§ Order of the Day for the House to be put into Committee, read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [THE EARL OF ONSLOW in the Chair.]
§ Clause 1:
*LORD GORELL had given notice of an Amendment to add a new subsection—namely:
(9) This section shall come into operation at such time as may be fixed by Order in Council.
The noble and learned Lord said: This Amendment is one which, I think, depends entirely upon the result of the Amendment which follows, in the name of my noble and learned friend Lord Halsbury; and if it meets with the view of the Committee I would prefer to postpone my Amendment and bring it up on Report.
§ THE EARL OF HALSBURY then moved to leave out Clause 1, which was as follows—
§ "Jurisdiction of Judges and Registrars of County Courts.
§ "1.—(1) County Courts shall, save as hereinafter provided, have jurisdiction to hear and determine any action which can be commenced in the High Court, notwithstanding that the debt, demand, or damage claimed is not limited to one hundred pounds or under.
§ "(2) Where an action is commenced in a County Court which could not but for this section have been so commenced except by agreement of the parties, the action shall, at the instance of the defendant or one of the defendants, be removed into the High Court within such time and in such manner as may be prescribed by rules of the Supreme Court.
§ "(3) Nothing in this section shall extend the jurisdiction of County Courts as respects any action of ejectment, or in which the title to any corporeal or incorporeal hereditaments or to any toll, fair, market, or franchise is in question, or for any libel or slander, or for seduction or breach of promise of marriage, or as respects any action on a judgment in the High Court.
§ "(4) Nothing in this section shall extend the jurisdiction of County Courts as respects actions 730 for the time being assigned to the Chancery and Probate, Divorce, and Admiralty Divisions of the High Court.
§ "(5) Where, ill an action commenced in, or remitted to, a County Court, the defendant or one of the defendants counterclaims an amount of money not limited to one hundred pounds or under, and the plaintiff objects in writing in accordance with the provisions of Section 18 of the Supreme Court of Judicature Act, 1884, the whole proceeding shall, in accordance with rules of the Supreme Court, be removed to the High Court.
§ "(6) Where any action or proceeding is, under this section, removed to the High Court, the record shall be transmitted by the registrar of the County Court to the proper officer of the High Court in manner prescribed by rules of the Supreme Court, and the action or proceeding shall thenceforth be continued and prosecuted in the High Court as if it had been originally commenced therein. The removal of any such action or proceeding shall not affect the validity of any order made or act done in the County Court prior to such removal, and any such order may be enforced by the High Court as if it had been originally made therein.
§ "(7) Section 116 of the principal Act (which relates to costs in actions brought in the High Court which could have been commenced in a County Court) shall not apply to any action brought in the High Court which could have been commenced in a County Court by virtue of this section, but not otherwise.
§ "(8) Section 64 of the principal Act, which confers jurisdiction on County Courts by agreement of the parties to an action, shall not apply in the case of any action which may be commenced in a County Court under this section."
§ The noble and learned Earl said: My Lords, I move to leave out Clause 1 altogether. Before dealing with that question I wish to say a word, in passing, on the Amendment to which Lord Gorell has just referred. It seems to me that, although he has taken it off the Paper and reserved it for a later stage of the Bill, it will become very relative to the question we shall have to decide later on, because if there is one thing which I should think objectionable it would be that such an enormous change as this should be dependent upon some Government Department. The noble and learned Lord practically means that although he would agree to Clause 1, yet he would put it in the hands of the Government to allow it to be brought into operation if they thought proper. I can hardly imagine anything more unconstitutional. We are getting rather in the habit of giving power of legislation to Government Departments. My own impression is that it would be very difficult to discuss the question without discussing whether or not it should be in the power of anyone to determine what should be the course of the administration of justice in this country.731
§ I must say I feel very strongly indeed upon the subject of this Bill, or, rather, upon the subject of Clause 1 of the Bill. That there are useful and possibly desirable enactments in other parts of the Bill I quite admit, but I am of opinion that a more portentous change in the administration of justice in this country than this clause introduces has never been suggested. I do not think it is an exaggeration to say that for the first time we are instituting a system to which, as I hope I shall show presently, there are serious objections. At this moment I am only considering the mode in which this matter is brought forward. It is to be observed that there was a Committee appointed to consider the relations existing between the High Court of Justice and the County Courts and to report whether any and what alterations or modifications should be made in those relations and consequently in the jurisdiction and practice of the County Courts. That Committee—over which my noble and learned friend Lord Gorell presided—in a very distinct and decided manner, as I will show later, negatived the proposal contained in Clause 1. I do not exaggerate when I speak of the portentous character of the change proposed to be made. The Bar Council and the Northern Circuit have both signed protests against the system which is being suggested. One of the familiar observations made is that lawyers object to any amendment of the law. Indeed, I rather gathered from the observations made the other night by the Lord Chancellor that he suggested, in referring to a Motion brought forward by my noble and learned friend Lord Gorell, that all lawyers, of course, objected to any amendment of the law.
