HC Deb 08 December 1964 vol 703 cc1329-40

(1) Section 17 of the Increase of Rent and Mortgage Interest (Restriction) Act 1920 (which provides for the making of rules of procedure for purposes of that Act, and extends the jurisdiction of county courts and sheriff courts in respect of proceedings under that Act) shall have effect as if references to that Act included references to this Act; and for the purposes of that section any proceedings for the suspension of an order for the recovery of possession of a dwelling to which this Act applies shall be deemed to be proceedings under this Act.

(2) Rules of procedure as aforesaid shall be made so as to provide that, if the court is satisfied of the urgency of the proceedings, proceedings for recovery of possession of premises to which this Act applies shall be heard (upon a two days' notice to the court and to the other parties to the proceedings) in any court within the circuit of the county court judge of the court in which the proceedings would otherwise have been heard and shall take precedence over other proceedings due for hearing.—[Sir J. Hobson.]

Brought up, and read the First time.

3.45 p.m.

Sir John Hobson (Warwick and Leamington)

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

The purpose of moving this Motion is to ask the Minister whether he has been kind enough to consider the point I raised in Committee about how questions of urgency ought to be dealt with. I am grateful for the information that he gave about the administrative arrangements which have been made in the ordinary course for dealing with the average case and for his announcement that it was hoped that possession cases in the county courts would normally take only 21 days from the time the application was made. Of course, the principal benefit will be in the undefended cases, but I do not want to go back over the ordinary run of cases. Arrangements have been made and I am sure it is right that they should be administrative arrangements, but that still leaves outstanding what I think is a lacuna.

We all know that it is necessary, under the Act, to proceed in the county court for possession. There was a very rapid proceeding available before in the High Court. It was possible on short notice to get possession immediately in the High Court with almost no delay. If there is to be a discretion about granting possession, I certainly agree that it should be in the county court and not in the High Court. I should have thought it necessary to give to county court judges a power, if they are satisfied that there is a case of real urgency, to deal with the matter very expeditiously indeed.

The purpose of the new Clause is to ensure that where a county court judge is satisfied that circumstances of urgency exist it should be possible for possession to be sought on a two-day notice and for the hearing of that application to take precedence over all other business before the county court. As, at present, there must be at least 14 days' notice before the matter can come before the county court. That time cannot be abridged except by consent. Therefore, there is an imposed delay of at least 14 days and it is likely in very many instances to be substantially more because the county court judge is not available, or it is not possible to find an additional county court judge at once, or for a variety of other reasons.

Then there will be cases when it is essential that a difficult and awkward situation should be sorted out immediately. In Committee, I instanced the example of when there had been considerable violence between the parties, all living under the same roof, when it would obviously be essential that something should be done immediately. The Bill would prevent the landlord from doing anything—it would be a criminal offence if he took steps by way of self help—to remove the tenant. If he is to be powerless to deal with a situation which may require immediate action, there ought to be a procedure by which he can get a decision of the judge immediately.

There are the cases of holiday accommodation when sombody holds over and refuses to leave and when a series of holiday lettings depends upon someone getting out. There are other cases when, for instance, a Service family, or a family from the Commonwealth, is returning to this country and expecting to get possession of the premises, with the whole family due to move in and the former tenant holding over. It obviously ought to be right for the family coming from overseas to move straight into that accommodation. If the present procedures of the county court have to be employed, there may be a delay of three weeks, and probably more, before it is possible to get possession.

It is only for these cases, which may be exceptional and not very numerous and which are certainly not ordinary, but may have exceptional urgency, for which there should be some special form of procedure. It is in order to ask the Minister what investigations he has been able to make to deal with these cases that I have moved the new Clause.

Mr. Speaker

I should have said, and I do so now because I do not think that it will affect the matter, that it is probably convenient with this to discuss the Scottish version, which is new Clause 4—"Provisions for procedure and expeditious hearing in Scotland".

