§ Order for Second Reading read.
§ 11.5 a.m.
§ The Attorney-General (Sir Reginald Manningham-Buller)
I beg to move, That the Bill be now read a Second time.
As the Explanatory Memorandum states, the Bill is based on the proposals of the Committee on Supreme Court Practice and Procedure—generally known as the Evershed Committee—whose Interim Report was presented to Parliament nearly six years ago. That Committee consisted of 24 members. It was a very strong Committee, presided over by the Master of the Rolls, and among its members were two judges and four Members of Parliament, including the hon. Member for Islington, East (Mr. E. Fletcher). It worked for two years before presenting its Report, and at the beginning of my speech I should like to pay a tribute to the members of the Committee for the valuable and excellent work they did. I trust that the result of their hard work, embodied in this Bill, will lead to a significant improvement in the administration of justice.
One of the Committee's main proposals was that the jurisdiction of the 1650 county courts should be increased. Legal aid has been available in the High Court since 1950, but is not yet available in the county courts. To enlarge their jurisdiction without extending legal aid to those courts would have meant depriving many litigants of assistance. As was first announced on 6th December, 1954, and again in the Gracious Speech, the Government are now in a position to make legal aid available there, and, consequently, provision can now be made for the jurisdiction of the county courts to be increased.
The House will see that Clause 7 provides that Clauses 1 to 4, which increase the jurisdiction, shall come into force on an appointed day; and that day will be the day legal aid becomes available in the county courts. The limits of county court jurisdiction have been gradually increased over the years. The jurisdiction in contract and tort, which was £20 in 1846, had risen to £200 a hundred years later. In 1888, the limit was £50; in 1903 it was £100, and in 1938 it was increased to £200, but with the proviso—to which I must refer later—that if the claim was for more than £100 the defendant had the right to insist on trial in the High Court.
The Bill proposes to raise the limit of jurisdiction in contract and tort to £400, with power to increase it by Order in Council to £500. In our belief, the case for some increase now is a strong one. We believe that it will relieve the High Court of some of the pressure which it has sustained during these post-war years and will help to accelerate the disposal of High Court actions both in London and on assize. I should like to pay a tribute, if I might, to the work done by the Lord Chief Justice and the judges in trying to reduce the delay. The pressure on the High Court is now less than it was but that, of course, may only be a temporary phase.
The Evershed Committee and many others—and, indeed, the Government-think that the time has come for an enlargement of county court jurisdiction. The difficulty is to decide where the line should be drawn. Obviously, it would be unwise and stupid to transfer congestion from the High Court to the county court, which might be the result if the limit of county court jurisdiction is fixed too high.
1651 Also, as the Evershed Committee so rightly said:county courts were instituted to provide a speedy, satisfactory and convenient mode of trial in cases in which litigants of comparatively small means are engaged, and this is today the primary function of county courts.They are the poor man's courts, and the poor man who goes to those courts must not feel that his case is being unduly delayed by cases in which more money is at stake.
As I say, the real problem is where to draw the line. The Evershed Committee drew it at £300, for it was satisfied that the county courts could absorb that degree of additional work. Indeed, £300 also pretty well represented the fall in the value of money which had occurred between 1938 and 1949. The Bill recommends an increase to £400, and that generally reflects the further fall in the value of money that there has been since 1949.
It is difficult to estimate the precise result of increasing the county court jurisdiction in contract and tort to that limit. In 1952, out of 3,820 actions heard in the High Court no fewer than 1,300 were for amounts not exceeding £400. If all these 1,300 cases had been tried in the county court, the High Court judges would have been relieved of 34 per cent. of their cases.
Though, under this Bill, the inducements to bring such actions in the county court are increased, I do not think it is likely that all cases involving less than £400 will, in fact, be brought in the county courts. The change that the Bill proposes is, indeed, substantial, but I do not think it is likely to relieve the High Court judges of so high a percentage as 34 per cent. of their civil cases. Of course, in recent years additional work has fallen upon the county courts as a result of recent legislation such as the Landlord and Tenant Act, 1954.
We have given very careful consideration to what the limit should be, and we believe that £400 is the right limit. If events show that we are wrong, and that the amount is slightly too high, there are in the Bill additional safeguards against congestion. The power to appoint 15 more judges than the present maximum and the power to increase the jurisdic- 1652 tion of the county court registrars, to which I shall refer later, are two of them. If, on the other hand, the limit has been fixed too low in the Bill, then there is power to increase it by Order in Council to £500.
It is not enough just to bring in a Bill extending the jurisdiction. We must encourage litigants to go to the county courts in cases which will fall within the extended jurisdiction. We must, at the same time, discourage them from going to the High Court when they can go to the county court.
The present position, I would remind the House, is, shortly, this. A successful High Court litigant will get no costs if he sues in the High Court and recovers less than £40 in contract or £10 in tort; and he will get county court costs only if he recovers between £40 and £100 in contract and between £10 and £50 in tort. So that if a plaintiff in the High Court recovers more than £100 in contract or £50 in tort he obtains High Court costs, and there is, as the law stands at the moment, no sanction to induce him to sue in the county court for a sum in excess of £100 in contract or £50 in tort. Even if he is only entitled to county court costs or even if he is not entitled to any costs at all, a judge in the High Court, under Section 47 (3) of the principal Act, the County Courts Act, 1934, has power to order High Court costs to be paid if there is sufficient reason for bringing the action in the High Court.
As I have said, under the present law a defendant can insist on an action for more than £100 being transferred to the High Court. The result has been that many cases which could have been heard in the county courts have been heard in the High Court. In 1954, the number of actions in the county courts for amounts below £100 was 615,724. The number of actions for sums in excess of £100 was only 4,891. That disparity of figures itself indicates that a great many cases which might have been tried in the county courts have in fact gone to the High Court.
The Evershed Committee expressed the view that the reason litigants prefer the High Court to the county court when there is no sanction inducing them to go to the county court, is partly because they like to have their cases tried by a High Court judge, but mostly because county court costs do not give the 1653 solicitor adequate remuneration for his work. It was a condition of the Committee's recommendation for increased jurisdiction in the county court that for cases over £100 in contract and tort and other increased jurisdiction there should be scales of legal costs which were properly remunerative of the work. This recommendation is accepted. The Lord Chancellor is now engaged in discussing the new scales with those affected.
The Evershed Committee also expressed the view that any increase of jurisdiction would have no effect unless accompanied by a sanction compelling or inducing litigants to go to the county courts. It recommended that a litigant should be compelled to go there; that is to say, that in a case within county court jurisdiction he should be denied access to the High Court unless the master thought that there was sufficient reason for the case remaining in the High Court. In our view, that is going a little too far. We do not think it right that the door to the High Court should be closed in the face of the litigant who likes to go there at his own risk, and we believe that economic sanctions can be enough, provided that they are strong enough, to deflect into the county court the cases that should be started in the county court.
The Bill proposes first, to abolish the different limits in this connection for contract and tort. They really lack any logical basis. These different limits have led to considerable case law and there is still a considerable area where it is difficult to say which limit applies. The Bill also proposes that if a litigant in the High Court recovers less than £75 he will not be entitled to any costs at all and that if he recovers less than £400 in contract or tort he will only get county court costs. The Bill further proposes that the defendant's right to have a claim in excess of £100 transferred from the county court to the High Court should be abolished.
We believe that these economic sanctions should suffice to induce most litigants to resort to the county court. I should make it clear that these sanctions do not, of course, apply to what we lawyers call Order XIV proceedings, that is to say, debt collecting claims. Now, if the plaintiff recovers or obtains judgment for £20 in Order XIV proceedings that will carry High Court costs. The Ever- 1654 shed Committee recommended that the limit should be raised to £40, and the Bill carries out that recommendation. Nor do these economic sanctions, if I may call them that, apply to actions referred to the Official Referee, because it would be wrong to induce those long and complicated actions to go to the county court.
One important feature of the Bill which has led to some comment and criticism is that under it there is no area where the successful High Court litigant can recover High Court costs if he sues in the High Court when he could have sued in the county court. When the Bill was first introduced in the last Parliament that absence of a marginal area led to criticism by the Bar Council. Its annual statement contained these words:…the abolition of this 'cushion' will place the legal advisers of plaintiffs in a very difficult position, inasmuch as it is virtually impossible to forecast the amount of damages in, for instance, a personal injuries action with the degree of accuracy demanded by the Bill.All of us who practise at the Bar—and, indeed, I think most solicitors, if not all of them—fully appreciate this difficulty. But there is a further difficulty, which is this: if one has such a marginal area, this so-called "cushion," experience over the past years has shown that cases within what I call the cushion area do not go to the county court but to the High Court.
There was no such cushion in contract cases before 1938, but if the defendant from 1938 onwards had the right of transferring a case where the claim was for more than £100 from the county court to the High Court, it was also right that the plaintiff should have the choice of suing sums in excess of £100 in the High Court. Our view is that the existence of a cushion would go a long way—indeed, a very long way—to defeat the object of the Bill.
While we do not accept that a litigant should be compelled to litigate in the county court rather than the High Court, we feel that it is necessary that there should be strong inducements to him to make him go to the county court where he can. Those inducements which are provided in the Bill would be very materially weakened if there were any cushion of the kind suggested. We have given long and careful consideration to the problem, the extent of which we 1655 appreciate. It is not an easy one. In our belief the right solution is to give the High Court judge a wide discretion, and in this respect the Bill differs from the Bill introduced in another place in the last Parliament.
Clause 1 (2) contains a very important provision. It makes it clear that if the judge thinks that there was reasonable ground for supposing the amount recoverable to be in excess of county court limits, the sanction will not apply. I have read with interest a letter which appeared in "The Times" this morning, signed by the right hon. and learned Gentleman the Member for St. Helens (Sir H. Shaw-cross) and the President of the Law Society. In it they make some comments upon this proposal. The letter contains this passage:Allowing for the complete objectivity which is to be expected from the High Court judges, the profession venture respectfully to suggest that it will be asking a great deal of a judge if he is invited to say that a plaintiff to whom he has awarded less than £400 was reasonably entitled to expect to recover more…I must say that I do not entirely agree with that passage. It may be that the judge, when he has heard the medical evidence for the plaintiff and the medical evidence for the defence, will say that the proper figure is less than £400, but it will be open to the plaintiff to say, "On the medical report I had no person would reasonably have expected a sum less than £400 to have been awarded."
I feel that this provision in Clause 1 (2), whereby if the judge thinks that there are rea'sonable grounds for supposing that more than £400 will be recovered the sanctions will not apply, is really the right way of tackling the difficulty to which the Bar Council drew attention—a difficulty which we all recognise.
§ Mr. Leslie Hale (Oldham, West)
The right hon. and learned Gentleman has put the point very clearly, but would he say a few words about contributory negligence and about counter-claims?
§ The Attorney-General
If the hon. Gentleman will wait, I am coming to that. That is a very important part of the Bill.
Under Section 47 of the 1934 Act, the judge has the power to modify the sanctions if he thinks that there was sufficient 1656 reason for suing in the High Court. Cases indicate that the mere fact that the claim exceeded the county court limits is not to be regarded as a sufficient reason within the meaning of that Section. Clause 1 (2), while leaving judges' powers as they are under Section 47—that is to say, while not affecting the judges' powers of modifying the sanctions where sufficient reason exists—makes it clear that these sanctions do not apply at all where reasonable ground exists for supposing that the claim exceeds the county court limits. It is because of the relation of these two provisions that I did not deal with the important matter of contributory negligence before.
If the hon. Member for Oldham, West (Mr. Hale) would look again at Clause 1 (2) he would see that it is clearly provided that, in determining whether the sanctions are to apply, any deduction made as a result of contributory negligence or as a result of a counter-claim is to be ignored. Therefore, the judge, in deciding whether there were reasonable grounds within Clause 1 (2) for suing in the High Court must ignore any deduction which would fall to be made from the damages otherwise recoverable by reason of contributory negligence or of a counter-claim. I believe that this will work all right and that where a plaintiff has reasonable grounds for believing that he will recover more than £400 he will not be penalised by these sanctions.
I have spent a great deal of time—I hope not too much—on Clause 1, because it is a most important Clause. Before I leave it, perhaps I should add that although the defendant's right to transfer cases of over £100 to the High Court is abolished, the defendant will still be able to apply for transfer under Section 44 of the 1934 Act on giving security for the claim and costs and satisfying the judge that some important question of law or fact is likely to arise. He can also apply, under Section 111, for an order removing the proceedings to the High Court on the ground that it is desirable that they should be heard and determined in the High Court.
§ Sir Lynn Ungoed-Thomas (Leicester, North-East)
As I gather the right hon. and learned Gentleman is now leaving this very important part of the Bill, may I ask him a question on it? He has been 1657 good enough to give a number of figures for cases of under £400 in the High Court and of over £100 in the county court—but surely for the purposes of consideration of this Clause the most relevant figures are those for cases of under £100 in contract in the High Court and under £50 in tort in the High Court. If the right hon. and learned Gentleman has those figures we should be grateful if he would give them.
§ The Attorney-General
I asked for those figures, but they are not available. I have given the only figures which are available and from which one may draw deductions. Our difficulty is in separating cases in the High Court—ordinary actions tried in court—from the Order XIV cases and the statistics cover those. I am sorry that I cannot give the hon. and learned Member the figures; I asked for them myself.
Clauses 2 to 4 increase the jurisdiction in respect of actions relating to land, Admiralty proceedings and probate proceedings. Perhaps I should emphasise that in relation to land the limit proposed is now £100 in the net annual value for rating. That is a change from the present limit based on the yearly rent or value, which is difficult to determine and has led to disputes. The Evershed Committee proposed taking the rateable value but, for reasons which I can fully deploy in Committee and do not think I need take time in giving now, we have come to the conclusion that the net annual value in rating would be the best guide. One advantage is that it is easily ascertainable by reference to the valuation lists.
In the matter of Admiralty proceedings we have embodied in the Bill the recommendation of the Evershed Committee that the limit should be increased to £1,000 and have put forward a proposal that in salvage cases there should be the same proportionate increase to keep the relation there was before between those cases and ordinary Admiralty cases. The limit proposed for salvage cases is £3,500. In probate actions again we have accepted the recommendation of the Evershed Committee that the limit should be £1,000 in contentious proceedings.
Clause 5 reverses the decision in Lea v. Moore so that the county court, if the Bill becomes an Act, can hear cases in 1658 excess of its jurisdiction by agreement between the parties without the parties first having to start an action in the High Court. Clause 6 makes the county court jurisdiction of the Mayors and City of London Court accord with the jurisdiction of other county courts.
Clause 9 is based on a recommendation of the Committee on County Court Procedure, which produced a valuable Report and of which I think the hon. Member for Oldham, West was a member. This Clause makes provision to enable the jurisdiction of registrars in the county court to be increased to £30 if neither party objects and to try other cases by leave of the judge and with the consent of the parties. That may be a very useful provision.
Clause 10 is what I might call a machinery Clause, but is not unimportant. It enables a judge in the county court to make arrangements so as to secure the more speedy despatch of business by arranging that particular cases can be tried by a particular court, even though that is not the court in which the proceedings started.
Clause 11 brings me to what I think is the second most important change proposed by this Bill. That is the provision of an appeal from the county court on questions of fact. The present position is that there is in general no appeal on questions of fact from a decision of a county court judge. There is, of course, an appeal from a High Court judge on questions of fact. The question whether there should be appeals on fact was very fully considered by the Evershed Committee. The arguments for and against are fairly weighty. They are very fully and clearly set out in the Final Report of the Evershed Committee and I am sure the House will not wish me to summarise them now. That Committee came down in favour of an appeal on fact. The Government also have come to that conclusion.
The main reason for that conclusion is that it would be wrong to induce persons to go to the county court rather than to the High Court and at the same time to deprive them of the right of appeal on fact which they would have had if they had sued in the High Court. We have taken a slightly different limit from the Evershed Committee and the Bill proposes that there should be a right of appeal on fact in any case which, 1659 before the Bill becomes an Act, could not have been brought in the county court, and on claims for an injunction. In all the cases which fall within the area of jurisdiction which it is now proposed should be given to the county court there will be an appeal on fact, but we do not think it right that there should be any appeal on fact in rent restriction cases. I am sure the House will think that is a sound provision.
§ The Attorney-General
That has been considered, but in the Bill we have put in proposals—most of which are on the same lines as those discussed in the last Parliament—to secure what we believe most important. We have considered the question of leapfrogging appeals. There, again, the arguments are fairly evenly balanced and we shall be interested to hear what further light the hon. Member will shed on that question.
This Bill contains what we feel are the changes which should be made and I trust that I have sufficiently explained the main provisions. It is an important Bill; in my belief it is a good Bill, and I commend it to the House.
§ 11.39 a.m.
