HC Deb 05 July 1955 vol 543 cc1055-62
Mr. Hale

I beg to move, in page 6, line 26, at the end, to add: provided that he is satisfied that it is in the interest of the parties so to do. This is so simple an Amendment that I should have thought the right hon. and learned Gentleman could have accepted it without any discussion, in order to make further progress with more important matters. As I read it, the Clause gives to the county court judge power to transfer a trial from any court on his circuit to any other court on his circuit, but it provides no criterion or test to which he should apply his mind in coming to that decision.

I have a great regard for county court judges, and I am reluctant to impute to them any improper motives in coming to decisions; indeed, I wondered how far I could develop this argument in view of the respect which I have for them. The difficulty of imputing egoistic eccentricities to a county court judge is, perhaps, accentuated geometrically by the rectangular nature of the Bench. I make a study of the Sabbath Press, as I hope the right hon. and learned Gentleman does, because it is one way in which he can keep in touch with the opinions of back benchers.

Last Sunday I was surprised to see, in a newspaper, an article written by a county court judge who was described as being widely known as very good to the under-dog and a terror to the dirty dog. It was said that he stretched the law for "Old Charlie." I should mention that "Old Charlie" was a mare—not a city or borough sort of mayor, but the wife or mistress of a horse—and I have no doubt that a considerable part of the British public was suitably moved by all this. The article further stated that the Lords Justices of Appeal who heard the appeal rather appreciated this example of Nelson's blind eye being placed to the telescope. Nobody was told who paid the costs of the appeal; that was one of the matters which a cynic might have considered.

At any rate, I have been able to quote evidence of the fact that county court judges have not invariably applied their minds exclusively to the problems which the law directs. Let us face the difficulty, which is, quite simply, that many of our county towns are near the middle of their counties, and nothing is more convenient for the county court judge in, say, Leicestershire, to transfer all his cases to Leicester. It is a wretched journey to Ashby. The train service is bad.

I remember once arguing a case in a remote Northamptonshire county court, where a very distinguished barrister told me, rather sadly, about three-quarters of the way through the case, that he had lost it. He said he knew he had lost because the judge had passed him a note saying, "Could you give me a lift home?" The barrister said that the judge was so honest that he would never ask for a lift home from a barrister in whose favour he was going to decide the case.

County court judges could find excellent reasons for transferring cases from Ashby-de-la-Zouche to Leicester. It is easier to get there; one can get luncheon more conveniently, and, in any case, the judge probably lives there. Under the Clause as it stands at present, it seems to me that those are exactly the considerations which will appeal to him.

I have merely sought to provide a suitable test, by saying that the judge should consider the interests of the litigants. I should hardly have thought that I was embarking upon any controversy if it were not for some curious observations of the Solicitor-General earlier about the objects of the Bill, which apparently did not include any consideration of the interests of litigants. Perhaps I misunderstood him; I do not want to be ungenerous.

It is said that if this Amendment—so carefully drawn, and setting out such unexceptionable principles; because there are no sanctions—were passed, county court judges could still transfer cases, and there would be nothing to stop them doing so. I do not take such a low view of county court judges. I am sure that they will bear in mind the considerations to which their minds are directed by the Amendment. As for the absence of sanctions, I humbly venture to remind the Committee that a similar comment can be made about Magna Charta, the Petition of Rights, the Declaration of Human Rights, and other documents of an importance at least equal to that of the Amendment.

Mr. Ronald Bell (Buckinghamshire, South)

I have much sympathy with the Amendment, which has been moved so ably and wittily by the hon. Member for Oldham, West (Mr. Hale). The difficulty which I feel about the matter is that if county court judges are as ingenious as the hon. Member thinks they are they will not find it very difficult to satisfy themselves that the changes which they propose are in the interests of the parties—and we might find ourselves back where we were before, notwithstanding the addition of seven or eight words.

