HL Deb 08 July 1909 vol 2 cc239-50


Order of the Day for the second Reading read.


My Lords, I shall occupy but a short space of time in stating to your Lordships what has to be stated in moving the Second Reading of this Bill. The greater part of the Bill consists of clauses which have already received the assent of this House on more than one occasion, and most of them have been borrowed from the proposals of the noble and learned Earl who was my predecessor on the Woolsack. But in the Bill this year there is a proposal which requires a little notice.

It is proposed that in regard to County Courts the jurisdiction shall be without limit subject to two important limitations. One is that a class of cases which has always been considered unsuitable for trial in County Courts, is excepted, and the other is that, though a plaintiff may begin his action in the County Court for any sum of money, the defendant is at liberty, by a very simple process, to require that the case shall be tried in the High Court of Justice as now. The effect is that, if both parties to an action agree, any case, with certain few exceptions, can be tried in a County Court.

The proposal of the Bill in this respect has its immediate genesis in the Report of the Committee presided over by my noble and learned friend Lord Gorell, to whom I have to express my gratitude and to whom I believe the public at large is indebted very greatly for the trouble and wisdom with which the inquiry was conducted. But although the immediate genesis of this Bill is to be found in the Report to which I have referred, it must not be supposed that the Bill has not an earlier history. It will illustrate the rapidity with which we approach law reform in this country when I tell your Lordships that this proposal was made by a Royal Commission forty years ago, and a Bill substantially on the lines of that now presented was brought in thirty years ago by no less a man than Lord Cairns, but it was laid aside I do not know for what reason.

Upon two subjects involved in the proposal to extend the jurisdiction of County Courts I have designedly not touched in the present Bill. The first is the right of audience by advocates. As your Lordships know, in the County Courts a solicitor can be heard as an advocate, while in the High Court members of the Bar alone have a right of audience. I will not enter upon that subject beyond saying that I entirely agree with what is said in this report by my noble and learned friend Lord Gorell as to the great importance of having a strong Bar in this country. I believe it is a great protection to the innocent, and a great protection also against any encroachment by Judges, if any be designed, upon the public liberties. Although the Bill does not touch upon the subject, I need hardly say that if the Bar and the Law Society, the two branches of the legal profession, agree upon any proposal which would be in the public interest, I would be happy to give it consideration.

Another point requiring notice is that in the Report of Lord Gorell's Committee there were reasoned proposals concerning the extension of jurisdiction in divorce. That is a subject of great importance, and I anticipate that an interesting debate will arise upon the Motion of which Lord Gorell has given notice concerning it. But while agreeing with the proposals which Lord Gorell makes, I know well the nature of the controversy that is likely to arise, and in my opinion it would fatally impede this Bill to introduce those proposals into it. The conditional extension of the jurisdiction of County Courts will, I believe, be welcomed, and certainly it cannot be regarded as a rash arrangement when it is remembered that it had the support of Lord Cairns. It seems possible that it will be a great boon in many cases, and that many people will be likely to have recourse to County Courts to obtain a settlement of their differences. I cherish the hope that the Bill will be passed by both Houses of Parliament without any real difficulty.

Moved, that the Bill be now read 2a.—(The Lord Chancellor.)


My Lords, I should like, having been Chairman of the Committee to which the Lord Chancellor referred and with regard to the work in connection with which he has expressed himself in a very kind way, to say a few words as to some of the points which, I think, deserve consideration in this Bill. There are some matters of omission and some which are inserted which will, I think, give rise to considerable questions. The first one on which I wish to say a word is the extension of jurisdiction in divorce. It formed the subject of very careful inquiry before the Committee over which I had the honour of presiding, but it was felt, in dealing with a Bill which was concerned chiefly with the jurisdiction of County Courts in matters which had been frequently the subject of discussion and which had been very fully considered from time to time, that its introduction into such a Bill was inadvisable, and that it was desirable that it should be left to be dealt with entirely separately. Having that Report behind me, I ventured to put down the Motion which stands in my name for next week, and that is the time at which anything that is worthy of being said by myself on this subject will be brought before your Lordships.

There is one other matter of omission from this Bill—a Bill which, in substance, deals with all the points with which the Committee's Report was concerned, except the extension of jurisdiction in divorce. I wish to draw attention to this because I think it has a very great bearing upon matters which affect the amount of business that can be done in the County Courts. It is that this Bill omits to deal with the question of the committal of persons who have the misfortune to be unable to pay their debts. The reason why the Committee over which I presided did not touch that matter was that another Committee was dealing with it, and with that Committee sitting we felt that it was not within our powers and not desirable that we should touch the question of committal. I think there is a general opinion that the extent of the business of the County Courts, and with that, of course, the amount of work which the Judges can do and might be expected to do, depends very largely on whether the ultimate result is to retain the power to commit or not. If that were not retained, I have been given to understand that a very large portion of the business of the County Courts might find itself at an end; and that, of course, would affect questions which deal with the distribution of County Court Judges' work and the power that they would have to do increased work under the extended jurisdiction proposed in this Bill.

