. Under the Amendment, instead of a party having the right to require a special jury, it is left to the pudge to decide whether, in consequence of the technical or complex nature of the questions or issues involved, trial by special jury is required. In addition to that particular point we have the intention, although I must admit that it is not fully expressed in the Amendment as it stands and we shall seek to put it right upon the Report stage, to provide for the equivalent of a City of London special jury in other big commercial assize towns, like Liverpool, Manchester and Birmingham.

Although special juries are now abolished, there is a case, which the Attorney-General made out, for the retention of a special jury of that character and for the provision of them—not the retention because those towns have not had them before—in places such as I have mentioned. The Amendment is intended to pave the way for that being done, as well as to ensure that the decision as to whether there shall be a jury or not should not rest with the party to the litigation but with the judge of assize, or whoever is in charge of the particular list.

I hope that the right hon. and learned Gentleman will say that he will give favourable consideration to the Amendment, with a view to securing that facilities which are now and will remain available to London litigants will be extended to Birmingham on the Midland Circuit and to other places of perhaps minor significance on the Northern Circuit.

9.0 p.m.

The Attorney-General

I think that, at any rate in the form in which it is at present drafted, this Amendment is completely misconceived. Under the existing arrangements, as the hon. and learned Member for Daventry (Mr. Manningham-Buller) knows, a commercial cause list has been established in the City of London. All the cases in it are complicated cases, transactions involving difficult question of commercial intercourse and usually also troublesome questions of commercial law. Those cases are tried by a judge who is specially experienced in the trial of commercial cases, and in the vast majority of cases that judge tries the cases alone.

I think it is right to say that in fact special juries of the City of London are only asked for in one or two cases a year, and it follows therefore that in the great majority of the cases in the list the parties prefer to have their litigation settled by a judge alone. Where a special jury is empanelled for the purposes of a case on that list, it is a jury of persons who not only possess special property qualifications, which is common to all special jurors, but who also have or are deemed to have a special commercial or trading qualification of one kind or another. That is a method of trial which, although very rarely used, is traditional, occasionally useful and not, we think, open to any of the serious objections that may be raised to the special jury in the ordinary class of cases.

That is the City of London special jury. In theory I agree with the hon. and learned Gentleman that it might be convenient to have an arrangement of that kind on circuit in some of the more important towns such as in Liverpool where commercial transactions take place on a large scale, and in Manchester, and conceivably even in Birmingham on the Midland circuit. However, although that may be the theory of the position, in practice there is really not the slightest demand for either a commercial cause list or the right of trial by the special commercial type of jury that may be empanelled in London.

The hon. and learned Gentleman will at once see the practical difficulty of establishing any such practice on circuit. In London in charge of the commercial cause list and trying the commercial cases is a judge with special commercial experience. The great advantage of establishing that list—indeed that is the real purpose of having the commercial list—is that we have a judge who has been appointed from among those members of the Bar who specialise in commercial cases and who in the course of the time that he is on the Bench specialises in that type of case.

If one were to extend the City of London practice to circuit towns, it would mean that to gain the advantages of it, one would have to have a judge of commercial experience travelling the circuits, and that would be quite impracticable unless one greatly increased the number of His Majesty's judges and at the same time denuded the commercial Bar. Even if that difficulty did not exist, the setting up in the provinces of this very elaborate and rather expensive machinery with a right to a special jury of commercial qualifications would be wholly unjustified by the number of cases in which the litigants would be likely to require the services of that kind of tribunal.

In any event—this is the error into which the Amendment falls—the Amendment does not provide for any such arrangement at all. It does not provide for the establishment of a commercial list at the assize towns, it does not provide that a judge with special commercial experience should travel the circuits, and it does not provide that these special juries should be limited to those cases in which the technical difficulties are difficulties of a commercial nature. All that the Amendment—one has to deal with the Amendment in its present form—would provide is that a special jury would be made available in cases which would be tried by an ordinary judge and would be available in those cases where under the existing law an ordinary jury can already be claimed. In other words, it would re-establish in the circuits the existing special jury system and it would not translate in the slightest degree the special arrangements which now exist and which will be maintained in the City of London.

