HC Deb 09 July 1981 vol 8 cc675-9
Sir Walter Clegg

I beg to move amendment No. 23, in page 98, leave out from 'Court' in line 20 to 'on' in line 21

Mr. Deputy Speaker

With this we may take the following amendments: Government amendments Nos. 24 and 25.

No. 26, in page 99, line 12 leave out subsection (4). Government amendments Nos. 27, 28, 30, 32, 34, 37 and 38.

Sir Walter Clegg

The schedule gives the High Court the power of its own motion to transfer the whole or any part of the proceedings to a county court". We must look at the schedule in the light of another change that is being made in the law—that the jurisdiction of the county court will be increased in October to £5,000. We must consider it in the light of how one enforces a judgment in the High Court, as opposed to the county court. I tabled a new clause that has not been selected. It said that the power of enforcing judgments through sheriffs should be availalbe to the county court as well as to the High Court. When we last discussed the question of enforcing judgments my hon. and learned Friend the Solicitor-General said that there was no evidence that county court bailiffs were more ineffective than sheriffs.

The Solicitor-General

I wish to clarify this point, because it has appeared in print in many letters. I said no such thing. I said that I was convinced but that we needed evidence to convince others. I am glad that the Law Society has taken that up. However, I do not wish to be quoted as having said that there is no evidence.

Sir Walter Clegg

I should not like to misjudge my hon. and learned Friend. I was pleased to hear his remarks. Since the Committee stage, further evidence has been provided by the Law Society in some quantity. It is available and shows that sheriffs are more able to enforce judgments than are county court bailiffs.

The purpose of the amendment is to allow the litigants to judge which court they wish to start in. At present, proceedings are started in the High Court that could well have been started in the county court. Because of the effectiveness of the High Court jurisdiction, the litigant chooses—although he may lose costs as a result—to start in the High Court. He believes that ultimately he will get judgment and costs. He may not be allowed costs, but he believes that it is better for him to have his judgment satisfied than to have a county court judgment that may be fine in principle but that the county court bailiffs, and so on, cannot satisfy.

The litigant should have the choice. Someone may decide that if he goes to the High Court to get a judgment he will not get his costs but will be able to recover the debt or damages. That is a perfectly logical choice to make. However, I fear that as a result of the clause it will be a temptation to the High Court to pass over anything less than £5,000, willy-nilly, to the county court. I suspect that the object of the clause is to make people go to the county court, whether or not they like it. We now know that there are all sorts of problems connected with High Court judgments. I refer, for example, to their registration abroad and their recovery. As a result, the clause is odious, because it is not the litigant but the court that chooses.

By means of the reasons set out in the future section 75A(1)(b) the court could mechanically, and with little justification, send anything under £5,000 back to the county court. The Law Society is worried by this rule. which changes the present situation. Until sheriffs are able to enforce county court judgments, we shall dislike the provision intensely.

The Solicitor-General

I have some sympathy with the misgivings and I hope that this assurance will help my hon. Friend and the Law Society. If I felt that the High Court or an official in the High Court were to be given the power to decide which cases would go to the county court and that was the end of the matter, I would have misgivings, but I am authorised by my noble and learned Friend to say that if it is necessary to provide by rule for that it will be provided by rule that parties have a right to be heard on a proposal to transfer, if they wish. I also draw attention to the fact that they have a right of appeal to judge in chambers against any such order.

I hope that my hon. Friend will find that assurance and the second point of clarification of interest and that it will relieve some of his anxieties.

I felt some of those anxieties until I was authorised to give that assurance and realised that there was a right of appeal. I hope that my hon. Friend will feel that the balance has been put right.

Mr. Bruce Douglas-Mann (Mitcham and Morden)

Notwithstanding the Solicitor-General's welcome assurance, I support the views expressed by the hon. Member for North Fylde (Sir Walter Clegg). There is a tendency on the part of the Law Officers' Department to assume that the county court is a convenient and cheap form of jurisdiction and that it is advantageous for litigants to pursue their claims there. Consequently, proceedings should be transferred to the county court if the case comes within the jurisdiction of that court.

