HC Deb 01 June 1956 vol 553 cc641-52

As amended (in the Standing Committee), considered.

New Clause.—(EXTENSION OF POWERS OF REGISTRAR AS TO STRIKING OUT PLEADINGS.) Section ninety-nine of the principal Act (which confers power to make county court rules) shall have effect as if in subsection (3) of that section, as amended by section ten of the County Courts Act, 1955, there were added the following paragraph:— (f) without prejudice to the powers conferred by paragraph (e) of this subsection authorising the registrar to order any defence in a default action to be struck out if it discloses no reasonable answer."—[Mr. Page.]

Brought up, and read the First time.

1.52 p.m.

Mr. Graham Page (Crosby)

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

The main purpose of the recent Statute, the County Courts Act, 1955, was to increase the jurisdiction of the county court and to divert certain litigation from the High Court into the county court. It was hoped that the diversion might come about by certain penalties as to costs if one took action in the High Court when it was possible and proper to take it in the county court.

However, the High Court procedure for debt collecting claims is much more efficient and expeditious than the county court procedure. The Lord Chancellor asked the Law Society to recommend provisions for improving the county court procedure for debt collection so that it might be at least as efficient as the High Court procedure and so that the purpose of the 1955 Act might not be defeated. One of the recommendations of the Law Society to the Lord Chancellor is embodied in my Clause. The provision would enable the registrar of a county court to strike out a defence if it showed no reasonable answer to the claim.

A brief explanation of the difference between the High Court and county court procedures for debt collecting claims is required. Under High Court procedure, the defendant having entered an appearance to the claim, the plaintiff can proceed by way of summons under Order 14 for summary judgment, and if the defendant has any real defence to the claim he is entitled to put the defence on oath, and let the master of the court decide whether it is a reasonable answer to the claim, but he must do that in a comparatively short period.

That is not so in the county court procedure for debt collecting. When a plaintiff desires to collect a debt through the county court, he issues a default summons. To that, the defendant may put in any defence, however frivolous, vexatious, ridiculous or farcical it may be, and if the defence is filed, the case has to be listed for hearing. In many county courts the hearing does not occur for a matter of two months. That defence does not in any way require to be an oath. It is merely a statement which is filed in court. That describes the distinction between the two procedures.

One would have thought that it would be proper to give the county court registrar the right to strike out a defence which showed no reasonable answer to the claim in the same way as the master in the High Court can do. Not only has the county court registrar no power to strike out a frivolous or vexatious defence, but there is no power vested in the county court rules committee to give power to the registrar to strike out a defence. The new Clause would permit the county court rules committee to make a rule giving the registrar power to strike out a defence which showed no reasonable answer.

Those who have practised in the county courts for many years—I suppose that, as one who does so practise, I ought to declare an interest here—know that there are very many "professional debtors," as we call them, persons who know the tricks of county court procedure and deliberately delay matters. They put in a defence which really is no defence at all, but no one has power to say that it is not a defence except the judge himself. As the case does not come before the judge for two months, or even three months in the case of some country county courts, the plaintiff is kept from his money for that period.

I do not think there would be any oppression of debtors if the country court rules committee were given power to make such a rule as I have suggested. There would always be the right of appeal from a decision of the registrar to the judge. That occurs normally within the county court rules. If the registrar decides that the defence shows no reasonable answer, the defendant still has the right to go to the judge by way of an appeal from the registrar.

The situation is very different from what it was a short while ago. Until legal aid was applied to the county courts, defendants had to a great extent to fend for themselves, because the county court is indeed the poor man's court and the court rules are such as to enable a litigant to conduct proceedings without being represented. Now that legal aid applies to county courts, if a defendant thinks he has a sound defence he can obtain legal aid and have the defence put in a proper way. Therefore, if the defendant has no defence and is deliberately trying to delay proceedings by putting in a nonsensical defence, the registrar ought to have power immediately to strike the defence out and give judgment for the plaintiff.

Mr. Geoffrey Wilson (Truro)

I beg to second the Motion.

2.0 p.m.

The Attorney-General (Sir Reginald Manningham-Biller)

A similar new Clause was discussed at some length during the Committee stage and we have heard again the argument which was advanced in support of this proposal on that occasion. I feel that I must advise the House to reject the proposal, and I will explain the reasons why I do so.

