HC Deb 20 October 1969 vol 788 cc799-808
Mr. Percival

I beg to move Amendment No. 9, in page 6, line 8, leave out '52'.

Mr. Deputy Speaker (Mr. Harry Gourlay)

With this Amendment, we will also discuss Amendment No. 10, in page 6, leave out line 13.

Mr. Percival

To appreciate why these Amendments are necessary it is as well to recall what has been done about the jurisdiction of the county courts.

The Bill seeks to do two things in relation to county court jurisdiction. First, power is given to increase the jurisdiction by Order in Council without any limit. This is not departure of principle in regard to jurisdiction. What is new is that power is now to be given by Order in Council without limit. Previously, there was a quite modest limit to the amount by which the jurisdiction could be increased without the necessity to come to the House for further statutory powers.

Secondly, it is now possible to use this power to increase the jurisdiction by Order in Council in relation to many more of the provisions of the principal Act than was the case before the Bill was embarked upon.

I wish to draw attention to line 8, in page 6 of the Bill, which I seek to amend by Amendment No. 9. Like a great deal of current legislation, the provision is totally unintelligible unless one looks at the principal Act which is being amended and examines all the relevant provisions. Section 192 of the old Act said that the Lord Chancellor could by Order in Council increase the jurisdiction by certain specified amounts. In Section 192(2), Parliament specified those cases to which the Lord Chancellor's power to increase the jurisdiction applied. In the proposed subsection, we find words which are to replace Section 192(2).

Under the old Section 192, the Lord Chancellor's powers to increase the jurisdiction applied to Sections 39, 40, 41, 44, 45 and 47, but they did not apply to Section 52. If the Bill is passed in its present form, Section 52 will be included amongst the jurisdictions in which the Lord Chancellor has power to increase the amount by Order in Council, so it is of some interest to look at Section 52 and see what it does.

Section 52 of the County Courts Act, 1959 deals with the equity jurisdiction of the county court. Until now, the amounts in Section 52 have been £500 and £30. In some instances, the amount which determined that the county court had jurisdiction was £500. In others, it was £30. That £500 was very much in line with the old county court jurisdiction in contract and tort, which was also £500.

Whereas the jurisdiction of the county court in matters of contract and tort has been increased from £500 to £750, in cases of equity it has been increased from £500 to £5,000. We discussed in Committee whether it was right to increase the jurisdiction to £5,000 and, having agreed to that enormous increase in the county court jurisdiction in equity matters, we have to consider whether it is right to go even further and say that it may not be enough and that the Lord Chancellor should be given power to increase that by Order in Council at any time and by any amount.

Since no Amendment to the first part of the Clause has been called, it follows that, after the Bill has a Third Reading, the Lord Chancellor will have power to increase the jurisdiction by Order in Council without any limit being put on the figure. If we pass line 8 of the Clause without this Amendment, he will have that power in relation to the new equity jurisdiction which we have already increased to £5,000. On the spur of the moment, I cannot divide 750 into 5,000, but it must represent an increase of something like 600 or 700 per cent. In other words, we have increased the jurisdiction in equity matters to 6 or 7 times the amount in the common law jurisdiction.

Surely that is enough for the time being. Why should this House think it necessary to bring into the ambit of the Lord Chancellor's power to increase the jurisdiction by Order in Council the equity jurisdiction which so far has never been within that ambit, especially when Parliament already is proposing to increase that jurisdiction to £5,000? I need only take the one illustration to make the point. The arguments in connection with Amendment No. 10 are the same.

I have referred already to the great assistance which has been given to us by the Law Society. So often, people wait until a Measure is passed before asking why. I welcome the practice of interested parties writing to hon. Members on both sides and raising their doubts and difficulties while there is still time for the House to deal with them. In this one instance, we see how it has proved to be of real benefit.

5.45 p.m.

This point is urged upon us by the Law Society which, after all, represents practising solicitors. Its views are not only worth consideration but must be given great weight. The Law Society does not expect the Government to accept everything that it suggests, and I am sure that the Government will agree that the number of points in which the Law Society has persisted has grown smaller as the Bill has proceeded, just as the number of points taken from this side of the House has. However, as we get further through the procedures, it becomes more and more necessary to single out a small number of matters to press.

In this case, the Law Society has felt so strongly about it that it has persisted in putting forward the view that it is enough to increase the equity jurisdiction to £5,000. The way to do it is to delete the reference to Section 52 from line 8 and let the equity jurisdiction be dealt with, as it has been until now, separately rather than under this all-embracing power.

