HC Deb 15 July 1955 vol 543 cc2249-53

(1) Where there is commenced in the county court an action founded on contract or tort wherein the plaintiff claims damages, the plaintiff may at any time apply to the county court judge for an order to transfer the action to the High Court, on the ground that there is reasonable ground for supposing the amount recoverable in respect of his claim to be in excess of the amount recoverable in the action in the county court.

(2) If, on any such application, the judge is satisfied that there is reasonable ground as aforesaid, the judge shall make an order that the action be transferred to the High Court.—[The Attorney-General.]

Brought up and read the First time.

11.10 a.m.

The Attorney-General (Sir Reginald Manningham-Buller)

I beg to move, That the Clause be read a Second time.

The House will be aware that, during the Committee stage, the hon. Member for Oldham, West (Mr. Hale) moved a new Clause very similar to the one I am moving. My hon. and learned Friend the Solicitor-General said that we would give consideration to the proposal. It seemed to us at the time that there was considerable force in the arguments by which it was supported, although the occasions on which any use would be made of the provision seemed likely to be few.

Nevertheless, it is important to provide that where a case is started in the county court, and it appears while it is awaiting trial, or indeed at the trial, that the amount which the plaintiff should recover is in excess of the county court jurisdiction, there should be a way of transferring the case, if need be, to the High Court.

Of course, there is power in the Bill to agree to the county court having jurisdiction in excess of £400. One would expect that in the majority of cases, where liability was clear and the damages ought to exceed £400, the defence would agree to the county court judge disposing of the whole matter. If the defence would not agree, the proposed new Clause would give power to the county court judge to transfer the case to the High Court.

There are differences between the proposed new Clause and that which was tabled by the hon. Member for Oldham, West. The proposed new Clause enables application to be made for transfer both before the case comes on and when the case has come on in the county court. The plaintiff may apply at any time. It is contemplated that if he applies before the day of trial he will have to give notice to the defendant, so as to give the defence an opportunity to resist the application.

The proposal of the hon. Member for Oldham, West was that no order as to costs should be made by the county court judge on the transfer of the action, but that the case would be subject to such order of the High Court as to a judge of the High Court or master in chambers seems just. In the proposed new Clause there is no provision with regard to costs. That is intentional because, under Section 73 of the principal Act, the costs of the whole proceedings both before and after transfer shall, subject to any order made by the court which ordered the transfer, be in the discretion of the court to which the proceedings are transferred. I do not think that any county court judge would make a prospective order as to the cost which would be incurred when the proceedings were in the High Court. but it will be an advantage that he should deal with the costs in the county court before the transfer, and he will have power to do so under the proposed new Clause.

The economic sanctions to which I referred in Committee will not apply in relation to an action so transferred. Assume, for instance, that, contrary to the opinion of the county court judge when he made the transfer, the damages awarded in the High Court are less than £400. The economic sanctions apply only in relation to actions commenced in the High Court for the purposes of Section 47 of the principal Act, and the action to which I have referred would not come within that Section.

I hope that I have said enough to commend the proposed new Clause to the House. I doubt whether much use will be made of it, but it will be an advantage to have it in the Bill.

Mr. Elwyn Jones (West Ham, South)

Having heard what the Attorney-General has said, it seems that this proposed new Clause will be most helpful and will give additional rights to litigants in circumstances where those rights may be very important for the obtaining of due justice. I heartily commend it.

Sir Lynn Ungoed-Thomas (Leicester, North-East)

I thank the Attorney-General for proposing to include this new Clause in the Bill. We are grateful to my hon. Friend the Member for Oldham, West (Mr. Hale), who originated the proposal. We appreciate that it is a valuable provision. My hon. Friends and myself have considered the proposed new Clause in detail and have not repeated the proposal which was made by my hon. Friend the Member for Oldham, West in Committee. We are certain that the proposed new Clause will be a substantial improvement to the Bill and we very much welcome it.

Question put and agreed to.

Clause read a Second time.

Mr. Barnett Janner (Leicester, North-West)

I beg to move, as an Amendment to the proposed new Clause, at the end to add: (3) If in such an action the Judge at any time is satisfied that there is reasonable ground as aforesaid he may with the plaintiff's consent make an order that the action be transferred to the High Court. The purpose of my Amendment is not to detract from the value of the proposed new Clause, but I hope the Attorney-General will accept it for the reasons which I will try to explain.

I do not agree that the proposed new Clause is not likely to be used. I think it will be used quite a lot. Applications will be made, and the reasons for making them will be obvious. The judge will have considerable difficulty in many cases in deciding whether the amount which he is permitted to deal with in the county court is sufficient to meet the case. There is a good reason for giving a judge himself, in the course of the conduct of a case or possibly at the end, power to order the case to be transferred.

There is a precedent, although not in respect of quite the same subject matter. When a magistrates' court has heard a case against a defendant it is entitled to send the case to quarter sessions for sentence. It may be said that if a county-court judge has heard a case to the end it will be difficult to send it to the High Court, but perhaps that difficulty may be overcome in the same way as it is overcome in remission from a police court to quarter sessions. In this case it is sent for penalty but in the other case it will be a matter of assessing the amount to be recovered.

It cannot be stated that a full record is taken of a case in the police court. The intention would not be that every word is taken down so that the quarter sessions would have the full facts before it. In that respect it might differ from the proceedings in the county court, but that is not so. While it is perfectly true that the court could indicate to counsel or to the plaintiff that they ought to make this kind of application which is intended under the new Clause, I think, nevertheless, that a judge should be in a position to say, at any time during the hearing of the case, that he himself has come to the conclusion that it would not be fair to the plaintiff if the judge were to have the final word in relation to the amount of damages, even though, I admit, he is entitled so to do, and the amount can be increased by virtue of the provisions of the Act.

The judge may say, "I think that this is a case where a High Court judge should have an opportunity of deciding that an amount very much larger than that set down in the Act should be awarded, and I should not like to take the responsibility of deciding what that amount ought to be." He could, of course, indicate that to the plaintiff or his solicitor, or whoever may be there, but in such an event I think that the county court judge should have the right to say to the plaintiff, "I think you should send this to a higher court. I am not in a position to award the amount which should be awarded. I cannot fix it myself. I think that it should be very much higher than any amount I could, within the purview of county court jurisdiction, allow. Consequently, you should take it to the High Court."

Mr. Elwyn Jones

Does my hon. Friend think that if the judge gave any information of that kind in court the plaintiff would be in any way reluctant to leap in to make an application under the Clause?

Mr. Janner

It is additional to the Clause I think that if the judge gave such an intimation himself, the plaintiff would readily accept it and it would immediately be sent to the High Court. That is my view, and it derives from some experience of practice in the county court. No harm would be done, and quite a lot of good would result were the Attorney-General able to see his way to accept the Amendment.

Mr. Speaker

As there is no seconder, the Amendment falls.

Clause added to the Bill.