Mr. N. R. Wylie (Edinburgh, Pentlands)

The Scottish new Clause makes provisions somewhat similar to those which my right hon. and learned Friend has suggested for England. I am concerned about the delay likely to result in the ordinary way in the sheriff courts in Scotland. It must be borne in mind that in Scotland the sheriff has not only a very much wider civil jurisdiction, but a wide criminal jurisdiction. The impact of these two jurisdictions, aggravated, as it were, by the recent application of legal aid in criminal causes, is creating a pressure of work in the sheriff courts greater than at any time before.

For example, I understand that in summary criminal trials, unless taking only a very short time, probably less than a forenoon, there is a delay of about four months in Edinburgh and five or six months in Glasgow and that the delay is increasing because of the effect of legal aid in criminal causes.

The Lord President of the Court of Session has no power within his own hand to make rules governing procedure and practice in the sheriff courts. The sheriff courts' rules are governed entirely by Statute and in some respects are sadly in need of reform. Apart from such powers as Parliament gives him, the Lord President has no power to interfere in the procedure and practice of the sheriff courts. That is why the Scottish new Clause should be accepted. Otherwise, I can foresee a bottleneck in the work of the sheriff courts in handling legislation of this nature.

Mr. Graham Page (Crosby)

One rather technical matter arises on the new Clause. In Committee, the Minister gave an assurance that he could deal with the hastening of the hearing of proceedings of this kind in the county court by administrative action, by the rules of the court. I doubt whether, without Section 17 of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920, implied into the Bill, the Lord Chancellor will have the power to make the necessary rules. Section 17 provides the rule-making power and I doubt whether there is any such power unless that Section is inserted into the Bill in some way.

It was found necessary to introduce it in the Landlord and Tenant (Temporary Provisions) Act, 1958. If it was found necessary specifically to repeat it in that Act, it must be necessary to do so in the Bill. The proceedings under the Bill will be proceedings for a suspension of an order for possession. not strictly proceedings under the Rent Act. That is why specific mention of the rule-making power is necessary.

If the Government resist the new Clause, they will again be leaving the law in the air, as they have done in other instances in the Bill. I hope that it will be made perfectly clear that the Minister will take the power to ensure that the Lord Chancellor has the power to make the necessary rules so that the hearing of these cases may be speeded up.

The Attorney-General (Sir Elwyn Jones)

My advice to the House is that the new Clauses are unnecessary. I say that with a little reserve about Scotland, but my hon. Friend the Under-Secretary of State for Scotland will deal with a subject on which, I fear, any guidance which I might give ought not to be accepted without considerable qualification.

The position in England is that without subsection (1) of the new Clause, the county court rules will apply and will be satisfactory to meet the situation which will arise with the operation of the Bill. I hasten to say at once that should it prove that the procedure is not speedy enough to deal with cases which need expedition, the present rule-making powers will be adequate for enabling the Lord Chancellor, in conjunction with the Rule Committee, to deal with the situation. My advice is that the inclusion of a specific reference to the rule-making power of Section 17 of the 1920 Act is not necessary and that the general rule-making powers already provided will be adequate for meeting the situation which may arise if the present procedures prove to be tardy.

Perhaps I should remind the House that there are already methods of securing expedition under the present rules. For instance, under the existing County Court Rules, Order 16, Rule 1 provides that a judge or registrar may, on application by a party and without a hearing, transfer proceedings to another court, whether on the same or a different circuit, where the proceedings can be more conveniently or fairly heard. The relevant factor will be the urgency of the situation and the court would bear that in mind. I would expect courts to be prepared to exercise that power when the landlord made out a prima facie case for a speedy hearing when taking out a summons.

As was said by my right hon. Friend in Committee, the Lord Chancellor proposes, by administrative action, to direct the courts to place undefended possession actions in the list for the first sitting after the period of 14 days required between the taking out of the summons and the hearing has expired provided that the owner satisfies the appropriate officer of the court of the need for speed.

4.0 p.m.

