GRANT OF CERTIFICATE BY TRIAL JUDGE

HC Deb 20 October 1969 vol 788 cc808-12

The Solicitor-General

I beg to move Amendment No. 11, in page 6, line 38, at end insert: 'and (c) that all the parties to the proceedings consent to the grant of a certificate under this section,'. The object of the Amendment is to reinstate the provision deleted in Committee that a leapfrog certificate can be granted only where all the parties to the proceedings consent. Part II of the Bill is based broadly on the scheme proposed by the Evershed Committee in paragraphs 483 to 504 of its Final Report for enabling an appeal from a High Court judgment to go, in certain circumstances, direct to the House of Lords, thereby by-passing, or leapfrogging as the phrase is, the Court of Appeal.

The Committee recommended that the scheme should be confined initially to cases involving a point of law of public importance which either related to a question of statutory construction, or was covered by a previous decision of the Court of Appeal. The Committee envisaged that it would be for the trial judge to certify that the case was fit to go direct to the House of Lords. It did not think it necessary that there should be a consent by both parties to the litigation, although it was to be expected that in the great majority of cases in which the scheme would operate it would do so with the consent of both parties. That is made clear in paragraph 502(b) and (e) of its report.

Before the Bill was introduced it was represented to my noble Friend by Lord Reid that if the consent of the parties were not required there would be a danger, having regard to the state of judicial business in the House of Lords, that that House might become overloaded with leapfrogging appeals. It was accordingly decided to make the consent of the parties a condition precedent to the grant of a certificate by the trial judge. I have put that part of the history shortly, but that is substantially what occurred.

When the Bill was in another place it was strongly urged that the House of Lords should be the deciding authority and not the trial judge, as the Evershed Committee had recommended. The suggestion was made that as the application for a leapfrog certificate had to be made by consent, it should be possible for the Appeal Committee to determine it on the papers and so avoid the delay and expense which the Evershed Committee feared might result if the House of Lords were made the deciding authority. That appears in paragraph 490 of the report.

At a meeting which the Committee had with my noble Friend, this suggestion proved acceptable to the Lords of Appeal and the Bill was accordingly amended in another place so as to limit the trial judge's function to certifying that the case was a proper one for an application to be made to the Appeal Committee for leave to appeal directly to the House of Lords. Clause 13(3) provides that such an application shall be determined without a hearing.

In Committee, my right hon. Friend the Member for Islington, East (Sir Eric Fletcher) suggested that the effect of giving the House of Lords the last word was to invalidate the reason for requiring the consent of the parties. The remedy against being flooded by leapfrogging appeals would be in their Lordships' own hands, since they could reject applications simply on the ground of pressure of business. In my right hon. Friend's view, as I understood it, the question whether a leapfrog certificate ought to be granted should be left to the discretion of the trial judge, who could take into account the reason for any objection by a party to the granting of a certificate. He thought that if consent were required it might be withheld for the purpose of putting pressure on the other side.

We have considered with the greatest care the arguments on this point. The cogency of the argument of my right hon. Friend to which I have just referred depends on whether the situation is regarded from the point of view of the successful or the unsuccessful party before the trial judge. If he is the unsuccessful party he may feel aggrieved if the successful party, having, for all one knows, greater economic resources than he, refuses his consent to leapfrog, solely in order to put the unsuccessful party to the trouble and expense of going first to the Court of Appeal.

If, however, it is the unsuccessful party who has the greater economic resources, should not the successful party be able to say that he does not want to go to the expense of fighting an appeal to the House of Lords before the validity of the judgment that he has already obtained has been tested in the Court of Appeal? As my right hon. Friend suggested, it could be left to the trial judge to take into account the party's reasons for not wanting to leapfrog.

