Lords Sitting of 18 June 1855

Minutes.
PUBLIC BILLS.1a Assizes and Sessions.
2a Insurance on Lives Abatement of Income Tax Continuance; Cinque Ports.

FEES IN COUNTY COURSTS, AND SALARIES TO COUNTY COURT JUDGES.
LORD BROUGHAM, rising pursuant to notice, to call the attention of Her Majesty's Government to the subject of County Court fees, said: I need not remind your Lordships that this is a subject of great importance in connection with the administration of justice in County Courts. I am aware that, according to the usual practice in your Lordships' House, the notice of an intention to put a question, on such a notice as I have given, has been made use of merely as the means of making a statement; but I most willingly waive my right to do so on the present occasion, because I have so often brought this matter before your Lordships that any lengthened statement on the subject would be not only superfluous but tiresome. I consider it quite unnecessary to go over the same ground again—the more so as no answer has been given, or even attempted, to my former arguments. The facts are therefore admitted, and the only observations with
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which I shall trouble your Lordships, apart from the immediate subject of my notice, shall be in answer to the assertion ordinarily made that these County Courts are merely small debts' courts, that the amount of business in them is limited, and that they are, therefore, of subordinate importance. That, however, as I shall easily prove to you, is not the fact. Upon the passing of the Act brought in in 1845 by my noble and learned Friend behind me (Lord Lyndhurst), which was a part, but a most important part, of the original Bill brought in by me both in 1831 and 1833, the amount of business done in the Superior Courts was reduced from 120,000 causes in the year to an average of between 80,000 and 81,000; and on the adoption, in 1851, of what is commonly called Mr. FitzRoy's Act, which extended the jurisdiction of the County Courts, and raised the maximum sum to be sued for from 20 l. to 50 l.—the Bills of 1831 and 1833 having gone as far as 100 l.—it has been ascertained that 40,000 out of these 81,000 causes involve sums of 50 l. and under—that is, sums to which the County Court jurisdiction, since 1851, applies. Such being the fact, I hold it to be utterly preposterous to treat these County Courts as small debt courts, when one—half the cases tried in the Superior Courts refer to those sums which can be sued for in the County Courts. Since the jurisdiction of these courts was extended by the Act of 1851, the number of causes tried there has amounted to 450,000, and of these, from 12,000 to 13,000 are for sums varying from 20 l. to 50 l. The extension of this jurisdiction was a most important step; but, I am grieved to say, it was vehemently opposed in the House of Commons by a learned Friend of mine, now Chief Justice of the Common Pleas, and then Attorney General. Nevertheless, the opposition of that learned person was offered in vain; he was defeated, and the Bill passed your Lordships' House without any opposition whatever on the part of the noble and learned Lords forming a portion of the Ministry at that time, and thus an indication was afforded that the opposition offered to the measure in the House of Commons was not the opposition of the Government. With respect to the County Courts "fees," as they are most incorrectly called—for it is not against the fair fees taken by the practitioners of the courts, but against the taxes levied by the Government, that complaint

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is made—they amount to 270,000 l. a year. Now, look at the Superior Courts. The fees taken in those courts—where not only causes of moderate amount, in respect of which the County Courts have concurrent jurisdiction, are tried, but causes of a much larger amount, the parties to which are, therefore, much better able to pay these taxes—the fees taken in the Superior Courts are restricted by a recent arrangement, partly statutory, to 50,000 l., instead of 270,000 l., and the salaries of the Judges and other officers are paid out of the Consolidated Fund. The suitors in the Superior Courts are taxed to this comparatively moderate amount. I have stated the number of causes tried in the County Courts, out of the whole 450,000, which involve sums of between 20 l. and 50 l.; all the rest are for sums under 20 l., while some are for as many shillings, and the best proof I can give of the kind of suitors who go there, and are oppressed by the extortion of these fees, is the fact that the greater number of the poor people brought there for non-payment of their debts are persons who do not deny the debt, or even dispute the amount, but are brought into court by the creditors who try to obtain what they can of the money due to them. I have the authority of a most able and eminent Judge in one of these courts for saying that, in nineteen, out of twenty cases the poor people, the debtors sued in his court, get an order to pay by instalment, to which, in hardly any case, does the plaintiff, the creditor, object. Yet these are the individuals on whom the Treasury plants its long and iron hand for the purpose of extorting from them sums wherewithal to pay the Judges' salaries, and to defray the other expenses attending the administration of justice, which it is the bounden duty of the State to defray. Another of the Judges states that it is no uncommon thing in his court for persons to be sued who are paupers or are receiving parish relief. My Lords, I find that the fees, or, to give them the right name, the taxes imposed by the Government, amount to 17½ per cent on the 1,500,000 l. annually sued for in those courts, while upon the money actually recovered and paid into court they amount to 31 per cent. But these are only averages; the pressure, of course, is far greater in some instances. When I first brought this subject before the House I gave one or two instances of the way in which these taxes oppress the suitors, and