On a previous Amendment I mentioned the cases in which that jury can be claimed. They include fraud, libel, slander, false imprisonment, seduction and breach of promise of marriage. I am all in favour of having technical tribunals to discuss technical problems, but why jurors selected from the special jury list should form a better technical tribunal for the settlement of technical disputes in relation to seduction and breach of promise of marriage, I cannot see. It seems to me that they would be no more advantageous on the Midland circuit than on the Northern circuit or than they would be anywhere else. I am afraid that we cannot accept the Amendment.

Mr. Selwyn Lloyd

I am not altogether satisfied with the right hon. and learned Gentleman's reply, and there are two reasons for that dissatisfaction. During the Second Reading Debate the Attorney-General said: The one exception which we propose to make is that which relates to the special jury for the City of London. We think it may be useful to retain that special jury in the trial of cases in the commercial court of the King's Bench Division. As hon. Members may know, it is the practice of the King's Bench to maintain a special cause list for commercial cases arising out of the transactions of merchants and traders, and these cases are heard by a judge who has special commercial experience; and when a jury is required—which in practice is very infrequently now—that jury may be summoned from persons in the City of London who have experience and knowledge of commercial matters. These are technical matters and we have felt, and the House will probably agree, that it may be convenient that they should be dealt with by jurors who have special technical experience."—[OFFICIAL REPORT, 1st February, 1949; Vol. 460. c. 1529.] There is a reference in that passage to the trial of causes in the commercial court.

I can recollect, and I have no doubt the right hon. and learned Gentleman can recollect, the time when cases in the Liverpool cause list used to be marked as being in the commercial list. I see no reason at all why this doctrine which has grown up that London is the only fit and proper place for a commercial case to be tried should be continuously given support. There are other great commercial centres and some of us may think that these are greater commercial centres in fact than London. We think that the practice of trying commercial cases on circuit should again be encouraged. Bringing a commercial case to London very often means that the expert witnesses and others have to come all the way to this place and spend a lot of time away from their proper habitation. The right hon. and learned Gentleman says that there will be a difficulty about the judge because most of His Majesty's judges are not fit to try a commercial case—

The Attorney-General

The hon. and learned Gentleman must not put those words into my mouth. I am always getting into trouble and I must avoid having him push me into trouble. I did not say anything of the kind. I said that the advantage of the commercial list was that we had a judge who specialised during the whole time he was on the bench in commercial cases and he was probably recruited from the commercial Bar.

Mr. Selwyn Lloyd

I apologise to the right hon. and learned Gentleman. I was not seeking to give an inaccurate representation of what he said. I was putting it colloquially. What he said was that there were some of His Majesty's judges who were more fitted to try commercial cases than others.

The Attorney-General


Mr. Selwyn Lloyd

In practice, usually one. We have known instances when the judge has not been a person who has practised solely in the commercial court. However that may be, what we are putting forward is the necessity for having a jury of experts. It seems to me that if the judge were fortified by the presence of a jury of people of great knowledge and experience in these matters possibly the ordinary King's Bench Division might claim to be able to try a commercial case. If there is a case in which a jury of a commercial nature is an advantage, one would have thought it would not be necessary to have trying it a judge who had always practised in the commercial court. If, as the right hon. Gentleman conceded, in the passage I quoted, there is a possibility that in some cases a jury would be advisable, I should have thought that an ordinary judge, if fortified by the assistance of this jury of specialists, could be trusted to dispose of that litigation in a fit and proper manner. I hope that in the interests of the prestige of these other commercial centres, the right hon. and learned Gentleman will look at this matter again.

Sir D. Maxwell Fyfe

I want to reinforce the appeal of my hon. and learned Friend that the right hon. and learned Gentleman will look at this matter again. The fundamental fallacy amongst the premises on which he approached the matter was that the commercial list could not be dealt with on circuit. If he recasts his memory, he will find that my hon. and learned Friend was right. It is certainly my recollection that the commercial cases could be put into the list at Liverpool Assizes. What we have sought to do by this Amendment is to take the essential first step, that is, that in assize towns where civil business is dealt with, the judge should be given the discretion of deciding whether the case should be dealt with by a special jury.

