§ Mr. Speaker
We now come to Amendments No. 1, which I suggest we take with Amendments Nos. 2, 4, 5 and 7, all on the same question of amending sums of money mentioned in the Bill.
§ The Solicitor-General
I beg to move Amendment No. 1, in page 2, line 20, leave out '£150' and insert '£100'.
Mr. Speaker, it is convenient that this Amendment should be considered with the Amendments that you have mentioned, particularly because Amendment No. 1 is consequential upon the proposed Amendment No. 2.
The position is that under Section 47(1)(b) of the County Courts Act 1959, a plaintiff who brings in the High Court an action which he could have brought in the county court is not entitled to any costs if he recovers less than £75. By way of exception to this general rule, under the law Section 47(4) provides that a plaintiff who recovers £40 or more in a debt-collecting action in the High Court shall be entitled to fixed costs on a prescribed scale. Clause 4(1)(c) substitutes £150 for the figure of £75 in Section 47(1)(b), and Clause 4(2) repeals Section 47(4).
The result is that under the Bill as it stands a plaintiff who recovered less than £150 in the High Court would not be entitled to any costs, whether or not the action was a debt-collecting one. The figure of £150 is amply justified, in our 769 view, because there can be no valid reason for bringing an action for less than this sum in the High Court, unless it involves a point of special importance or difficulty, in which case the court has full power to award costs on the appropriate scale.
The figure of £150 is well below that recommended by the Winn Committee on Personal Injuries Litigation and the Payne Committee on the Enforcement of Judgment Debts. Judging by the number of judgments in default of appearance or defence, or under Order 14 in 1968, the effect of substituting £150 for £75 in Section 47(1)(b) and of repealing Section 47(4) would be to divert to the county court just under a half of the debt-collecting cases now brought in the High Court. Thirty-four thousand and thirty-six of the 73,175 judgments were for sums less than £150.
The under-sheriffs have represented to my noble Friend that to take away so much of this work would make it difficult if not impracticable for some of them to carry out their duties. They are responsible for executing all writs for the enforcement of High Court judgments including writs of fi.fa. and possession. Until recently they were responsible also for the collection of fines imposed at assizes and quarter sessions. But the Criminal Justice Act, 1967 transferred this duty to the magistrates' courts. It did not, however, relieve them of the onerous and comparatively unremunerative work of summoning jurors and attending at assizes.
It must be accepted, therefore, that if, as a result of the proposed change in the costs sanctions, the number of writs of fi.fa. issued in the High Court were reduced by nearly a half it would have a serious financial effect on the under-sheriffs.
They recognise that if, as the Payne Committee proposes, the county court is ultimately given exclusive jurisdiction in debt recovery, they will be forced out of business, but they do not wish to be placed meanwhile in such a position that some of them have difficulty in carrying on, and the Government have had regard to that transient condition which, if things had been left as they were, would have afflicted them. From the public point of view it is plainly essential to maintain machinery for executing such 770 judgments as remain enforceable in the High Court.
The object of the present Amendment is to mitigate the loss to the under-sheriffs by reducing from £150 to £100 the minimum sum which a plaintiff must recover in the High Court in order to avoid being deprived of costs. Judging again by the number of summary judgments in the High Court in 1968, the result is likely to be that just under 30 per cent. instead of just under 47 per cent. of the debt-collecting actions now brought in the High Court would be diverted to the county court.
Out of the 73,175 judgments to which I have already referred, 21,678 were for less than £100. In the Government's view this is as far as it is possible to go in assisting the under-sheriffs without impairing one of the main objects of the Bill, which is to discourage plaintiffs from bringing in the High Court actions for which the county court is the proper forum.
We have made every endeavour to balance considerations here in a way which has proper regard to the object of the Bill and to the reasonable representations that have been made by the under-sheriffs.
Amendment No. 2 has the effect of substituting £100 for £75 in Section 47(1)(b) of the County Courts Act, 1959, which deals with the costs recoverable in actions of contract and tort brought in the High Court for a sum of money. Amendments Nos. 4 and 5 make similar alterations in the new Section 47(1A), dealing with actions for the recovery of goods. Amendment No. 7 operates upon Section 60, which deals with the costs of certain Admiralty proceedings.
I said at the outset that Amendment No. 1 is consequential on the proposed Amendment No. 2. The position is that Clause 3 amends Section 44(1) of the County Courts Act, 1959, which enables an action of contract or tort for a sum exceeding £40 to be transferred from the county court to the High Court at the instance of the defendant if he gives the prescribed security and the judge certifies that an important question of law or fact is likely to arise. The sum of £40 is related to the "costs sanctions" in Section 47 of the Act of 1959.