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I will now add, or rather remind your Lordships of one or two examples to show the effect of this oppression. In one case, where the amount sued for was between 13 l. and 14 l., the attorney's fees and charges—the honest charges, as contradistinguished from the taxes—amounted to 2l. 16 s., while the court fees or taxes upon the cause were 4l. 18 s. 6d. Think of taxes to that amount being imposed upon the recovery of a debt of 13 l. In another case, where the amount sued for was 14 l. 3s. 6d., the taxes were 7l.5s. 9d., being above 51 per cent upon the debt. In a third case, where the sum sued for 18 l., the taxes amounted to 10 l., and the last instance I shall refer to was a case in which the sum of 5l. was sued for under the Optional Clause, in which case the taxes were 8l., being not 17 nor even 70 per cent, but amounting to 160 per cent upon the sum sued for. I am sure I need go no further to induce your Lordships to concur with me in the hope that this shame, this scandal upon the administration of justice in England, should be removed as speedily as possible. In all other countries such a system has been abandoned, and I think it is high time it should cease here. My Lords, I wish now to say a word or two in reference to the salaries of the County Court Judges. I admit that at one time I held the opinion that a different salary should be paid in different County Courts. I leant to this view when I first brought in the County Courts Bill in 1831, and then in 1833; but since that time, upon mature consideration, my opinion has been changed. I believe it to be most injudicious—the most inconsistent with the judicial office, and with the due administration of justice—to pay these learned persons, as it were, by the piece, according to the amount of work done, for it is manifest that the same high qualifications, the same degree of learning, talents, industry, integrity, and high sense of honour are required in all cases alike, whether the duty which each Judge has to perform be greater or less. I affirm, my Lords, it is contrary to the nature—I will not merely say to the dignity—of the judicial office that such a state of things should be allowed to continue, and that these Judges should be paid either by fees or in proportion to the work done, or to the average amount of business brought before their respective courts. The tests adopted by the Treasury, in the exercise of their discretion,

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are confessedly nugatory, because they are not according to the facts, and each one of them differs from the other just as all alike differ from, and are inconsistent with, justice. Only think of persons filling judicial offices being told, "Your are to have a salary of 1,200 l. a year at the lowest, hut there is a further sum of 300 l. a year with regard to which it is left to the Treasury to say not only whether you shall have all but any part of it." Accordingly, we find that, of this supplemental sum, the Treasury allows to one Judge 150 l., to another 100 l., and to a third 200 l., so that there may he Judges who receive only 1,200 l., others who are paid 1,350 l., another class 1,400 l., and a fourth class to whom is paid the whole amount of 1,500 l. To such an arbitrary and preposterous system I object in toto, and I think your Lordships will agree with me in considering that these differences and distinctions ought at once to cease, and that there ought in future to be one fixed and uniform salary. There are many anomalies in doling out this additional 300 l. a year, under the present system, which I might mention; for when I look into the practice of each of these learned Judges I find that in several instances the persons paid most had least to do, and the least important cases, while those who did the most work were paid the least. But I need not enter into further details. It is sufficient for me that the County Court Judges are not paid as all judicial functionaries ought to be paid—out of one fund, and by an equal and fixed salary. I may add, that in making these observations I have not one word to say against the able and learned person who is Secretary to the Treasury (Mr. Wilson), and who carries on the official correspondence with the County Court Judges on this subject. He is a gentleman of great eminence and ability, and it is from no spirit of unkindness towards him that I have made these remarks, nor have I the slightest idea of throwing any imputations upon that individual, whose writings were, I well remember, strongly recommended to me by no less eminent an authority than the late Duke of Wellington, and I found he had most justly vouched for their merit. What I have said has been simply prompted by a sense of justice, in condemnation of the system, and from a desire to see the evils to which I have alluded removed as speedily as possible.