The Bill itself appears to deal with three sets of matters. The latter clauses are mainly concerned with questions which, understand, have already been before this House and have met with approval here, and there really is practically nothing new to say with regard to them. Most of the other part of the Bill deals with matters about which there practically can be no controversy. They are amendments of the procedure in County Courts, amendments of the mode of dealing with its business, and certain increased powers, all of which facilitate the working of the County Courts in the disposal of their business. But Clause 1 of the Bill does introduce an entirely new state of things. It extends the jurisdiction of the County Court to an unlimited amount in all Common Law cases, but gives the power to the defendant to remove a case which exceeds the present limits of the jurisdiction of the County Court to the High Court if he so desires. I wish to make a few observations about that part of the Bill.

The Committee who reported upon this matter had a difference of opinion upon a very vital point in connection with the extension of the jurisdiction. The Committee, if I remember rightly, was more or less evenly divided on this subject, and I wish that the House should understand exactly what that division amounted to and the points to which it gave rise in connection with this subject. The Committee came to the conclusion that there had been a very considerable decline of business in the various branches of work done by the High Court throughout the country on Circuit, and that there had arisen dissatisfaction in the different parts of the country visited by the Circuits because it was considered that the arrangements made for the disposal of Common Law cases throughout the country were not at present up to date. I do not propose to specify at length any of the cases which have led to that dissatisfaction. They are to be found set out in the Report which has been laid before the noble and learned Lord on the Woolsack and circulated to your Lordships. The substance of them is that, with the present-day length of cases, with the heavy work and additional duties which have to be performed by the Judges, it is difficult to give sufficient time on Circuit to dispose properly of the business without hurry and inconvenience. The conclusion the Committee came to was that the Circuit system should be remodelled so as to concentrate the Civil work in centres, and that more time should be allowed and more convenient arrangements made for the disposal of business.

The reason why I draw attention to that is this, that if the state of things is such that people are not able to have their cases satisfactorily disposed of at the Assizes, the extension of the jurisdiction in the way the Bill proposes will naturally tend to drive into the County Courts a quantity of business which, in the view of those with whom I sided on the Committee, ought to be dealt with by the High Court. I might be permitted to read two sentences from the Report, which will explain the difference of opinion that arose— We are strongly of opinion that the true remedy to be sought for is not by encouraging litigants to contest their cases in Courts which were not intended to deal with those cases, and must, for the reasons already given, find difficulties and be at a disadvantage in attempting to do so, but to provide that completely adequate facilities should be given by the High Court for disposing of every case which it is reasonable should be both commenced and continued in it. At the same time we have to recognise the fact that a considerable number of cases between £50 and £100 are now launched in the County Court, and a further number of over £100 are taken there by consent, and that some demand appears to exist in some quarters for a further facility to try in County Courts particular Common Law cases suitable to be tried there but exceeding the money limit triable except by written consent, and in which cases written consent is sometimes refused because it is sometimes asked for by the opponent. The opinion of those who took the view I took on this Committee was that if the suggestions we made with regard to concentration of business on Circuit and other facilities were carried out, then the proposal to extend the jurisdiction of the County Court might be accepted. But we did not wish to see extension given without those facilities at the same time being put forward—that is to say, the two improvements should go hand in hand. On the other hand, some members of the Committee took the view that they were two independent matters, that the extension of the jurisdiction of the County Court should be proceeded with entirely independent of the other matter. I wish to put that forward as a subject for con- sideration on the part of His Majesty's Government, because the view, shortly put, of myself and others is that the true remedy in these matters is that the persons who wish it should have absolutely easy and facile opportunities on Circuit of disposing of their cases in the High Court, and that they should not be forced, if they should not so desire it, to go to the County Court because they had not adequate opportunities elsewhere.

I am particularly desirous that this should be brought fully forward because considerable misapprehension has existed on the subject. We were extremely desirous that the general proposals in this Report should be adopted, but that it should be a condition that those which affected the jurisdiction of the County Court should go hand in hand with the reforms suggested in the Circuit system. The Bill at present makes them entirely independent, and. I feel a difficulty in saying very much about this because your Lordships are aware that a Committee has already been appointed to consider further matters which to a certain extent appear in the Report to which I have already referred, and I should hope, if they take a view at all similar to that expressed in the Report, that any such dissatisfaction and difficulty as I have alluded to might be removed. In such a case as that there is no objection that I can see to the extension of the jurisdiction.