§ THE EARL OF HALSBURY
At any rate, I can say that my withers are unwrung. I think it will be found that the amendments of the law which I have been instrumental in passing will bear comparison with any of those suggested by my noble and learned friend the Lord Chancellor. Therefore, my withers are unwrung on that subject. But I am really very much alarmed and distressed at the want of interest taken in such questions. Take this case. We have been building up a system of jurisprudence for many centuries which has been the subject of 732 eulogium on the part of every other country in the world. Now, without any notice to anyone and without any inquiry beyond that made by Lord Gorell's Committee, and which, as I say, is averse to this change, this proposal is brought forward for extending unlimited jurisdiction to County Courts in the administration of justice. I am sorry to say that no very great interest appears to be taken in the matter. The truth is that until you get the people to understand what is being done no interest is displayed. It is said to be a question for lawyers, and I am afraid no interest is taken in it, and it is not until it is too late that people begin to understand the serious invasion made upon their liberty. I will read to your Lordships the resolution passed at a special court of the Northern Circuit, held on the 19th instant in Liverpool—The Circuit objects to the unlimited jurisdiction proposed to be conferred on the County Court. The Circuit considers the tribunal undesirable:That is repeated by the Bar Council—I do not mean in the exact words, but in substance the same objections are made; and it seems to me it is hardly possible to exaggerate in language the seriousness of the suggested change.
- "(1) Because it is not in touch with the profession as a whole and has not the authority resulting from adequate professional and public criticism.
- "(2) Because by its constitution, history, and experience it is unfitted to deal with cases of complexity and magnitude, and would not in such matters command public and professional confidence.
- "(3) Because it is liable to be influenced by local and personal considerations."
Now, let me for a moment turn to the history of the County Courts, which were established for the purpose of enabling the easy recovery of small debts and demands in England and Wales. Their jurisdiction was limited to £20 in contract and £5 in tort. The mode in which those Courts were able to deal with cases quickly made them very popular, and the jurisdiction was afterwards extended. Lord Gorell's Committee, in their Report, give a list of the different jurisdictions that have been conferred on County Courts from time to time. In one sense it may be said that this shows how efficient they were, but the real truth is that when some new jurisdiction had been set up, and no particular mode for carrying it into execution had been suggested, the County Court has been the general refuge. It is set 733 out in this list that jurisdiction has been conferred on the County Court, concurrent with the High Court, but unlimited, under—
I will not weary your Lordships by reading this list any further; but all these important and onerous branches of work—notably the jurisdiction under the Employers' Liability Act and the Workmen's Compensation Act—of course multiply enormously the amount of business to be done. The result is that small Courts for the purpose of enabling poor people to have small questions settled are rendered absolutely impossible in some places. This no doubt inflicts great hardship on the poor; and I am sure the Lord Chancellor is the last person who would endeavour to oust the jurisdictions intended to render convenient and easy the administration of justice amongst the poor.
- 1. Government Annuities Act, 1832. Recovery of fines under.
- 2. Poor Law Amendment Act, 1848. Recovery by guardians of amount of relief to poor.
- 3. Commons Act, 1876. To try questions of wrongful enclosure, encroachment.
- 4. Open Spaces Act, 1906. To sanction demises by trustees for this purpose.
- 5. Inclosures. etc., Expenses Act, 1868. Recovery of costs of Commissioners of Enfranchisement.
- 6. Extraordinary Tithe Redemption Act, 1886. Recovery of rentcharges.
- 7. Municipal Elections (Corrupt and Illegal Practices) Act, 1884. Recovery of expenses incurred by candidate.
- 8. Married Women's Property Act, 1882. Any dispute between husband and wife as to the property of either may be tried, subject to certain powers of removal as of right into the High Court.
- 9. Guardianship of Infants Act, 1886. County Court Judge may appoint, may settle questions between guardians.
- 10. Stannaries Court (Abolition) Act, 1896. Powers of, transferred to County Court.