My hon. Friend the Member for Crosby (Mr. Page) indicated that the amendment which is desired by the Law Society was really directed to the claims for the larger amounts which are now brought in the county court instead of being tried in the High Court as a result of the extension made by the County Courts Act, 1955.

The basis of his argument, as I understand it, is that we should not extend the county court jurisdiction without also extending the powers of obtaining summary judgment, similar to those now exercisable in the High Court. The answer is that in those cases which are now 'brought in the county court the power to strike out a defence which discloses no reasonable answer is not likely to be often used for the simple reason that it is unlikely that in such cases the defendant would not be legally represented. I think that all of us who have had any experience of work in the High Court know that it is not difficult to draft a defence which prevents an order being made under Order 14. It would in that type of case not really prove, in my view, very effective.

My hon. Friend has really addressed his argument mainly from the point of view of the creditor or plaintiff. There is, of course, another very important angle to be considered here. That is the position of the defendant. Since this matter was discussed in Committee I have had the advantage of receiving a deputation from the Law Society and of hearing them at some length advance the same arguments as my hon. Friend has advanced today in support of this Clause.

I have also had the advantage of receiving the views of a large number of county court registrars upon this proposal, and their view confirms me in my apprehensions that the exercise of this proposed power of striking out a defence would, in all probability, leave a number of defendants with a real sense of injustice. I am sure the House will agree that it is essential that this should be avoided wherever possible, and particularly where litigants are unrepresented. We might easily get a case in the country or in the suburbs of London where the defendant, in answer to a county court summons, puts on a piece of paper what he thinks is a perfectly good defence. If this Clause is put into the Bill, we could get a summons taken out and proceedings started to have that defence struck out. The defendant might not attend the hearing of that application, and he would find that judgment had been given against him without any hearing and without his knowing in the least what it was about, and that that had happened when he had put in what he thought was a good defence.

I think that if this procedure were adopted there would be a real risk, particularly if the power were used, of such a sense of injustice being felt in certain quarters. Furthermore, the registrars' view is that they would seldom feel justified in making use of this power if they had it, particularly where the defendant did not attend and there was no opportunity of explaining the position to him.

If I may leave that ground and again look at this matter from the creditor's point of view. I doubt whether such a Clause as this would really achieve all that is claimed for it from the point of view of the creditor. I think that in practice it might in many cases neither save time nor cost to any appreciable extent. After all, particulars of the defence can be applied for now and the evidence that the plaintiff calls can be related to the particulars of the defence and costs would often be incurred by an abortive attempt to have a defence struck out.

I hope that I have convinced my hon. Friend that, in the light of the serious consideration which has been given to this proposal, we do not feel that the Clause would have the advantages claimed for it. We feel satisfied and, indeed, convinced that to accept it would increase appreciably the risk, if this power were exercised, that many poor litigants would feel that they were not receiving justice. Therefore I invite the House, because we have a good many Amendments to get through, without more ado to reject this new Clause.

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

I agree with the attitude taken by the Attorney-General on this issue. The gist of the case for the new Clause is, as I understand it, that it is desired to apply in the county court the kind of procedure that is applied in the High Court. There are two very brief answers to that.

First, the object of transferring a case from the High Court to the county court is to apply county court procedure to it—to treat it as something rightly considered to be within the ambit of county court treatment. To accept a Clause of this kind because there has been an increase in county court jurisdiction appears to me to be almost a contradiction in terms.

The second point, closely allied to it, is this. There has been a very substantial depreciation in money since the county court limit on jurisdiction was fixed. I doubt if we have done very much more, by increasing the county court's jurisdiction, than to restore to it the jurisdiction which it formerly held, having regard to the drop in the value of money.

I do not want to elaborate any of the cogent reasons put forward by the Attorney-General. My main purpose is simply to say that we on this side of the House agree with the attitude which he has adopted on this Clause.

Mr. M. Turner-Samuels (Gloucester)

There are two points which I should like to put, and which, I think, ought to be added to the case against the adoption of this proposed new Clause. The first is that it seeks to confer upon the county court registrar enlarged powers of a very drastic and radical nature. The County Court Acts and the county court rules have already conferred certain powers upon the registrar, but their nature is nothing in relation to what it is now being sought to do.

