§ On the Motion that the Report of the Amendment of this Bill be received,
§ LORD LYNDHURSTclaimed the attention of their Lordships for a few moments to a point of law which had arisen under the present Act. He would state in a few words the case out of which the point of law arose. A tradesman sued his debtor for 51., and obtained a judgment for his claim, and costs. Those costs included the fees, as limited by the Act, given to the attorney. Having received his money and the fees for the attorney, he was satisfied with the decision of the court and the speedy administration of justice. In a few days afterwards, however, his attorney called upon him, and presented him with a bill of costs for 22l. The tradesman was astonished, and said, "I received the sum for which I sued, and paid you the fees sanctioned by the Act of Parliament. 755 What is the meaning of this application for 22l?" The attorney's reply was: "The costs which you paid me are costs for the proceedings in court, but these are preparatory costs out of court; here are costs for entering proceedings, for instruction to sue, for examination of witnesses, &c." This answer did not satisfy the tradesman, who refused to pay. The attorney then made application to the County Court for these costs. A County Court Judge, whose keenness for scenting out the meaning of an Act of Parliament is most extraordinary, said at once—"The attorney is right. He is entitled to recover his costs for proceedings in this court, but he has also a right to his costs for the necessary proceedings out of this court." The order of the Court then was that this bill of costs, amounting to 22l., should be taxed, and it was then cut down to 11l. 4s. So that the result to this tradesman was, that he received his debt of 5l. and costs, but was made to pay 11l. As for it, leaving him about 8l. out of pocket. This, however, was not all. If he had sued in the Superior Courts of Westminster he could have recovered this sum from the other party, the defendant; and it was most just and reasonable that he who had refused to pay a just demand should pay the costs of the proceedings resorted to to enforce it. But, according to this County Courts system, the successful suitor, or the plaintiff who recovered the debt, had to pay all the costs of recovering it, except the small sum of 15s. Such a system seemed so inconsistent with the plainest principles of justice, that he had deemed it his duty to state the case, with a view to the grievance being remedied. He certainly very much doubted whether the persons who framed the Act, or the Legislature who passed it, supposed that it would admit of the construction now put upon it by the learned Judges.
LORD BROUGHAMquite agreed with his noble and learned Friend in his latter observation; but it was not at all unusual for judicial constructions to be put upon Acts of Parliament which the framers of them had never expected; and he thought with him, that the construction recently put upon the Act of 1846, which was, he believed, introduced by the noble Lord (Lord Lyndhurst), and adopted by the late Lord Cottenham, must have been a surprise to its authors. Very great difficulties, however, existed upon the whole subject of costs, which was a question very 756 hard to deal with, whether as regarded costs in superior or inferior jurisdictions. He held it to be perfectly impossible that the abuses now existing could be allowed to continue. There must of necessity be some remedy applied. It must either be stated by a declaratory enactment that the construction put upon the Act of 1846 was erroneous; or, if that construction was held to be right and sound, some remedy must be provided for the mischief. The evils that arose from the malpractices of some persons engaged in the lower branch of the profession, not only in the County Courts, but also in the Supreme Courts, were too well known to need any observation from him; but he would fain hope that the public voice, which had been frequently raised upon the subject, was influenced by the ordinary mistake of applying to many what might be the faults of a few. That the law should be such, however, as to enable any persons to commit offences—for he could call them nothing less—-of this kind, was a matter, in his opinion, deeply to be regretted.
§ LORD LYNDHURSTexplained, that he had not meant for a moment to suggest that the construction put upon the Act of 1846 by the Courts of Law was not correct. The question had been first decided, he believed, in the Court of Common Pleas, and the decision of that Court was afterwards confirmed by the Court of Queen's Bench.
LORD CAMPBELLobserved, that ha had no idea that his noble and learned Friend (Lord Lyndhurst) would have fallen into such an error as to call upon their Lordships, when sitting as a legislative body, to deal with the decision of the Superior Courts of Westminster Hall. If the decision of those Courts was wrong, it might be subjected to the review of their Lordships when sitting as a Court of Appeal; but the present occasion was not the time to deal with the decision of the Courts of Law. He quite concurred in the decision which the Courts of Law had come to upon the subject; and he was sure that if his noble and learned Friend looked at the language of the County Courts Act, he could not fail to come to the same conclusion, namely, that the restriction Was confined to the costs incurred by the proceedings actually taken in court, and not to the costs of the preparatory steps taken in a cause. He thought that it was highly desirable that this subject should be reconsidered, but it was one of great difficulty; 757 and it was necessary to guard against a suitor being unable to obtain respectable professional assistance, by making the amount of remuneration too low. It was necessary in bringing an action to employ a respectable attorney, and that he should be a person of intelligence. It was often requisite that long accounts should be examined into, and other matters attended to, and it could not be expected that a respectable solicitor would take all that trouble for 15s. If a client were restricted from paying any more, it would have the effect of depriving him of professional assistance. If any means could be proposed by which the clue administration of justice could be secured, and an attorney could be satisfied with the payment of 15s., he would most willingly consent to their being adopted.