There is one other matter on which I would venture to say a few words. It is upon the question of audience. Upon that this Report is also in a sense silent, because it contains no recommendation regarding it. That is so because at that time it was impossible to know exactly what proposals the Government would adopt with regard to this Bill and with regard to the improvement of work on the Circuits. But the Report contains a very strong expression of opinion with regard to retaining the rights of audience in cases where the jurisdiction is to be extended. There was some difference of opinion about it, but the Report contains this paragraph— Notwithstanding the difficulties in our system which undoubtedly exist and for which we have been asked to suggest remedies, the fact remains that the administration of justice in Civil cases as well as in criminal is more satisfactory than in any other country in the world, and not only our own countrymen but foreigners respect it and even voluntarily resort to our tribunals. We believe that this is due in great measure to the unique position of the Bar, and that any change in the jurisdiction of our superior and inferior Courts which would substantially alter that position would have very far-reaching consequences. I would venture to suggest that, although this matter has not been dealt with in the Bill as it at present stands, after what my noble and learned friend on the Woolsack has said it might be open to those who take the view that it should be dealt with to move in Committee a clause dealing with the subject. I think that where the object of this extended jurisdiction is to put before the Courts which at present have not got that jurisdiction the opportunities of doing work which at present can only be done in the High Court, it might be desirable that the right of audience should be preserved as it is to the extent to which it at present exists in the High Court in such cases. But I desire to have an opportunity of suggesting what might be done on that subject when the Bill is in Committee. At this stage it seemed to me desirable to call attention to those two or three particular points, not with the object in any way of suggesting that this Bill should not be read a second time, but of indicating matters which should be fully considered when the Bill is in Committee of your Lordships' House.


My Lords, I suppose no one doubts that this Bill will be read a second time, because it contains a good many valuable provisions. But undoubtedly there are one or two points which it is impossible to pass over without a protest, and when we come to the discussion in Committee the objections to them will be more properly put before your Lordships. I protest most strongly against the extension of jurisdiction. I think County Court Judges have neither the time nor the opportunity for dealing with questions of this sort, which sometimes occupy a great many days. The effect of that on the County Court, which was primarily established for the purpose of dealing with small matters, would be to exclude those small matters from its jurisdiction. I will say more upon that when we reach the Committee stage. I think the other questions to which my noble and learned friend Lord Gorell has just referred are also of very great importance and cannot be passed over when we come to deal with this matter in Committee. On the whole, I should be very sorry if the Bill were not read a second time. It is a valuable Bill, and I should regret it if it were lost; but there are one or two principles in it which it will be my duty to oppose when we go into Committee.


My Lords, this Bill raises such very important questions that even at the risk of detaining your Lordships I desire to say a few words. I need not assure the Lord Chancellor that he will have my assistance in passing the larger number of the provisions of the Bill as they effect valuable improvements. With regard to the proposal that any ordinary Common Law action may be commenced in the County Court, of course if there is given an absolute right to a defendant to remove a case into the High Court, not much harm can be done, and probably it may be an experiment worth trying. No one has a greater veneration for the memory of Lord Cairns than I have, but I do not think that with regard to this particular matter we have any evidence at all of what I may call the considered and reasoned judgment of Lord Cairns, nor was it a matter of which he had from his practice any very great experience. If it is going to be supposed that by this Bill there will be a large number of actions tried in the County Courts which, under present circumstances, are heard in the King's Bench, I am satisfied they will create disaster in the work of the County Courts. In such an event the Lord Chancellor would have to face either a complete alteration in the method in which cases are heard in the County Court or a very large extension of the County Court Bench. The business has to be done either in the County Court or in the High Court. If it is to be done in the High Court you must make proper provision both in London and on Circuit, and it must not be thought that by simply allowing any action to be brought in the County Court you are getting over the difficulty of congestion which is staring you in the face.

I should also like to pay a tribute to the admirable work discharged by the Committee over which Lord Gorell presided. But there are one or two matters in this Bill which were not touched by the Report of the Committee. There is the question of the extension of the jurisdiction of the Registrar. Here, again, I think the clause requires careful consideration, though I say at once that the Lord Chancellor has wisely met one of the main objections taken to the extension of this jurisdiction. In all dis- puted cases the litigant in the County Court is entitled to the judgment of the Judge. Again we get into the same difficulty. It is not by giving the Registrar additional jurisdiction that you get rid of any possible congestion of business, and that clause will require careful consideration.

