HL Deb 03 June 1853 vol 127 cc1074-9

said, he had to present a petition, to the subject matter of which he wished to call the particular attention of their Lordships. He was sorry to trouble their Lordships with it on that occasion; but the fact was, that if he postponed it till next week it might then be too late for the purpose he had in view. The petition was from Mr. George Thomas Whitington, of No. 2, New Broad Street, in the City of London, commission agent, complaining of the present practice of the County Courts, which prevents amicable arrangements being made by suitors in such Courts. The petitioner also complained, on the same grounds as the gentleman from whom he presented the petition yesterday, not of the practice of the County Courts, nor of any one connected with them, as was most incorrectly supposed, but he complained, as he (Lord Brougham) had repeatedly complained, and ever should complain until the grievance was removed, of the abuse, whereby the expenses of maintaining those courts was thrown upon the suitors, instead of being defrayed by the State. Mr. Whitington showed, by the statements and the details which he furnished in his petition, how much he had suffered by such a law in his extensive occupation as a commission agent—a business which necessitated his frequent recourse to these courts; and he testified how far the exaction of fees did, in many cases, bar the access to these courts. Great misapprehensions had prevailed on this subject, both out of doors and in doors. Above all, it had been most incorrectly imagined that those who complained of the fees were complaining of the officers of the court—of the judge, the clerks, and the bailiffs. It was, however, quite the contrary. It was still more incorrect—as had been sometimes rashly supposed—to say that they complained of the County Courts. It was quite the reverse. So far from complaining of this institution, it was because they were most friendly to the County Courts, and on that ground alone, that they complained of the heavy fees by which suitors were made to pay for what the State should bear, and which barred numbers of suitors from the access to the cheap and expeditious administration of justice these courts were intended to provide. He had stated on a previous occasion, in round numbers, that he proportion of the fees charged in these Courts, as compared with the amounts recovered, was nearly 25 per cent; but as some doubt appeared to exist as to that fact, he would substantiate his statement by quoting the returns which had been furnished to both Houses of Parliament. It appeared that in 1851 the sums sued for amounted to 1,600,000l., and the sums recovered by judgments to 815,000l, upon which the sums levied as fees amounted to no less a sum than 272,000l., which, as their Lordships were aware, went to the payment of the salaries of the judges, the clerks, and the staff of the Courts, so to speak. This amounted to about 33 per cent; but if they deducted the sums paid into court, which might amount to about 100,000l., and also the sums paid on serving the summons, they would reduce the percentage some 7l. or 8l., and bring it within a trifle of 25 per cent, as he had previously stated. Now, they were all agreed that this evil could not be allowed to continue; the only question was as to the mode and manner of removing the evil, and substituting a better system in its stead. He would not, therefore, dwell upon this question, but would proceed to call the attention of his noble and learned Friend (Lord Lyndhurst) to what he conceived to be a matter of very great moment. It would be in the recollection of their Lordships that, in consequence of his noble and learned Friend having called their attention to the unsatisfactory manner in which the costs were arranged in the County Courts, he (Lord Brougham) inserted in his County Court Extension Bill, which was then pending, a provision to the effect that the Great Seal should issue a commission to proper persons—County Court judges—authorising them to prepare a scale of fees to be laid before three of the Judges of the Superior Courts at Westminster Hall—which scale, upon obtaining the approval of those Judges, should then, but not till then, become the fees of the Court. That Commission had been issued, and the Commissioners had since reported to the Judges of the Superior Courts a scale of fees to be charged by officers of the County Courts, and by the practitioners in those Courts. The learned Judges to whom the scale had been submitted, taking advice of the most competent officers, were (as he understood) about to approve substantially, but with some alterations, of the scale suggested by those officers. A rumour had reached him, which he was most reluctant to credit (though he was bound to pay attention to it, from the manner in which it had reached him), reluctant, because if it were true, and some immediate steps were not taken to frustrate the intentions supposed to exist, there would be a report made by these Judges, affirming, not the scale of fees which the County Court judges, and other persons experienced in the practice of those Courts, had agreed to, but a scale of fees that must have the effect of nullifying one of the most important provisions of the County Court Acts. It would be remembered, that in consequence of the precipitation with which the County Courts Act of 1846 was passed, it contained many defects, and, among other things, there was omitted from it the clause which was subsequently introduced by him (Lord Brougham), and which was known as "the optional clause"—one of the provisions in the original Bill of 1833—by which, with the consent of both parties, the County Courts were entitled to try any sort of cases and to any amount. Professional interests had prevented that clause being used in many cases in which it would have been used; other jealousies also had tended to restrict its full operation. Nevertheless, it had been adopted to some extent; and wherever it had been, it had produced the best possible effects. But what were we threatened with now? If the rumour to which he was reluctantly compelled to allude were not wholly groundless, there was about to be made such an alteration of the Act as he would call a repeal of the optional clause. It was said, he hoped and trusted untruly, that in a very short time forth would come the "approved disapproved" scale of fees—a scale of fees approved by the friends, and practitioners, and judges of the County Courts, but disapproved by others not belonging to those Courts, and not friendly to their jurisdiction; and the scale which they prescribed was this, that no costs should be allowed to any attorney in the County Courts for any cause under the optional clause, that was to say, any cause above 50l., beyond such costs as he might have in the Superior Courts at Westminster on an action under 20l., so that in the most important causes that were brought into these Courts, the only costs that were to be allowed could only equal those chargeable in the least important causes in the Superior Courts. This would occasion a very considerable increase in the business of Westminster Hall, and a corresponding diminution in the business of the County Courts—