What the hon. Member for Crosby (Mr. Page) is seeking to do here is to confide in the registrar a task which, if I may say so with respect, he is not adapted by his experience, training and position to perform, namely, to strike out entirely the proceedings if, in his view, a proper defence has not been put in. What is a proper defence in a county court is one thing, and what is a proper defence in the High Court is another. After all, the county court is a poor man's court. There is not the same exactitude in pleading there as in the High Court, and there ought not to be. The proceedings there are of an entirely different character, particularly so far as the amounts are concerned.

The reason for having summary proceedings in the High Court is well known to those of us who have practised there for many years. Procedure in the High Court is costly and prolonged, and can involve a large sum of money in costs. Therefore, if a defence which has been put in and which goes before the Master is found to be a defence founded on no reasonable justification or substance whatever, it is right that power should be conferred at that stage on some officer to enable him to stop the proceedings from being costly and prolonged. All of us who have had practice both in the County Court and High Court will at once and conclusively say that this is a change which the House ought not to allow to be made.

Mr. Elwyn Jones (West Ham, South)

The House shall not allow to go unchallenged the suggestion of my hon. and learned Friend the Member for Gloucester (Mr. Turner-Samuels) that for some reason of training or otherwise county court registrars are incapable of deciding whether or not a defence discloses a reasonable answer. I entirely agree with my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) in his objections to the proposed new Clause.

Mr. Page

I am grateful to my right hon. and learned Friend for the study which he has given to this subject. I disagree with him, but there is no point in taking this matter to a Division. I beg to ask leave to withdraw the Motion.

Motion and Clause, by leave, withdrawn


Amendment made: In page 4, line 22, leave out "this subsection" and insert "subsection (2) of this section."—[The Attorney-General.]


Amendment made: In page 6, line 15, after "or," insert "a."—[The Attorney-General.]


Amendments made: In page 8, line 16, after "in," insert "this Part of."

In line 29, after first "in," insert "this Part of."—[The Attorney-General.]


Mr. G. B. H. Currie (Down, North)

I beg to move, in page 8, line 43, to leave out "not propelled by oars."

This Amendment is put forward in order to avoid limiting the present jurisdiction of the county court. That jurisdiction is contained in Section 56 of the County Court Act, 1934. Section 56 (7) of that Act defines "ship" as including any description of vessel whatsoever. Clause 8 will have the effect of repealing that definition, and I have moved the Amendment in consequence of that fact. The definition in the Bill very considerably narrows the definition of "ship." If the Amendment is accepted, the definition of "ship" would remain any description of vessel used in navigation.

Mr. D. M. Keegan (Nottingham, South)

I beg formally to second the Amendment.

The Attorney-General

I have great pleasure in saying the Government think that the Amendment should be accepted in order to preserve the jurisdiction of the county court for trying cases in relation to rowing boats.

Amendment agreed to.


Amendment made: In page 13, line 14, leave out from "any" to "shall" in line 15 and insert: order of a judge in chambers unless an application has been made to have it set aside or discharged as aforesaid)".—[The AttorneyGeneral.]


Amendment made: In page 13, line 38, leave out "applied" and insert "applies".—[The Attorney-General.]


2.15 p.m.

The Attorney-General

I beg to move, in page 18, line 21, to leave out from "paid" to "such" in line 22 and to insert:

to him at the time of the service of the judgment summons or paid or tendered to him at the time of the service of the order under the said subsection (2)". This Amendment makes an improvement in the Bill and deals with a rather technical point which I will seek to explain. This is a matter of considerable importance and on which we had some discussion in Committee. It would appear from Clause 27 (3) that an order for committal can be made if the amount of conduct money was tendered at the time when the judgment summons was first served and then refused and before the order was made by the judge for attendance. The conduct money might be refused by a defendant who had no intention of going and thought it not right to take the money. It is not right that that kind of defendant should be put in peril as if he had received the conduct money when a further order is made that he should attend.

The effect of the Amendment is to secure that the debtor shall not be committed to prison under the subsection for having failed to attend as required by order under subsection (2) unless the conduct money was paid to him at the time of the service of the judgment summons —so that he was in actual receipt—or paid or tendered to him at the time of the service of the order under subsection (2). It has to be shown either that he actually has received the conduct money or that the conduct money was tendered to him at the time of the service of the order under subsection (2). That is an improvement, and I hope with that explanation the House will accept the Amendment.

Mr. Turner-Samuels

There is only one short point, and I raised it during the Committee stage. It is the question of the amount of expenses. I do not know whether the right hon. and learned Gentleman has looked into the matter, but if he has he will know that at present when expenses of this kind are allowed they are merely travelling expenses and do not include, for instance, the expense of staying at a hotel. I raise the matter as this may involve a question of imprisonment. It is very important to see that in receiving expenses a man should receive a sum which would enable him to pay all the expenses which he would incur in going to the court.

