HC Deb 05 July 1967 vol 749 cc1756-63

11.15 a.m.

Sir John Hobson (Warwick and Leamington)

I beg to move, in page 2, line 20, after 'desirable', to insert: or where it appears to the county court that the amount of any order is likely to exceed £500 per annum or £2.000 lump sum and the parties have not consented to the jurisdiction of the county court'. This is about half time in a morning's play, but I do not intend to suck any lemons about this Bill. We desire only to make one or two minor Amendments and, we hope, improvements to it. I feel myself to be something of an intruder as I was not a member of the Standing Committee, but I see that the two legal "Lyons" of the Labour Party are present and, no doubt, solidarity will be restored to the Labour benches after the earlier events of this morning.

The purpose of the Amendment is to provide that where it appears to a county court at any stage in ancillary proceedings that the order which it is about to make may exceed £500 per annum, or a lump sum of £2,000, the rules of court, which the Rules Committee is to draw up, must provide for the transfer of the proceedings to the High Court. Every hon. Member now present is, of course, aware that the present limits of jurisdiction for ordinary commercial matters in the county court is £500.

While everybody knows that that is likely to be increased, it is unlikely to be more than doubled, so that the limits proposed in the Amendment are greatly in excess of any limit to which the commercial jurisdiction of the county court is likely to be raised in the immediate future. Therefore, even if the Amendment were accepted, there would be a substantial difference and a substantial breach in the monetary jurisdiction of county courts comparing matrimonial matters and what many might think to be the less important matters of commercial payments between one citizen and another.

The Bill provides for a discretion for the county court judge himself to transfer proceedings when he considers that to be desirable. But I would have thought it to be quite wrong to leave a question of the limit of the payment to the discretion of the county court judges. We do not leave a discretion to county court judges in commercial matters to decide when to remit to the High Court. It is for the general convenience, not only of the parties, but of the administration of the law, that all questions of jurisdiction should be carefully defined and not left to the individual discretion of different county court judges, all of whom may exercise it in different directions, some not feeling attracted to the jurisdiction and therefore having no desire to exercise it, others, like most courts, desiring to extend their jurisdiction as widely as possible and considering themselves far more competent than anybody else to deal with questions which are of considerable importance to the parties.

Sir Barnett Janner (Leicester, North-West)

Is the right hon. and learned Gentleman suggesting that High Court judges never differ from each other?

Sir J. Hobson

No, I certainly do not, but in the division of jurisdiction between High Court and county court it is a little odd to leave it to individual county court judges to decide in each individual case.

The dividing line between the two in these matters ought to be determinate, defined and certain, and what the Bill is here doing is to leave it variable, incalculable and completely uncertain. As a matter of principle, that seems to be quite wrong, and a principle which one would never apply in any other jurisdiction. To apply it to divorce jurisdiction, when large sums of money may on occasion be at stake, seems very odd.

I also appreciate that the Rules Committee could deal with this under its general power to make rules on these matters in such cases as it may specify. It is possible that the Rules Committee will itself lay down the division between the county court and the High Court and itself say which cases should be transferred on ancillary matters by the county court to the High Court. If Parliament does not do it, I hope that the Rules Committee will, because there should be a certain and calculable and known division. But, if there is to be such a division, Parliament and not the Rules Committee should undertake to determine it.

11.30 a.m.

In Committee, the Attorney-General endeavoured to justify the vagueness of the present position by saying that the amount of a claim for maintenance is not necessarily an indication of the difficulty or importance of the particular case for the parties concerned."—[0FFICIAL REPORT, Standing Committee F. 22nd June, 1967; c. 94.] That argument is true wherever one tries to divide jurisdiction. In every case, where some matters are remitted to the county court and some to the High Court, precisely the same argument would be available.

We all know of important arguments of principle which can take place on 21d. difference in a rate, in a wage or something of that sort. This does not mean that we should, therefore, leave it entirely at the discretion of the inferior court to say which of the two courts, the High Court or the county court, should have jurisdiction in a matter which may affect important questions between the parties.

