COUNTY COURTS (NON-SUIT) (Hansard, 16 June 1964)

§ Sir Barnett Janner (Leicester, North-West)

I beg to move, That leave be given to bring in a Bill to provide that non-suits in county court actions shall be subject to the discretion of the court. The Bill which I hope to introduce seeks to remedy an archaic provision in the procedure which is at present prevailing in county courts. In my attempts to introduce previous Bills I have used the expression "believe it or not", and I can use it again. Believe it or not, when an action is taken in a county court, after all the evidence in the action has been given by the plaintiff in support of his case, and the defendant in reply, and after the concluding addresses to the judge have been made by the respective parties or their legal representatives, the plaintiff is still entitled, as of right—and I am sure that this fact will be unknown even to hon. Members who have been in practice for many years—to ask that he be non-suited, and in such circumstances the court has no alternative but to accede to that request. I see some hon. and learned Members pricking up their ears.

This means, in as simple terms as I can use, that a plaintiff, although he has put the defendant to the expense and trouble of preparing his case and bringing his witnesses to court, and incurring additional expense for legal representation and such other incidentals as arise, and after the time of everybody concerned, including the court, has been taken up, possibly for days—as occurred in a recent case in which I was engaged—the plaintiff can set aside all those considerations by asking that the case shall be non-suited.

This means that the position in respect of the matters at issue stands exactly where it was before the case started. It is true that, as occurred in the case to which I have referred, the court can award costs, substantially higher than those allowed under the usual prevailing scales, to the defendant. But in many respects this does not compensate him.

The House will readily understand the serious difficulty of getting witnesses 1124 to court. A witness may leave the district in which he was living after the case had been heard, and he must be traced. If he is not prepared to go to court willingly he has to be subpoenaed. Inevitably, the parties and their witnesses, in meeting the convenience of the court in respect of the date of the trial, have to make arrangements in respect of their business, and professional or domestic matters, which disturb the ordinary routine of their lives.

It may be that one or other of them will be ill, or away on important business on the next occasion when the plaintiff chooses, at his own discretion, to set down the new case for trial, in respect of the very same subject matter that was brought before the court on the previous occasion. The plaintiff will have a right to enter the case for trial at a court on a date which suits his personal convenience.

It is true that in such circumstances the defendant can apply to have another date fixed by the court, and I suppose that in those circumstances the court would arrange to meet the convenience of the defendant, but if it had no dates available for that time it would be very reluctant to fix another date. This entails an application to the court, and it may not suit the court to give another date.

This is a ridiculous position, which does not prevail today in the High Court. In the case of Clack v. Arthurs Engineering Limited, when the court had to make a decision on an issue of this nature, heard in the Court of Appeal in 1959, Lord Justice Willmer, referring to the anomaly which I am seeking to remedy, said: We cannot leave this case, however, without venturing to offer the suggestion that consideration might well be given to the desirability of abolishing the power to non-suit in the county court, as it has been abolished in the High Court. Non-suit was a remedy suitable enough in an age when the plaintiff won or lost his case according to the way in which it was pleaded, and when no right of amendment existed such as exists today. Bearing in mind the right of discontinuance which is conferred by the County Court Rule, Order 18, and the abundant facilities for amendment provided under County Court Rule, Order 15, we find it difficult to appreciate what object is served by preserving in the county court today the 1125 old common law remedy of non-suit, which we venture to think few practitioners of today fully understand. I am not asking that we should dispense entirely with the right of the plaintiff to ask for a non-suit, but there are circumstances in a county court—which is the people's court—in which a layman may overlook something or other which the court may think entitles him to have the case tried again. My proposed Bill would place the question within the discretion of the county court judge—a discretion which I am certain he will use if he thinks that the slightest unfairness would befall the plaintiff if he did not grant it.

It would obviously not be exercisable in a case when the plaintiffs had been properly and fully represented, but certainly, in the case of a layman, it might just be possible that this should be allowed in spite of the fact that it was taken away in the High Court.