I agree with what the right hon. and learned Gentleman said, that we have not at this stage gone into the details as to how what corresponds to a City of London special jury can be chosen at Liverpool, Manchester, Bristol, Newcastle, Leeds, Sheffield, Birmingham and the other great commercial centres in the country. Obviously, however, from the wording of Clause 18 it would not be a difficult matter to find similar qualifications which would allow those with these qualifications to take part in the trial where it is necessary to have a commercial jury. The right hon. and learned Gentleman himself laid down the test in the course of his Second Reading speech when he said: That jury may be summoned from persons in the City of London who have experience and knowledge of commercial matters."—[OFFICIAL REPORT, 1st February, 1949; Vol. 460, c. 1529.] I say, and my hon. Friend feels strongly with me in this matter, that these people will be found, especially in Liverpool, where there is that experience of shipping and marine insurance which has been the basis of the commercial list in London. We believe that if the Government will only meet us by allowing this discretion of the judge to select cases for a special jury to be applied in the assize towns, there will not be the least difficulty in the world in finding the people in our great commercial centres.

9.15 p.m.

Later, the right hon. and learned Gentleman said: The point of having that City of London special jury is to get the expert knowledge of commercial matters, which is lacking in any special jury one may get on assize."—[OFFICIAL REPORT, 1st February, 1949; Vol. 460, c. 1534.] This is the point in the thesis of the Attorney-General where we join issue with him; that there is lacking in any special jury obtained in Liverpool, Manchester, Bristol, Birmingham, Sheffield, or the other towns I have mentioned, that expert knowledge of commercial matters which can be got in London. It is because we hold that the principle is so important, and that one should attempt to get this decentralisation and to call in aid in the administration of justice that knowledge of commercial matters which is found in these great provincial centres, that we must ask the Committee to divide on the Amendment in order to make clear that some of us here believe that these qualities exist in Liverpool and the other places which the Attorney-General seems to find so much difficulty in believing.

The Attorney-General

I can only hope that if the right hon. and learned Gentleman does divide the Committee, he will be able to secure for his Lobby a somewhat larger number than those who went into it on the last occasion. It will do the Tory Party very little credit in Liverpool or Manchester if the most they can summon in support of the propositions they are seeking to put before the Committee is a miserable 59.

This I must make quite clear: I did not say, either in my Second Reading speech or today, that it would be impossible to empanel in Liverpool or Manchester a jury having the special commercial qualifications possessed by the City of London special jury. What I said was that under the existing law, no such jury can be empanelled in Liverpool or Manchester or anywhere else than in the City of London. That is because it is in the City of London, and in that alone, that in addition to the property qualification for special jurors, there must be a commercial qualification. That is not so in Liverpool, it is not so in Manchester, it is not even so in Birmingham. One can have a special jury there, but whether on that special jury there is one individual with the slightest commercial experience is a matter of chance. One may. Equally one may get such persons on a common jury, but there is no machinery under the existing law for summoning a commercial jury in Liverpool, in Manchester, in Birmingham, or in any of the other assize towns. The right hon. and learned Gentleman has failed to do justice to my speech or to his own knowledge of the law and practice in these matters.

Nor am I saying that it might not be possible under the existing statutory rules to establish or to re-establish a commercial list of assize. What I am saying, and what nobody has attempted to controvert, is that the commercial community of this country in Liverpool, in Manchester, in Birmingham, in Bristol, and in any of the other towns that my right hon. and learned Friend reeled so readily off his tongue, has not shown the slightest desire for a commercial list at the assize towns. They have preferred not to mix up their commercial cases with the already overburdened list at the assize towns, with the running-down cases and the fraud cases and the seduction cases and the breach of promise of marriage cases; they have preferred to set their cases down in the commercial list in London because they knew that in that list they would be tried by the commercial judge having experience of that type of case.

They have shown, by their practice of setting down their cases in the commercial list in London, in preference to the assize lists, that they prefer to have the special commercial judge in London without a jury rather than the jury without the special commercial judge. Even in these cases in London, where they have the possible advantage of both the special commercial judge and the special commercial jury, it is only once or twice a year that they ask for a jury. My experience in this type of case in the past 20 years is that the commercial community in this country infinitely prefer to have these complicated commercial cases tried by an experienced commercial judge; and that they get, and can only get, under existing arrangements by setting down their cases in the commercial list in London.