771 Under this Section, if a plaintiff brings in the High Court an action which he could have brought in the county court, he is not entitled to any costs unless, in a debt collecting action, he recovers more than £40. Where, in consequence of this provision, a plaintiff brings an action for less than £40 in the county court, it would clearly be unreasonable to give the defendant a right under Section 44(1) of the 1959 Act to have the action transferred to the High Court.
The effect of Clause 4 of the Bill as it stands is to deprive a plaintiff of costs where he sues in the High Court and recovers less than £150. Clause 3 accordingly substitutes £150 for £40 in Section 44(1). As it is proposed to substitute £100 for the references to £150 in Clause 4, the present Amendment makes a corresponding alteration in the figure mentioned in Clause 3.
§ 4.0 p.m.
§ Mr. David Waddington (Nelson and Colne)
I should like to raise a point on the first Amendment. At first sight, it seems rather difficult to see why any claim, however small, should not go to the High Court at the defendant's election, provided that the judge certifies that an important point of law arises. After all, as has been explained, the plaintiff can bring an action in the High Court, however little money is involved.
It is perhaps hard for a layman to understand why, if a plaintiff can bring an action in the High Court subject to a penalty as to costs, however little money is involved, the defendant in his turn cannot, provided that the judge says that an important point of law arises, have an action commenced in the county court transferred to the High Court so that it can be aired more fully. The plaintiff would be protected if the money limit were removed because the judge would still have to grant a certificate and because the defendant would still have to afford the security for the amount claimed in costs.
I should like to ask the Solicitor-General a question. Presumably, the reason for the old £40 rule was the fear that the High Court would be overburdened by cases brought by defendants unless some such restriction were 772 imposed. I wonder whether the Solicitor-General can say how many cases, in fact, go to the High Court each year as a result of an application made by the defendant to a judge on the ground that the case involves a point of law of importance. I cannot remember any case in my own experience which has found its way to the High Court because of an application made by the defendant under this Section of the principal Act. I shall be grateful if the Solicitor-General can enlighten us.
§ Mr. Ian Percival (Southport)
I am sure that the Solicitor-General will forgive me if I say that, stripped of all technical terms, what he said really amounts to this: if we had done what we originally intended to do we might have driven the sheriffs out of business altogether, and that would have been a nuisance; we are not doing this just for sentimental reasons, but it would have been a nuisance because there would have been nobody left to enforce the High Court judgments. I think that is not an unfair, albeit untechnical, summary of what the hon. and learned Gentleman said this afternoon.
I think that it is a very good reason for making this Amendment because I think he is right. If the Amendment had not been made, the consequence would have been very unfortunate. We live in an age when it is very easy for mistakes like this to be made. Many of us who have to consider problems of this kind need to have a whole handful or armful of various reports relating to the administration of justice—the Evershed Committee, the Payne Committee, the Winn Committee and now the Beeching Committee.
I for one hope that to avoid errors of this kind, somebody may now be able to sit back with all these reports and correlate them all so that we may have a White Paper on how they all fit in with one another, so that we may consider what is to happen and avoid the danger of mistakes like the one to which I referred. As I have said, it is very easy for mistakes like this to happen and it is very important that we do not let them happen.
I am sure that the Solicitor-General will not think me over-critical if I say 773 that I think this is one that could and should have been observed and dealt with sooner. We on this side of the House have not half the facilities that the Government have, and it is quite right that we should have to jog along with fewer facilities, but it will not have escaped the attention of the Solicitor-General that as early as the Committee stage we, with far fewer facilities, had become seized of this point and were asking the Government to leave the situation alone so far as the bottom figure—the cut-off—was concerned. Our reason for urging that was the very reason which is now advanced for this Amendment.
It will be no surprise to the Solicitor-General to know that I shall conclude shortly by welcoming his Amendment, because I remind myself and the House that in Committee I said:If the Solicitor-General"—who had resisted our Amendment—had said, 'I will not accept £75, but I will accept £100,' we on this side would have gone along with it."—[OFFICIAL REPORT, Standing Committee D, 17th April, 1969; c. 66.]We are glad that, albeit belatedly, he is proposing to do that and we support him in so doing.
§ The Solicitor-General
By the leave of the House, Mr. Speaker, I desire to deal with the points raised so helpfully on the other side of the House on the question of the cases where the defendant might take a point of importance to the High Court. I did not have notice of this; I make no complaint about that, but I am anxious to deal with it before we finish our consideration of this Amendment.
It seems to me that if the defendant forced the plaintiff into the High Court and the defendant won on the kind of point that has been adumbrated, the plaintiff would be liable for High Court costs and prima facie that might have a rather unfair consequence. One also has to consider the Legal Aid Fund.
In answer to the question of fact, my understanding is that only 37 actions were transferred to the High Court in 1968. This was under all Sections of the County Courts Act. I am glad to have had the opportunity of answering this question.
§ Amendment agreed to.