§ Mr. Eric Fletcher (Islington, East)
I am sure the whole House will be grateful to the Attorney-General for the very full and clear way in which he has explained the objects and Clauses of this Bill. It is one which, with certain reservations which I shall indicate later, we on this side desire to welcome and support on Second Reading. I am particularly glad of the opportunity of welcoming it because, as the right hon. and learned Gentleman was good enough to say, I spent a certain amount of time as a member of the Evershed Committee on these problems and the Bill embodies the spirit and many of the recommendations of that Committee, though with some modifications of detail.
I hope, however, that my colleagues on that Committee, including my hon. and 1660 learned Friend the Member for Walsall, North (Mr. W. Wells), who was also a member of the Evershed Committee, will not think me guilty of any disloyalty if I do not feel constrained on this occasion to support in detail all the precise recommendations of that Committee. A great many of them were linked with one another and, as the right hon. and learned Gentleman has said, in a great many cases the arguments for and against a particular recommendation were very finely balanced. One of the great merits of the Evershed Committee's Report, if I may say so, is that it sets out the facts and arguments on both sides so very fully.
This Bill deals with the administration of justice. That is a matter which is not merely of technical interest to the members of the legal profession, but is a matter of very great public and social concern, for the satisfactory administration of justice is essential to the maintenance of a strong and healthy democracy. We support this Bill because we believe that it will improve the machinery and administration of justice.
It is important not only that there should be speedy, satisfactory and convenient modes of trial, but that justice should be equally accessible to all Her Majesty's subjects regardless of their means. It was for that reason that the Labour Party introduced the Legal Aid and Advice Bill. It would, of course, have been quite wrong to have increased the jurisdiction of the county court so long as legal aid was obtainable in the High Court only and was not obtainable in the county court.
I have thought for a long time that legal aid is more necessary in the county court than in the High Court. My experience over a long number of years is that there are many cases which would normally be brought in county courts in which people of humble means have been deprived of justice because they have not been able to pay for legal assistance. I have no doubt that my hon. Friends share my experience of numerous cases in which people have been unable to obtain redress and have suffered injustice because they could not afford the legal assistance necessary to enable them first to be advised as to their rights and the procedure to be followed, and then to take proceedings in the county court 1661 to obtain justice for their wrongs. Therefore, we on this side are particularly glad that, as a result of long continued pressure from these benches, legal aid is soon to be introduced into the county court. It is quite right that the extension of the county court jurisdiction should be deferred so as to synchronise with the introduction of legal aid in the county court.
My first question to the Attorney-General is to ask when the Bill will come into operation. When shall we have legal aid in the county court? On that subject, I want to ask a further question. In future, when a litigant desires legal aid in a case which may or may not be within the county court jurisdiction, will the certificate of legal aid make it clear that the legally-aided litigant's legal advisers can then decide whether the case should be taken in the High Court or in the county court?
§ Mr. Fletcher
I do not want to find that it will be the function of the legal aid committees to decide at the outset whether a particular litigant shall have a certificate for legal aid in the High Court or a certificate for legal aid in the county court. That should not be the function of the legal aid committee. In my submission, that committee should say of a person that he is or is not entitled to legal aid. As the right hon. and learned Gentleman has indicated, there will be a great many borderline cases in which someone will have to decide whether a legally-aided litigant should commence his proceedings in the High Court or in the county court, and it is important that a legally-aided litigant in that respect should be on the same basis as any other litigant. His own advisers should then take the decision as to whether his legally-aided proceedings under the certificate should be brought in the High Court or in the county court. I hope that the Attorney-General will give thought to this if the matter has not been already decided in the way that I have indicated.
In passing, I should like to say this. In my view, it is time that the requirements for contributions by legally-aided litigants were revised. They operate far too harshly in a great many cases, and now that we are to have legal aid in the county courts with an extended county 1662 court jurisdiction, it is high time that those rules, often requiring very onerous contributions from litigants—
§ Mr. Fletcher
—were drastically revised and made far more generous than they are at present. It is very necessary that this should be done now that we are to have legal aid in the county courts.
As I have said, we on these benches support the general provisions of this Bill, but there are a number of details on which my hon. and right hon. Friends and myself will wish to put down Amendments in Committee. Speaking for myself, I should like briefly to indicate my own views on what are, admittedly, the controversial features of the Bill.
Clause 1 is, of course, the most important Clause, because it extends the jurisdiction of the county court to £400: and, as has been pointed out, it does not provide any so-called cushion. Hitherto, a litigant who could not be certain whether a judge would award him more than the county court maximum has been able, if he so elects, to bring his proceedings in the High Court knowing that in an action of tort—for example, an action for personal injuries —if he obtained at least £50, he would get his costs on the High Court scale. Under this Bill, no cushion is provided.
The litigant will have to decide at the outset whether he is to bring his case in the High Court or in the county court. As all practitioners know, it is the most difficult thing in the world, particularly in personal injury cases, to advise a person of even the approximate amount of damages that are likely to be recovered in respect of a personal injury, whether it is the loss of a limb, the loss of a finger, some lingering disablement, or perhaps some facial disfigurement. Different judges may interpret and assess the monetary vaue of such injuries very differently. Indeed, the case may, when it goes to court, be quite different in appearance, compared with how it appeared to the legal adviser who had to advise the litigant several months earlier. Therefore, it has always been thought proper and equitable that a litigant, not knowing how much he will get, should have an option.
1663 Let us see what happens under the Bill. A person has some injury and is told by his solicitor and by his barrister that it is impossible to say whether the judge will give him £200, £300, £400, £500, £600, or perhaps more, for that injury. If he brings his action in the county court he forgoes the right to get more than £400. He may go to the county court and it may then become apparent that if the county court judge had the power to do so he would give that unfortunate plaintiff a larger sum than the county court jurisdiction permits.
That is an unfortunate choice for any litigant to make, and it is desirable that the litigant, faced with this dilemma, should be able to bring his action in the High Court knowing that there is no limit to the amount of damages a judge may award him, and he ought not to feel that in the exercise of that option he is to be penalised in costs.
I agree with the Attorney-General when he says that the Bill, compared with the Bill which was introduced in another place in the last Parliament, is Parliament, is an improvement, because that Bill made the choice far more difficult. By Clause 1 of this Bill a judge is given a discretion. Even so, there is a very large element of gamble which has to be risked. I feel strongly persuaded by the arguments that were advanced in the last Parliament, and which are repeated in the letter in "The Times" today, to which the right hon. and learned Gentleman referred, and which is supported by a leading article. It reinforces the argument for providing in the Bill a cushion in addition to the judicial discretion which is given in Clause 1.
Now that the county court jurisdiction is being increased to £400, which is a sizeable increase, I should have thought that it would have been reasonable to have provided in the Bill—and on this I hope to move an Amendment in Committee—that in any event the litigant who recovers in the High Court a sum over a certain amount should not suffer any sanction but should as of right be entitled to his costs on the High Court scale. I have an open mind as to what the amount should be. I would suggest £250. I think it is a matter of argument whether there should be a different figure in respect of contract and tort, but on the whole I am 1664 inclined to think that in these days it is better to remove the difference which has hitherto existed, and to have the same rule for all actions, whether arising in contract or in tort.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
Before the hon. Gentleman leaves this phase of his speech on this very interesting point, may I ask him if he has given appreciation to this further point in support of his argument, that when an action is started in a personal injuries case the plaintiff in that action may not have then determined the extent of his injury, and that it may not, therefore, be possible to say what the quantum of damage would be at the time when the writ is issued? Does that not further proportion the argument?
§ Mr. Fletcher
I am obliged to the hon. Gentleman. That does support the argument I am putting. I would also add that, contrary to what the right hon. and learned Gentleman said just now, I think, as the letter in "The Times" today points out, that there will be a real difficulty on a High Court judge who awards, perhaps, substantially less than £400 in then having to address his mind, without any statutory guidance, to the problem whether there was reasonable ground for supposing that the amount recoverable was over £400.
Let us test it. Suppose there is a legally-aided plaintiff who has a certificate for legal aid—and I shall assume that the certificate for legal aid is open for either the High Court or county court procedure —and suppose that the plaintiff's advisers under legal aid advise him to bring the action in the High Court because they think he ought to get over £400, and suppose he gets less and is not awarded High Court costs. What is the result? Who suffers then? What is the effect on the legal aid fund? And if, as I venture to think, both the legally-aided litigant and the fund ought to have the benefit of the cushion procedure, then, once that it is conceded, the same principle must apply to all litigants, because we cannot have one rule for legally-aided litigants and another rule for those who are not legally-aided. Therefore, I feel myself that there is a very strong case for revising Clause I by the introduction of a cushion, whereby there is no penalty on a plaintiff in the High Court who receives £250.
1665 Clause 1 (5) would give the Government power by Order in Council to increase the county court jurisdiction to £500. I rather doubt whether it is wise to give the Government of the day such a power by Order in Council. For myself, I think it is much better, if at any future time there is to be any increase in the county court jurisdiction, that it should be a matter for Parliament to decide, having the full advantages of considering the matter on a Bill and not on the restricted procedure of the affirmative Resolution. After all, the county court jurisdiction is a very vital matter to a great many people, and if the limit is to be revised in an upward direction at a future date then, as on all previous occasions, in my opinion Parliament should have the opportunity of considering the whole question when it arises.
§ Lieut.-Colonel Marcus Lipton (Brixton)
Would my hon. Friend say whether he is in favour of making the limits £450 and £550, respectively, here and now, and thus make it unnecessary to have that subsection at all?
§ Mr. Fletcher
My own view is that £400 is the right figure.
I think it is important to bear this in mind, that by increasing the county court jurisdiction to £400 we are not doing very much more than keeping pace with the rise in the cost of living and the fall in the value of money. The limit of £100 was fixed in 1903, and there is not a great deal of difference between the real value of £400 today and £100 in 1903. Therefore, while we are increasing the limit, it does not seem to me that we are making a tremendous amount of difference, as compared with 1903, to the class of case which could and will in future be attracted to the county court.
However, I think that there will be a very considerable increase in the work of the county courts because of the introduction of legal aid into the county courts, and that brings me to say a word about Clause 8, which proposes to increase the number of county court judges to 80. I gather that there is a clerical inaccuracy in the Explanatory and Financial Memorandum, which says that the number is to be raised from 65 to 75. I think that originally the Government's intention in the last Parliament was to raise the number of county 1666 court judges to 75, but in the text of the Clause the number is 80, and I gather that that text is accurate.
§ The Attorney-General
The hon. Gentleman is quite right. In the light of discussions which took place in another place, this Bill is different from the former in the last Parliament, and the number now, as the hon. Gentleman has rightly said, is to be 80.
§ Mr. Fletcher
I am much obliged. While I think 80 is better than 75, I still do not think the number is high enough. I do not think that we shall have the full benefit of extended county court jurisdiction, with legal aid in the county court, unless we have enough county court judges.
The great difficulty in county courts has always been that of dealing with cases which go on for a considerable length of time. The Attorney-General knows perfectly well that difficulty which occurs over and over again in actions of any length. The county court list is so organised that a case may start on one day, the judge may be able to give two or three hours to it, there is no hope of finishing it, and, instead of being continued next day, as is usual in the High Court, it has to be adjourned from month to month.
There are repeated instances of cases of great importance—and there will be many more of them as a result of this Bill—being heard in part and then adjourned to a month later and, even then, not being finished and being adjourned for a further month. That is a most unsatisfactory way of trying any case. It is unsatisfactory for the judge and for the counsel and solicitors engaged, it is unsatisfactory for the witnesses, and it is most unsatisfactory of all for the unfortunate litigants.
I ask the right hon. and learned Gentleman, therefore, to seek power in the Bill to be able to appoint enough county court judges to deal sensibly and expeditiously with the increased volume of work which he expects and which we believe will flow into the county court as a result of this Measure, with legal aid in the county court. There is congestion at the moment in the county courts. Considerable additional work has been thrown on county court judges 1667 by Parliament in recent years in connection with housing legislation. If we are to give the county courts additional legislation, it is essential that there should be power to obtain more county court judges, and I am sure that the House will not begrudge the number being increased from 80 to 90.
A really important principle is involved here. It is better to have too many judges than not enough. It does not matter very much if the county court or the High Court judge has occasionally some time to spare and has to wait about. It is much more important that judges should wait about than that litigants should be kept waiting. It is important that the judiciary should remember that they exist for the benefit of litigants and that litigants do not exist for the benefit of judges. Therefore, when we are creating a social service within which the poorest section of the community should be able to obtain convenient and expeditious justice in future, it is essential that there should be enough county court judges. On the figures which he has given to us, I do not think that the Attorney-General will have enough county court judges if he limits the number to 80.
I do not know whether all my hon. and right hon. Friends agree with me on the next matter. I should have thought that the time was ripe to look at the salaries paid to county court judges. We increased the salaries of High Court judges recently to £8,000 a year, but the salaries of county court judges stand at about £2,800 a year. I doubt very much whether such a salary is adequate if in future we are to obtain county court judges of the calibre we want.
We must remember that although the amounts involved may be smaller than those involved in High Court actions, it means as much proportionately to litigants who bring their actions in the county court as a greater amount means to the wealthier litigants who litigate in the High Court. It is of paramount importance that we should ensure that the calibre and status of county court judges, which are very high in this country, should be maintained and that the Lord Chancellor should be able to recruit to the county court bench, by appropriate remuneration, men of the necessary status.
1668 I want to refer to the other controversial matter of major importance in the Bill. As the Attorney-General has quite rightly said, that is Clause 11, which for the first time will permit an appeal on fact from a county court to a Court of Appeal. Hitherto, it has been possible to appeal from a county court only on questions of law, except in a limited number of exceptional cases. As the Attorney-General said, the arguments for and against an appeal on fact were set out in great detail in the final Report of the Evershed Committee, and I have a very vivid recollection of the evidence which was given to that Committee by the Lord Chief Justice and a number of other High Court judges and county court judges. It was one of the most difficult subjects that the Committee had to consider.
There was a remarkable diversity of view, and there was a long and lively controversy on this subject. On the one hand, it is pointed out that it is anomalous that one can appeal on a question of fact from a decision of a High Court judge but one cannot appeal from a decision on fact from a county court judge. On the other hand, it is said that the whole attraction of the county court is that it is a poor man's court. It provides justice in a convenient, speedy and, hitherto, in a final form for persons of somewhat limited means. There is in the county courts some virtue in finality and, contrary to what the Committee recommended from which I did not dissent at the time, I feel on reflection that it would be a mistake to permit an appeal on questions of fact from the county court to the Court of Appeal.
I say that for three reasons. First of all, although it is anomalous that there should be this distinction between the High Court and the county court, it has always existed and, as I have said, we are really not doing much more by extending county court jurisdiction to cover sums of £400 than making good the difference in the value of money since there was the limit of £100 in 1903. Secondly, there is this troublesome aspect of the proposals which are contained in the Bill. Clause 11 would only permit of an appeal on a question of fact if the claim were over £200. Why should there be that distinction? If a county court judge can be trusted to make a 1669 final decision on questions of fact in matters of £200, why not in matters of over £200?
I think, however, that the most compelling reason is that if an appeal on a question of fact were introduced it would inevitably change the present atmosphere and proceeding in a county court. It would make it essential for a county court judge to take a much fuller note on the evidence in the proceedings, because it has been found that a shorthand note in the county court is impracticable. And once there was the possibility in all cases of an appeal on fact, it would inevitably change the present simpler and quicker nature of county court proceedings, and this, on balance, I feel, would be a disservice to those whose disputes are heard in the county court.
I must apologise for taking up so much time. I will conclude as I began by saying that we on these benches welcome and support this Bill in principle and will support the Second Reading, but we reserve the right to criticise and amend it in matters of detail during the Committee stage.
§ 12.10 p.m.
§ Mr. Ronald Bell (Buckinghamshire, South)
Like the hon. Member for Islington, East (Mr. E. Fletcher), I support the Bill in principle but I have a number of detailed criticisms to make of it and I share many of his doubts. First of all, on Clause 1, which my right hon. and learned Friend the Attorney-General discussed at some length and which has attracted a great deal of attention, I would say that the abolition of the cushion between the jurisdiction and limit for High Court costs is a more serious and difficult matter than the Government appear to have realised.
My right hon. and learned Friend, in the course of his speech, said that the distinction between tort and contract in this respect had always been illogical. But that is not the case, as the hon. Member for Islington, East pointed out in his speech, as was pointed out in a letter to "The Times" this morning, and as was pointed out in the representations made on behalf of the Bar Council and the Law Society to the Lord Chancellor.
The difference between tort and contract, which has been recognised ever since 1903 and is only being abolished 1670 in this Bill, is simply that with a claim of contract one may reasonably know what figure one is likely to recover whereas in a claim of tort one is unlikely to know exactly what figure one is going to recover. That is a quite simple, short reason why our predecessors for fifty-two years have held it as the law on this point that there should be a distinction between contract and tort in this respect.
If this distinction is abolished now I do not see how professional people can advise their clients with any reasonable confidence. The only man to whom it will not matter whether he recovers just over or under £400 will be a legally assisted plaintiff with a nil contribution. He will be the monarch of all he surveys and he can sue with great indifference in the High Court or the county court.