was understood to express his conviction that the rumour was unfounded.


continued: He, too, thought it must be unfounded. He trusted it was; He understood that there was a dictum in high quarters to the effect that the County Courts were merely small-debt courts, and Unfortunately the name "Small Debt Courts" was used in the title of the Bills respecting them. But they could no longer be called Small Debt Courts when they had jurisdiction to the extent of 50l.—ay, and when by the optional clause they had jurisdiction to any extent and in any case; not to mention the new jurisdiction given by Bills now on the eve of passing. From hearing that this phrase of Small Debt Courts was the common form of expression in certain quarters, he had been inclined to lend his ear, though most unwillingly, to the report which had reached him of sinister intentions with respect to those courts. Should there be any foundation for that rumour, it would be the bounden duty of their Lordships—and he should be glad to assist them in the task—to see that there should not be, by any indirect proceeding of that sort, an actual repeal of a most important legislative provision. But he trusted that it would not be necessary for their Lordships to be further troubled on the subject.


said, that, not having heard of this subject until it was mentioned by the noble and learned Lord who had just spoken, he was of course entirely uninformed with respect to the matter which he had referred to. He (the Lord Chancellor) could only say, that he was quite satisfied, from the quarter from which the decision as to these fees was to come, that nothing underhand could be intended. It would, he agreed, be extremely wrong not to make such a scale of costs as would fairly remunerate attorneys bringing actions in the county courts under this "optional clause;" but, on the other hand, it was essentially necessary that these costs should not be excessive, or otherwise the very object which was in view in the institution of these courts would be defeated. It should be remembered, also, that the labours of professional men in these courts would be much less than in conducting the same causes in the superior courts, and it was, therefore, extremely important for the interests of the suitor that the costs should not be raised to a very high rate. Whatever the decision of the Judges might be, he was convinced they would be able to give such reasons for their recommendation as would satisfy even his noble and learned Friend, if not of the soundness of their judgment, at least of the purity of their intentions.


said, he had appointed the gentlemen who had had to consider the scale of charges in that case, and he had taken great pains to select the most competent persons for the task. It appeared to him that their Lordships ought not to enter into any discussion upon the point until they should have had before them the Report of the Judges to whom the consideration of the scale of charges had been referred.