He is certainly not entitled to any compensation for loss of time. I do not deal with that because there may be something to be said for not enforcing it, but I ask the Attorney-General whether it is intended to include a defendant's hotel expenses. A defendant may have moved from one end of the country to another, and merely to allow him a sum which would pay for his train fare there and back would not be adequate because it might prevent him from attending the court because he does not want to incur the other expenses.

The Attorney - General

There is nothing in this Amendment, either in relation to the words proposed to be left out or in relation to the words proposed to be inserted, which deals with expenses. This merely deals with the tender or payment of conduct money. As I think I told the hon. and learned Member for Gloucester in Committee, the amount of conduct money is to be as shown by the concluding words of the proviso:

.. such sum in respect of his expenses as may be prescribed for the purposes of this section. I have no doubt that those who were responsible for drawing up a table of what can be allowed by way of expenses will have due regard to what the hon. and learned Member has said.

Amendment agreed to.


Amendment made: In page 20, line 15, leave out from may "to" the "and to insert" make an order committing."— [The Attorney-General.]


Amendment made: In page 34, line 8, leave out "trust" and insert "trusts."— [The Attorney-General.]


Amendments made: In page 40, line 32, after "or," insert:

"(where it has such jurisdiction),"

In page 42, line 48, leave out "Act" and insert "Part of this Schedule".[The Attorney-General.]

Mr. Currie

I beg to move, in page 43, line 26, to leave out "not propelled by oars."

This Amendment is consequential upon the earlier Amendment dealing with the same wording. It is obviously most desirable that Northern Ireland should walk step by step with Great Britain in this matter—

Mr. Humphrey Atkins (Merton and Morden)

Should row with us.

Mr. Currie

It is only a matter of sea which separates our two countries. I do not think I need elaborate the Amendment.

Mr. Keegan

I beg to second the Amendment.

The Attorney-General

It is obviously desirable that Northern Ireland should row at the same stroke as we in this country. Therefore I have much pleasure in accepting the Amendment.

Amendment agreed to.

1 & 2 Geo. 5.c.57. The Maritime Conventions Act, 1911. Section five

Section 5 of the Maritime Conventions Act, 1911, provides that Admiralty jurisdiction is to extend to claims for loss of life or personal injury. Section 5 was repealed in relation to England by the Supreme Court of Judicature (Consolidation) Act, 1925, and ought now to be

20 & 21 Vict. C.clvii. The Mayer's Court of London Procedure Act, 1857. In section forty-eight, the proviso.

This Amendment is consequential on the abolition of the Writ of Elegit and the repeal of most of Section 195 of the Law of Property Act, 1925, by Clause 34,

18 & 19 Geo. 5.c.26. The Administration of Justice Act, 1928. In section ten, the word "personal".

Section 10 of the Administration of Justice Act, 1928, amended the Section dealing with resealing of Northern Irish grants. Clause 17 (3) of the Bill provides that the High Court should have power to reseal grants of real as well as personal property and the reference to personal estate in Section 169 is repealed by the Bill. The Amendment provides for the corresponding repeal in Section 10 of the Act of 1928.

Amendment agreed to.

The Attorney-General

I beg to move, in page 44. line 11. after "enactments ", to insert;

(including enactments of the Parliament of Northern Ireland)". This Amendment is drafting. The words proposed to be inserted are normally included wherever an enactment of the Imperial Parliament is intended to override enactments of the Parliament of Northern Ireland.

Amendment agreed to.

The Attorney-General

I beg to move, in page 44, line 43, at the end to insert:

repealed in relation to Northern Ireland also.

Amendment agreed to.


The Attorney-General

I beg to move, in page 45, line 12, at the end to insert:

Amendment agreed to.

The Attorney-General

I beg to move, in page 46, line 44, at the end to insert:

Order for Third Reading read.— [Queen's Consent, on behalf of the Crown, signified.]

The Attorney-General

I beg to move, That the Bill be now read the Third Time.

In moving the Third Reading of this Bill. I can say that I think it will be a useful Bill. Great assistance has been given both in Committee and today in securing its speedy passage to the Statute Book.

Bill accordingly read the Third time and passed, with Amendments.