HL Deb 16 May 1862 vol 166 cc1786-9
LORD CHELMSFORD

rose to put a question with reference to the Schedule of Fees to be paid on Proceedings in the County Courts ordered by Two of the Commissioners of Her Majesty's Treasury, with the consent of the Lord Chancellor, by Order of the 10th of April, 1862. The noble and learned Lord said, that by the County Courts Act, 19 & 20 Vict., s. 79, it was provided that the Commissioners of the Treasury, with the consent of the Lord Chancellor, might from time to time lessen or increase the fees set forth in Schedule C of the Act as payable on proceedings in County Courts, or substitute other fees, or order new fees to be charged on proceedings, either now or hereafter to be authorized, whether any fee be now payable thereon or not. Their Lordships would observe that this was a statutable authority, and could only be executed in the way prescribed. There was no power whatever for the Lords Commissioners of the Treasury to make any change as to the persons by whom those fees should ultimately be paid, that being dependent upon the wording of the original County Courts Act, which provided in sec. 88 that all costs should be paid by or apportioned between the parties in such manner as the Judge should think fit; and in default of any special direction by the Judge, they were to abide the event. The Lords of the Treasury had, however, made an Order, dated the 10th of last month, which directed in its second paragraph that when the claim was more than 40s. a fee of 1s. should be charged in addition to the existing fees, which fee was to be paid by the plaintiff, and not to be considered as costs in the cause. It appeared to him that such an Order was beyond the powers of the Lords Commissioners of the Treasury, and contrary not only to the County Courts Act, but to the very earliest Act upon the statute-book in reference to costs, namely, the statute of Edward I., which gave costs to the plaintiff in case he succeeded. He felt that this was a matter which might very reasonably hare escaped the attention of the noble and learned Lord on the Woolsack, and that he gave his sanction to the Order submitted to him by the Lords of the Treasury, naturally supposing that they had satisfied themselves of their power to make it. In order that Parliament should have early information of any Order of this kind, a section was in- troduced into the Act requiring that returns of all such Orders should he laid before Parliament; but it was so worded as in a great measure to defeat its intention, except as regarded Orders made during the recess. As it stood, it required such Orders to be presented within ten days of the next meeting of Parliament; SO that if made immediately after the commencement of a Session, they might be in operation twelve months before any check could be put upon them by Parliamentary interference.

THE LORD CHANCELLOR

expressed his thanks to the noble and learned Lord for the courteous manner in which he had called attention to the subject. The particular point, however, to which the noble and learned Lord had referred had not been sanctioned by him inadvertently: it had been carefully considered by him (the Lord Chancellor), and he had come to the conclusion that what was expressed in the Order was within the scope of the authority given to the Lords of the Treasury under the Act, and he accordingly gave his consent to it; although he admitted it might have been better had he requested the Treasury to take the opinion of the law officers of the Crown in the first instance. Their Lordships were aware that the cost of the County Courts was exceedingly great, and it appeared to him to be increasing. What with the sum granted by Parliament and the sum received by way of fees the cost of the County Courts for this year would be no less than £509,184. Now, if this was for expenses incurred in the administration of justice, it would be cheerfully borne. But the greater part of the County Court system might be described as a great machinery for the collection of small debts, and the distribution of the money among creditors; and strictly speaking this could not be considered a part of the administration of justice. Persons gave credit upon the faith of those proceedings, and used the County Courts for the purpose of collecting their small debts. The greater number of the orders made by the County Court Judges had reference to the payment of small debts by instalments. The Government had undertaken to receive these small sums of money, and accordingly they were obliged to have very large establishments, which were more in the nature of large banking-houses than anything else, where these small instalments could be received and paid out again to the plaintiffs. In the early part of the County Court system there were three distinct classes of fees which were ordered to be paid by plaintiffs and not by the defendants—fees for giving instructions by the plaintiffs; fees for answering inquiries as to whether money had been received; fees for paying out money to the plaintiffs, and for giving notice to the plaintiffs that money had been paid in. Those fees were some time ago abolished; and it appeared, on the suggestion of the Treasury, to be just that some fees in diminution of the general expenditure should be thrown on the plaintiff, which fees should represent the contribution to be made by him towards the liquidation of those expenses incurred by the Government for his especial benefit in acting as the recipients of the small sums paid in to his credit. Notwithstanding, however, that it might be very desirable to take that course, yet the question raised by the noble and learned Lord still, he admitted, remained in all its integrity—whether the words of the Act of Parliament sanctioned the accomplishment of so desirable an object. For his own part he was of that opinion, and he trusted their Lordships would arrive at the same conclusion. Under the Act of Parliament the authority to impose fees was of a most general kind. The Lords Commissioners of the Treasury might first of all lessen or increase the fees which were specified in Schedule C, and also substitute other fees in lieu thereof; and then the Act proceeded in these words—they "may order new fees to be paid on any proceedings which are now or shall hereafter be authorized to be taken in such Courts, whether any fee is now payable thereon or not." That being so, he certainly had arrived at the conclusion that the Treasury had power under the Act to authorize the payment by plaintiffs of this small fee directed by the new order of April last; but the clause of the Act was not clearly worded. In conclusion, he would state that he regretted that the opinion of the law officers of the Crown had not been taken on the point.

LORD CRANWORTH

said, he was very much inclined to concur with his noble and learned Friend on the Woolsack that there should be a "duty" paid by plaintiffs who sued in the County Courts. But the question was whether the new Order came within the provisions of the Act of Par- liament, and he would suggest to his noble and learned Friend whether it would not now be better to take the opinion of the law officers on the point; so that if the Order had been made by inadvertence, it might speedily be set right. If the Order were ultra vires, it would be within the power of any attorney to raise the question at any time hereafter; and that would be a very unseemly thing to incur.

THE LORD CHANCELLOR

was understood to say that a case should be laid before the law officers for their opinion on the point.

House adjourned at a quarter before Six o'clock, to Monday next, half-past Eleven o'clock.