To attempt, as does the Amendment, to enable the judge on assize to select an ordinary special jury—not a commercial special jury, but an ordinary special jury which may not contain one individual of commercial experience—in

order to try commercial cases which in practice are not set down in assize at all nowadays and which, even in London, result in a demand for only one or two special juries a year, is wholly futile and illusory.

Question put, "That those words be there added."

The Committee divided: Ayes. 59; Noes, 188.

Division No. 51.] AYES [9.24 p.m.
Baldwin, A E. Grimston, R. V. Pitman, I. J.
Boles, Li.-Col. D. C. (Wells) Hannon, Sir P. (Moseley) Ponsonby, Col. C. E.
Bossom, A. C. Hogg, Hon. Q. Poole, O. B. S. (Oswestry)
Bower, N. Howard, Hon. A Prior-Palmer, Brig. O.
Boyd-Carpenter, J. A. Hurd, A. Raikes, H. V.
Bromley-Davenport, Lt.-Col. W. Keeling, E. H. Ropner, Col. L.
Buchan-Hepburn, P. G. T. Lennox-Boyd, A. T. Smithers, Sir W.
Carson, E. Linstead, H. N, Spearman, A. C. M.
Challen, C Lipson, D. L. Stanley, Rt. Hon. O.
Clarke, Col R. S. Lloyd, Selwyn (Wirral) Strauss, Henry (English Universities)
Corbett, Lieut.-Col. U. (Ludlow) Lucas, Major Sir J. Sutcliffe, H.
Crosthwaite-Eyre, Col. O. E. Lucas-Tooth, Sir H. Touche, G. C.
Crowder, Capt. John E. Mackeson, Brig. H. R. Vane, W M. F.
Darling, Sir W Y. McKie, J. H. (Galloway) Walker-Smith, D
Davies, Rt. Hn. Clement (Montgomery) Manningham-Buller, R. E Wheatley, Col. M. J. (Dorset, E.)
Digby, S. W Marlowe, A. A. H. Williams, General (Tonbridge)
Dodds-Parkar, A. D Marshall, D. (Bodmin) Willoughby de Eresby, Lord
Drewe, C. Morrison, Maj. J. G. (Salisbury)
Foster, J. C. (Northwich) Morrison, Rt. Hon. W. S. (Cirencester) TELLERS FOR THE AYES:
Fyfe, Rt. Hon. Sir D. P. M. Nicholson, G. Mr. Studholme and
Gage, C. Orr-Ewing, I. L Major Conant.
Adams, Richard (Balham) Deer, G. Horabin, T. L
Albu, A. H. de Freitas, Geoffrey Hoy, J.
Allen A. C. (Bosworth) Delargy, H. J. Hudson, J. H. (Ealing, W.)
Attewell, H. C. Diamond, J. Hughes, Emrys (S. Ayr)
Austin, H. Lewis Dobbie, W. Hughes, Hector (Aberdeen, N.)
Awbery, S. S. Dodds, N. N Hughes, H. D. (W'lverh'pton, W.)
Ayles, W. H. Donovan, T. Hutchinson, H. L. (Rusholme)
Ayrton Gould, Mrs. B Driberg, T. E. N Irving, W. J. (Tottenham, N.)
Bacon, Miss A. Dumpleton, C. W. Isaacs, Rt. Hon. G. A.
Baird, J, Ede, Rt. Hon. J. C. Jenkins, R. H.
Balfour, A. Edwards, Rt. Hon. N. (Caerphilly) Jones, Elwyn (Plaistow)
Barstow, P. G. Edwards, W. J. (Whitechapel) Jones, P. Asterley (Hitchin)
Barton, C. Evans, E. (Lowestoft) Keenan, W.
Battley, J. R. Evans, John (Ogmore) Kenyon, C.
Bechervaise, A. E. Evans, S. N. (Wednesbury) Kinghorn, Sqn.-Ldr. E
Berry, H. Fairhurst, F. Kinley, J.
Beswick, F. Fernyhough, E. Leslie, J. R.