It is not the ease or difficulty of taking the decisions which ought to indicate who should take them. I suspect that many decisions taken by a Cabinet are very simple, but this does not mean that the Cabinet ought not to take the responsibility of making them, as they affect matters of major importance. Equally, as between parties in these circumstances, when large sums of money will be at stake, with annual payments over a long period of years, perhaps, and involving important issues between former spouses, I submit that, if the amounts are likely to be as large as a lump sum over £2,000 or an annual payment of £500, we ought to let the High Court deal with the case in the same way as it deals with important questions of finance in commercial cases.

Mr. Gordon Oakes (Bolton, West)

When the right hon. and learned Gentleman speaks of an amount exceeding £500 per annum, does he mean the total amount of the order? For example, if maintenance were allowed of £5 a week for the wife and £2 for each of three children, does he suggest that that should go to the High Court because it would exceed £500 per annum in total?

Sir J. Hobson

I concede that the Amendment is not tightly drawn and it could, no doubt, be improved in another place. I think that, where the total amount of money which is to change hands as between husband and wife will exceed £500 per annum, the case should be transferred to the High Court. The Amendment is always subject to the two parties consenting to the jurisdiction of the county court in any case. They have the right to go to the High Court, but, as the Amendment is drafted, it is intended to secure that, if the parties wish to stay in the county court, they may consent to remaining within that jurisdiction. If, on the other hand, parties wish to exercise the right, they may insist on going to the High Court.

Mr. Ian Percival (Southport)

I support the Amendment. My right hon. and learned Friend the Member for Warwick and Leamington (Sir J. Hobson) has put the major argument so cogently that I need say little more. The matter is of special importance in this case, where the parties have no choice. There is some illogicality in leaving it to courts of limited jurisdiction—the county court is a court of limited jurisdiction—to fix what their jurisdiction shall be. It is the job of Parliament, which establishes the court and in all other spheres limits its jurisdiction to lay down certain rules. It is our job, surely, to define the jurisdiction here and not leave it to be decided by each individual judge, and as I have said, the matter is of special importance in cases such as this where the parties have no choice.

The avowed purpose of the Bill is to save legal aid funds, and no one on this side quarrels with that object. The means proposed for ensuring that is that all legal aid cases of the kind referred to in the Clause shall be tried in the county court, but it would be wholly invidious to single out legal aid cases and say that they shall be tried in the county court. To do that would be to put legal aid cases in a second-class category of litigation. When the legal aid scheme was first started, it was said over and over again that legal aid cases should never become second-class litigation. To avoid that dilemma, we have to make it obligatory for all cases of this kind to be started in the county court.

It has not been sufficiently appreciated that this is a substantial departure from the practice which has prevailed hitherto. It has been common to have courts with concurrent jurisdiction. It has been common to put parties in peril as to costs if they choose one jurisdiction rather than another. This has been the approach to the choice between proceeding in the High Court or the county court. Where the county court has jurisdiction, a party is still free to proceed in the High Court, but he does so at his own peril as to costs if he has chosen the wrong court. In this case we make it obligatory upon all parties, whether legally aided or paying their own costs, whether they wish to avail themselves of the High Court facilities or not, to go to the county court.

Mr. Alexander W. Lyon (York)

The hon. and learned Gentleman describes this as a substantial departure. Is that so in anything more than form? For years, county court judges have been dealing with just such cases. They take a case at the beginning and they go through to the end. The district registar deals with awards of maintenance of £500 or even as much as £2,000. Is there any substantial departure?

While I am on my feet, may I raise the other problem posed by the Amendment? How is one to know before a case begins that an order is likely to exceed £500 per annum? In the case of a county court action where one limits one's demand, one can limit the amount at issue to less than £500. Is one now to say that, in every undefended divorce case or every proposed defended case, a person should limit the amount of maintenance which is likely to be claimed? How is that to bind the other party, who may wish to claim other maintenance in excess of that?

Mr. Percival

I shall try to deal with the point briefly, because no one wishes to embark on a long discussion about it.