Perhaps I can take up the point made by the right hon. and learned Member for Warwick and Leamington (Sir J. Hobson) about the possibility of the abridgement of the 14-day period between the taking out of the summons and the hearing. That period can be abridged on an application ex parte to the judge, and, of course, it can be abridged by consent. One would have thought that if one were in the presence of an urgent situation of the kind we are considering the judge would undoubtedly allow such application ex pane.

Finally, the House should remember that Section 36 of the County Courts Act, 1959, gives judges power to appoint additional courts. This power would be available where an owner makes out a prima facie case for a speedy hearing when he takes out his summons and there is no regular sitting of the court shortly after the expiration of the prescribed period—fourteen days or less. This power covers broadly the same ground as the proposed new Clause, which, in our view, is unnecessary. But, as I say, if experience is to the contrary, the matter will, after consideration by the Lord Chancellor and the Rule Committee, be regulated by the making of new rules.

I turn to the interesting suggestion of the right hon. and learned Member for Warwick and Leamington that there should be introduced a procedure to get possession on a two-day notice. Although procedure of that kind exists in Scotland, it does not exist here. At present, at any rate, we have no machinery for bringing on actions at such short notice, although I am bound to say that the Scottish procedure has its attractions and that it might be that at an appropriate time the possibility of introducing it in this country should be examined. However, as I have said, I think that the undertaking that new rules will be made if the delays prove excessive meets the situation.

In the situations of extreme urgency, such as the possibility of threats of breach of the peace, to which the right hon. and learned Member for Warwick and Leamington referred, the law would give other remedies—for instance by way of injunction. That would require the reference of the matter to the court, and from the point of view of the tenant, at any rate, it would protect him from the risk of the self-help procedure against which the whole essence of the Bill is directed.

The effect of the present county court rules is that it should be possible in the larger towns to bring really urgent cases before the court for hearing in less than 14 days. It seems to us that, in the circumstances, that is a reasonable position. After all, we must bear in mind that a tenant may, for instance, desire time to consider his defence to the proceedings, and it may not be practicable or easy for that to be done in the space of, say, 48 hours. If that kind of expedition were imposed, there is little doubt that if the defendant tenant found himself in difficulty an application for an adjournment would be allowed. Therefore, there are limits to expedition. The urge for haste must not defeat the interests of justice.

In all the circumstances, new Clause No. 3, in our view, is unnecessary and should be resisted.

Mr. Forbes Hendry (Aberdeenshire, West)

Before the Under-Secretary of State for Scotland replies, I should like to urge on him the necessity of adopting some sort of procedure such as that suggested in the proposed new Clause in the name of my hon. and learned Friend the Member for Edinburgh, Pentlands (Mr. Wylie) and myself applicable to Scotland.

It is necessary for the House to realise exactly what the sheriff court in Scotland does. It is an all-purpose court. It has not only a wide civil jurisdiction, but a wide criminal jurisdiction analogous to that of the magistrates' court in England. That, of necessity, makes the sheriff court in a sizeable place very busy. But it has a very great deal of flexibility in arranging its affairs. In its criminal side, it deals in a very summary manner with the cases which come before it. For small debts, there exists a summary procedure without written proceedings which enables the court to come to a decision very quickly with the least possible delay and trouble.

This procedure has worked exceedingly well in connection with the tenancy of shops. An Act passed temporarily in 1949 and made permanent this year adapted this procedure for the purpose of protecting the tenants of shops from eviction. I see no reason why it should not apply to the tenancy of houses. That is virtually what my hon. Friend and I are suggesting in the new Clause—that the court be given power either by Parliament or by the Court of Session, which has power to legislate in these matters, to deal with these cases in an extremely summary way.

I suggest that this is more than necessary in view of the very great delays which take place in sheriff courts in Scotland. My hon. Friend the Member for Pentlands instanced the long delay which occurs between the raising of a case and its coming to trial. But that is not the end of it, because there may be a very long delay between the hearing of a case and the issue of a judgment.