But if this were done there is the danger that the trial judge would simply grant the certificate knowing that the party's objections could afterwards be considered by the Appeal Committee. The result might be that the Appeal Committee would not only have more applications to consider, but, under Clause 13(3), would have to determine the dispute on the documents without a hearing. An application for leave to appeal to the House of Lords under the Administration of Justice (Appeals) Act, 1934, is heard only when the Lords of Appeal can be spared from the ordinary judicial business of the House of Lords. This means that there is usually a delay of one or two months, and sometimes considerably longer, before the application for leave to appeal can be heard. If applications for leave to leapfrog were not restricted by a requirement of consent and the Appeal Committee were forced to determine disputed applications there would be a danger of the Appeal Committees being overloaded just as it was feared that under the Evershed Committee's scheme the House of Lords might be swamped with leapfrogging appeals.

Moreover, it would be most unsatisfactory for the Appeal Committee to have to deal with disputed applications on the papers alone. It would, at least, be necessary for the papers to contain the submissions of the parties, and this might lead to their being quite lengthy. Often, no doubt, they would be settled by counsel, and this would mean added expense.

Another danger of allowing a leapfrog application to be made otherwise than by consent was alluded to by Lord Reid in the Second Reading of the Bill in another place, when he used the expression "the most impossible problems", in referring to those problems that would arise in the event of attempting to force an unwilling respondent who might be a man of quite moderate means to go straight to the House of Lords. The noble Lord expressed the view that at present it was the right practice to allow an application for an appeal to be brought to their Lordships and for conditions often to be imposed as to costs. He thought that that procedure could be extended, but he said that it would be extremely difficult to safeguard a respondent of moderate means if there were any proposal that he should be brought to the House of Lords against his will.

Like one or two other matters that we have had to consider in our treatment of the Bill, this is a fairly narrowly balanced point. I come to a conclusion contrary to that thought to be right by my right hon. Friend the Member for Islington, East with reluctance, because I know that he felt strongly about this, and he has put his argument very cogently and persuasively. But having weighed all these factors, our conclusion is that, on the whole, it is best that the element of consent to the granting of a certificate under the Clause should be present, and I recommend that course to the House.

Sir Eric Fletcher (Islington, East)

I am sure that the House will be grateful to my hon. and learned Friend for the fullness and care with which he has addressed arguments to the House in support of the Amendment. As he said, it is a highly technical and somewhat abstruse and narrowly balanced question. The House should be aware that what the Government are asking us to do is to reverse a decision of the Committee which considered the Bill in some detail, and to restore to the Bill a subsection which the Committee on the Bill, by an overwhelming majority, and with the support of hon. Members on both sides of the House, thought undesirable. The Solicitor-General also referred to the fact that what he is now asking the House to do is something contrary to the recommendation of the Evershed Committee, which also—a number of years ago—went into this question very fully and came to a totally different conclusion.

I do not propose to weary the House again. Both in the Second Reading debate and in Committee I indicated the reasons why I believe that the Amend- is unnecessary and unsatisfactory. I am totally unconvinced by the speech to which we have just listened. The arguments which have been put forward have been dictated by their Lordships in another place, and we in this House are being asked not merely to overrule the decision of the very well-informed Committee which dealt with this Bill but to bow to the supposedly superior wisdom of their Lordships on this matter.

Mr. Arthur Lewis (West Ham, North)

Democracy.

Sir E. Fletcher

Hon. Members may make what comments they like on this aspect of the matter. I think it would be futile at this late stage of the proceedings to reiterate what I have said before, but I repeat that I am totally unconvinced by the arguments which have just been addressed to us.

I console myself with the thought that the whole of these proceedings on Clauses 12 and 13 for the so-called leapfrogging procedure are in the nature of an experiment. I hope very much that they will succeed. I believe they will contribute quite substantially to a reduction in the costs of litigation. I very much hope that after a short interval the success of the experiment will be reviewed, and perhaps on review the course which I have argued on Second Reading and in Committee will find favour so that when this matter comes up for renewal the experiment can be extended in the way I have suggested.

Amendment agreed to.