However, I can see a difficult situation arising because, as the hon. Member for Islington, East quite rightly suggested, if the responsibility for advising whether the certificate should be for the High Court or the county court rested with his legal advisers, and they had to make the usual application at the end of the case that the costs be taxed for legal aid, and if the judge is to be able to say, "I do not think this case should have been brought in the High Court and I am, therefore, going to direct that it be taxed on the county court scale," then an unfortunate and undignified situation would arise. I would ask my right hon. and learned Friend to maintain an open mind about this, and to realise the real difficulty that will ensue for parties and their professional advisers if he does not allow the existing position to continue.
I am rather attracted by the suggestion of the hon. Member for Islington, East that, in fact, the cushion should exist both in contract and tort. I agree that the need is greater for tort, but it is perhaps desirable that we should get rid of the disputed territory between the actions. There is, after all, an area of uncertainty even in claims of contract. A claim of contract may be made up of a number of elements. One may be sure on some and doubtful on others. The measure of damages in contract is not all that certain and clear; and, therefore, although I repeat that there is a valid distinction between tort and contract in this matter, 1671 nevertheless, in respect of both there ought to be some cushion. If it is desired to avoid complexity then let us have a cushion which is a compromise between what would be best for contract and what would be best for tort, let us say, a figure of about £300.
It is quite true that when the legal advisers of a plaintiff think he will recover £350 they will bring their action in the High Court, because if they are uncertain and think that he might get just under £400 or he might get more it is right that such an action should be brought in the High Court so that the plaintiff should not lose the chance that the judge may assess damages at more than £400.
However, I think one has to bear in mind the rights of the plaintiff when one is enlarging jurisdiction in this way. It is quite true that a defendant can get a difficult and complicated case transferred from the county court to the High Court under Section 44 of the County Courts Act, 1934, to which the learned Attorney-General referred. But there is no way in which the plaintiff can do that. All he can do under the existing law and under this Bill is to bring his action in the High Court and then hope that the judge will exercise his discretion. But the defendant can first get the certificate of the county court judge that this is a difficult case and ought to be heard in the High Court if the amount claimed, under the existing law, is, I think, over £40, which it is proposed to increase in this Bill. In fairness, the plaintiff ought to be in a similar position. He ought to be able to get a certificate from the county court judge that the case is difficult and because of that he should be empowered to bring it in the High Court although it is under the jurisdiction of £400.
One of the reasons which attracts cases into the High Court is the extremely important consideration that the High Court sits de die in diem. The hon. Member for Islington, East referred to this when he said that a case could be started in the county court; it might be heard for a couple of hours one day, then adjourned for a month and then, when that hearing took place, adjourned perhaps for another month. I will only add to that that if the first incomplete 1672 hearing of the case is in July it is likely that it will go over the Long Vacation.
I have been involved in a case which lasted six months in the county court with three hearings of two or three hours on each occasion. There is no shorthand note. It is impossible for the advocates to take a full note of the proceedings, and, in any case, they cannot take a note of their own examination. How can the county court judge really recall what took place on the previous occasion? How can he recollect the impressions he had formed of the witnesses on which he is perhaps asked to decide the case?
I would say this to my right hon. and learned Friend. In enlarging the jurisdiction in this way and increasing the number of county court judges will he not try to do something about this problem? I know the difficulties. The first difficulty is the inherent procedure of the county court, which is the poor man's court. Therefore, it is desirable to issue summonses telling the defendant to appear in court on the day named in the summons, whereas in the High Court he is merely summoned to appear and he has got to find out by some devious process on what day he is to appear. In the county court he is told to come on a certain day and, therefore, most days are booked up in advance by the summonses returnable on those days, and this cannot be changed in this Bill without much injustice through people losing their cases in default of appearance.
However, that difficulty can be avoided in two ways. One is by having more county court judges so that more days can be left as open days with the consequence that adjournments are only for a short time. The other, to which I invite the attention of my right hon. and learned Friend, is that in large centres of population like London it is wasteful to have county court areas scattered all over a great city, each working its own system, its own run of days. Why, in the middle of London, because one is part heard at the end of the first day, should one be adjourned for a month to the next open day? There is a great Underground system and buses, so transport from one part of this great city to another is no great matter.
We do not need local justice in that degree. Why should there not be a central 1673 county court for London, with several courts sitting together, so that the judges could sit de die in diem, sit to finish, get rid of the case in a sensible, expeditious and practical way while they remember it? There is, so far as I know, no single important objection to this reform except the merely procedural one about buildings and the fact that the other system has been long established and many people do not want change. In big cities, however, there is really no serious objection to this change and it would be of immense advantage to litigants, and of increasing importance now that the jurisdiction under this Bill is being raised to £400.
§ Mr. Rees-Davies
It is an interesting suggestion and my hon. Friend is drawing an analogy with London Sessions and criminal jurisdiction where there are four or five courts. Middlesex also has several courts, and the proposal of my hon. Friend is that a similar type of jurisdiction for the county court should prevail.
§ Mr. Barnett Janner (Leicester, North-West)
Does not the hon. Gentleman appreciate that the county court judge in a particular district gets to know that district extremely well, and that this is of great benefit in arriving at decisions? This would not apply if his proposal were adopted.
§ Mr. Bell
With great respect to the hon. Gentleman, I think that the advantages of familiarity with the district can easily be exaggerated. I appreciate that there are local attorney-generals who would lose their bailiwicks, but I am not sure that this would be an unmixed loss to litigants. I am sure that they would consider the advantages would more than counterbalance the disadvantages.
I am glad to see that the jurisdiction in cases of real property is being simplified. I am sorry that this opportunity is not being used to clear up the present uncertainty, where a claim for possession is brought on grounds which are themselves outside the Rent Restrictions Acts: for example, the premises are furnished or the letting is not a lawful one. No one really knows with certainty whether 1674 such a claim for possession should be brought in the High Court or in the county court if the present annual value—under the Bill the net annual value for rating—is outside the county court jurisdiction.
What frequently happens in those cases is that a defence is filed raising the Rent Restrictions Acts, alleging that the lettings are not furnished or something of that kind. And it is still not settled by authority whether such an action should be brought in the High Court or in the county court. I would have thought that the Bill offered an opportunity of clearing up that uncertainty.
Now a word on the question of appeal on a question of fact from the county court. I am attracted by this in principle, especially so at present because of the defect which I mentioned just now, of cases being heard at long intervals. At the end of these disrupted cases one can be left with a feeling of great dissatisfaction and it is unfortunate that there should be no right of appeal in such cases. I am, however, impressed by the practical difficulties which a right of appeal on fact will create. There is no shorthand note in a county court—
§ Mr. Bell
Yes, as my hon. Friend says, there ought to be. If that is introduced I agree that the difficulty goes, or mainly goes. Without a shorthand note, however, I do not know what the appellate court will rely on. The solicitor's note is necessarily inadequate, the judge's note of evidence is always exceedingly short and the procedure is rather informal.
It is true that there is an appeal in the criminal jurisdiction from the magistrates court to quarter sessions, but there the same problem does not arise because the appeal to quarter sessions is a rehearing. The witnesses are called, the appellate court is in no difficulty, it rehears the case. But how are we to manage in appeals on fact when there is no rehearing and no full note? I do not see how this will operate. The difficulty can be overcome if shorthand writers are attached to the county courts but then, as the hon. Member for Islington, East has rightly 1675 pointed out, there will be a considerable slowing down of business.
§ Mr. Bell
Yes, and extra costs. It is true that procedure in a county court is technically that of a High Court, but we all know that it does not work out quite like that. If it did, if the county courts began to work to rule, the effect would be rather the same as it is on the railway—it would virtually amount to a strike.
What county court judge could hope to work through the daily list, with which those of us who have had experience of county courts are all familiar, with sometimes seven or eight actions, three or four possession cases, forty judgment summonses and the rest of it? How could he work through a list of that kind, with High Court procedure, with full note of evidence, and operating the full procedure which would be necessary if there is to be an appeal on issues of fact?
I cannot see the solution, and, equally, I cannot see the court of appeal hearing appeals of fact in the same way as quarter sessions by rehearing. It is obviously an unappropriate tribunal for that. It may be that one might have to constitute a special appellate tribunal from county courts or it may be that this whole idea will have to be abandoned. I think that the way is beset with considerable practical difficulties.
In general, I welcome the Bill as a most fortunate advance which really does little more than offset the fall in the value of money from the time when county courts were introduced. I am sure that it can do nothing in its general effect but advantage litigants and the profession, but I hope that my right hon. and learned Friend will keep an open and elastic mind upon these difficult matters when we come to the Committee stage, which itself, I imagine, will be a fairly elastic process since there are many controversial matters. Those who are interested in them will principally be lawyers, and, therefore, these will undoubtedly be discussed at full length. I hope we shall succeed in improving the Bill in Committee and that it will go forward in a slightly different form afterwards.
§ 12.30 p.m.
§ Mr. William Wells (Walsall, North)
Like my hon. Friend the Member for Islington, East (Mr. E. Fletcher), I wish to join in giving a general welcome to this Bill. It has been fairly stated that the main object of the Bill, which is to increase the jurisdiction of county courts, does no more than reflect the fall in the value of money that has taken place over the years; but there is another problem that is tied up with this, and which certainly exercised the attention of the Evershed Committee far more than did the fall in the value of money. It is that there is an inherent difficulty in keeping the costs of small actions at law within reasonable bounds, and that it should be easier to keep such costs within such bounds in the county courts than in the High Court.
The fundamental problem with which we are faced at every turn in dealing with this matter clearly emerged from the speech of my hon. Friend, and it emerged also from the speech of the hon. Member for Buckinghamshire, South (Mr. R. Bell). It is the difficulty of reconciling the problem of the poor man's court, as it has been rightly called, with the proper procedure for trying the larger actions, which are now for the first time being brought within the scope of the county courts.
For myself, I should have been well content, in spite of the arguments the other way, if the Government had followed quite simply the recommendations of the Evershed Committee in this respect, and had accepted, as a first bound in an operation which is no doubt to continue, the limit of £300.
It is quite clear that the raising of the financial ceiling will introduce into the administration of the county courts a large number of problems, and it might have been wise to see just how the problem stood after the courts had digested the first increase in their jurisdiction to £300. However, the Government have decided differently, and I am sure that sooner or later this increase is bound to come. I do not think we could possibly quarrel with them for having come to the decision which they have reached in this respect.
Before looking at the two points that I wish to raise on Clauses 1 and 11, I should like to reiterate what my hon. 1677 Friend the Member for Islington, East said about the difficulties with which the courts will be confronted in the arrangement of their lists. I do not favour the proposal of the hon. Member for Buckinghamshire, South that there should be a central county court for London. I agree with my hon. Friend the Member for Leicester, North-West (Mr. Janner) in what he said about the importance of the judge's local knowledge, but I must say that far more important than that is the factor that this is, and is to remain, we hope, a poor man's court and a poor woman's court; and locality makes a considerable difference, in spite of the facilities for modern transport.
One sees that the people at the county courts are women with children to look after, and all sorts of ordinary people, and to send them on buses or the underground throughout London would be a hardship. Whatever solution the Government may favour, I hope they will not favour that one, though there may be a great deal to be said, particularly in large centres of population, for trying to ensure that the larger county court cases under the new jurisdiction are brought in special courts, that special dates are fixed and even that there may be a certain measure of centralisation in the arrangements.
There is one matter of a general kind that I want to raise, and it is a matter of some difficulty and perhaps some delicacy. As we all know, the legal profession is organised in this country into two fairly sharp divisions—the Bar and the solicitors. This division has been criticised. Though it may not be right, to put it at its lowest, there are very strong reasons for its existence. At any rate, it would be very unwise in a Measure of this kind to do anything to undermine that division. If that division is ever to be abolished, it must be done, not by a side-wind, but after a very careful review of the problem.
§ Mr. Janner
Does not my hon. and learned Friend think that, in view of the fact that this Bill is removing the distinction between the powers and duties of High Court judges and county court judges, this is a very appropriate time for the distinction to which he refers to be considered?
§ Mr. Wells
Frankly, I do not. I am tempted to travel into the territory into which my hon. Friend so temptingly invites me, and, but for the feelings of the rest of the House, and, possibly, the control which you, Mr. Speaker, might feel disposed to exercise over me. I would gladly travel down the road my hon. Friend wishes me to take.
§ Mr. Wells
My hon. Friend says that it is material. It may be material, but I do not think any fundamental change in our legal profession should even be discussed in a debate on a Bill which, though admittedly important, is a Bill of limited scope. I think that the foundation on which we must proceed in considering this Bill is that this division exists and that both branches of the legal profession should operate in the courts in the interests of the public.
I am sure that they will do so, but one must remember that if the Bar is to play its proper part in the machinery of justice in this country, young men must be able to come to the Bar, and, particularly in these days, within a reasonable period earn their living there. For young men at the Bar, small actions of the kind we are considering in this Bill are of the greatest possible importance, for that is how they learn their job, and, as a rule, how they earn their first guineas at the Bar.
One of the effects of the Bill, clearly, is to allow the members of the other branch of the profession, who have not the right of audience in the High Court, but who, very properly, have the right of audience in the county court, to conduct actions of a kind which in the past have been exclusively within the ambit of the Bar. For myself, I have little doubt that, in the main, solicitors, for a number of good reasons, in the class of cases where they have previously instructed counsel will continue to do so, and, for myself, I believe that the Measure will be not a disadvantage but an advantage to the Bar on the whole.
However, I think it is in the public interest—of course, one must not speak of the interests of the Bar; we are not here in this House to consider those interests—that, so far as possible, the litigant who wishes counsel to be instructed 1679 on his behalf should have such an opportunity and should not be put under great financial disadvantages as a result. It is a matter for administrative action. I know that the scales of costs are being reviewed, but I should like to deal with a very small matter of detail. It is better to give a practical example than to talk in the air, and, to give this one small example, I hope that consideration will be given to the "no local Bar fee" being payable when cases are adjourned. At present the "no local Bar fee" can only be allowed as a matter of costs once in a case. If, unfortunately, there are adjournments or further hearings, further payments should be allowed. I am sorry to have dwelt so long on that point of detail.
I wish to support as strongly as I can what my hon. Friend has said about the problem of the cushion. At the same time, I do not think it would be right to allow the Second Reading of the Bill to pass without saying what a great improvement the present drafting of Clause appears to be compared with the Clause 1 in the Bill considered in the last Parliament. I agree with the right hon. and learned Gentleman in considering that the safeguards in the present Bill, as drafted, are substantial ones, and I think they are very useful, but I do not think they are enough.
I think it is possible in this matter to draw a fairly easy distinction between three kinds of cases: the case of the debt or liquidated demand, where it seems to me there is no case for a cushion at all; the ordinary case of the action in contract, where I think there should be some cushion, but the need is not so great, nor need the area be so wide; and the action in tort, where I think a fairly large area should be allowed.
I make full allowance for the difficulty that in order to make the operations of the Bill effective we have to put teeth into it, and I appreciate the Government's difficulty in the matter. Nevertheless, in view of the weight of professional feeling on this matter, which is dictated simply by the desire of both branches of the profession to serve their clients, I think the Government will be wise to have second thoughts.
1680 When we come to Clause 11, dealing with the question of appeals, I must say with regret that I do not follow my hon. Friend the Member for Islington, East. I hope the Government will stand firmly by their recommendations in this respect. Like my hon. Friend, I heard all the evidence adduced to the Evershed Committee, and, in view of it, I could not possibly do other than support the Government in the line they have taken in general on the Clause. Nor am I greatly impressed by the arguments which the hon. Member for Buckinghamshire, South has put about shorthand writers. After all, for hundreds of years in this country justice has been done fairly well, and appeals have been heard without shorthand writers being in the High Court.
§ Mr. Wells
I think that, on the whole, the courts in this country have done justice according to the powers that were given them by Parliament, and that where the law has been wrong, it has, on the whole, been the fault of Parliament and not the fault of the courts.
I really think that a combination of the notes taken by the judges and the notes that should be taken at the Bar ought to be good enough for the court of appeal in most cases. At any rate, I am convinced that it is a real improvement on the present situation, I think it would be quite impossible for the Government to suggest taking away the right of appeal where it already exists, which would be what the Government would be doing if they did not allow appeals on fact in the class of cases where they are now being allowed under this Bill.
My only doubt here is whether the Government are going far enough. Although I fully appreciate the difficulties of having appeals on rent restriction cases on matters of fact alone, I have grave doubts, in view of the importance of these matters to the litigants, whether the House is doing full justice to the litigants by not insisting that even these matters shall come within the purview of the Court of Appeal upon matters of fact. However, the practical difficulties are 1681 immense, and I fully recognise them, and although I think it would be interesting to discuss the matter in Committee, perhaps it is not reasonable to expect the Government to go farther at this stage.