I speak with knowledge on this matter, because I am a practising solicitor in a sheriff court. I should like to instance one case in my practice which occurred recently. It came to trial on 20th July and judgment was issued only last Friday. That was not in Glasgow, but in a busy country court. That is not unusual in a busy sheriff court. It may frequently happen. Very great hardship will be suffered, not only by landlords, but by tenants if there is a delay of that magnitude in hearing cases of this kind, because not only is the landlord denied possession of his house but the tenant is kept on tenterhooks for a very long time.

In these circumstances, the Under-Secretary of State for Scotland should consider this matter either on this stage or when the Bill goes to another place.

The Under-Secretary of State for Scotland (Dr. J. Dickson Mabon)

The point made by the Attorney-General and emphasised by the hon. Member for Aberdeenshire, West (Mr. Hendry), concerning the summary provisions in the sheriff court, is valid. The difference between us is in the argument mentioned by the hon. and learned Member for Edinburgh, Pentlands (Mr. Wylie) about the powers of the Court of Session in this matter.

I am sorry to tell the hon. and learned Member for Pentlands that he is not correct in his assumption that these powers are not already available. They are. I am told that this rule-making power already exists in Section 34(1)(a) and (d) of the Administration of Justice (Scotland) Act, 1933. I do not want to trouble the House, but I am quite willing, if the hon. and learned Member desires, to read the long subsection if he is in doubt. I assure him, however, that my advice is that that is so and that the first part of his new Clause asking for this rule-making power is unnecessary because it is already in existence.

Mr. Wylie

If that is the case, of course I agree that there is no need to introduce the Clause; but that is news not only to me, but to the Lord President of the Court of Session. I have never heard of this before and, as far as I know, it has never ben acted upon. In a matter of this nature, where a difficult crisis is likely to develop, this kind of provision should be evoked.

I do not want to make a speech, but it seems to me that one thing that the sheriff court does not like in Scotland is for the Lord President to interfere in its affairs. It would be only in exceptional circumstances that he would be obliged to do so. For that reason, I still suggest that it is desirable for these specific powers to be included in the Bill as they are to be found in the 1920 Act.

Dr. Mabon

I am always delighted to give news to the present Lord President. Nevertheless, I am advised that what I have stated is the fact. In case, however, there is dubiety, it would be useful to put it on record that Section 34(1) of the 1933 Act provides that The Court of Session shall have power by Act of Sederunt— (a) to regulate and prescribe the procedure and practice to be followed in any proceedings in the sheriff court or in execution or diligence following thereon and any matters incidental or relating to any such procedure or practice including (but without prejudice to the foregoing generality) the manner in which, the time within which, and the conditions on which any application to the sheriff court or anything required or authorised to be done in relation to any such proceedings shall or may be made or done". Subsection (1,d) is as follows: to modify, amend or repeal any enactments relating to matters with respect to which an Act of Sederunt is made under this section. That being so, it still seems to us reasonable to say that it would be unnecessary to proceed with the first part of the new Clause.

The second part of the new Clause is also unnecessary because, as has been mentioned both by my right hon. and learned Friend the Attorney-General and by the hon. and learned Member—although he does not seem to see the application of this to these removing cases—sheriff court procedure is already expeditious. The majority of removing cases are raised as applications for summary removing which can be used when the let is for less than a year.

I concede the point made by the hon. and learned Member for Pentlands in relation to delays in other matters, but, as to delays which may occur in summary removing supposing that we were to allow even a delay of seven days in the case of a rural sheriffdom this would mean that the case would come before the court within nine days after the first notice was given. I am told that practically all these cases are disposed of at the first hearing of the court. In the busy Glasgow Sheriff Court, between 200 and 250 such cases have been handled in a week, thus meeting the point which the hon. and learned Member and his hon. Friend the Member for Aberdeenshire, West have rightly brought to our attention. I do not wish to reflect upon English procedure, but it is a reasonable point for us to make that we in Scotland have no need to worry about this.

Mr. Wylie

My hon. Friend—

Mr. Speaker

Order. I do not know what is happening. Is the hon. and learned Member intervening upon the speech of the Minister, or has the Minister sat down?