Even at this late stage, I hope that the Government will think for once that perhaps the practitioners know better and may have a good point. There is no question of principle involved, and there will be no loss of face by any Department or Law Officer. By accepting this Amendment, the Government would show merely that they agreed that the people who practise here have a point. I hope that on this occasion the Government will take that line.

Mr. J. T. Price (Westhoughton)

The hon. and learned Member for Southport (Mr. Percival) has made a very efficient analysis of this knotty business which laymen perhaps do not appreciate as keenly as practising solicitors and barristers. But there is one point I venture to raise in this short intervention.

Since the Law Society has criticised the proposal now on the Order Paper, that if the Bill remains unamended it will increase the jurisdiction of the county court in equity matters, could my hon. and learned Friend say what calculation has been made about the effect of these Amendments on litigants?

We all know that costs in the county court are less than in the High Court and the Crown Court. I should like to know whether this jurisdiction, or this discretion which is granted to the Lord Chancellor to produce an Order in Council increasing the limit, would, in the end result, have a beneficial effect for litigants who have to pay the costs of contested proceedings in any court, whether it be the county court or the High Court.

I am always a bit sceptical of professional representations on these matters which are usually directed to getting cases, wherever possible, tried in the highest court where the highest scale fees are payable. After all, the Law Society, without saying anything discreditable about it, is a fine professional body —a finely organised trade union—and anything which is inimical or unfavourable to the interests of practising lawyers who conduct cases in the courts is naturally put under scrutiny.

I do not wish to intervene any further. However, as this affects the costs payable in litigation when cases have to be taken into court, we should have the views of a Government spokesman on this aspect of the matter.

Mr. Waddington

I rise to support my hon. and learned Friend the Member for Southport (Mr. Percival). I look with a certain amount of dismay at the prospect of the Government coming to this House late tonight and asking us, after a short debate, to approve such an important proposal as, for instance, a massive increase in the equity jurisdiction of the county court.

There is far too much of this legislation by Order. Too often we do not get the opportunity of ventilating our opinions on important matters because they are brought before the House late at night, a debate takes place for perhaps an hour and a half, and they are over and done with. That is not good enough. This is a good example of the Government taking powers to bring about sweeping changes without giving the opportunity for sufficient discussion by this House.

The Solicitor-General

I acknowledge that there is some substance in the argument that, when we are raising the county court equity jurisdiction to such a high new limit as £50,000, it is unnecessary to give in addition, to that substantial provision, a further power to increase the jurisdiction by Order of the Lord Chancellor.

I do not accept the stricture of the hon. Member for Nelson and Colne (Mr. Waddington). There is nothing highhanded about our treatment or approach to this matter. I have viewed this issue with a certain absence of passion. It is desirable, on the whole, to have some element of uniformity relating to powers such as we are considering here to increase the jurisdiction by Order. I have a short argument to offer to the House on the basis of unformity which I should like to think will persuade it that, acknowledging the strength of the argument which has been offered, it is best to leave the Bill in its present form.

Before coming to that, I should like to deal with what was said by my hon. Friend the Member for Westhoughton (Mr. J. T. Price). He was right about this matter as, in my experience, he is right about most things. It is true that the extension in this fashion of the county court jurisdiction is likely to have a beneficial effect upon parties in terms of costs. My hon. Friend is absolutely right to attach importance to that.

The effect of these Amendments would be to delete Section 52 of the County Courts Act 1959 and Section 113(3) of the Settled Land Act, 1925, from the list of provisions under which the jurisdiction may be further increased by Order in Council subject to affirmative Resolution.

Section 52(1) gives a county court jurisdiction to hear and determine seven types of equity proceedings where the sum involved does not exceed £500. The effect of the Bill is to increase that sum to £5,000.

Section 113(3) of the Settled Land Act, 1925, provides that the powers of the court under the Act may be exercised by the county court where the land does not exceed £500 in capital value or £30 in net annual value for rating. Clause 5 increases those sums to £5,000 and £300 respectively.

The limit of £500 has remained unchanged since equity jurisdiction was first conferred on the county courts in 1865. Since then the value of money has fallen to less than 18 per cent. It follows that the new limit of £5,000 is, therefore, a good deal higher than can be justified solely by the fall in the value of money—I acknowledge that entirely—and it is unlikely that it would need to be raised again in the near future.

On the other hand, it is the same as the limit of the jurisdiction conferred on the county court by Section 7 of the Family Provision Act, 1966, to order provision to be made out of the estate of a deceased person for the maintenance of his or her spouse or child under the Inheritance (Family Provision) Act, 1948, or for the maintenance of a former spouse under Section 26 of the Matrimonial Causes Act, 1965. As this limit can be raised by order of the Lord Chancellor, there are, in my view and in my recommendation to the House, sensible, not controversial, grounds for saying that the limit of the equity jurisdiction ought also to be capable of being raised by Order without legislation. That is the point that I make, and I dare say that it is fairly narrowly balanced.