There is only one final word that I want to say, and that concerns the interrelation of the Bill with the legal aid scheme. I fully agree with what my hon. Friend has said about the legal aid scales of contribution. It seems to me, and so I am advised by those who understand these matters much better than I do, that the effect of extending legal aid to the county courts will be that it will only help members of the public who, like Members of Parliament, receive remuneration which is below the national average. I feel that there is a strong case for altering the scales so that litigants in the county courts may be helped in a more generous way. The legal aid scheme is admitted to be a great reform, and its cost to the public is very low. I feel that there is a case for a little generosity here.
Another matter which we have to consider is that county court procedure is, mercifully and rightly, comparatively swift, while it is not a very quick matter, as the Attorney-General may know, to get a legal aid certificate. It would be disappointing if, on some future occasion, the right hon. and learned Gentleman should lose patience with me and start proceedings against me in the county court, and if my legal aid certificate to defend myself should arrive at the same time as the county court bailiff to enforce the right hon. and learned Gentleman's judgment. To make this admittedly important reform effective in the interests of the defendant, it will be important to see that the granting of the legal aid certificate is speeded up, or alternatively that some steps are taken, in appropriate cases, to slow down county court procedure.
I have taken up much more time than I originally intended. This Measure is important and useful and raises a great number of practical problems which will have to be examined not only inside this House but outside, because they are so largely administrative. There will be great scope for discussion of detail in the Committee.
§ 12.52 p.m.
§ Mr. Graeme Finlay (Epping)
The debate has become a kind of lawyers' field day. It would probably deepen the feelings of distaste which this House has for the legal profession if it were not for the fact that practically only Members who are lawyers are present and have taken part.
I support the idea behind the Bill. In considering the proposed transference of functions to the county courts it is important to consider the relief afforded to the High Court, which is a very congested place. The type of litigation in the High Court has considerably changed in the last decade or so. I understand that as many as 40 per cent. of the cases in the High Court now relate to personal injury actions, such as running-down cases, accidents at work, and so on.
The period of gestation in High Court cases is now as high as two years. What effect must that have upon the recollection of witnesses as to matters of fact, which are of the highest importance of cases of this kind which comprise the great bulk of High Court work? It will be a great relief to the High Court to have some of its jurisdiction transferred to the county courts.
The two-year delay also results in cases being settled out of court. Parties use the back-dating effect of legal procedure as a kind of weapon, and will readily settle cases that ought not to be settled, as a matter of justice, because of their anxiety at having to wait all that time to get a legal decision.
Traditionally, the county court is the poor man's court. It is, therefore, particularly important that the legal aid and advice system should apply to the county courts. Rather more has been said about the legal aid aspect of the matter and comparatively little about the advice. A great deal of excellent voluntary work is carried on in London and the provinces by the poor-man lawyer advice system. Now, additional machinery is to be provided by the State to help people who have little or no means, to give them some idea whether the litigation they have in mind is worth while or not, and provide general advice about either embarking upon or refraining from litigation. That is a most significant aspect of the matter.
What causes me anxiety is the aspect which was stressed by the hon. Member 1683 for Islington, East (Mr. E. Fletcher), whether or not the transfer of this jurisdiction to the county court, and expanding the upper limit to £400, as well as the possibility of putting it still higher by Statutory Instrument, will over-burden the county court. I appreciate that there is power in the Bill to create fifteen new county court judges and to allow registrars to exercise certain important additional discretion, but I still wonder whether that is enough.
In certain respects there has been a diminution of work in the county court. The rent tribunals have taken work from them and there has been the loss of workmen's compensation cases, which now go to special tribunals. This has left the county court judges with more time, but when I go to the county court I do not find that there is any less congestion. The Housing Repairs and Rents Act puts extra work on county court judges and there is the work of the divorce commissioners. Now the county courts are to have put upon them all the extra work which is involved in the implementation of the Legal Aid and Advice Act. We are also giving wider jurisdiction to the court in relation to Probate and Admiralty actions and actions in respect of land, and we are increasing the limit in respect of actions arising from contract or tort. A substantial volume of new work is to be put on these tribunals.
But, irrespective of this extra work, the county courts are an increasingly popular tribunal. The Civil Judicial Statistics show that in 1951 there was a 6 per cent. increase in proceedings commenced over the number in 1950. In 1952, the increase was 16 per cent. over 1951, and in 1953 4 per cent. over 1952. I have not the figures for 1954 because they were not available in the Vote Office. If we look at the matter in relation to cases which came to trial we find that in 1951 there were 233,829 cases, of which 81 per cent. were dealt with by judges and 19 per cent. by registrars; in 1952, 264,748 cases were dealt with, 81 per cent. by judges and 19 per cent. by registrars. In 1953, the number went down to 257,884, of which 78 per cent. were dealt with by judges and 22 per cent. by registrars. Those figures give us food for reflection whether the fifteen judges now proposed 1684 will be a sufficient increase, bearing in mind the increased power given to registrars.
The hon. Member for Islington, East mentioned county court judges' salaries. There is a strong case for increasing the salaries of judges and registrars who are to undertake these extra responsibilities. County court judges at present receive £2,800 a year, and when one reflects that sometimes they are promoted to the High Court bench there can be very few positions which offer prospects of higher promotion, in the monetary sense than from £2,800 to the £8,000 which is the present salary of the High Court judge. There is a case for looking at that aspect of the matter again, and for looking again at the salaries of registrars, because they too will have to take their share of additional responsibility.
In this respect one must remember that the value of the money involved is by no means a true reflection of the difficulty of the legal issues in a county court case. One can quite easily find the legal issues about a sum of £5,000 being decided relatively easily from the legal angle while the sum of £5 may be surrounded by the most intricate legal problems. There is, therefore, something else to be prayed in aid of an extra reward for the additional responsibility placed on county court judges.
I turn now to the question of the "cushion." I do not suppose that anyone outside this House and the legal profession understands what is involved in that expression, but I shall use it because it provides a kind of shorthand for our discussion. I agree with the hon. and learned Member for Walsall, North (Mr. W. Wells) that there is still a case for a cushion, but certainly not for having it in respect of the liquidated sum which arises out of breach of contract. I think that there is a case for such a cushion with regard to tort, particularly in cases of accidents and personal injury.
Everyone in the legal profession knows, for example, that Mr. Justice X may be very generous with damages for the loss of a leg, but Mr. Justice Y is known to be not quite so generous. It becomes a matter of difficulty to forecast the results when one embarks on that kind of litigation. To give an instance, it could easily happen in relation to the 1685 same facts that Mr. Justice Y might award £1,300, and Mr. Justice X award £300. In the result, the award of Mr. Justice Y means not only £1,000 extra for the plaintiff but the plaintiff gets costs on the High Court scale. By the award of Mr. Justice X, not only is the amount £1,000 less in damages but the plaintiff does not receive the High Court scale of costs. There is a substantial case for the Government to look at that again. I do not say anything in detraction of what my right hon. and learned Friend the Attorney-General has said about judicial objectivity. A judge is quite capable of being objective about his own findings, but on the broader question of personal injuries I do not think that that would necessarily apply.
I do not agree with what was said by my hon. Friend the Member for Buckinghamshire, South (Mr. R. Bell) about a central county court for London. There is no helpful analogy to be drawn between between the London Sessions—in the criminal jurisdiction—and the civil jurisdiction. I agree in part with what the hon. and learned Member for Walsall said about that. It is important to remember the preliminaries to these proceedings. If we are to have a poor man's court there must be some sort of procedure to initiate the proceedings. In the county court that procedure involves the filling up of various forms. One must have a place not only near to the area in which the litigant lives but also a place where he can get a certain amount of advice if he is not going to consult a lawyer.
§ Mr. Finlay
I do not know what has been the experience of the hon. Member for Oldham, West (Mr. Hale), but in London the offices are practically always near or adjacent to the courts.
Whatever may be said about local attorney-generals there may be certain advantages in the county court judge having a knowledge of the area concerned. I have spoken often to judges travelling on assize. It is true that, with their great experience in due course they pick up a lot of local knowledge about the inhabitants of perhaps, say, Devonshire and Cornwall, but that is not in the 1686 nature of things so good a knowledge as the judge sitting in the local county court there has of the local inhabitants—and in civil cases a different kind of knowledge is required. I am not in favour of a central county court for London.
Next, there is the question of appeals on grounds of fact. It has been argued by the hon. Member for Islington, East that this system tends to introduce an element which destroys the friendliness and informality which the county courts have. I do not agree at all. If one element has to be introduced it is the essential element of accuracy and clarity, and I do not think that that is encouraged by the process followed in county courts today. I have nothing more to say, except that I give my general support to the Bill and hope that it will emerge in due course from Committee a much tidier and a better Measure.
§ 1.7 p.m.
§ Mr. Clement Davies (Montgomery)
I intervene for a few minutes, not because I am an old practitioner but because I was a member of the Royal Commission which reported as long ago as 1934. I then had the signal honour of differing from all my colleagues and of writing a Minority Report which, I am glad to seem, has been much more widely accepted than was the Majority Report. My one regret is, and always will be, that I did not publish the full Minority Report which I then wrote.
Throughout that hearing I had in mind two things which have guided me throughout in these matters. First, that justice should be brought as near as it is possible to bring it to the door of the litigant. Secondly, if the administration of justice is to be expensive at all it should be expensive to the State and as cheap as possible to the litigant. The costs that are incurred in the salaries of the judges and clerks and the whole paraphernalia do not fall upon the public purse at all but are met by the fees and amounts paid by the people who have to attend the courts.
I have never, therefore, understood the reluctance there has been on the part of successive Governments in bringing forward a proposal to increase the number of judges. While the population has increased, Government after Government 1687 have waited until there is so much complaint about delay that at last the Law Officers of the Crown come forward and propose that there shall be an extra judge or two.
I welcome the Bill as going along the right lines. It is right that there should be fifteen more judges. I agree with the hon. Member for Epping (Mr. Finlay) when he says that if that number is not enough by all means increase it, because, to my mind, litigants' time is of much greater importance than is that of the judges. The judges would very often be very much better off, and be better judges, if they took a little time off. Therefore, I welcome the proposal that the number should be increased by fifteen.
Even more do I welcome Clause 10, which enables the county court judge to sit at a place more convenient to the litigants and the witnesses than the usual place, to try a case. This is a matter of great importance and one for which I have pleaded, somewhat in vain, for many years.
I hope that the Law Officers will look again at a matter which has already been raised so well by the Chairman of the Bar Council and the President of the Law Society in the letter in "The Times" this morning. If I were back at the Bar I should dread being asked for my advice in this sort of case. A solicitor might approach one and say, "You know what this case is. This person has been very badly injured." It may be that it is a young girl who has had a serious disfigurement of the face. The solicitor might then say, "An offer has been made of so much. What are we to do?"
Having had experience of the kind to which the hon. Member for Epping has just referred, when he mentioned the great differences that exist between judges in assessing damages, one may say, "On the whole, you had better refuse the offer and we will go on with the case." If one does this and, in the end, the lesser sum is awarded, one's client is in a much poorer position than if the original offer had been accepted. If, on the other hand, one is lucky and appears before a judge who assesses the damage at a much higher figure, then one has given the right advice and is congratulated. That is not the right way to look at these 1688 things. It is too much like tossing a coin in the air. That is not the way that justice should be administered.
I have really risen to speak because of one point which was rejected by my colleagues in 1934 and was rejected again by the Commission over which the present Master of the Rolls presided and which has just reported. I refer to the refusal to extend jurisdiction to the county courts in cases of libel and slander. If slanderous statements are made about a person in a highly populated area, such as in the City of London, the amount of damage is very slight. It may be that the slanderous statement comes to the knowledge of a few friends, who discard it altogether. But if the person wants to bring an action he has to bring it in the High Court.
The type of slander that I have in mind, and which I have always had in mind when I have pressed that the county courts should have jurisdiction, is that which occurs in country districts, where perhaps a whispering campaign or a slanderous statement is made about a small shopkeeper, perhaps the grocer or the butcher. In such circumstances, everybody gets to know about it and it is almost death to that man and his family. The only remedy he has got is to go to the High Court and put down all the money involved. He may be in a position in which he does not qualify for legal aid, and he will then have to bear the whole of the racket and provide for all the witnesses to be taken to the assize town if the case is tried there.
Is that the right way to administer justice in a matter of that kind, which may mean so much to a man and his family? Why can we not extend the jurisdiction to the county court so that such cases can be tried by the county court judge, perhaps in the very village where the incident has occurred? I should like the Law Officers to look into this, and see whether it is possible, in Committee, to introduce an Amendment to alter the present position. Apart from that criticism and the other criticism to which I have referred, I welcome the Bill as a step in the right direction.
§ 1.15 p.m.
§ Sir Eric Errington (Aldershot)
I should like to say a word or two on this Bill, having had some experience as a deputy county court judge and having 1689 sat on the bench on a number of occasions.
I feel that the need for this Bill has been clearly proven, though, thanks to the efforts that have been made generally in the country, the need for the Bill is not as great as it was at one time. For the first time the assize lists for civil work at Liverpool have been completed and the divorce lists—because the county court judges very often sit as commissioners—have become very much less. But a need undoubtedly remains for the extension of the jurisdiction of the county court as proposed in this Bill.
I am extremely sorry to see that there is no suggestion in the Bill of increasing the salaries of county court judges. As has already been said, the High Court judge now gets, at any rate in theory because before tax is deducted, he gets £8,000 a year, while the county court judge gets only £2,800. I believe that this Bill throws into sharp relief the necessity for bringing the two scales into some sort of comparative harmony.
The work of a county court judge is very arduous. It will become increasingly responsible, and if this Bill is going to work well, it is desirable to get the best possible type of member of the Bar on to the county court bench. I should like it to be a recognised practice in legal circles that when a man becomes a county court judge it is not by any means necessarily the end of his career. There is sometimes a tendency for people to say of a person, "Oh, yes, he has become a county court judge. That is all there is to it."
I do not think it would be unreasonable to follow more extensively the precedent which I think has been followed on only three occasions, and that is to promote suitable county court judges from the county court bench to the High Court bench. If that were done, there would be a tendency to get an even stronger type of county court judge than we have at present. It is not always the people who are prepared to take silk, with all its risks, who necessarily make the best judges. The success of the judges who have been promoted from the county court to the High Court is an indication of that.
The point that I desire to make is that there should be a different attitude by the Government to the county court and 1690 county court remuneration. The remuneration given to a deputy county court judge—I think that this is an administrative matter, though I am not certain—is seven guineas a day. That amount is considered to be adequate remuneration for a day's work by somebody who, under the requirements of the Act, must have been called for at least seven years. One of the most satisfactory ways of attracting the litigant to the county court rather than to the High Court is to strengthen the arrangements in the way that I have indicated, and increase the emoluments.
On Clause 1, I agree very much with what was said by the hon. and learned Member for Walsall, North (Mr. W. Wells) about a cushion. I do not believe that a cushion of the same figure applicable to tort and contract and a liquidated debt is the right way of dealing with this situation. There should be a cushion, and that cushion should be varied from the point of view of the possible risks of not obtaining the sums sued for. The risks in suing for a liquidated debt are negligible. The risks in suing for damages for personal injuries are, of course, extremely great.
I support what was said by the hon. Member for Islington, East (Mr. E. Fletcher). I hope that when the legal aid procedure is evolved a certificate for legal aid will he given upon the basis that, as advised, it may be used either for High Court or county court procedure. It might well happen that the effect of the legal aid certificate being granted either to the county court or the High Court would really determine where and how a case would go, and that is essentially a matter for the legal advisers of the litigant.
I do not know whether it could be possible for the Attorney-General or the Solicitor-General to give us some details about the method which will be adopted to use the additional judges. Is there to be a review from time to time of the county court areas; is there to be some system of using any extra judges over a certain part of the country; or is there to be something in the nature of a general pool? It is essential to keep the county courts local, but there are occasions on which the argument that my hon. Friend the Member for Buckinghamshire, South 1691 (Mr. R. Bell) adopted of the de die in diem principle may be very helpful in disposing of some classes of complicated cases.
I should like to inquire whether it would be possible to have some further devolution to the registrars. One of the difficulties experienced in connection with the county courts is the immense volume of judgment summonses. A judgment summons is a very important matter, because it may involve commitment to prison, which I think should remain the responsibility of the county court judge. It would not be impossible, however, to filter through the registrars a very large number of judgment summonses, which are always taken first and which almost invariably, in large courts at any rate, involve about one and a half to two hours on a busy day. If the registrar could help in that respect, it would be additionally valuable to the powers proposed in the Bill.
I am not quite certain about Clause 10. I see that it gives power to the county court judge to change the place of hearing to a place that he considers more appropriate, provided that it is in the same circuit. I would view that with some alarm if I thought that the effect would be that litigants, advocates and witnesses could be ordered to attend at one court which might be at the diametrically opposite end of the circuit to the other. There are parts of the country where that might mean travelling to the extent of as much as 50 or 60 miles. I should like to feel that there was some certainty that Clauses will not be used in that way.