I can only repeat that, although there is a certain amount of overlapping at present, and it may well be that in some cases the same people would continue doing the same work, there will not, if the Clause goes through unamended, be the element of choice that there normally is where there is concurrent jurisdiction. With respect, nothing that the hon. Gentleman has said detracts from the force of that general principle.

On the second point, there would be some difficulty, and there would be marginal cases. What we are dealing with here is what should be covered by the rules to be made under the Clause on the question of transfer. The details could be dealt with there and the wording tied up. This would be a general injunction or instruction to those who make the rules to provide for what is here proposed, and the tidying up could be done there.

The hon. Gentleman asked, "How does one know before one starts?". With respect, there are many cases in which it is pretty obvious—it might not even be in dispute. In many cases the difference between the parties is not as to whether there should be an order, but as to what the amount of the order should be. There are cases in which even the lowest of the starting figures is higher than the figure of £500 or £2,000. The parties may be arguing whether an order should be for £600 or £700, or whether the lump sum should be £2,500 or £3,000. In these cases there would be no difficulty.

In other cases one would have to look at the admitted amounts of income and apply the broad general rule of one-third, or one-fifth, or whatever it is. Again, one would see what the likelihood would be and whether the figure would be about that which has been postulated.

Lower down the scale we should get more difficult cases, but we are not posulating that the transfer must be made before the proceedings have started. A county court judge may say, "I would like to hear a little more about this case before I decide whether to transfer it." When he has had the affidavits of the parties—if the proceedings are by way of affidavit—he will be able to say whether there is this likelihood. At the margin there will be difficult cases, but that is true of any situation where a line is drawn. I am in no way sidestepping the difficulties when I say that. The nearer one gets to the line the more difficulties arise.

I return to my main point. I was going to say that here we are making the choice of the particular jurisdiction, but, in fact, we are depriving the parties of a choice. That is a very different thing from providing concurrent jurisdictions between which the parties make their choice, at that own peril as to costs. We are saying at the moment that they must use this jurisdiction. In my view, it is incumbent upon us to depart from accepted principles as little as possible, and we do that by widening the possibilities open to a party who wishes to take advantage of High Court proceedings.

The Amendment would have that effect. It would give those who were able to satisfy the conditions postulated in it the choice of going to the High Court, and I suggest that it is a sensible and practical Amendment.

The Attorney-General (Sir Elwyn Jones)

As the House knows, Clause 2(2) requires the rules of the court made under the Bill to provide for proceedings beginning in county courts for maintenance and other forms of ancillary relief to be transferred to the High Court where the transfer appears to the county court to be desirable. The Government take the view that it would be undesirable to fetter a county court by requiring it to transfer proceedings where the amount of any order is likely to exceed a particular sum and the parties have not consented to the jurisdiction of the county court.

For many years all the registrars of county courts which are likely to be designated as divorce county courts have had experience, as district registrars, of hearing applications for maintenance in the High Court without any pecuniary limit. The hon. and learned Member for Southport (Mr. Percival) talked about the element of choice which presently exists, but over a wide field there is no choice, because all undefended divorces in the provinces, and most in London, have for many years been tried by county court judges sitting and dressed up as commissioners, and they and the district registrars have in practice been dealing with these matters—as far as I am aware, satisfactorily—for many years.

It cannot be said that county court judges will not be able to deal with appeals from county court registrars on applications relating to these matters. As commissioners of the High Court they have been dealing with them for many years, without any dissatisfaction. I submit that it would be quite arbitrary to put limits, as proposed, on the jurisdiction of a county court, to deal with proceedings for ancillary relief.

There is substance in the point made by my hon. Friend the Member for York (Mr. Alexander W. Lyon), who pointed out that the likelihood of the amount of any order exceeding the sum specified in the Amendment might not appear until late in the proceedings, when the registrar had considered the evidence and heard the parties. It would be an appalling waste of time if the hearing were then rendered abortive because proceedings had in those circumstances to be transferred to the High Court.

We think it better that it should be left to the discretion of the county court whether a transfer to the High Court is necessary, and that there should be no fetter upon that discretion.

Amendment negatived.