§ LORD LYNDHURSTbegged again to say that it was not his intention to suggest that the decision of the Courts of Law upon this subject were erroneous. He was satisfied that, looking at the words of the Act of Parliament, they could have come to no other decision. He believed, however, that he was justified in stating that his noble and learned Friend had given two contrary decisions upon this point. The Court of Queen's Bench at first decided that the costs which an attorney could demand were restricted to the costs mentioned in the Act. The question was then argued before the Court of Common Pleas and the decision of the Court of Queen's Bench referred to. The Court of Common Fleas, however, decided contrary to the Court of Queen's Bench. The matter was then argued a second time in the Court of Queen's Bench, which Court pronounced a similar opinion to that given by the Court of Common Pleas, thus overturning its first decision, he was quite justified in saying that the person who framed the County Courts Bill, and the Legislature which passed it, did not think such an interpretation would have been put upon one of the clauses. It had been said that it would be injurious to the suitor not to allow him an attorney of respectable character to get up the case before it came into court; and he entirely agreed in that opinion. His complaint, however, was this. In a Superior Court, if a person was defeated, all the just costs fell upon him as they ought to do; whereas in the County Court a great portion of those costs was obliged to be paid by a party, even though he succeeded in his action.
LORD CAMPBELLwas understood to say, that with respect to the contrary decisions of the Courts of Law upon this subject, he did not preside over the Court of Queen's Bench at the time when their first judgment upon the matter in question was given. The point was decided by the Court of Common Pleas, and afterwards it came before the Court of Queen's Bench. He entirely agreed with the decision given by the former Court, and so did the other learned Judges of the Court of Queen's Bench. He might mention that very high legal authority, Sir John Patteson, whose loss as a Judge was now deplored, was of a similar opinion with the rest of the Judges. It was true that he was rather inclined to think that an attorney could only recover the costs mentioned in the Act of Parlialiament; but he afterwards admitted, with that candour which characterised him, that he had altered his opinion; and the Court of Queen's Bench, therefore, were unanimous in the decision which they had given upon the subject.
LORD BROUGHAMsaid, that this showed that there might very well be doubt as to the meaning of the Act, and that the construction put upon it might have surprised its author. If there was any doubt upon the point, a declaratory Act would satisfy all the requirements of the case; but he understood that there was no doubt whatever, and therefore there was no need of such a proceeding. It should be recollected, in fairness to the Act of 1846, that a party had the choice of his court, and if he thought the case would require a greater preliminary expenditure than could be recovered as costs in a County Court, he might bring his action in a Superior Court. He did not say that that was a sufficient remedy. The point would be matter for consideration, and he had no doubt that upon consideration means might be taken to make the Act work more effectually.
§ The EARL of DERBYmust apologise for saying a single word when so many noble and learned Lords had discussed this point. It appeared that there was no question that the Courts of Law were now agreed upon this subject, and that a decision had been given, which decision also appeared to be contrary to the meaning and intention of the framers of this Act. And it was not a question, as it appeared to him, of very slight importance with reference to the future interests of suitors in the County Courts; because the object of the framers of the Bill was clearly to 759 limit the amount of the expense, and thereby to induce suitors to go to what was to be at once an economical and an expeditious tribunal for the adjustment of small debts. After holding out these inducements, however, it was subsequently found that the law by no means secured this economy; but that along with the same costs as were paid before, they actually inflicted an additional injustice; because, although it was true that the plaintiff could not recover more than a certain amount of costs, yet it was clear that his attorney might charge any extent of costs under the new construction that had been put upon the statute. The consequence was that the suitor was put to greater expense. [Lord CAMPBELL: The costs maybe taxed.] He was aware that costs might be taxed in the inferior as well as in the Superior Courts; yet they might be as large in the fermer as they were in the latter. But the evil and injnstice was this—that the plaintiff in the Superior Courts would be entitled to receive the costs, but in the County Courts he would not be entitled to receive them; and he who was proved to be in the right was called on to pay expenses, which, if the action was brought in the Superior Courts, would be thrown on the party—the defendant—who, by the result of the action was proved to be in the wrong. That state of things had been brought before the House by his noble and learned Friend with all his usual clearness; and surely, when they were proposing to pass a measure for the extension of the jurisdiction of the County Courts, it was now the fiting time to consider how they might remedy this acknowledged evil. He did not presume to suggest what that remedy ought to be; but he did think that when a measure was in progress for extending the jurisdiction of the County Courts, it was their bounden duty to see that the operation of those Courts did, in point of economy, meet the object for which the Act constituting them was originally framed.