Finally, I should like to say something about appeals. However important it is to have the county court as the poor man's court, I do not think that, merely because one is a poor man, one should be deprived of the opportunity of appealing on questions of fact. The position is in the Bill, as I understand it, the only appeal on fact that will be open will be the appeal on the extended jurisdiction from £200 to £400. Therefore, I presume—I hope that I am not being too naive about it—that if one claims £201, that ensures that one will have the right of appeal on fact to the court of appeal.
I believe that that is a very difficult method of trying to achieve justice. I 1692 should like to go out solidly and completely on the basis of an appeal on fact throughout up to the full amount, from the £50 by leave of the judge right up to the £400. I have heard it said that that would involve considerable expense to litigants, or else to the State, in view of the necessity of a shorthand note.
I refer the House to paragraph 560 of the Evershed Committee Report about the possibility of using instruments for recording. Apparently efforts made to try such instruments were not completely satisfactory, but the science of this kind of thing is developing with considerable rapidity. I should have thought that if an effort were made there would not be any great difficulty in fitting county courts throughout with instruments which will record the proceedings. It is obvious that there is no necessity to spend any money if the record remains just a record. When money has to be spent it is on the transcription. It seems to me that the very fact that the money has to be spent on transcription is in itself a deterrent to bringing frivolous appeals. If that is so, I do not think anyone would be unduly worried by the number of appeals on fact.
There is a further disincentive to appeal. When legal aid exists in the county court, the question of a legal aid certificate for appeal will come into consideration, and, presumably, will not be granted as a matter of course. I believe it most important that litigants should feel they have a court which can review what they consider manifest injustices on questions of fact. The recording machines are described hopefully in the Evershed Committee Report:We were informed that the cost of installing such apparatus would not be great, and that the expenses of running it and maintaining it would be trifling.It seems that we have the answer there. We have the protection of the cost of the transcript and also the fact that legal aid certificates for appeals would not be issued easily.
With those comments, I support the Second Reading of the Bill.
§ 1.33 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
I have two regrets about this debate. I regret exceedingly that this Bill is being discussed on a Friday and that the majority of hon. 1693 Members who have spoken are lawyers, because this Bill is most important from the point of view of the general public.
It is essential that the public should appreciate what a difference the Bill will make to their rights. That is seen when we realise that the jurisdiction of the county courts is to be extended so that they will deal with approximately one-third of the actions now tried in the High Court. That will certainly make an immense difference to the ordinary citizen.
I know that it is said again and again that the county court is the poor man's court and that characteristic ought to be preserved. I agree with that. The intimate touch we have had for many years between the judge and the litigant and the advocate and the litigant in the county court should be preserved as much as possible, but we should not shut our eyes to the fact that transferring to the jurisdiction of the county court actions for sums up to as much as £400 must make a considerable change to the way in which the county court is constituted.
I favour this Measure for three reasons. First, it will deal with the very important problem of arrears of litigation in the High Court. There is no doubt whatever that in many cases those arrears cause great injustice to many people. Not only do they do injustice to those who bring actions, but even more to witnesses who often have to wait a considerable time before a case is heard and their recollection is affected with regard to the subject matter of the action. It is important that cases in the High Court should be dealt with more expeditiously.
A great effort has been made to cut down arrears and considerable headway has been made in that direction, but when we have the sort of thing which inevitably occurs when a number of judges proceed on circuit, leaving a comparatively small number to deal with the work of London, it is very difficult to make progress with cases in the High Court. I think this Measure will help considerably.
The second consideration is the convenience of litigants and witnesses, in that cases will be heard in the locality, or fairly near the place where the subject matter of the action has occurred. That is a very important step. The third 1694 reason, and one which is not unimportant, is the question of costs. We know that often a High Court action entails a prohibitive amount of costs and county court scales are considerably less, although I understand they are to be increased to deal with those within the increased jurisdiction. That must make a difference to litigation.
One important matter which has been already touched upon I should like to emphasise. Unless adequate arrangements are made, there is a distinct danger that arrears will accrue in the county court list and a period of waiting will arise which may well be commensurate with the period we now have in the High Court. It would be rather unfortunate if in making this change all we did was to substitute arrears in the county court for arrears in the High Court and inflict on litigants and witnesses a similar period of waiting.
From a practical point of view, what does the change in this jurisdiction mean? There are many cases that will now be transferred which involve a hearing of one day, two days, three days, or possibly more. I take it that those cases will involve the county court judge in hearing them for about the same length of time. Some arrangement must be made with regard to that if we are not to have injustice, for it follows that unless a suitable arrangement is made litigants and witnesses will be hanging about the doors of the courts waiting for a case which is not heard on that day, or is perhaps part-heard and adjourned for a week, or two weeks, or possibly even a month.
An hon. Member opposite gave an illustration of a case which took six months. I well remember many years ago being concerned in a case—I think it had to do with strawberries—and having to travel—as did all the witnesses —to Wisbech once a month for six months before the case was finally disposed of. There is a real danger that unless arrangements can be made to deal with that sort of thing the evil sought to be cured will be transferred from the High Court to the county court and the injustice will continue.
I agree entirely that the first consideration ought to be the litigants and the witnesses. In running-down actions, for example, in which medical reports are 1695 not always agreed, professional witnesses are engaged on both sides, and it is surely wrong that doctors should be taken away from their valuable work and made to hang about the courts, as very often occurs today.
I am interested in the idea of a central court in London. It might not be a practical idea for the country districts, but I should have thought that in large towns, and particularly in London, this was a valuable suggestion. I am not very much impressed by the criticism that poor people would have to spend a few pence or a shilling or so in getting to the central court. It must be remembered that there is no suggestion that local county courts should be removed. The smaller cases could still be dealt with in the local court. The idea is to facilitate the hearing of larger cases. If there was a central court, there could be a panel of judges who might deal with the larger cases, and in this way relieve congestion in the local courts.
In London, for example, one thinks of the proximity of county courts in such places as Westminster, Bloomsbury and Marylebone, all within a very short distance of each other. If, for instance, cases are transferred under the new jurisdiction to the county court and there are a considerable number of actions which might take a long time—at least two or three days—would this not be a sensible idea? There could, in my view, be no possible question of injustice if there was a central court or if one of those courts was used as a central court. Furthermore, if the list in a particular court collapsed and the judge thereby became free, would it not be a good idea to utilise the services of the judge in this way for the longer cases? If no real distance is involved, the transfer could be easily arranged.
And so I urge upon the Solicitor-General that it is essential that the most serious consideration should be given to the arrangements for the trial of these cases and where they are to be tried, otherwise there is the definite danger of a repetition of what has occurred in the High Court, where we have seen arrears of cases waiting for a long time with consequent injustice to witnesses and litigants.
Clearly, the change contemplated by the Bill could not have come about with- 1696 out the extension of legal aid, and I am very glad that this is so. I would, however, echo the criticism which has been made regarding the grant of legal aid to litigants. If the regulations remain as they are, there are dangers that legal aid will be granted to people in such a way that they cannot avail themselves of the advantages of legal aid in actions in the county court.
I am told that a married man earning an average national wage is liable to pay all legal costs up to the sum of £112. When one remembers that the usual amount of costs in the county court would be in the region of £50, it is fairly obvious that unless some change is made no real advantage will accrue to the litigant in the county court unless the regulations are in some way changed.
I also reiterate the objections which we have made regarding delay in the granting of legal aid certificates. I am told that it takes about two months for such a certificate to be granted. In the county courts, when one talks about speedy justice, a delay of two months in that way, added to the delays which might occur in the matters to which I have already referred, would make things very difficult.
What is regrettable is that we have not heard from the Government that they have decided to implement Section 7 of the Legal Aid and Advice Act: that is, the giving of legal advice. It is all very well helping a litigant in a county court action which he has brought, but it is false economy by the Government not to implement that Section. If people can be given advice, they can be advised against bringing actions they should not bring and they can be assisted in instituting actions when they ought to do so. I ask the Attorney-General to look into this matter. When the county court deals, as it does, with intricate problems under the Rent Acts, matters which arise under the Landlord and Tenant Act and all sorts of difficult questions that will now arise within the jurisdiction which allows cases involving sums of up to £400 to be taken, surely it is only proper that Section 7 should be brought into being and that litigants should have the opportunity of getting this advice. I hope that this matter will receive earnest and speedy consideration.
I should like to say a word about a topic which has been discussed by 1697 almost every speaker on Clause 1—the so-called cushion. Every practitioner who has had experience in running-down actions in particular knows the difficult position in which the legal profession will be placed as a result of this Measure. Under today's system, we know that if a litigant recovers £100 or more in contract in the High Court or £50 or more in tort in the High Court, he is automatically entitled to his High Court costs. Thus, although the county court has jurisdiction up to £200, as practitioners we are in a position to advise litigants within reasonable limits.
But, as has been said again and again, it is the most difficult thing in the world to advise a client as to the amount of damages he may recover. The Solicitor-General will know from his own experience what often happens. A case comes into the list before a judge in the High Court. Knowing that judge, one thinks that he will award a certain sum. By some chance, the case is not reached before that judge and it is transferred to the list of another judge. Immediately, the position changes. The Solicitor-General will know as well as I do that there are many judges who, we know, would give a few hundred pounds, whereas other judges would award over £1,000. What is counsel to do in these difficult circumstances?
I know that this matter was discussed in another place and that in this Clause, as the Attorney-General said, an effort was made to meet the difficulty. But does the Bill meet the difficulty? All that it does is to say that if a learned judge thinks fit, he may in the exercise of his discretion, if he thinks it reasonable, award High Court costs. What possible guarantee is there that a learned judge will take the view that counsel has taken, or might there not be a change of events in a case which make the evidence different? The Attorney-General will, I know, say that these are considerations which might be urged upon the judge, but the learned judge does not necessarily look at the case in the same way and judges differ so very much.
I hope the House will forgive me, but there is a little story about a judge which aptly illustrates the point I am trying to make. It is said of a judge that he was trying a civil case at assizes which took four days. After he had heard the case, he said to counsel, "This case has taken 1698 four days to try. I am not complaining —no time has been wasted—but I notice that on the summons for directions, when the case was put down for hearing, the time it was estimated to take was four hours. How anybody in his senses could have said it would take four hours, I do not know. I must have some explanation because the time of the court is arranged in accordance with the estimate made."
Counsel for the plaintiff said to the judge. "My Lord, I can give you a clear explanation. When the matter was before the learned Master on the summons for directions, the time estimated for hearing was put down as four days. Then the matter went before the learned judge in chambers on some question on appeal. The learned judge in chambers, having dealt with the matter on appeal, said, "I have looked at the summons for directions here, and I see the time is put down as four days. How anybody in his senses could have said it would take four days, I do not know. And he altered this to four hours." Counsel said to the judge, "My Lord, the learned judge who made that order was yourself."
That is a good example of how a judge may take a different view of a matter. His discretion may vary from day to day, and he may look at circumstances in one way one day and in a different way another. It is to put an impossible burden upon learned counsel to say they should advise in matters of this kind with any exactitude. I should have thought that a very sound idea would have been that put forward by my hon. Friend the Member for Islington, East (Mr. E. Fletcher), that we ought to take a figure of about £250 and say that if that sum of £250 or more is recovered the plaintiff shall have his High Court costs as of right.
I agree that it may be said, as the learned Attorney-General said, that if we do that cases will not be transferred in the same way. However, I would rather suffer the chance of that, than that this difficulty should not be dealt with in a practical way. At the very least I would suggest to the Attorney-General that this might be done. We might say that in cases of £250 or some such sum—I merely mention that sum—High Court costs should be awarded, unless the learned judge should think that it was unreasonable to have brought the case in the High 1699 Court. In other words, we put the burden the other way round.
I would add a word on the question of appeals. I do not agree with my hon. Friend the Member for Islington, East that appeals on questions of fact should not be allowed. It is recognised in the Bill that if we transfer actions and bring them within the jurisdiction of the county courts, we ought not to interfere with the present right to appeal. I gather that that, broadly, is what the Bill provides. However, the Bill does not quite do that, and this is the one criticism I make on this question of appeals.
After all, before this a person has had the right to bring an action in the High Court and if he recovered £100 in contract or £50 in tort he still had the right of appeal in the High Court on fact. What we are now doing is to give him, not completely, the right of appeal that he had before.
There is another matter which, I think, is an extremely important one. An action is brought in the High Court. Of course, there is no limit to the sum one can recover. It is brought in the county court and one is limited, as one has to be under the provisions of the Bill, to the sum of £400. Suppose an action goes before the learned county court judge and that he says, "I have heard the evidence. It is clearly a case in which I would have awarded £750. However, I cannot. I am very sorry, but my power is limited, and I cannot do that." It is a very serious matter for a litigant that, because he has to bring an action in that way in the circumstances to which I have referred, he should be penalised. I suggest that consideration be given to some way whereby, when a judge thinks it proper that more than £400, the limit, should be given, he should be able to award such sum as damages.
I think that this is a very necessary Bill. It is a step forward. I hope it has a speedy passage, and I hope that consideration will be given to some of the matters I have tried to raise.
§ 1.55 p.m.
§ Mr. T. L. Iremonger (Ilford, North)
Although I am a member of the Inner Temple, I think I should have been called to the Bar before intervening in a debate of this nature. I had not intended to intervene in the debate, but now, with 1700 the greatest diffidence, I do so because I want to follow the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) in one point he made.
The hon. and learned Member expressed regret that the legal advice part of the Legal Aid and Advice Act had not yet been implemented, and he pleaded that it should be. I have myself in this House expressed my own view on the desirability of implementing that part of that Act. I am glad to have this opportunity of endorsing what the hon. and learned Member has said, and of saying for myself, and on behalf of many of my hon. Friends on this side of the House, that we look forward to the implementation of that part of the Act.
We were glad to see in the statement of policy issued by the Conservative Party at the General Election that that matter was included as one of the party's intentions. I would urge upon the Attorney-General the desirability of that intention being carried out with the least possible delay. I hope my right hon. and learned Friend will, in turn, urge that course upon his colleagues. I am, personally, disappointed that it was not mentioned in the Queen's Speech.
My own experience is that what a great proportion of the people who are in trouble and come to see one in one's own constituency want is legal advice. If one tells them they ought to take professional advice they are, naturally, concerned about the cost. It is very often the case that those who most need advice are those who cannot pay for it, or who feel they cannot afford it. Therefore, I think it is proper for me on this occasion to add my voice to that of the hon. and learned Member for Stoke Newington and Hackney, North, to endorse what he has said on that matter, and say that we are looking forward to seeing this bright promise fulfilled in the not-too-distant future.
§ 1.57 p.m.
§ Mr. Barnett Janner (Leicester, North-West)
I take the unusual course of congratulating the Attorney-General on having introduced a Bill which, I think, is a very good one in most respects. It is somewhat overdue, however. I have one or two criticisms to make, and I hope that the hon. and learned Gentleman the 1701 Solicitor-General will deal with them as best he can in the circumstances. I think he will have a rather difficult job in explaining one or two matters, although to me they are fairly obvious criticisms of the position that exists.
For a very long time now many of us on this side of the House, myself included, have urged that legal aid should be extended to the county courts. I am glad that the hon. Gentleman the Member for Ilford, North (Mr. Iremonger) has spoken about the necessity of our extending aid by way of legal advice to county court matters. We who are solicitors know, perhaps even a little more than our barrister friends, what the position is of poor litigants, and how difficult it is for them to take a step, or even to decide whenever it is advisable to take a step, involving legal action when legal problems arise for them.
This Bill is a case of putting the cart before the horse. Why are we not told definitely what exactly are to be the detailed proposals of the Government about legal advice and legal aid in county courts? It makes all the difference in the world whether or not we accept a Bill of this nature if we know how litigants are to be helped. Are they to be placed in such a position that they cannot take advantage of legal aid? Or are the legal aid rules in these matters to be made in such a way that litigants will be enabled to take their cases to the county courts?
There have been some very serious difficulties in the matter of legal assistance. In my experience, and, I am sure, in the experience of hon. Members on both sides of the House, the provisions relating to the granting of legal aid have been so absurd in some cases that it has been impossible for people to take advantage of them. Litigants who have been promised legal aid have been asked to pay such contributions that in many instances it has been impossible for them to take any advantage of the aid. I have experience of cases where £50 and £70 have been asked of a litigant who was earning £6 or £7 a week. It would be utter nonsense to expect a poor person to undertake a county court action if he is to be placed in that position.
It is not a question of the amount of the claim but the so-called means of the litigant, and, of course, the whole matter 1702 of increasing the powers of the county courts would be farcical if the necessary provisions for speeding up the granting of aid and the settling of the contribution to be claimed from a person who applies for legal aid are not settled beforehand. We ought to be given this information forthwith so that, when we come to the further stages of the Bill, we shall know whether the Bill means anything or not.