Bing, G. H C. Fletcher, E. G. M. (Istington, E.) Levy, B. W.
Blackburn, A. R. Follick, M. Lindgren, G. S.
Blenkinsop, A. Foot, M. M. Longden, F.
Blyton, W. R. Freeman, J. (Watford) Lyne, A. W.
Boardman, H. Ganley, Mrs. C. S McAdam, W.
Bowden, Flg. Offr. H. W. Gibbins, J. McEntee, V La T.
Braddock, Mrs. E. M. (L'pl. Exch'ge) Gibson, C. W. Mack, J. D.
Brook, D. (Halifax) Glanville, J. E. (Consett) Mackay, R. W. G. (Hull, N.W)
Brooks, T. J. (Rothwell) Grey, C. F McLeavy, F.
Brown, T. J. (Ince) Grierson, E. MacPherson, Malcolm (Stirling)
Bruce, Maj. D. W. T. Griffiths, D. (Rother Valley) Macpherson, T. (Romford)
Burden, T W. Gunter, R J. Manning, Mrs. L, (Epping)
Buffer, H. W. (Hackney, S.) Guy, W. H. Mathers, Rt. Hon. George
Cobb, F A. Hale, Leslie Middleton, Mrs. L.
Cocks, F. S Hall, Rt. Hon. Glenvil Millington, Wing-Comdr. E. R
Collindridge, F. Hamilton, Lieut.-Col. R. Morgan, Dr. H. B.
Colman, Miss G. M. Hannan, W. (Maryhill) Morris, P (Swansea, W.)
Cooper, G. Harrison, J. Moyle, A.
Corbet, Mrs. F. K. (Camb'well, N.W.) Hastings, Dr. Somerville Murray, J. D.
Crawley, A. Henderson, Joseph (Ardwick) Naylor, T. E.
Daggar, G Hewitson, Capt. M Nichol, Mrs. M. E. (Bradford, N.)
Daines, P. Hobson, C. R. Noel-Baker, Capt. F. E. (Brentford)
Davies, Harold (Leek) Holman, P. Oliver, G. H.
Davies, R. J. (Westhoughton) Holmes, H. E. (Hemsworth) Paget, R.T.
Paling, W. T. (Dewsbury) Shawcross, C. N. (Widnes) Wells, P. L. (Faversham)
Pargiter, G A. Shawcross, Rt. Hn. Sir H. (St. Helens) Wells, W T. (Walsall)
Parker, J. Silverman, J. (Erdington) Wheatley, Rt. Hn. John (Edinb'gh, E.)
Paton, Mrs F. (Rushcliffe) Simmons, C J Whiteley, Rt. Hon. W.
Paton, J. (Norwich) Skinnard, F. W. Wigg, George
Pearson, A. Smith, S. H (Hull, S.W.) Wilkes, L.
Peart, T. F. Soskice, Rt. Hon. Sir Frank Wilkins, W. A.
Popplewell, E. Sparks, J. A. Willey, F. T. (Sunderland)
Porter, E. (Warrington) Stamford, W. Willey, O. G. (Cleveland)
Porter, G. (Leeds) Steele, T. Williams, J. L. (Kelvingrove)
Pritt, D. N. Sylvester, G. O. Williams, Ronald (Wigan)
Proctor, W. T. Symonds, A. L. Williams, W. R. (Heston)
Pursey, Comdr. H. Taylor, R. J. (Morpeth) Willis, E.
Randall, H. E. Thomas, D. E. (Aberdare) Wills, Mrs. E. A.
Ranger, J. Thomas, I. O. (Wrekin) Woodburn, Rt. Hon. A.
Rees-Williams, D. R. Titterington, M. F. Woods, G S.
Reeves, J. Tolley, L. Young, Sir R. (Newton)
Reid, T. (Swindon) Tomlinson, Rt. Hon. G. Younger, Hon. Kenneth
Richards, R. Turner-Samuels, M Zilliacus, K.
Ridealgh, Mrs. M. Ungoed-Thomas, L.
Robertson, J. J. (Berwick) Vernon, Maj. W. F. TELLERS FOR THE NOES:
Ross, William (Kilmarnock) Warbey, W. N. Mr. Snow and
Royle, C. Weitzman, D. Mr. George Wallace.

Question put, and agreed to.

Clause, as amended, ordered to stand part of the Bill.

Clause 19 ordered to stand part of the Bill.