The argument could be deployed and developed that, as a matter of principle, there is something of great importance in this conferment of a right to increase jurisdiction by Order. I do not deny that importance attaches to it, but Parliament is watchful. That course has been resorted to in the other circumstances to which I have referred, and I hope that on the whole the hon. and learned Gentleman and his hon. Friend will think that the wisest course is to let this proposal pass. It is a narrow issue. I do not for a moment reject out of hand the argument which has been presented. I see the force of it, but there is, none the less, some importance to be attached to applying evenly the same concept of a right to alter jurisdiction by Order.

On balance, I invite the House to say that in this instance it is better so done.

6.0 p.m.

Mr. Percival

With the leave of the House, I should like to make one or two points.

I often agree with what the Solicitor-General says about the hon. Member for Westhoughton (Mr. J. T. Price), that he is very often right, but, looking the hon. Gentleman in the eye, I can say that this time he is wrong. It is a mistake to assume that county court costs are reasonable and therefore that any costs that are higher than county court costs are good for solicitors or for anybody else. This overlooks the history of the matter. The county court started as the poor man's court, and its scale of costs was designed in that spirit. It was the poor man's court, and the professionals who appeared in them had to accept that and be scantily remunerated for so doing.

We have got away from the day when the county court was the poor man's court. We have raised the jurisdiction so much that it is now a different kind of court altogether, and the time has come to look at county court costs from a different point of view, from the simple point of view of whether they provide reasonable remuneration. The hon. Member for Westhoughton looks as though he is about to intervene. I shall gladly give way to him in a moment.

What I have said is not something that I have thought up. All that came from the Evershed Committee, of which the noble and learned viscount the present Lord Chancellor was a member. That Committee considered raising the limit of the jurisdiction of county courts from £100 to £200, and it recommended the increase, but only on the basis that we have to get out of thinking of the county court as the poor man's court, out of thinking of costs scales in that sort of way. The Committee's recommendation was based on the assumption and belief that reasonable remuneration would be paid to solicitors who conducted cases in those courts.

Mr. J. T. Price

It is true that the county court was originally regarded as the poor man's court, just as the public school was once regarded as the rich man's place for having his son educated. Both institutions have now become something different, but there is a second important point.

The High Court is overcrowded with actions in tort and other matters, and there are long delays in hearing cases. If there were no better reason for raising the jurisdiction of the county court, surely we must accept that all the courts, at whatever level they are, should be fully used? We cannot allow congestion in the High Court, and empty spaces in the lower court. From that point of view a good deal could be said about this issue, and if I had the time to say it I should be prepared to do so on another occasion.

Mr. Percival

And on another Amendment. Had the hon. Gentleman been a member of our Committee, that speech could have been made on certain of the Amendments.

There are arguments both ways about the level of the jurisdiction from the point of view of which the hon. Gentleman spoke previously. I should not like him to think that anything that I said was intended to take him to task. I do not think that it could be, because he did not say anything of that earlier. As I introduced the Law Society, it appeared to me that I had left the society open to the comments that were made about it, and as the hon. Member for Westhoughton was, for once, less than just and generous, I felt it right to express a contrary view.

It is time that we in this House considered the question of county court costs from a wholly different point of view from that which has been in our minds up to now. As I said, the county court was founded originally for the poor man. The original scales of costs were fixed with that in mind. We must get that out of our minds now. What we ought to think of now is not whether county court costs are higher or lower than High Court costs. What we ought to be considering is whether county court costs are reasonable remuneration for what they cover, and whether High Court costs are reasonable remuneration. It may be that in some cases work in the county court is more difficult, and that costs ought to be higher. One ought also to bear in mind that the Prices and Incomes Board had said that the present county court scales are not reasonable remuneration for solicitors, and that it has recommended a substantial increase. We ought to bear that in mind when we talk about solicitors deciding which court they go to. It is not as easy as it may seem at first sight.

I agree with the Solicitor-General that this is perhaps fairly finely balanced, just as is our Amendment No. 12. I shall accede to the Solicitor-General's suggestion, in the hope that he will accede to my suggestion when we come to that Amendment. There are arguments both ways on the Amendment now under discussion. I am not inclined to press the argument any further. I hope that the Solicitor-General will show similar reasonableness on our next Amendment. I propose to accept the Solicitor-General's suggestion, and I therefore beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

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