This is a solicitors' Bill and we ought to know where clients stand. The Bar is necessarily less conversant with these matters than are solicitors. We ought to be told what the litigant is to have. In cases which I have in mind, where the possibility existed of an action taking place either in the High Court or in the county court, the legal aid people have said, "You must take this action in the county court." And this at a time when there was no legal aid at all given in respect of county court actions. The litigant was then placed in a position that if he had not the funds he could not take the action in the county court or in the High Court. Unless we know what is to happen in the case of that type of legal aid we must say to the Government, "You are offering something which looks very nice, but, in practice, will turn out to be not at all useful to the people concerned."
We are dealing with the lives of men and women. I put this at a very high level, because the county court is the place to which the man in the street comes expecting to obtain justice, the place where he puts his case in perhaps a less formal way than he would put it in the High Court and a place where, hitherto—and I hope that it will be so in the future—he has known that there is the possibility of having his case attended to speedily.
The county court judge has to deal with just as important legal matters as has a High Court judge and, with the greatest respect, I must say that very frequently he does the work equally well as if not—if one dare make the suggestion—even better than a High Court judge. The county court judge has the facts before him and he knows the location of the incidents. That is why I intervened when it was suggested in this debate that we should centralise this aspect of the administration of justice. That is not so.
Centralisation is possible in some matters, but the local knowledge of the 1703 county court judge is of such a nature that he understands the position in relation to a matter which comes before him in his district better than anybody outside the district can be expected to do. It may be that it will be necessary to have a pool of judges in addition to those regularly practising in specific districts so that one could take from the pool men who knew certain districts in order to help the judges in those districts.
The county court judge, in addition to his legal knowledge, has a very wide experience of the district in which he works. That is invaluable from the point of view of having cases there dealt with speedily and having the situation properly understood. So has the registrar. I hope that my hon. Friends who are barristers will forgive me for saying that in many districts the registrar is not only capable of being, but should be, advanced to the position of judge of the county court, though he be a solicitor. This is the people's court. It is the court in which a man brings his difficulty to the registrar's offices in his own district, and the people in those offices know the circumstances of the district well.
The registrar deals with local matters. In many cases, he has a very wide experience and is as capable of rising to the position of judge in his court as any counsel who has never had experience of the court itself and in many cases has had very little practice before his appointment as a judge. That is why a solicitor who has been called to the Bar and who, later, practises at the Bar and eventually becomes a county court judge, and, indeed, even a High Court judge, is, in my view, and I believe in the view of most solicitors, more capable of conducting the affairs of his court than the man who does not know the details of a solicitor's office.
I have seen in the High Court and even in the county court a judge who has not had the experience of the ordinary day-to-day work of a solicitor's office. He does not appreciate the difficulties, for example, of producing documents. He does not know of the difficulties which occasionally arise, because of the human element, in a mistake being made in copying a document. He does not appreciate that a document is sometimes not produced in court merely because some- 1704 body in the office has failed to keep it in its proper order. Appreciation of these matters is highly essential, and it would he useful if a registrar, who is a solicitor, or even a solicitor who practises in county courts were eligible to be appointed a county court judge.
There is another point which has arisen in the course of discussions and which ought to be dealt with satisfactorily from the point of view of litigants. Reference is made to it in the Final Report of the Committee on County Court Procedure, which states:Section 86 of the County Courts Act, 1934, provides that in any proceedings in a county court any of the following persons may address the court, namely …(c) a solicitor acting generally in the proceedings for a party thereto, but not a solicitor retained as an advocate by a solicitor so acting;In my view, that is a ridiculous position for the reason that, frequently, a solicitor takes similar kinds of eases for another solicitor without any objection being taken at all. Solicitors acting for plaintiffs in one district send cases to a solicitor who has a practice in a county court in another district, and he carries on. The provision that if there is a change of solicitor notice must be given is ignored in 90 per cent. of the courts.
I had the somewhat difficult experience of practising in the county courts before an extremely difficult judge, to put it very mildly. The late Judge Hill Kelly was very well-known and for five years I appeared in his court in Cardiff practically every time it sat. Everybody in the court, including the barristers and solicitors, were subject to unkind treatment, and that is an understatement. The judgments were good, but the methods adopted in the court were shocking.
In my view, that judge had no idea at all of what went on in a solicitor's office. I remember that he dismissed a case once because the solicitor, who happened to be taking the case, could not get counsel because counsel had to go away from Cardiff to the Swansea Assizes. The woman who was concerned in the case wanted to see it finished and it was handed to another solicitor. When that solicitor got to court he was not heard by the judge because notice of the change had not been given. But notice of change could not be given in that instance 1705 because the emergency had arisen during the course of a day. The result was that not only was the case not heard, but it was struck out. That is what happens, or is supposed to happen, under the law as it stands.
Why should a litigant be compelled to have counsel where a solicitor could as efficiently deal with the case? A solicitor knows what is in the case, whereas counsel has to be advised and told what it is about. He does not have an opportunity to see the witnesses. Sometimes there is trouble if he attempts to do so. A solicitor knows the background of the case and everything concerned with it, and I hope that by the time we finish with the Bill the principle which I am advocating will be accepted.
Having made those observations I should like to say one or two words about the other matters involved in the Bill. The Bill will afford relief to litigants, because they will be able to appear before county court judges who, as I have said, are as capable in my view of dealing with these matters as High Court judges.
I should like the learned Solicitor-General to take into consideration the points that we made about the legal remuneration. If we are to have these matters efficiently dealt with there must be reasonable remuneration for those who appear in the county courts, because unless that is done we will not get the best possible advocates to handle cases. It is a false economy if costs in respect of county court cases are fixed so low that capable advocates are pushed out of such courts.
There are many solicitors who could carry on effectively in the county courts but find it absolutely impossible to do so because the remuneration they get in relation to the time spent is so very small compared with what they would earn if they remained in their offices. They are forced out of advocacy to the detriment and disadvantage of many clients. Indeed, it is a bad thing for them in their practices, too, because they are forced to hand their clients' cases to another solicitor practising in the courts, which they should not do. I hope that when considering this matter in Committee we will get an assurance that nobody will be put to a disadvantage in consequence of unsatisfactory remuneration for those who work in the courts.
1706 The question of damages in negligence cases has been dealt with. We know on our side of the practice how difficult it is to assess the amounts, and perhaps it might be possible to do what is done in a somewhat different sense in the criminal courts. Instead of imposing a sentence in a criminal case because he may think he has not sufficient power to impose the length of sentence necessary, a magistrate can remit the case for sentence to quarter sessions. Why should not a county court judge, who, having heard a case and having come to the conclusion that the amount which he is entitled to allow as damages is not sufficient to meet the case, be entitled to send the matter to a High Court judge, so that he can award more than the county court judge can? That is one suggestion for consideration by the Government.
Generally speaking, I would say that the Bill is a good one as far as it goes, but it cannot go any distance at all unless legal aid is not only adumbrated but its details definitely fixed before we go any further.
§ 2.19 p.m.
§ Mr. Charles Doughty (Surrey, East)
I hope the hon. Member for Leicester, North-West (Mr. Janner) will forgive me if I do not follow him into the ramifications of practising in the county courts, but I should like to endorse the tribute he paid to the county court judges who for many years have carried out their very difficult duties with very commendable skill, diligence and tact. I am afraid that I cannot entirely agree with the hon. Member on the question of the rights of advocates of the two professions to appear in the county courts.
§ Mr. Doughty
We agree to disagree about that, and on another occasion in another place we can talk about it, though I am sure we shall fail to persuade each other.
I rise for one purpose only, and that is to refer to a matter already mentioned. A great many hon. Members have dealt with what is colloquially known as the cushion. 1707 It is referred to in the letter from the Chairman of the General Council of the Bar and the President of the Law Society which appears in "The Times" today. I do not think the facts set out by such representative bodies who know the position of litigants and those who have to look after their affairs can be ignored.
I rise, therefore, only to add my appeal to the Law Officers of the Crown to look again at this matter, which is an entirely non-political one. After all, litigants do not ask our politics when we appear for them. Since this Bill was before another place, the Government have considered it and have added the words which now appear in Clause 1 (2); but those words are not sufficient. It is not right to leave what we ought to decide in this House to the discretion of a High Court judge by using such loose words as "reasonable ground."
No practitioner could advise his client what the judge would do unless there are more directions to the judge. He could not say that the judge was bound by this or that in a specific case, and that in this case such and such a matter might arise. Here we are shirking the issue, and we must face it fairly and squarely. Whatever the figures may be I leave to those who want to go into the matter more fully, but there must be, particularly in actions for tort, an arbitrary figure for the High Court, an arbitrary figure for the county court, with a space in between. At the moment it is £50, which may well be too low; indeed, in my opinion it is too low. We could put it at £100 or £150, but in any case the matter should be dealt with in that way and not in the way in which it is dealt with in this Bill.
I think I am speaking not only for many hon. Members on both sides of this House but also for those outside who feel, as I feel, that the Government have not gone far enough in dealing with a genuine objection. I ask them, therefore, to look at it again either on Committee or Report stage, and to introduce Amendments, which I am sure will go forward without resistance, which will be more practical and which will deal with this matter in such a way that those who advise the litigant can understand how to advise their client, instead of putting these responsibilities on the judges.
§ 2.23 p.m.
§ Mr. Granville West (Pontypool)
I am sure that the Government must have been impressed by the unanimity of the views on both sides of the House in welcoming this Bill and with regard to the criticisms which have been made of it. If this Bill brings the administration of justice more easily, more speedily and more cheaply to the subject, it will be welcomed most heartily not only by the House but by the country. It is because I have some doubts about, first, the speed of litigation and, secondly, about the cheapening of litigation under its provisions, that I venture to give expression to my thoughts about the Bill.
Those of us who have had experience of the county court know well that one of the anxieties of people who take their cases to court is the delay which sometimes occurs in getting a decision. There is also the anxiety about the result and, of course, the great sense of frustration they have when their cases are adjourned from time to time. It is understandable, and the necessity for adjournments in those circumstances is regrettable.
We have experienced time and time again that cases which come before the learned county court judge are started on one day, are not completed, and then have to be adjourned. The hon. Member for Buckinghamshire, South (Mr. Bell) mentioned that he had been concerned with litigation in the county court which lasted for six months.
That state of affairs cannot be allowed to continue. It causes unnecessary worry to the litigant and, instead of cheapening legislation, only increases its cost a great deal. I have been engaged in many cases in the county court in the old days in which this unfortunate experience increased enormously the cost of litigation and, when the bills of cost were taxed, we found they were out of all proportion to the amount recovered in the action before the court.
Therefore, if this Bill is to succeed, the measures which underlie it will require serious consideration. I suggest to the Government that they should give consideration, first, to the following fact. There are certain county court circuits which are now too extensive for the population they have to serve. The first thing the Government should do, having regard to the extent of the litigation which 1709 exists on those county court circuits, is to limit the area of the circuit so that the county court judge will have greater time to devote to the cases in his area so limited. This means that it would be necessary to appoint an additional county court judge to take over the remaining part of the circuit.
Secondly, it will be necessary for the Government to enlarge still further the duties of the registrar of the county court. We know that the judge in the county court has a good deal of his time taken up with applications, with judgment summonses, and other matters of that kind, before he comes to the effective part of his list. It is essential that judgment summonses and formal applications of that kind should be transferred to the registrar. He is a man of wide experience who knows a great deal, perhaps even more than the county court judge, about the circumstances of the people with whom he has to deal. I think that the learned registrar would be in a far better position to deal with the judgment summonses, the majority of which result in new orders being made and no order for committal.
If an order for committal were necessary, the registrar should make it, but it could be subject to an appeal to the county court judge with regard to the order for committal, so that there would be no difficulty arising in that way. If, therefore, the Bill is to become really effective, it is essential that there should be an immediate review of the circuits at present worked by the learned county court judges and that the powers of the registrars should be increased considerably.
It is one of the misfortunes of the House that we have not yet had the proposals of the Government for the extension of legal aid to the county court. I think that we should have had those first. Had we done so, we could have been talking about this Bill in the light of the proposals which it is the duty of the Government to bring forward.
All hon. Members who have spoken in the debate so far have stressed the need for the cushion with regard to actions brought in the High Court. It is clear from the speech of the Attorney-General this morning that the object of the Bill is to encourage litigants to go to the county court and to discourage them 1710 from going to the High Court. The discouragement which the Government think necessary is the economic sanction which they are applying to the litigant by depriving him of High Court costs if he brings his action in the High Court and he recovers only that amount which could have been recovered in the county court.
If the intention of the Government is to encourage people to go to the county court, the Government must realise that the anxiety of advisers and of litigants will be that in negligence cases, where there is a difficulty in assessing the amount which is likely to be recovered, they will have to make a difficult decision as to whether the amount they are likely to recover will not exceed £400. In that case they would go to the county court or, if there is a possibility of the damages exceeding £400, they would go to the High Court.
I suggest to the Government that it would be contrary to justice if litigants on the advice of counsel and solicitors go into the county court, as the Government wish them to do, and, if the county court judge came to the conclusion that the case warranted a greater assessment of damages than £400, the damages should be limited to £400 simply because the litigants had, in fact, done what the Government desired them to do in going to the county court, thereby relieving the pressure in the High Court.
I say, therefore, that there would be no need for this talk about a cushion if the Government were to say that, if the county court judge comes to the conclusion that the case merits a higher award than £400, that higher award should be granted to the applicant. If that were done, it is quite clear that there would be no need for a cushion, because we should be carrying out the purpose of the Bill, which is to encourage litigants to go into the county courts.
I have no doubt that, when this Bill is considered in Committee, a number of Amendments to it will be moved, and I hope that, when that time comes, the Government will have considered the views expressed in the debate today and will say that something will be done either on the question of the cushion or in giving discretion to the county court judge. At the moment, the Government are giving a discretion to the High Court 1711 judges to decide whether there are reasonable grounds for bringing actions in the High Court. I am asking that the Government should give a discretion to county court judges, who may exercise that discretion so that, if the case merits a higher award than £400, that higher award shall he granted and justice be done.
§ 2.32 p.m.
§ Lieut.-Colonel Marcus Lipton (Brixton)
The main argument in favour of the Bill is something which does not appear in the Bill at all. It is a further stage towards extending legal aid to the county court. That is a request that has been made from this side of the House for some considerable time.
It is a request which, when granted, will confer very great advantages upon many litigants who are compelled against their will to go to the county court. My hon. Friend the Member for Pontypool (Mr. West) talked about encouraging people to go to the county court. As far as I am concerned, I always do whatever I can to discourage people from going to any court at all, whether it he the county court or the High Court, but cases do arise in which people of very humble circumstances must assert their civil rights through the county courts. It is very important that, first, they should have the utmost confidence in the administration of justice as carried out in the county courts, and, secondly, that they should not be deterred by financial hurdles from the opportunity of securing justice in those courts.
I shall not traverse the ground which has been already covered by preceding speakers in connection with the letter that appears in "The Times" today, signed by the Chairman of the General Council of the Bar and the President of the Law Society, which puts forward certain points, which are further supported by an editorial in today's issue of that newspaper. I would only venture to express the hope that, during the Committee stage of this Bill, we shall have the assistance of my right hon. and learned Friend the Member for St. Helens (Sir H. Shawcross) in support of the representations that have been made so effectively by the Chairman of the General Council of the Bar.
1712 I am quite sure that if we do have the benefit of the aid of my right hon. and learned Friend on the Committee stage, it may help to remove any doubts that may remain in the minds of the learned Attorney-General and Solicitor-General and convince them that the arguments in favour of the case that some of us have been trying to put forward are well founded and ought to be conceded.
I cannot quite understand subsection (5) of Clause 1. which gives the Government the right, if they so wish, to increase the sum of £400 to £450 and that of £500 to £550 by Order in Council. If the Government anticipates that in the not-too-distant future the references have to be increased to that extent, I do not see any reason why such a provision should not form part of the present Bill and go on the Statute Book at the same time.
It has been pointed out that the value of £400 or £450 today is perhaps equal to the value of £100 in 1903, when the present limit was fixed, so I ask the learned Solicitor-General to consider the possibility of excluding subsection (5) by making the necessary amendment to subsection (1). It is surely better, if we can, to avoid legislation by Orders in Council where there is no particular reason for an Order in Council being made.
I want to support the plea that has been made in favour of an adequate number of county court judges. I am not quite sure that even this Bill, which increases the number to 80, will thereby solve the problem. It is quite true that one effect of the Bill, coupled with the extension of legal aid to county courts, will be to increase, as it is bound to do in my view, the number of cases coming before the county courts. In those circumstances, I think we may expect the Government to say that if the volume of work justifies more judges than the 80 envisaged in this Bill, there will be no undue delay or reluctance on the part of the Government to increase the number of county court judges to whatever extent may be necessary.