LORD PORTMAN: I entirely concur in
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the observations of the noble and learned Lord upon the subject to which he referred in the latter part of his speech, and I feel convinced that very great injustice is done in the way he has pointed out to many of the County Court Judges. My attention has been more particularly called to this subject by a County Court Judge in the district in which I reside, who receives less than the full amount of salary, and who complains, as it seems to me with justice, not that the salaries given differ in amount, but that this difference is not based upon any fixed, distinct, or intelligible principle. There seems to me to be no principle upon which the distinction between the salaries is made. The will of the Treasury appears alone to determine the point, and for the reasons given by the noble and learned Lord I cannot but disapprove of any such distinction where it is founded on no sound principle. I could understand a difference being made in favour of those Judges whose courts were considered of greater importance, and whose judicial rank was looked upon as higher than others, in the same way as a higher salary is paid to the Chief Justices of the superior courts than to the Puisne Judges. But I cannot understand such a distinction in a case where all the Judges are equal, and I can conceive nothing more likely to affect, prejudicially, the independence of the Judges of these courts or indeed of any persons holding judicial offices, than that the amount of their salary should be made to vary according to the discretion of the Treasury. This is a state of things which, I think, should be at once put an end to; the Treasury Minutes on the subject are contradictory in themselves, and the elements selected, upon which this distinction of salary rests, appear to me to be insufficient to meet the justice of the case. Taking the various elements in question, I find that a fifth element is not included by the omission of which an injustice is committed as between individuals of the same status, which I think affords fair ground for complaint. This fifth element is the distance which a County Court Judge is obliged to travel, and the expense and physical labour which are in consequence entailed upon him in the discharge of his duties. The County Court Judge, to whom I have alluded, says, that he would not complain if any fair principle had been adopted upon which the present difference in the rate of salaries could rest. But the principle appears to be now rather to pay the County Court

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Judges "by the piece," as the noble and learned Lord has said, than by the merits of the individual Judge. This certainly seems as if the Secretary of the Treasury had looked at the question in a light quite different from that pointed out by the law officers of the Crown. He says in defence of the present system, that there is no want of candidates when a judgeship falls vacant, from which he draws the conclusion that the mode of proportioning the salaries cannot be open to any great objection. But, my Lords, I think this is an erroneous principle to go upon, and is not the proper light in which to view the subject. The proper course is to see that an office is fully paid, and then to find the very best man who can be got for the office. Now I cannot help thinking that if your Lordships will turn your attention to the Minutes of the Treasury on this subject, which have been laid upon the table, you will come to the conclusion that it is not right or desirable that a body of gentlemen, sixty in number, occupying so important a position as these County Court Judges, should be dependent on the mere whim of the Treasury as to the amount of their salaries. The financial Secretary of the Treasury appears to have treated the matter as a fiscal question without any consultation with the law officers of the Crown. But I hope the noble and learned Lord on the woolsack, and my noble Friend the Lord President of the Council, will take this subject into their most serious consideration, and reflect whether an irresponsible body represented by Mr. Wilson should be allowed to interfere with the independence of these judicial personages and to have the regulation of their salaries. The Secretary of the Treasury talks of an insignificant class of cases tried by some portion of these gentlemen, and calls them insignificant because the amount involved in them is but small, on which account, these Judges are not, he argues, to be paid like the others. Now I cannot see that such cases are less important than those in which the amount involved is larger. The noble and learned Lord opposite (Lord Brougham) and the noble and learned Lord on the woolsack will not, I imagine, allow that any insignificant cases can be brought before the Judges. The ability required in the administration of justice should be the same, whether that justice be dealt out to the rich man or to the poor man—whether the sum sued for be large or small—and I submit
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that no distinction in the salary of the Judges ought to rest on such a ground.