Mr. Wylie

I think that the Minister has sat down, Mr. Speaker.

Mr. Speaker

In that event, the hon. and learned Member requires leave to speak again, but not, I think, at this moment. Mr. Boyd-Carpenter.

4.15 p.m.

Mr. John Boyd-Carpenter (Kingston-upon-Thames)

Perhaps we might return to England because, like the Attorney-General, and with even better reason, I should not like to embark upon the tumultuous seas of Scottish law. We are grateful to the Attorney-General for helping us on this point, which does not raise one of the major issues of principle on the Bill but is a very practical one.

The House will appreciate that the Bill abolishes the speedy High Court procedure as well as the also possibly speedy process of eviction without going to court. It is, therefore, important to be clear what is the possible speed of action through the county court in the exceptional case in which it is necessary. That there may be such cases the House will, I am sure, agree, and that is likely to be even more the case when we are dealing, as the Bill does, not only with unfurnished, but with furnished lettings.

I should like, therefore, to ask the Attorney-General one or two further questions. As I understood his reply to my right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson), there are already adequate powers to make the necessary rules to secure a speedy procedure, and that this can be done substantially without Section 17, to which the new Clause refers.

I wonder, however, whether the Attorney-General can tell us what would be the quickest possible procedure in a case of real emergency. There can be such cases and I doubt whether, particularly in the case of a difficult character occupying a furnished room in somebody's house, procedure by injunction is a realistic way of proceeding. There may be cases where it is necessary in everybody's interest to get a very quick decision. The right hon. and learned Gentleman suggested that in such cases an ex parte application could be made to the county court judge. Without committing himself precisely, can the Attorney-General give us an idea of, in a case of real urgency of that sort, the quickest speed with which an order could be obtained?

I apologise for putting the next point to the right hon. and learned Gentleman, because he has dealt with it; the fault was mine in not following him. At an earlier stage, we had discussion of the problem which arises in country county courts where the judges proceed on circuit. Did the right hon. and learned Gentleman say that it would be possible and was intended by rules to provide that these cases could be dealt with at any county court on the circuit that was convenient in point of time, or will the applicant be confined only to the county court which has jurisdiction in the area where the premises are situated? I shall be grateful if the Attorney-General can clarify these points and perhaps enable us to make progress.

The Attorney-General

The time within which an urgent case could come before the court would depend upon all the circumstances of the case and upon the nature of any defence which a tenant might make. That is not a very helpful answer so far, but I should have thought that in an urgent case the matter could certainly be dealt with in less than 14 days and that if there was a successful application for the abridgment of the period between the taking out of the summons and the hearing to reduce it to as short a period as, say, two days, it would be possible in a really urgent case to have the matter dealt with within a week.

I feel sure that we can count upon the judges and the registrars who will be charged with this heavy duty to cooperate in every way they can in the emergency situation with which the Bill is intended to deal. One must bear in mind that without the Bill the parties would be confronted with the ordinary processes of delay which cause an interval to pass between the summons and the ultimate order in any event. Even High Court proceedings are not quite as expeditious as all that. That is the best estimate I can give on the question of the time factor.

As to the position on circuit, as I have said to the House, under the existing county court rules the judge or the registrar can, on application by a party without a hearing, transfer proceedings to another court whether or not it is on the same circuit. So that power exists already. If it is established by the party making the application that the proceedings can be more conveniently or fairly heard in another court on the problem of urgency and accessibility which would be relevant in considering such an application as that, then, as I said, there is also power in the judge to appoint additional courts, and that is being exercised, and has been exercised a good deal in recent years. So that is also a reserve power which would, I think, prevent the accumulation of these cases so as to cause regrettable delay.

Sir J. Hobson

In view of the undertaking given by the right hon. and learned Gentleman that if the procedure should not turn out to be adequate for dealing with cases of urgency the matter would be given further consideration, I beg to ask leave to withdraw the Clause.

Motion and Clause, by leave, withdrawn.