Nevertheless, this is a point which my right hon. and learned Friend should consider. It is possible that hardship might be caused to parties in scattered circuits by the transfer of their case, without their consent, from one court to another. I am not sure that the words proposed by the hon. Member will meet the case. It may be that words requiring the consent of the parties should be inserted. That would be a more extreme matter, but I do not see why we should be deterred from considering it.

If, in accordance with the jurisdiction rules, the parties enter their case at a certain court, it has to stay there, and it would be a considerable relaxation of the present rules in favour of the litigants if, with their consent, the case could be transferred. I mention this very briefly because I remember that when I referred to the difficulties which sometimes afflict litigants by the fact that their cases are part heard and are then deferred, perhaps for several months, the Solicitor-General said that Clause 10 might be of some help. If it is intended that a case shall be started in one court and then heard the next day or very soon afterwards in another court on the circuit, having been transferred without the consent of the parties, considerable hardship may be caused to them. I would urge my right hon. and learned Friend to see whether, at a later stage, he cannot propose a form of words which would meet this difficulty.

8.30 p.m.

The Attorney-General

The Amendment, moved in such an attractive fashion by the hon. Member for Oldham, West (Mr. Hale), is deceptive in its simplicity. Its very simplicity might lead one to think that it was an eminently desirable Amendment to accept, and so it is on the face of it. But when one comes to examine the position and to consider what is likely to arise, I hope that the hon. Gentleman will see that it would not be in the interest of the litigants in the county courts if this Amendment were accepted.

In considering whether or not to transfer a case from one court to another, a county court judge should properly have regard not only to the interests of the particular parties to that action but to the interests of the other litigants on his list in that court. I will, in a moment or two, give an indication of what this Clause is meant to deal with.

I would remind the Committee that at present, under Order 16, Rule 1, the judge may transfer the proceedings to another court where they can be suitably tried, but under the provision the whole of the proceedings must be transferred and all the interlocutory work must take place at the other court. It may be in the interests of the parties for the interlocutory work to take place in the court where the proceedings were started. That may be a court in which the judge sits only once a month. If he sees that there is a long case likely to go from one month to the next and fill up the whole of his day's work at the expense of other litigants who want to come on, it may be right and advisable for the proceedings, although they had been started in that court, to be transferred to another court where the judge can give continuous attention to that long case and it would not get in the way of other litigants. So it would be limiting it too narrowly to make this provision exercisable only if it appeared to be in the interests of the particular parties.

I think that it is difficult to define the conditions and considerations which a county court judge would always have to bear in mind. I think that one can leave this safely to the county court judges who, by and large, although one may remember some odd happenings, do their utmost to meet the needs of those who appeared in their courts. I think that we can safely leave it to them, bearing in mind this—and no doubt attention will be drawn to it—that if it were found that a practice that one person was developing was leading to inconvenience to litigants and to others, there is, in addition to Order 16, Rule 1, also power under Section 38 of the principal Act whereby A judge may, with the consent of the parties to any proceedings, hear and determine the proceedings … at any place either within or without any district for which he is judge. There is, therefore, no need for an additional provision for the consent of the parties. This provision was so drawn as to enable, and with the object of enabling, the problem to be dealt with in particular where the courts sit once a month—courts where there may be a great number of small cases and where there suddenly starts a big case which will hold up the whole of the list—whereby, in the big town more than in the country, there can be a transfer which will be in the interest and to the convenience not only of the litigants in a particular action but to the other litigants who are waiting for their cases to come on.

The hon. Gentleman moved the Amendment in a most attractive and sympathetic fashion. I fully appreciate the dangers to which he has drawn attention, and I am not unsympathetic with his idea; but I think we must go a little wider than the interests of the parties in a particular action, and that if this is to work, as I believe it will, to the advantage of the litigants, we must leave it to the discretion of the county court judge in the way suggested.