EARL GRANVILLE: It is not necessary for me to remark upon the interest which any subject connected with the County Courts is sure to evoke, but I feel myself placed in a somewhat embarrassing position on the point referred to by the noble Lord who has just sat down because, not having been aware that the point was going to be brought before your Lordships, I have not been able to obtain any information on the subject, and do not, therefore, know the circumstances connected with the Minute drawn up by the Chancellor of the Exchequer and by Mr. Wilson. Still the subject appears to be one well worthy the attention of the Government. With regard to the evil which the noble and learned Lord (Lord Brougham) has so often brought under your Lordships' notice, I am not able to give any distinct pledge that it will be immediately remedied, although, at the same time, I am bound to admit the justice of the greater part of the arguments which the noble and learned Lord has adduced. It has frequently been a matter of complaint that the salaries of Judges of the superior courts should be defrayed by the State out of the Consolidated Fund, while the poorer class of suitors who repair to the County Courts are required to pay fees for the maintenance of the Judges of those courts. I do not, however, quite agree with those who would place the County Court Judges on a level with the Judges of the superior courts, because I think there is great force in the argument that the Judges of the superior courts, employed, as they are, upon the more important cases, are great constitutional functionaries upon whom great constitutional questions often depend, and who are sometimes consulted and called upon to assist your Lordships in deliberating upon questions of the highest and the gravest character. Such a Judge, having general rather than local duties to perform, is in a somewhat different position to that of Judges who administer justice and decide upon cases brought to them in the various districts throughout the country, and the salary of such a judicial person is most properly paid out of the Consolidated Fund, and most properly remains fixed and permanent. I merely mention this as an argument I have heard used, and which seems to me to possess great force, in order to show that this is not a question to be

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settled without due deliberation. I hope that my noble and learned Friend (Lord Brougham) will be content with the assurance that the Lord Chancellor has very recently brought the matter under the attention of the Government, and although this is not a time when the Government are well able to make new charges upon the funds derived from public taxation, I can assure my noble and learned Friend that the whole question he has brought under notice will receive our most serious and attentive consideration.
LORD CAMPBELLI am not prepared to go quite so far as my noble and learned Friend (Lord Brougham) and to say that no debtor in a court of justice should be called upon to pay his portion of the cost to which the country is put in affording a means of recovery. I may condemn the principle of taxing judicial proceedings, but, at the same time, I do not see anything erroneous in the practice of making the wrong-doer pay at all events a small sum towards maintaining the establishments requisite for the due administration of justice. Formerly, shameful sinecures existed in the courts, and all suitors were called upon to pay for the benefit of persons holding those sinecures. For a long period such offices prevented any reform in the law, but they have happily been got rid of, and I hope will never again be permitted to exist in any court. As regards the county courts, I certainly am of opinion that my noble and learned Friend has pointed out evils which ought to be remedied, one of which is that the plaintiff, under the present system, is obliged to pay an enormous sum in the shape of costs, whereas it often happens that, though the judgment of the court is in his favour, he never receives a single farthing of the sum for which he has sued; I cannot, however, see that it is any great hardship to call upon wrong-doers to pay their quota of the expenses of administering justice. With regard to the other point touched upon by my noble and learned Friend, if it really is the case that the Lords of the Treasury have power to raise or to lower the salaries of the County Court Judges as they think proper, I think such a principle is monstrous, and is one which cannot be endured.
THE LORD CHANCELLOR: The theory of this subject is extremely clear. It is the duty of the State, no doubt, to provide for the administration of justice, but I consider it equally clear that the State is entitled to reimburse itself upon
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the wrongdoer, to the extent of the whole of the expenses to which it has been put, if that be possible, or, at least, to the extent of a large portion of those expenses. If, then, the fees, or, as my noble and learned Friend has called them, "the taxes" levied in the County Courts were merely levied upon the losing parties to defray the charges to which they have put the country and the plaintiff, I should not think there was anything incorrect in that mode of proceeding, either in theory or in practice. But, unfortunately, these taxes are levied in only too many cases upon the plaintiff, the successful plaintiff—for the present arrangement is that the plaintiff should advance a per centage of something like two shillings in the pound upon the sum he claims in order to put the case in train. It is true that the plaintiff is entitled to recover that advance from the losing party on getting a judgment in his favour, but it is one thing to get a judgment in his favour, and quite another thing to get the money in his pocket. The result generally is, or, at all events, frequently is, that the plaintiff, having advanced the money in order to put himself into Court, gets a judgment to enable him to recover that money, together with the original sum claimed by him from the defendant; but then this defendant turns out to be a man of straw, and so the plaintiff has to pay for the