The County Courts Committee stated that there appeared to them to be four suggestions which had to be considered with regard to this question. The first two were—(1). That the County Courts should become part of the High Court, with unlimited jurisdiction in actions, but subject to a right on the part of a defendant to have any case in which the amount sought to be recovered should exceed a certain limit transferred to the superior branch of the High Court.(2). That the County Courts should remain with their present constitution, but should have unlimited, or at any rate much enlarged, jurisdiction in actions, subject to a right of transfer as aforesaid.734 That is the very question we are discussing, and that was the question which my noble and learned friend sent to a Committee. Now let us see how the Committee answer it. They say—The County Courts, with the mass of small cases which are brought in them, must continue to dispose of the poor man's cases. This is their primary business, and the statistics above given show how as population increases the work of these Courts also increases, and may be expected to continue to increase. It is essential that that work should not be interfered with by attempts to deal to any serious extent with larger cases taking up much longer time in hearing, when the Courts which were originally constituted only as small debt Courts have already had added to their primary duties a quantity of other work and have their time practically fully taken up. As it is, the Committee understand that great inconvenience and waste of time and expense are occasioned by cases in which there is any lengthy contest, as the small debt cases must be disposed of at once, and parties in contested cases may or may not have their cases reached and disposed of on the day fixed, or may have costly and inconvenient adjournments.The Committee also say—It must be observed that the vast mass of the work of the County Courts has been, and is, the enforcing of the payment of small debts and claims; that no more work should be placed on these Courts which would interfere with their primary and most important duty; that almost all their work is in cases which are either without any defence or without any substantial defence, and that a very simple and inexpensive procedure, such as prevails in the County Courts, is absolutely necessary for such cases, whereas cases in which there is any real contest usually require procedure of a more formal character.I must pause for a moment to observe the mode in which this case has been brought forward. I have no doubt it will be suggested by Lord Gorell, and perhaps by the Lord Chancellor himself, that this proposed change has been made dependent upon there being certain changes and improvements in the consideration of cases in the High Court. It is said by the Committee that if these changes are made you may afterwards make the changes proposed in regard to County Courts. Now, what has been done? My noble friend has brought in this Bill I venture to say, with all humility, without much consideration of what was going to be done, and now a Joint Committee has been appointed to take the other side of the question upon which this was to be dependent. What was the necessity for the extreme hurry to bring this forward? I am afraid I must here interpose an observation upon a subject which I have discussed with the noble and learned Lord opposite from time to 735 time. I have agreed with him that it is an undesirable thing to increase the number of Judges of the High Court. Well, but you have increased the jurisdiction of the High Court. You have thrown upon it the possible inquiry into every criminal case in the country. It may or may not have been wise that you should have done so. I confess I am still unconvinced, and I do not think the experience one has had since that Act was passed has made one think that the very important alteration in the law then made has been greatly to the advantage of the State.
But be that as it may, the question now is, What are you to do? How can you escape appointing additional Judges when you have increased the jurisdiction to such an extent that three, and sometimes five, Judges sit from time to time to inquire into the most transparent and ridiculous cases of appeal that have ever been suggested. Of course, you have got congestion in the Courts. Judges are unable to do their work because you put upon them this extra labour which is absolutely unnecessary, certainly in ninety-nine cases out of a hundred. The result is, as I say, that you have congestion. In order to get rid of this difficulty it is now sought to distribute the administration of justice all over the country by means of the County Courts. I know it will be said that there is this jurisdiction at present if both parties agree; but, if both parties agree, there is no difficulty at all in their applying and having their disputes settled by A.B. or C.D. If, however, they prefer a County Court they can go to a County Court. The question here is whether you are going to compel them. I am quite aware of the provision that if notice is given, if application is made to one of the Judges, the cases can be tried in a superior Court. One of the scandals complained of in this very Report is that these interlocutory applications are the occasion of much expense and annoyance, and have to a great extent blocked up the ordinary administration of the Courts. It seems to me that you are now doing that which this Report protests against as being one of the evils which have produced the present block.
One of the great difficulties is this, that by this clause the number of County Court Judges will virtually be increased; that is, small cases will be sent to the Registrars, who were never intended to 736 be Judges. The poor man is to be relegated to an official whose education and business have not fitted him to take a judicial view of cases. I very much object to give such authority to anybody except those who both by education and practice have been accustomed to the administration of justice. The Bill that I introduced has been taken as an example, without sufficient consideration being given to what that Bill did. That Bill proposed that a certain number of Registrars, selected by the Lord Chancellor as fit for the purpose, should be allowed to issue writs and occupy the position of a Master. No such distinction is made in this Bill. The power is given to all Registrars of all County Courts; within certain limits they are the persons who will administer justice, and they are appointed, not by the Lord Chancellor, but by the County Court Judge himself.
