COSTS OF LEASES ACT, 1958 (Hansard, 19 April 1961)

§ Mr. John E. Talbot (Brierley Hill)
This Adjournment debate differs somewhat from the usual, inasmuch as it is directed neither to a complaint against the Government or a Government Department, nor to a particular constituency matter. The subject which I have obtained your leave to raise, Mr. Speaker, is the Costs of Leases Act, 1958, a short Act introduced by a private Member, which reached the Statute Book in July, 1958. It consists of only three Sections, of which the third is the usual definition Section. The second is an interpretation Section. The first Section is short enough for me to read, and it succinctly expresses the point to which I wish to refer: Notwithstanding any custom to the contrary, a party to a lease shall, unless the parties thereto agree otherwise in writing, be under no obligation to pay the whole or any part of any other party's solicitor's costs of the lease". The Act had a peculiarly rapid passage through the House of Commons. I am unable to trace that any debate whatever took place on it. It received a Second Reading, Report stage and Third Reading without any discussion whatever, and the Committee stage is stated to have commenced at 10.31 a.m. and to have terminated at 10.32. One must suppose, therefore, that either the Bill was so generally acceptable to the House that it did not require discussion at all or, possibly, that hon. Members other than those in the legal profession failed to realise what they were doing.
When the Bill reached another place, however, the situation was different. A Second Reading debate took place there from which some useful material emanated. The noble Lord who introduced the Bill said that The existing custom"— that is to say, the custom that a landlord's costs as well as his own solicitor's costs are paid by the tenant— appears to have no logical basis in these days and is frequently the cause of great 1352 hardship and irritation to a lessee…who…finds himself faced with the burden of two sets of costs". The Bill was welcomed by the Lord Chancellor on behalf of the Government as a useful amendment to the law, but there was one noble Lord who expressed a certain measure of dissent. He said: My quarrel with the Bill is that it does not remove the anomaly or the hardship; it merely regularises it, because as soon as this Bill bcomes law very lessor will put into his contract a provision that the lessee must pay the costs".—[OFFICIAL REPORT, House of Lords, 17th July, 1958; Vol. 210, c. 669–70.] That is precisely what has happened in the event.
I speak now from my own experience as a country conveyancing solicitor. I find that this Act is very little known. It is not universally known to members of the legal profession. But I find that it is most unequal in its incidence and operation. I act for landlords and tenants, but probably more for landlords than for tenants, and I find that the rich, powerful and well-advised landlords, in particular property companies with solicitors and estate agents on their boards, invariably insert a clause in their leases, which tenants have to accept, that their costs shall be paid.
In my experience, it is done in one of two ways. Either the members of the estate agency which offer the proxy to the intending tenant directly state that he must pay the landlord's solicitor's costs, about which there can then be no question, or, when the matter proceeds to the preparation of a formal document there is hidden towards the end a clause which specifically transfers the burden.
It might be asked, "Where is the injustice of that? You are allowed to agree by the Statute and you either accept the law as it stands or you contract out of it."

§ Mr. Speaker
I do not want to interrupt the hon. Member, but I am in some difficulty. I can allow the hon. Member to talk only about that for which there is Ministerial responsibility, and I am not clear about where the responsibility for enforcing this Statute lies. I cannot allow the hon. Member other than an incidental reference to a legislative remedy. I am not certain how I can keep the hon. Member in order.

§ Mr. Talbot
I am much obliged. I had expected that difficulty, and it had 1353 been pointed out to me. I was hoping to have your approval to stating the facts as they are known to me. I do not propose to talk about legislation, because I know that that is not within the scope of an Adjournment debate. If I may give a parallel; the detective does not say to the criminal, "I charge you with murder"; what he does is to assemble the facts in such a way that everything then seems to point to the murderer. I hope that if I do it in that form, I shall keep within your Ruling, Mr. Speaker.

§ Mr. Speaker
That does not answer the other point, of where the Ministerial responsibility for all this is. I must be assisted about that.

§ Mr. Talbot
I can only say that the Attorney-General, as the fountain of the law, below the judges, is responsible for the consideration of such legal matters as do not fall within the province of any particular member of the Government. This was a private Member's Measure and was not sponsored by any Government Department, so far as I can discover. It was the responsibility of the Lord Chancellor in the House of Lords. I can think of no Minister who would be responsible other than the Attorney-General.

§ Mr. Speaker
I do not know whether the Solicitor-General can help me. I am a little puzzled at the moment about how I can find some Ministerial responsibility.

§ The Solicitor-General (Sir Jocelyn Simon)
I would have thought that the only responsibility which could be pinned on my right hon. and learned Friend the Attorney-General was that of initiating legislation if various criticisms which my hon. Friend has directed and proposes to direct against the Act are valid. I think that on those grounds anything he says is out of order.

§ Mr. Speaker
I am afraid that I am faced with this dilemma, and I do not see any way out. I will gladly assist the hon. Member if I can, but if the only Ministerial responsibility is for a legislative remedy, the whole Adjournment debate would be out of order, in accordance with the practice of the House. I have no wish to get in the hon. Member's way, but I am obliged to do so.

§ Mr. Talbot
I appreciate the difficulty and I am most grateful to my right hon. and learned Friend and yourself, Mr. Speaker, for endeavouring to extricate me from the position in which I find myself. By its nature, the Act cannot be a responsibility of the Government, because there is no power of enforcement in the Government. It is purely a matter of private law which the courts would have to enforce if a proper case for enforcement arose. When, as I allege, there exists a set of facts for consideration—and my only request is for consideration—if that consideration conveys to the Government the idea that something ought to be done, I feel that such a discussion would fall within the terms of the Adjournment.

§ The Solicitor-General
I do not think that my hon. Friend is asking for a platonic consideration but a consideration with a view to legislation.

§ Mr. Speaker
I am afraid that it is very difficult to suppose otherwise. I do not think that I can allow the hon. Member to continue. Perhaps I may soften the bitterness of my blow by expressing the hope that the fact that the hon. Member has drawn attention to these evils may be noticed in some way as a result of what he has done.