I do not favour the proposal that was made by one hon. Member who argued that, just as we have a Central Criminal Court, we should have a central civil court or county court here in London. The great advantage of the county court is that it is localized, and that people do not 1713 have to travel too far. They also have the benefit of a judge and registrar sitting in that court who know the character of the neighbourhood in which they are operating. My theory is that, if the time ever came when we had a large centralised county court in London, with eight or ten judges sitting at the same time, we should have something indistinguishable from the Law Courts in the Strand, and that the whole atmosphere would be changed, to the disadvantage of the people who find it necessary to make use of the county court.
Although it is not possible to criticise judges on the Floor of the House except by giving notice of a Motion, I believe there is no similar barrier in the way of praising judges where such praise is due. I should not like to think that the part of London which I represent, and which comes within the jurisdiction of the Lambeth County Court, would lose the services of the judge sitting there, who might be merged into a pool in a centralised county court, perhaps in the West End—
§ Lieut.-Colonel Lipton
"Merged" or "submerged," as the case may be.
The county court judge in Lambeth has earned the respect of everyone in the neighbourhood. In protecting the rights of ordinary people, he has served the cause of justice as well as it possibly could be served. Indeed, so well has he served the cause of justice in such cases as those in which slum landlords like Brady and his successors have been involved that, where his judgments have been tested in the Court of Appeal, even a full Court of Appeal has found them justified in every way.
I must not pursue that aspect, because I understand that the Attorney-General is endeavouring to test one of the judgments even further by an appeal to the House of Lords, so we must await the final outcome there. I merely mention this by way of illustrating the point that very important questions of law are decided by judges in the county courts much more cheaply than they are decided in the higher courts, and to the great satisfaction of people who believe that they have not been treated fairly or that the dice may have been loaded against them by landlords, who are, of course, in a 1714 much better position to assert their rights in the courts than are the poor tenants.
On the question of appeals from the county court on questions of fact, there, for the reasons that I have already mentioned, I do not favour leaving the situation open to the extent provided in the Bill. The great merit of the county court is the finality, which ordinary people want in the general run of cases before the county court. If a wealthy plaintiff or a wealthy defendant can put the other party to the risk of further proceedings by way of an appeal on a question of fact, I do not think that the real purpose for which the county courts were established is being served.
I favour an even wider jurisdiction being granted to the county court judges than is provided in the Bill. I see no reason at all why county court judges should not be empowered to deal with, for example, divorce cases, particularly undefended divorce cases. I am sure they would deal with them just as well as the assortment of commissioners who are appointed for this purpose to supplement the work of High Court judges.
Lay people generally have great confidence in county court judges. It is because of that confidence that we want to make it easy for ordinary people to go to the county courts. We want to make it as inexpensive as possible. The county court was originally intended as a poor man's court, but anyone who knows what goes on there will bear me out when I say that even a simple county court case can sometimes involve a very substantial amount in costs when the final bill is added up. People are sometimes surprised when they learn how the costs can pile up in the county court, for the extent is such as to make it appear that it would almost have been cheaper, or, at any rate, not much more expensive, to have gone to the High Court in the first instance, if that were possible.
Not only should the jurisdiction of county court judges be increased as well as their numbers, but the point made by my hon. Friend the Member for Pontypool should also be considered, namely, that more jurisdiction should be given to registrars. The time of county court judges is taken up to a very great extent by judgment summonses. If judgment summonses were transferred from the county court judge to the registrar, the 1715 long delays or adjournments would to some extent be reduced, for the county court judge would not then have his time taken up by the dreary list of judgment summonses on which he has, quite unnecessarily in my view, to adjudicate and on which the registrar could easily adjudicate.
The Government must expect a fairly considerable number of Amendments to the Bill to be put forward in Committee. It is fortunate that we have in power at the present time a Government which will not overburden the House with a lot of legislation, which means that we shall have more time to deal with the minor, though useful, reforms which the Government are asking us to accept.
§ 2.47 p.m.
§ Mr. Leslie Hale (Oldham, West)
What is truth? said jesting Pilate; and would not stay for an answer.Most of the earnest truth-seekers who have participated in this debate have followed the example of the late lamented Procurator of Judea. It would not be practical politics to call attention in detail to the magnitude of the deprivations that we have suffered, but it is difficult to close a debate in the absence of most of those who have participated in it. It has been continuously interesting, if not continuously exhilarating.
I wish to refer to one or two matters which have been mentioned. The hon. Member for Buckinghamshire, South (Mr. R. Bell) made a suggestion which I do not think has been fairly dealt with by those who have spoken since. He referred to the possibility of having a central county court in London, and, I hope, in other large cities, to which the more contested cases could be transferred, the cases likely to last some hours, and the cases referred to by another hon. Member as being constantly adjourned and delayed to the detriment of the public and at great expense. It does not seem to me to be a fair representation to talk about the extra 6d. on the tube fare which would have to be paid by five witnesses, as against the very great cheapening of litigation which could be effected by holding a case and determining it within the day. It is a matter which should be considered.
1716 The hon. Member for Aldershot (Sir E. Errington) had some reinforcement from my hon. and gallant Friend the Member for Brixton (Lieut.-Colonel Lipton), who paid a most moving tribute to his county court judge and deeply moved me by his description of the success which he had been able to obtain before the judge. My hon. and gallant Friend referred to judgment summonses as dreary matters—they are, of course, not dreary to the man who is likely to be imprisoned if he fails in his plea—and suggested that they might be dealt with by the registrar.
That is an interesting and useful suggestion, but it was very fully considered by the Committee on County Courts, being referred to, I believe, in paragraph 89. The one fact that determined us against that suggestion was that the Association of County Court Registrars was unanimously against it. We felt that in those circumstances it would be most impolitic to suggest that registrars should assume a duty which they were all very reluctant to undertake.
In the main, however, the debate has rather taken the form of limiting itself to one or two major issues. I am reminded of the classical case of the young advocate before the Court of Appeal who was interrupted by a testy judge who said, "There are no merits in this matter. It is purely and simply a question of costs"; whereupon the advocate, with the passionate assertion of an undoubted and indubitable truth, said, "But, my lord, costs are merits." Indeed they are. They have a great deal to do with litigation. Even if all professional men were altruistic, it would still be a problem. A man has to consider and to know what litigation is likely to cost before he dare embark upon it.
I must include a reference to the speech of my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman), who called attention to the working of legal aid. Although the legal aid system has been a manifest operational success, and the greatest possible credit is due to the Law Society and to all others who participated in it, the actual terms and conditions of the grant are giving Members of this House on both sides reason for genuine disquiet.
1717 Members are getting complaints about the heavy burdens put upon people who litigate. Many of the litigants are worse off, particularly in divorce cases, than they were three or four years ago, when they went to see a friendly solicitor and got the best terms they could. It is not only the magnitude of the amount that causes the trouble, but the magnitude of the repayments and their rapidity. Men with very small incomes are being called upon to pay quite large sums, which mean a heavy burden, in discharge of these obligations.
The debate has been definitely nonparty. I have no instructions to put any party points in participating in this Second Reading. I hope that we shall be able to participate during the Committee stage without Whips and with a genuine desire to make the Bill more practical than it is at the moment. These are serious matters for which we ought to have some regard. Those who approach the question of law reform—and there is no more important question —agree very much with Lord Brougham that all our constitutional history is involved in bringing 12 good men and true into a box. Most of the battles for liberty, freedom and democracy have been associated with events which have led to the development of the independent judge and the impartial jury.
My hon. and learned Friend the Member for Walsall, North (Mr. W. Wells) said the same about the independent county court judge. Without wishing to issue a single note of controversy in this discussion, perhaps I might mention that I made my maiden speech in this House nearly 10 years ago on the Industrial Injuries Bill and included in it terms of the highest praise of the county courts. I have the greatest regard for them, because there we get a little nearer to natural justice than in any other court.
In the county court we benefit from the local knowledge of the judge who so often deals with people direct. He must be patient so that he can listen to the dissensions and difficulties of people who find it difficult to express themselves. He has to show a great deal of learning and of genuine kindness. In the main that is done, but I have known some shocking county court judges. I dare say that some of them thought I was a shocking advocate.
1718 The county court judge must have a very high standard of public service. His remuneration is low compared with the High Court judge, but it seems to be rather high in proportion to the footplate men who also have to exercise very great care and responsibility. That is one of our difficulties when we talk about wages and try to get in perspective the question of wages policy.
Those who have had to approach this very difficult question of law reform have always found themselves up against one very difficult fundamental proposition, which is that everyone likes cheap justice and wants speedy justice, although cheap and speedy justice is not always the most just kind. I remember the story told by Judge Parry, perhaps one of the most entertaining of writers about county courts and their peculiar problems. He records visiting a remote court in Lincolnshire, where he was taking the place of a judge who was ill and who subsequently retired.
When the judge called the first contested case, the registrar got up and said, "All witnesses on both sides will leave the court." The judge said to the registrar, "Is that necessary in the county court? I have never done it before." The registrar replied somewhat contemptuously, "The late judge always cleared the court." "Well," said Judge Parry, "I do not think I will do it. It takes a long time to get them out and much longer to get them back." The registrar turned to the judge with an air of contempt and said, "The late judge never had them back."
That system was cheap, and in the result might give about the same accuracy of verdict of any other human tribunal. One good judge I knew recorded that he thought he was right in about 40 per cent. of cases, and he reckoned that his batting average was as good as anybody else's. The system of the learned judge in Lincolnshire does not manifestly appear to be just, and that is the important factor.
When I was a member of a committee whose terms of reference were to cheapen the cost of litigation in the county court, we came to the conclusion that litigation was already too cheap to make it possible to keep competent advocates visiting county courts. It is fair that we should have that point in mind. 1719 We compromised on the problem in the best way we could by making it much more easy for a litigant to conduct his case in person. We tried to make it possible for a poor man, in the absence of legal aid, to come to the county court office for advice and then to conduct the case himself, rather than incur a heavy burden of costs.
Everyone who has practised in the county court knows that the average busy country solicitor would much prefer that the county court did not exist so far as revenue is concerned. It is not worth his while to go into the county court and stay there, very often all day, and sometimes day after day, because of geographical difficulties. I was glad to see the right hon. and learned Member for Montgomery (Mr. C. Davies) back. He recalled things that I know a little bit about, although not much. I can well imagine that problems about which I know something of in Leicestershire are infinitely magnified in Wales.
When we talk of reform, we sometimes do not realise the tremendous problems that confront litigants in the more remote areas, and the tremendously difficult traffic problems, when it is not merely a question of getting the plaintiff and his own immediate witnesses to the court, but of persuading the medical witnesses to leave their patients and come and stop all day in some remote and inaccessible spot. This is one of the essential problems of the county court.
I will quickly mention one or two purely technical problems which the Solicitor-General might well refer to.
I intervened to refer to the "leapfrogging" appeal, and when I did so there was an air of some wonder on hon. Members' faces as though this was a term imported direct from Oldham, West. It comes, however, from the Report of the Committee on Supreme Court Practice and Procedure. It refers to the possibility of an appeal being taken from the lower court over a court which has already recorded its view. I had this problem myself in the county court in connection with the law relating to accidents on the road between vehicles and cattle and horses. Most people will realise that the law on that subject was most unsatisfactory—and by the time I had finished my appeal it was worse.
1720 We were faced with the problem that the Court of Appeal having 30 years previously decided the law against us, we had again to go to the Court of Appeal and go through the fantastic and useless formality of arguing our case there before we could go to the House of Lords. The House of Lords came to the wrong view; but once the House of Lords has come to the wrong view it becomes the law of the land and it is the right view. The law relating to cattle can now only be dealt with by this House, which I have very little hope will be done in the next four or five years.
The question of sound recording is very important. If we are to place upon the county court judge the burden of realising that in every case of substance there may be an appeal, he will have to take very detailed notes. That will delay the work of the county court judge very considerably. The Evershed Committee investigated the possibilities of sound recording and reported—some years ago —that it was nearly good enough but not quite. My own impression is that very great progress has been made with sound recording in the last few years its institution would make a great contribution to reasonable speed of hearing and the taking of copious notes by the judge would be avoided. In the past, without such a system, it has sometimes meant the county court judge having to send for the local newspaper reporter to find out on what terms some sort of report of what was happening could be obtained. I am speaking of a number of years ago; I am not suggesting that such a thing could happen nowadays.
My hon. Friend the Member for Islington, East (Mr. E. Fletcher), who opened the debate with such ability, made a number of observations with which I am in complete agreement. He expressed very real dubiety about this right of appeal at all. The county court is the poor man's court, and its value has always been to provide access for the poor and the humble. If a poor man is to be advised that his case involves a difficult point, or is a contested issue and that there is an appeal not only on law but on fact, he is at once put into much more acute difficulty—and not even legal aid gets over that difficulty.
I have not made up my mind on this. I am unhappy about it, but I venture to 1721 say to the right hon. and learned Gentleman that if he is committed to the introduction of appeals from the county court, then the placing of a money limitation certainly creates an anomaly. All that I would quite willingly concede; anomalies must exist, and there are practical reasons for saying that one would not wish to extend the right of appeal to very small cases. But there can be no justification in cases relating to land, for placing a limit of £60 rateable value on the property which is the subject of appeal. The property is generally a house; a house is generally a home; an Englishman's home is his castle, and it cannot be argued that it cannot be his castle unless it has a rateable value of £60. If we are to have appeals about homes at all it should apply to every home, whatever the value the valuer may put on it.
I want to come to the main question which has occupied so much time today. While I agree with much contained in the letter to "The Times" today, written by the Chairman of the General Council of the Bar and the President of the Law Society, I do not think that it fully sets out the difficulties, nor sets out the law quite accurately. I will take the first paragraph first. These difficulties are absolutely fundamental—and I want to pay tribute to the right hon. and learned Gentleman and be quite fair. He used a sentence which has not received great emphasis in this debate. He said that those introducing the Bill do not expect that it will lead to a very great transference of litigation automatically from the High Court to the county court. I take it that they realise that there will be very many poor man's cases in which it would be almost impossible for solicitor or counsel to advise with certainty that the case should be tried in the county court.
§ The Attorney-General
I said that I was dealing with the figures in the past and could not assume that all the actions tried within the High Court which might be within county court jurisdiction would be started in the county court after the change had been made.
§ Mr. Hale
I was giving the right hon. and learned Gentleman too much credit for perspicacity, because this was a particular sentence of his speech which I 1722 selected for eulogy. I am sorry if he did not fully convey the thoughts that I had in mind. The question of assessment of damages is always a matter of difficulty. Some of us who have practised in these matters will know that the plaintiff's own opinion is always a matter of controversy. It is almost a commonplace to have an elderly charwoman come along with a cutting from the "Daily Success" reporting that a young actress has been awarded £5,000 for a scar which can be seen when she wears her bikini—though I think that the "Daily Success" has usually forgotten to report that the lady had a fractured skull as well.
These items have a wide circulation and a wide effect. When the charwoman argues that her legs are just as important to her in her way of business as those of the young actress, I think she is convincing, and though one would receive with a little more dubiety the statement that, looked at from a distance and with impartiality and without passion, the legs may be just as attractive, it is an impressive point to put before her legal adviser. These, however, are not the cases which attract so much difficulty.
Let me put the more serious type of case. The Attorney-General is a man of wide practice, and indeed has practised for some time on the circuit and in the areas which I know. He knows that these things happen. The pressure on a solicitor by a poor plaintiff who is crippled, to bring his case as soon as possible is a pressure almost impossible to resist. The plaintiff is sick. His wife needs extra nourishment; she is possibly trying to do some extra work and nurse him, and living on the miserable National Assistance. They want their damages. These cases cannot be held back. We cannot wait for two years, and if we do we take the fantastic risk that the vital witness may not be available. Therefore, the pressure to enter a case as soon as possible is very heavy indeed.
Everyone knows that there are many cases in which a man has had an injury to the head. No results of any gravity may occur for months, and then suddenly he will lose his sight or develop something equally serious. Everybody knows that of 50 cases of fracture of the leg one will turn out badly eight or nine months afterwards. Other things can set in. Simple injuries can become worse. 1723 What are we to do? We enter the case in the county court in accordance with the terms of the Act, and there, in our view, the damages are worth £250, although later they are worth £2,500. What do we do? As I understand it, we have to withdraw the whole proceedings and start again. As I understand, my hon. Friend the Member for Pontypool (Mr. West) suggested that there should be a discretion on the part of the county court judge, and certainly there must be something of that kind.
This is not the only difficulty in assessing damages. Hon. Members have spoken frankly about this matter. Of course, there is the plaintiff's judge and there is the defendant's judge. Of course, there is the judge who awards big damages and there is the judge who awards small damages. Solicitors have to say to their clients, "I am sorry, I thought Mr. Justice Blank was coming to the next assize. It is not him at all. It is Mr. Justice Double-Blank, and he will give you about as much as is represented on that domino."