LORD BROUGHAMsaid, that it was a mistake to suppose that this Bill would enlarge or extend the jurisdiction of the County Courts, in the sense of giving them the power to deal with debts of larger amount, or with cases of a different nature from those which already came before them. It was merely intended to enable the Court of Chancery to entrust to the County Courts the conduct of certain inquiries which at present took place in the Mas- 760 ters' Offices. He did not think, therefore, that the suggestion on the subject of costs was germane to the object or scope of this Bill. The costs arising under this Bill would be costs connected with the Court of Chancery, and not with the County Courts.
§ The MARQUESS of LANSDOWNEconcurred with the noble Earl opposite (the Earl of Derby) in thinking that if doubts had arisen as to the original intention of Parliament with respect to the County Courts Act, it was now the proper occasion for correcting the ambiguity in the language of the statute.
§ LORD CRANWORTHthought the noble and learned Lord did not do justice to his own Bill in saying the present subject was not germane to it. It was a most appropriate place for introducing any provision which the Legislature might think fit with regard to costs. At the same time this was one of the most difficult subjects that they could have to deal with; for all-important though it was to limit costs to a minimum, on the other hand, unless such a remuneration was allowed as would secure the assistance of a respectable professional man, they would cause suitors to lose more than they would gain. It was a scandal to justice that the fair and reasonable costs incurred by the plaintiff, through the wrongful resistance of his debtor, should have to be borne by the former. At the same time, if heavy costs arose through the suitor not being prepared, and not having his materials ready for the trial as he ought to do, the defendant ought not to be made to pay them. It would be impossible to judge how far the costs of 11l. in the case cited by the noble and learned Lord (Lord Lyndhurst) were justly payable by the plaintiff, without first examining and analysing the different items of which they were composed. It might, for instance, be that the suitor did not know his own case, and his solicitor had to perform journeys to a distance to get up information; and in that case, as the defendant would not be blameable for the carelessness of his creditor, it would not be fair to throw upon him the burden of such costs.
LORD BROUGHAMexplained that his reason for saying that this question of costs was not germane to the purpose of the Bill, was because the extension which it proposed was confined exclusively to the equitable business, the costs attending which would belong to the Court of Chancery, and not to the County Courts.
LORD CAMPBELLsaid, surely the object of this Bill was not merely for the extension, but for the improvement, of the jurisdiction, and he considered it would be such an improvement to insert some provision for the regulation of costs.
§ LORD LYNDHURST,in reference to the j remarks of his noble and learned Friend (Lord Cranworth), observed that the information he had received was obtained from the very best possible authority in a matter of that kind, because it was from the person whose duty it was to tax the costs; and that gentleman had informed him that the costs in this case taxed were precisely the costs which would have been allowed if the action had been brought by an attorney in the Superior Courts.
§ The EARL of DERBYrenewed his application to the noble and learned Lord to allow a clause to be introduced for the purpose of removing all doubts as to the intention and meaning of Parliament on the subject of these costs. They professed to limit their amount, and yet the plaintiff, who obtained a judgment in his favour, was not allowed the expenses to which he had been put to make good his claim. He hoped this deception would not be suffered to continue.
§ EARL FITZWILLIAMthought if they refused to make this Amendment, that the public out of doors would consider that their Lordships had not a very sincere desire to deal with the subject of lessening-costs.
LORD BROUGHAMsaid, he had no objection to insert a clause of the nature suggested; but he thought it better to defer it till the third reading, in order to afford time for proper consideration.
§ EARL GREYconsidered it highly irregular and inconvenient to introduce any clause of importance on the third reading, where such a step could possibly be avoided; because if any mistake was made, there was no opportunity of correcting it. He therefore earnestly hoped that the noble Lord, if he wished to make this addition, would postpone not merely the third reading, but the report.
LORD BROUGHAMacknowledged the force of the objection to introducing material alterations into Bills on the third reading, and therefore thought the best course would be to postpone the present stage of the measure, namely, the consideration of the report, until he had had an opportunity of further examining, not only the present objection with regard to costs, but also the 762 complaints of Judges of County Courts themselves, who felt as well as the merely professional parties that hardship and injustice occurred in many instances from the present state of the law on this subject.
§ Report of the Amendments put off to Tuesday next.