The Bill provides, for the first time, power to have special sittings in the County Court for the trial of special classes of cases. That is a matter which requires careful consideration, and the provisions of the Bill will need to be closely scrutinised when we get into Committee. I hope that, even if the difficulties are found to be such that these particular clauses are not able to pass, it will by no means necessitate the loss of the Bill, but that the remainder of the clauses will be carried. This Bill provides, for the first time, that in cases of appeals between £50 and £100 the decision of the County Court Judge on a question of fact shall not be final. It says that on both questions of mixed fact and law and of fact there shall be a new right of appeal. I should be very glad to see that for many reasons, but it will involve considerable additional labour on the High Court; and if the power is largely exercised of allowing further evidence to be taken it will cause, of course, considerable extra delay in the hearing of appeals.


What is the number of that clause?


Clause 13, subsection (1). It runs— In addition to the right given by section one hundred and twenty of the principal Act to appeal to the High Court against the decision of a County Court on a point of law any party to an action or matter in which the sum claimed or the amount involved exceeds fifty pounds shall have the right to appeal to the High Court against the decision of a County Court on a ground involving a question of fact alone or of mixed law and fact. The second subsection provides that— In section one hundred and twenty-two of the principal Act (which relates to the powers of the High Court on hearing an appeal), after the words 'any inference of fact' there shall be inserted the words 'and where the appeal is an appeal on a ground involving a question of fact to receive further evidence upon question of fact such evidence to be either by oral examination in Court or by affidavit or by deposition taken before an examiner or commissioner.' I only mention these matters to show that the Bill contains many points which go far beyond the subjects referred to by the Lord Chancellor as being matters on which there is universal consent, and I hope that an opportunity will be given to discuss and to consider them fully in Committee.


My Lords, it is not my intention to prolong this discussion. The Bill is one of the highest importance. It bristles with difficulties, and it is obvious that there has not been time to examine the provisions with the care they deserve. I reserve to myself full right to criticise them at length in Committee. The last topic referred to by the Lord Chief Justice—the question of appeals—is of the greatest importance. At present, as the law stands in England, there is no real right of appeal from County Courts. There never was anything more unsatisfactory than the present system of appeal from those Courts. My noble and learned friend who has just sat down pointed out that this is sought to be widened, but sought inefficiently. This is a point which will have to be fully considered in Committee. In Ireland there is a successful system whereby every suitor who is dissatisfied with the decision of a County Court Judge can appeal on the spot to a Civil Judge, and at very slight expense and in a short time the whole matter is heard and disposed of. I hope that the Bill will be read a second time and will become law after changes have been made in it.


My Lords, I will not detain you long in replying. I will say nothing more on the subject of audience, because, as I have said, we leave the right in the County Court as it is, and if the profession could agree to something reasonable we should be prepared to consider carefully any proposals made. Allow me to point out this, that here is a proposal enabling parties, if they both agree to do so, to try their disputes in a cheap local Court. Lord Cairns supported this proposal thirty years ago, and it cannot be supposed that the scheme is going to be opposed now. It is said that it will congest the Courts and overburden the Judges; but I would point out that there are provisions in the Bill for extending the jurisdiction of the Registrar to try small cases under £5. In my belief it is essential to the public interest that people should not be prevented from settling their disputes when they are agreed that a Court cheap and handy at their doors may entertain them.

The only other matter I need refer to is the reference to the Circuit system. In regard to that some very valuable suggestions were made by my noble and learned friend Lord Gorell in his Report. The Lord Chief Justice and I have endeavoured, and I hope that we shall succeed, to provide that there shall not be any hurry or congestion on Circuit. I think that our proposals have already given satisfaction. I do not suggest that this Bill deals with the congestion in the King's Bench Division, though I think that it may contribute towards the lightening of the work of that Division. But that depends upon quite different considerations in regard to which there is to be an inquiry by a Joint Committee of both Houses. I am glad that this Bill is to be read a second time. I am anxious above every- thing to make the administration of justice cheap, easy, and handy, so that people may approach the Court without having all the apprehensions of the expense involved in coming from, say, Cornwall or Devon up to London. We do not pretend that we are original in this scheme; on the contrary, I am only following in the footsteps of one of the greatest among my predecessors, and I hope that we shall have real sympathy in advancing this Bill.

On Question, Bill read 2a and committed to a Committee of the Whole House.

House adjourned at twenty-five minutes past Seven o'clock, till To-morrow, half-past Ten o'clock.