In practice, for a large number of litigants in many circumstances it is infinitely more convenient, if their solicitor is practising within the area of the High Court or the district registry, to pursue proceedings in the High Court than to make arrangements to conduct the proceedings in a county court, which may be remote for the solicitors and the parties. In practice, proceedings in the county court may be more expensive to conduct and less satisfactory to all aspects of the case, because it may be necessary to travel considerable distances or to instruct agents to appear.

I accept the Solicitor-General's assurance, but the Bill provides that the High Court may …of its own motion … transfer … proceedings to the county court if … the High Court is satisfied … that the amount recoverable in respect of the claim is likely to be within the monetary limit of the jurisdiction of the county court. It is often more satisfactory and speedy for the High Court writ to be issued for perhaps a relatively small sum. It is more satisfactory to pay £40 and get no costs, in order to receive one's Order 14 judgment in a short time, than it is to apply to the county court. One has to send off the proceedings by post or instruct local agents to deal with it. But it is evident from the way in which the schedule is framed that it is contemplated that an official of the court may say "You are only claiming £3,500. Therefore you cannot pursue your proceedings here."

That would be grossly unsatisfactory and is why I welcome the assurance of the Solicitor-General. It is perhaps too late to ask for further thoughts about it, but I hope that it will be made clear that that will not be dealt with in the way that I fear it might.

10.45 pm

Although they have not yet been moved, I take it that it is in order for me, Mr. Deputy Speaker, to refer to the Government amendments grouped with this amendment. I refer, therefore, to amendment No. 27, which seeks to provide that If the High court thinks it desirable, at any stage in the proceedings commenced in a county court or transferred to a county court … should be heard and determined in the High Court, it may order the transfer to the High Court of the proceedings". I am mystifed by that provision. The Bill as it stands provides that the High Court on the application of any party to the proceedings, may order the transfer of the whole or any part of the proceedings to the High Court". The amendment does not say who would make the application. We have proceedings going on in the county court. The Bill as it stands makes it clear that any party can apply to the High Court for transfer of those proceedings to the High Court. The amendment provides that proceedings will be transferred to the High Court If the High Court thinks it desirable", but it does not say who should make the application and how the matter is to be brought before the High Court.

I hope that the Solicitor-General will explain the purpose of the amendment. On the face of it, it seems that only by the use of the provisions in section 75B(2)—that is, (power of High Court to issue prerogative orders)", would one be able to go to the High Court and ask to transfer the county court proceedings to the High Court. If that is so, it is a clumsy way to transfer what can be immensely important proceedings, started in the county court against a defendant who has important reasons for wishing the proceedings to he dealt with in the High Court. It would restrict his right to get the action transferred to the High Court, as it might involve major points of law, which could be of tremendous importance to the party. It would restrict his capacity to get the action transferred by prerogative writs.

If that interpretation is correct, I hope that the Solicitor-General will not press the amendment. The Bill as it stands is immensely preferable to one in which it would be necessary to use the prerogative procedure instead of making an application to the High Court under the existing procedure.

Sir Graham Page

We are in considerable difficulty in dealing with the amendments. To start with, we are dealing with a schedule to the Bill that makes substantial alterations in the practice and procedure of the county court. We then have to look at an order that is in draft form before the House to understand that, at the same time as we are dealing with the Bill, the county court jurisdiction is to be increased from £2,000 to £5,000. We have to look at still further orders to see whether the parties to proceedings will have an opportunity to be heard if the case is transferred from one court to the other.

We also have to wait for a further order to know what will happen about the costs of the proceedings. The costs in the county court and in the High Court differ greatly. If the jurisdiction is to be increased from £2,000 to £5,000, and if the High Court on its own motion can switch a case from one court to the other., it seriously affects costs and may leave a litigant with a considerable loss in the costs that he has incurred, leaving him to pay them himself, instead of possibly getting them out of the other side.

The whole thing is extremely confusing. I am grateful for the Solicitor-General's assurance that the parties will have an opportunity to appeal to the court in some way if at any stage in the proceedings a transfer is ordered by the High Court to the county court. That will come in rules of court, which are not before us at present.