Sir L. Ungoed-Thomas

The longer the Bill goes on and the more I hear of the Government's approach to it, the less I like it. When I first saw the Amendment in the name of my hon. Friend the Member for Oldham, West (Mr. Hale) I thought it was rather unnecessary and that the answer would be, "This is exactly what the county court judge will inevitably do and what the whole object of the rule will be, namely, to see that discretion is exercised in the interests of the litigants." We find now that it is not so at all. The Attorney-General started off—

The Attorney-General

I am sure that the hon. and learned Gentleman does not wish to mispresent what I said. It would be wrong to confine this solely to the interests of the litigant, or, it might be, the interests of the two litigants. If their case was transferred, that might be to the great disadvantage of a great many more. It might, of course, be possible to transfer a case without doing anyone inconvenience. I would not like it to be thought or suggested that the judge, in deciding whether or not to transfer a case, should not bear in mind the interests of the parties as well as to the interests of the other litigants.

Sir L. Ungoed-Thomas

I understood what the Attorney-General said in the first place. He said it clearly and I understood it clearly. He has now explained clearly what he said clearly before. He started off with the proposition that it would not be in the interests of the litigants to have a stipulation in the Bill that the judgment should be in the interests of the litigants. This seemed rather an astonishing proposition until I found that the litigants about whose interest the Attorney-General was concerned were not the litigants who were actually the parties to the proceedings.

Let us just consider this point. The Attorney-General says that he cannot accept words requiring that the discretion shall be exercised in the interests of the parties to the proceedings, because, and only because, it may be necessary in the interests of other parties and of other litigants to have a matter transferred to another district. The Attorney-General shakes his head. I beg him to apply his mind logically to the proposition, which is that discretion shall be exercised in the interests of the parties. The Attorney-General refuses that proposal. I will give way if he wishes to interrupt again.

The Attorney-General

The hon. and learned Gentleman does not seem to appreciate what I said at all. I said, "The county-court judge will, of course, bear in mind the interests of the parties." I hope the hon. and learned Gentleman has got that right. Then I said, "He would rightly bear in mind the interests of other parties as well." It would not be limited to the interests of the parties.

Sir L. Ungoed-Thomas

I hope that the Attorney-General will follow this point. I fully appreciate what he has said. I will take the matter stage by stage.

The Amendment proposes that discretion shall be exercised in the interests of the parties. Let us assume that the discretion exercised in the interests of the parties is that the case shall remain at the court where it now is. That decision would then stand. The Attorney-General refuses the Amendment because, and only because, some other consideration must prevail over the interests of the parties. I agree that the judge might take the interests of the parties into consideration, but the whole purpose of the refusal of this Amendment by the Attorney-General is to enable the interests of the parties to be over-ruled. I hope that that is quite clear.

Why does the Attorney-General wish the interests of the parties to be overruled? He wishes to provide for overruling the interests of the parties because it may be in the interests of other litigants not to exercise the discretion in the interests of the parties. What does that mean? In the case which he has mentioned that simply means administrative convenience.

The Attorney-General

indicated dissent.

Sir L. Ungoed-Thomas

Of course it does. It means that it is more convenient for parties other than the parties in the action that the case should be heard in court A rather than in court B, and that is exactly what we mean by administrative convenience.

The answer to the difficulty of overruling the interests of the parties in the interests of administrative convenience is to provide more county court judges. We say that the administration should serve the interest of the parties—of all the parties—in each case and that their interest should not be over-ruled by administrative convenience. That is the issue which has emerged between the two sides of this Committee more and more clearly as the debate has proceeded. It was for that reason that we divided on the last Amendment. We did not divide on a difference between 80 and 90, but on the difference in approach between the Government and ourselves. We said that the number of county court judges should be determined by the convenience of the parties and not by other conveniences.

That is exactly our attitude on this Amendment. While we are completely unable to accept the Attorney-General's defence of his rejection of this Amendment, my hon. Friend may well consider, as time is getting on, that perhaps it is undesirable to divide on this particular Amendment—

Mr. Hale

indicated assent.

Sir. L. Ungoed-Thomas

—because we have, in fact, expressed our views on precisely the same principle in dividing on the last Amendment.

Amendment negatived.

Clause ordered to stand part of the Bill.