privilege of litigation. Now, my Lords, this is a state of things which calls for a remedy, and the subject was inquired into by the County Court Commissioners, who made a Report eight or ten weeks ago, one of their recommendations being, that in this matter there should be considerable alteration. That has been under the consideration of the Government, and I can assure my noble and learned Friend, that one main reason why nothing has been done or is intended to be done in the present Session, is that the whole question of County Courts, which has so often and so ably been brought before your Lordships by my noble and learned Friend, still remains under consideration. The Government feel that this is a matter to which they can no longer shut their eyes; and they know that, whatever may be the other calls upon their attention, and however great may be the other burdens upon the country occasioned by the present state of things, this whole question must be looked into at once, and the County Court suitors must be relieved from that which they consider to be a very

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serious grievance. With regard to the latter part of my noble and learned Friend's observations, as to the salary of the County Court Judges, it certainly is not right that the amount of a Judge's salary should fluctuate at the discretion of the Treasury. I would remind the House that, at one time, when there was a considerable outcry against the amount of the Judges' salaries, Lord Denman, upon his appointment as Lord Chief Justice, with that honourable feeling which always characterised him, in deference to the prevalent feeling that the Judges' salaries were too high, consented to take 8,000 l. instead of 10,000 l. a year. The salary, however, remained upon that footing simply upon Lord Denman's agreement, and he had a right to call for the other 2,000 l. whenever he liked. That was thought a very unconstitutional thing at the time, and a Bill was afterwards introduced into Parliament, with the full consent of his Lordship, to remove from this proceeding its unconstitutional character, and to fix the salary of the Lord Chief Justice at 8,000 l. a year for the time past as well as for the time to come. Now, I think the present position of the County Court Judges' salaries is even more objectionable than that state of things, for it is certainly not right—I may say it is not to be endured—that the Treasury should have the power to say to one Judge, "You shall have 1,500 l. a year," and to another, "you shall have but 1,200 l.," there being no distinction made by which to point out who should be entitled to the higher salary. The Judge who presides over a Court in which only 150 cases are tried within a certain time, should not be told that he must be paid less than a Judge who tries 200 cases, because one Judge, however few may be the cases he tries, has spent as much time as any other in qualifying himself for the situation that he holds; and, as each Judge gives his whole time to the discharge of his duties, I think the salaries ought to be the same. It would be very improper to say that a man whose qualifications, whose knowledge, industry, and unsullied character bear comparison with those of any other in the same position;—that a man who has abandoned his profession, given up everything on receiving this appointment, and who devotes the whole of his time to the discharge of his duties, shall receive a smaller salary because in his district there happens to be less litigation than in another. Certainly that is a very inadequate mode of
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estimating the value of a Judge's services. Even by the present mode of calculation, under the present erroneous arrangement, an erroneous result is arrived at, because I do not think it is always the Judge who does the most work who now receives the highest salary.
LORD BROUGHAM: It will be unnecessary for me to trouble your Lordships with more than one or two words by way of reply to what has fallen from my noble and learned Friend. But I must protest against the doctrine that wrong-doers who have the misfortune to be called into Court ought to be made to pay the expense of administering justice. As well call upon those who have the misfortune to reside on an exposed part of the coast to defray the whole charge of the national defences.
LORD CAMPBELL: Such persons are not "wrong-doers."
LORD BROUGHAM: No, but they are unfortunates; and you single out those who have the misfortune to be defeated suitors, and make them pay a penalty, because you say they are in the wrong, without regarding the circumstances of each case.
LORD DENMANstated, that as his name had been mentioned, he wished to explain the circumstances under which his lamented father's salary was reduced, for it had appeared to him hard that the salary which had been confirmed by Act of Parliament only in the July before the November in which the appointment was made should be taken away by a "side wind." The fact was, that when the salaries of the Judges were settled in the House of Commons, Mr. Denman had voted that the salary should amount only to a sum beyond its then fixed rate equivalent to the loss of saleable offices to which the Lord Chief Justice was entitled, but no such office was vacant during the period in which Lord Denman held his office, and he never regretted the reduction, and was glad to avoid discussion of the subject amongst those with respect to whose rights he would have to adjudicate.
His opinion always led him to allow the payment of "law taxes by those who set the law in motion;" and when causes below 50 l. are tried in the Superior Courts, it shows that the suitors prefer those courts to the County Courts. Moreover, if you crowd those courts with actions for large sums, the delay that will arise in petty actions will greatly increase their expense,

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and the payment is only like the prepayment of the postage. The surplus above 1,200 l. a year should depend on some fixed principle, to be ascertained by the County Court Judge, as easily as the fees in the office of county magistrates.
House adjourned till To-morrow.