I am puzzled by the phrase any stage in the proceedings to which this section applies. It will be possible for the High Court to prevent a litigant who has a High Court judgment, and who wishes to enforce it by the sheriff's officer, from having it transferred thereupon to the county court, but in some areas he will be left with almost an impossible task of recovering it within a very long period.

The ability of the High Court, on its own motion, to transfer cases goes to the root of the whole of the change in the jurisdiction of the county court. The change in procedure and the change in costs are all tucked away in a schedule.

Mr. Archer

I rise simply to say that I share the anxiety expressed on both sides of the House about the proposal. I am troubled, for a number of reasons, about the proposals that it appears are being made to send more business to the county court. The amount at stake is almost the only criterion.

One of the problems that trouble me is enforcement. Others have been cited in the debate. It helps to know that the parties will be given the right to attend and argue, but I am still troubled at the possibility that the court might decide to dispatch the whole case to the county court, despite the protests of all the parties involved.

I really rose to give notice that if I can do so within the rules of order, I propose to raise some of these problems on Tuesday in the Standing Committee. For the moment, I am content to echo what has been said in the debate

The Solicitor-General

Of course these matters are complicated. I do not shrink from that in any way. Nobody knows better than the right hon. and learned Member for Warley, West (Mr. Archer) how we get into such a situation. Some things have to be done in a Bill, and others have to be done in orders. We must try to produce a reasonable end product.

It is because I understand the difficulties—and I think that this is accepted—that on every occasion I have not hesitated to give firm and clear assurances on what I understand to be the intention. I have given assurances which, so far as they go, bind the Government. That is the most that I can do, as right hon. and hon. Members know.

I do not shrink from putting this on the record. It is not intended that officials should have the right to say "You, you and you go to the county court". That is not what is intended. It is to be a judicial decision, after the parties have been heard, subject to a right of appeal.

Those assurances do, I hope, put a different complexion on the matter. Perhaps they do not go as far as some hon. Members would like, but I believe that they put a different complexion on it from that which one gets from just looking at the statute. The assurances would not necessarily be found in the statute anyway. Giving effect to them would normally depend upon the rules.

The point feared by the hon. Member for Mitcham and Morden (Mr. Douglas-Mann) will not arise. I understand that the amendment replaces section 115 of the existing Act, and a party will be able to apply. In a manner that is common, provision relating to how a party applies will be set out in the rules.

I am obliged to my right hon. Friend the Member for Crosby (Sir G. Page) for raising this matter. It is only by a combination of what we are now doing and of the rules make under the Bill, the County Courts Act and the order to be debated next Tuesday that we arrive at the final and complete answer. I can only do my best, as a practitioner all my life, to assure hon. Members that they are pushing

'TRANSFER OF PROCEEDINGS TO HIGH COURT BY ORDER OF HIGH COURT
75B.—(1) If the High Court thinks it desirable, at any stage in proceedings commenced in a county court or transferred to a county court under section 75A of this Act, that the proceedings, or any part of them, should be heard and determined in the High Court, it may order the transfer to the High Court of the proceedings or, as the case may be, of that part of them.'.
(2) The power conferred by subsection (1) of this section is without prejudice to section 29 of the Supreme Court Act 1981 (power of High Court to issue prerogative orders).
'TRANSFER OF PROCEEDINGS TO HIGH COURT BY ORDER OF COUNTY COURT
75C.—(1)'

No. 28, in line 35, leave out from first 'court' to end of line 40 and insert 'which the High Court would have jurisdiction to hear and determine if they were commenced in it, other than—

  1. (a) matrimonial causes;
  2. (b) applications relating to the adoption or custody of, or access to, minors (including applications relating to guardianship or custodianship).
(5) This section applies to all proceedings transferred to a county court under section 75A of this Act.'.

No. 29, in page 106, line 46, after `for', insert 'of'.

No. 30, in page 107, line 27, after `(interpretation)', insert—

  1. '(a) after the definition of "landlord" insert— "'matrimonial cause' has the meaning assigned to it by section 10(1) of the Matrimonial Causes Act 1967; "; and
  2. (b)'.—[The Solicitor-General.]

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