We all know that this happens. There is nothing wrong in it. There may be judges who would take a much more generous view of the scar on the chorus girl's legs than they would of a scar on a charwoman's face. They certainly used to exist, and they probably still exist. There are no measures to guide a judge in assessing damages for personal injuries. He has got to compute possibilities of life, expectation of life, profit derived from a deceased relative and so on.
The letter by my right hon. and learned Friend the Member for St. Helens (Sir H. Shawcross) and the President of the Law Society in "The Times," in its concluding paragraph, did not face the legal difficulties. My hon. Friend the Member for Islington, East referred to some of them. If one gets legal aid, can one choose one's court? Does the certificate enable one to choose the court? Suppose one has chosen wrongly who bears the burden? In my view it might be the solicitor, under these terms.
Under the existing law there is no right to charge any sum whatever against an infant plaintiff. Surely, the responsibility of a solicitor acting for the infant is a great responsibility, because he has 1724 no one to guide him. He must take the decision himself. I say quite frankly that if I were a solicitor acting in any borderline case of this kind, I should enter for the High Court and take a chance.
The solicitor, like any other man, is concerned with his professional reputation and prosperity. He is not concerned, as some hon. Members suggest, with the cost of any individual case: he is concerned with his reputation. It does not harm a solicitor to have brought a case in the High Court and to have got only county court damages. It would be fatal to his reputation to bring a case in the county court and to be told by the judge that he had brought it in the wrong court and that if he had brought it in the High Court he would have got twice as much.
Finally, on this point, it is said that the High Court will exercise a discretion and look at the matter and that the judge will say, "In the circumstances I shall give you High Court costs." On what evidence? It was suggested in the debate in another place that they might have regard to the opinion given by counsel, but once we start this argument and once we start looking at the opinion of the counsel at the start of the case, the counsel on the other side will say, "Was he fully instructed? Did not the solicitor put before you merely a small amount of evidence?"
Everybody knows that in these cases evidence alters in value at any given moment. In motor accident cases where there is a death there is a tendency in the first few days for animosity to be shown against the driver, and as the weeks go by he becomes the subject of sympathy. Evidence alters in value in motor accident cases.
Anybody who practises knows that medical evidence alters in value. There is nobody who practises who does not know that medical men may give very cheerful opinions about the magnitude of the injuries their patient has sustained, and that they find them difficult to maintain under cross-examination in the county court. Therefore, the solicitor will be put in a position of very real gravity and difficulty.
I ask the Attorney-General to consider the matter very seriously before we reach the Committee stage. We welcome the Bill. It may be thought sardonically 1725 that my words have not sounded a tocsin of welcome, but we welcome the Bill. We like it. We regard it as a step in the right direction. I had hoped that the Attorney-General had himself provided what might be the answer. Perhaps on the whole it can be argued that it is well, in embarking on this experiment, that there should be not too great and fast a transfer of business. Therefore, the difficulties which I have outlined, which will mean that most of these actions will enter in the High Court, may not be so serious when we are paving a way for a transfer. It may be that experience will make the provision more practicable, sensible and useful as time goes on.
The right hon. and learned Gentleman's announcement that the whole question of cost in these cases was being reconsidered by the Law Society, in consultation with the Lord Chancellor and other persons concerned, may mean that the margin of difference is, on the whole, not so great and that we are discussing matters of no great magnitude. If that be so, that may be the answer—and I have been prepared to hope that that was the answer, and that we were passing a Bill which would arrange a steady transfer which would probably permit the Order in Council to be made increasing the jurisdiction to £500 as experience proved that it might be done.
It would be wrong for me to sit down without saying this in conclusion. The right hon. and learned Gentleman and his colleagues are entitled to the thanks of the House for carrying on the implementation of the legal aid scheme, which my party introduced, with this extension to the county court. That is a very important social fact. In its early stages it may not be generous and fully effective, but the very fact that it has been done is something of real importance in the administration of justice; because, if there is a crime that can be alleged against this country with its great system of justice, it is that for centuries we have insisted off litigants paying for judges: we have had a system of court fees in which people who sought justice have been asked to contribute to the cost.
If there is one priority which a great nation should be prepared to enforce, it is the provision of open and even-handed justice, the administration of what has always been in a sense the prerogative and 1726 duty of the Crown. Open and evenhanded justice is a constitutional duty in the terms of that much abused document, but a document of some historical importance, Magna Carta, that no citizen should be amerced except for an offence and that every man should be able to seek and have equality of hearing and equality of entry to the King's Court. That should be without any expense, except such as he voluntarily incurs himself by employing advocates and advisers to represent him.
That would be my ideal of what should happen, and I am very happy to think that in the provisions of this Bill we are coming a little nearer to it. This is a definitely progressive step, a definitely progressive Measure, and it has been a privilege to take part in it, because we have seen something coming which has been the object of those of us who have been concerned with law reform for many years past.
§ 3.17 p.m.
§ The Solicitor-General (Sir Harry Hylton-Foster)
This agreeable debate has shown a firm unanimity about two topics, one the excellence of the county court judges and the respect in which they themselves and the way in which they do their work are held and, the other, unanimity about general support for this Bill. That, obviously, does not mean that we are not to have some matters to discuss in Committee. What hon. Members have said has made that plain, and in those circumstances I do not think I ought to try at this stage to imitate—if I could, and I wish I could—what I might call, I hope without offence, the verbal ubiquity of the hon. Member for Oldham, West (Mr. Hale).
In winding up a debate one likes to be a dispenser of hopes, but I regret to say, in answer to the right hon. and learned Member for Montgomery (Mr. C. Davies), that I could not hold out any hope in his direction on the subject of giving county court jurisdiction in actions of slander. He, a little lamenting and modestly, explained that he found himself in a minority of one on the Hanworth Committee, but it is not so good as that for he wholly failed to convince any member of the Peel Commission and wholly failed to convince the Evershed Committee or any member of the Committee on the Law of Defamation. So I hope 1727 he will not think I am putting it too unjustly by saying that I think he is in a minority of one in his view.
We have been blamed for not saying in more detail what we propose to do about legal aid in the county courts. That is not a fair criticism. This Bill is designed so that it is possible to bring legal aid to the county court and the extension of jurisdiction under this Bill into operation at one and the same time. If we had to wait until the Law Society—on whom Parliament has placed the burden of working out these schemes of legal aid—had worked out a scheme in detail before we could begin to present this Bill to the House, we would be delaying the process which everyone wants to see come into force.
What I have said by reference to the House having put the burden on the Law Society to work out these schemes answers, I hope, one of the points raised by the hon. Member for Islington, East (Mr. E. Fletcher)—I agree, a very important point—of whether under the scheme, when we get it, the certificate for legal aid to the plaintiff will be available either in the county court or in the High Court as his advisers may advise, or will be one which leaves it to the relevant legal aid committee to decide whether the proceedings should be in the High Court or in the county court. The answer is that I do not know.
I can speculate, but I do not know, for I do not know what the Law Society has itself worked out about it. The Law Society is at present working on it and I shall not know, I suppose, until its proposals, as worked out, are submitted to the Lord Chancellor for his supervision. But the point will not be missed. It is one of the greatest importance, and it is one on which the Law Society is working. For that reason I cannot say anything about it now. The Law Society is also working on the problem of delay in the issue of certificates. More than that I cannot say, because that, again, is something in the Law Society's province.
Some hon. Members, notably the hon. Member for Islington, East, complained about the burden of contributions required of assisted litigants. I do not myself do anything but accept the view that these contributions which are required are, in many cases, very heavy. 1728 The Government have followed the view of the Law Society's Advisory Committee all the time and hon. Members who are interested in the topic are already familiar with it.
The third report of the Law Society Advisory Committee on the working of the scheme reported, in paragraph 10:With regard to contributions, nothing has occurred since our last report to cause us to alter the view we took at that time that, although the scale of contribution is high, we should not recommend any alteration in that scale for the time being. We still consider that the first call upon Government funds should go, not to alleviate conditions under the existing scheme, but towards extending it to those parts of the Act not yet brought into force.It is on that principle that we have been working.
A lot of administrative business has to be done in making legal aid available to the county courts. It really is a considerable burden. No Government could think of going on to introducing the next part of the Act—the scheme for legal advice—until the burden on the Law Society in getting legal aid for the county court organised is out of the way. It is a problem not only of money, although it is importantly one of money, but of administration also, because that simply must be got out of the way.
Perhaps I might refer for a moment to the argument about the absence of what are called cushion provisions. I do not propose to detain the House very long about it, because it is obvious now that we shall have to have discussion in Committee because hon. Members desire to discuss it. For my part, however, I hope that the opponents of these proposals, both in the House and outside, will not neglect two things. It is quite plain that the main object of the Bill—to take away the burden of overwork from the High Court in proper cases and to get it into the county court—will not be effective unless there is sufficiently firm inducement to people to go to the county court and to abstain from going to the High Court in proper cases. I do not suppose that that is in doubt, because the Evershed Committee set that out in terms as an accepted proposition and we accept it.
Every hon. Member who is urging the need for a cushion provision is in one way, if he thinks about it, advancing the 1729 argument against having one. He is saying, "I want a cushion on which to be able to rely in advising my client, because that would enable me to escape the difficulty to some extent of having to go to the county court when I would rather go to the High Court if there is a risk." He is, in a sense, pointing out that the more there is a cushion on which he can rely, the weaker he is making the inducement for someone to abstain from going to the High Court in the right case. We cannot afford to ignore that factor if we want the Bill to do what it is supposed to do.
I hope, also, that the critics of these proposals in the House and out of the House will not fail to appreciate what is the real effect of the words which we have put in Clause 1 (2), giving the judge discretion. They amount to this, that these sanction provisions are not to apply at all if the judge thinks it is a right case in which to exercise his discretion. We have the great advantage about High Court judges that they are all people who have done it before. They have all done it themselves. They have all been counsel; some have been solicitors, too. They all have had all these difficulties of advising people, the difficulties hon. Members have been discussing today.
When people say, as it is put vulgarly in this House, that there is a difference between Mr. Justice Blank and Mr. Justice Double-Blank, or, as it is more gracefully put in another place, that there is a personal equation between judges, I would say that Her Majesty's judges know that very well. They know that one of their brethren is a little more generous than others. They know this also, as we all know, that sometimes a defendant's doctor is optimistic in his evidence about the recovery of the plaintiff. They know the difficulties of the courts. They know the difficulties of the plaintiff's advisers.
When hon. Members talk about the borderline case and the need to take the borderline case to the High Court, I would say that it is just the borderline case, in my belief, in which a judge would say that there was reasonable ground for supposing that the amount recoverable would have been more than is within the county court jurisdiction; because judges are people who know. When the hon. Member for Islington, 1730 East says that all practitioners know the difficulties, I would say that all judges have been practitioners and, for that reason, know the difficulties, too.
There is a further matter. It is suggested in the letter to "The Times," referred to today, that it will be difficult for a judge if he awards a plaintiff £100 and is immediately invited to say that it is a case in which it was reasonable to have expected an award of over £400. How does that work really? He is not being asked to say that it was reasonable to expect that at the time when he awards damages. He is being asked to say it was reasonable to have expected that at a long antecedent time, at the time when the plaintiff's advisers had to look at the material which was then available to them, when they were deciding where to start their proceedings.
It is not really embarrassing, in my submission, to say, where, for instance, there is a very optimistic defendant's doctor, "My Lord, it is no disrespect to you to say that I anticipated reasonably a great deal more than that, because I had not the opportunity your Lordship has now had of seeing the evidence of Professor Optimismus and his estimate of the plaintiff's recovery." And so forth. I think the judge would be entirely objective in deciding that matter. What we have done in the subsection is to confer a very wide discretion which can be sensibly exercised by men like Her Majesty's judges, widely experienced in these matters.
§ Sir L. Ungoed-Thomas
This is an important point which we shall need to deal with in detail. We are extremely concerned that the Government should not form any definitive conclusion at this stage. I appreciate the argument put forward by the Solicitor-General. Would he bear this in mind, when he considers this before Committee—that is why I am intervening now—that, of course, with the transfer which he is anxious to obtain from the High Court to the county court it is entirely a matter of figures, purely a matter of the sums which are fixed as be-between the county court jurisdiction and the High Court jurisdiction?
It does not affect the cushion principle. It is that principle about which we are concerned. One can perfectly well obtain the same amount of transfer from the High Court to the county court, 1731 whether the cushion principle is included or not, according entirely to the figures which are embodied when the cushion principle is applied. I mention this merely because I hope that the hon. and learned Gentleman will consider it before Committee.
§ The Solicitor-General
I am obliged to the hon. and learned Member. Every word that he has said will be considered. I will not attempt to debate the point with him now, because we shall have to go into it in Committee and I wanted to deal with one or two other matters.
Hon. Members have doubted whether we are taking power to appoint enough judges to deal with the work which may arise. We are not at the moment up to the full statutory number. Obviously, it is difficult to estimate, because we have to estimate what will be the effect of the increased jurisdiction, of the introduction of legal aid and of the increase in the registrar's jurisdiction on the number of cases going before the county court judge. But this is a very substantial advance on our original proposals, made in response to suggestions which were made in another place in the last Parliament. We hope that the increase which is now proposed will be enough on a reasonable forecast at present of what will be required in the county court judiciary.
§ Mr. E. Fletcher
As there is a difference of opinion about the adequacy of the proposed number of judges, and that is a matter which we shall have to consider in Committee, would the Solicitor-General give an assurance that the Financial Resolution is sufficiently widely drawn to enable us to move Amendments in Committee?
§ The Solicitor-General
I cannot tell the hon. Member that straight away. I could not give that undertaking now.
This Bill represents what we hope is a fair view of the number of judges required. I should also say something at this point, by way of parenthesis, in answer to part of an extremely valuable speech by my hon. Friend the Member for Aldershot (Sir E. Errington), speaking from his experience as a deputy county court judge. The intention, broadly, in using additional judges is not to put them in a pool, as it were, as substitutes for deputies but to allocate them 1732 to what seem to be needy areas. Salaries are at present under consideration by the Lord Chancellor.
Hon. Members were a little gloomy on the facts about adjournments for want of time. Some glaring examples were given by hon. Members of cases in which they had been concerned. In practice, the Lord Chancellor receives once a quarter a return from every county court which records the adjournments for want of time. At present, they are very few indeed, but the matter is closely watched so that business can be adjusted in such a way as to get rid of it.
One of the reasons why we have introduced Clause 10, as hon. Members will understand, is that it has the great advantage that it will permit the judge, if he so requires, in the interests of both parties—and it is by no means only the plaintiff who is concerned in these matters—to direct that the case be transferred to another court on his circuit. He will not have to direct that the whole of the proceedings be transferred, as is now done under the existing county court Order No. 16. He can leave the interlocutory matter in the purely local court of the plaintiff, but he can, if it will avoid an adjournment for want of time in a court rarely visited by the judge, have the hearing adjourned to some other court, which will make it possible for him to adjust his business in a way which will avoid delay.
We shall not get agreement on the question of appeals on point of fact. We have had today two members of the Ever-shed Committee disagreeing with each other and the hon. Member for Islington, East, if I may say so with respect, disagreeing with himself, because he has changed his mind. Some urge that we have gone too far, others that we have not gone far enough. While that was going on, there entered into my mind the vague possibility that we had got the answer right. There are practical difficulties. There are not enough skilled shorthand writers to equip the county courts with them.
Then there are mechanical devices. My noble friend will, of course, closely watch the progress of this mechanical and auditory science so that when it gets good enough to justify the installation of these 1733 mechanical devices in the county courts they will be considered. But I wonder whether hon. Members who are enthusiastic about these things have ever listened to one of the recordings. Some advocates talk rather fast while witnesses get excited and talk fast, too. I believe that shorthand writers require a speed of over 220 words a minute to cope with such situations. If hon. Members would try listening to a recording of one of such sessions and try to pick out who is talking at any particular moment on the recording, they will find how perilous in their present form some of these devices are. We will watch them, but it is well to remember that if there were a good mechanical device everyone would like to seize on it.
I hope no one will despair of the possibility of a county court judge making an adequate note without such help. I feel, Mr. Deputy-Speaker, that I will have your support when I say that while practice at the Bar may ruin one's handwriting it does enable one to read one's own notes if nobody else can.
We have not adopted any idea of "leap-frogging" appeals from the county court for no more complicated reason than the reason set out—and I need not trouble the House with them—in paragraph 561 of the Evershed Report. I do not think that the hon. Member for Oldham, West was a member of that Committee, but I have no doubt that his views were directly or indirectly made known to it. The reason for rejecting the "leap-frogging" proposal from the county court is very briefly set out in that paragraph and I need not repeat it.
I have covered all the points that I need to cover to avoid any discourtesy in replying to the present debate. I do not conceive it my duty any longer to deprive the House of doing what I know it wants to do, namely, to give the Bill a Second Reading.
§ Question put and agreed to.
§ Bill accordingly read a Second time.
§ Committed to a Committee of the whole House.—[Mr. R. Thompson.]
§ Committee upon Monday next.