An extraordinary area of jurisdiction is given to the County Courts under this clause. The jurisdiction is unlimited, and a claim for, say, £10,000 may be entered in the County Court, and unless the defendant applies within a certain time and by notice—again the interlocutory proceedings—that must remain as a case to be decided in the County Court. Consider for a moment what becomes of the County Court in respect of the business for the discharge of which it was originally instituted. A case lasting a week is no novelty now, and undoubtedly the mode in which justice is administered—I think rightly administered—is calculated to increase the time occupied. At a time when the parties to an inquiry were not themselves admissible as witnesses it was very much a game of chess; the real persons who knew most about the matter were excluded. Happily the law has been so altered that the parties themselves can now be examined; but the inevitable result of that has been that no case is ever fought unless there is something to fight and something to be said on both sides. The result is that the time taken to try the case is increased.
Then when you get to the County Court, consider the position. A County Court Judge has to deal with a number of small cases. The Report of Lord Gorell's Committee points out that where you have a large number of cases of any importance they occupy days, and one knows that what happens is this. The Judge cannot try them all, and cases have to go over to 737 another sitting. A case may be put off for hearing for a month. That is bad enough, but when that day comes round very likely one of the cases in the list is such that it lasts a day and a half, and it is impossible then to take the other case. I do say that in a great many cases this would amount to a denial of justice. The business of the High Court has increased enormously as the result of recent legislation. The Judges are insufficient in number to cope with the business, and in order to get rid of the business it is now proposed to tell suitors to go to the County Court. I sincerely hope that your Lordships will not permit so extraordinary a change in the law to take place, at least without some further consideration and inquiry than appear to have been given to the matter.
To leave out Clause 1."— (The Earl of Halsbury.)
§ LORD GORELL
My Lords, having been responsible for the Report, so far as I shared in it, of the Committee, perhaps I may be in a position to put before your Lordships some considerations which will show how that Report was arrived at, and what in substance is the object of the clause which this Amendment seeks to eliminate from the Bill. If the Amendment is accepted, there is no doubt that it will leave out a vary important part of the Bill, and there are certain clauses which depend upon the first clause and are intended to carry it out.
Clause 1 as it stands does not really inaugurate any portentous change in the existing law. All it does is this. Whereas at present the parties to an action may agree that the County Court Judge shall have jurisdiction of an unlimited character, this clause simply allows the plaintiff to commence a case of a common law kind only in the County Court, and it gives the defendant the absolute right, without any application at all, to have the case tried in the High Court if the claim is over £100. It is not correct to suggest that any interlocutory application is required to carry that out. The words were carefully chosen—the action shall, at the instance of the defendant or one of the defendants, be removed into the High Court within such time and in such manner as may be prescribed by rules of the Supreme Court.This clause, together with the rest of the matters which appear in the Bill, formed 738 the subject of inquiry, lasting a considerable time, by the Committee referred to, and with regard to this particular part eight members of the Committee were entirely in favour of it, one only being against it.
The Committee consisted of nine members, and although it was a very small Committee it was representative of all those really likely to be able to give very full knowledge in dealing with such a matter as this. One member of the Committee was a High Court Judge who has a very large knowledge and experience of the Circuit business; another was a County Court Judge who has had very large experience of County Court work; a third was an ex-County Court Judge, who had also filled the office of Commissioner of Assize, and had, therefore, considerable experience of both branches; another was a Master of the Supreme Court; another a Registrar of the County Court who had filled the office of President of the Law Society; another was a solicitor who represented Lancashire opinion, which is so much interested in the progress of all improvements in the law; there was a representative of the Treasury to keep the Committee quite straight, if I may use the expression, in those matters which affect the Treasury, and another was a member of the Bar Council, who differed toto cœlo from the Report.
The Committee sent out inquiries to every Law Society in the country, to His Majesty's Judges, some of whom replied, to all the County Court Judges, and to some others. The result was a mass of replies, with which, together with such experience and information as the members had, this Report was framed. Although it was quite clear from the documents returned that there was considerable diversity of opinion on the questions put to the persons with whom communication was made, I think I am safe in saying that the largest and weightiest opinion was in favour of the extension of the jurisdiction of the County Court with an absolute right of removal. Some confined the extension to a limit of £500; some thought it should be unlimited; but all contained the suggestion that there should be a right of removal. It is not quite accurate to suggest that this is in any shape or form a new proposal. In 1872, when the Adjudicature Commissioners reported on this subject, they went a great deal further 739 than this Report goes. They proposed that County Courts should be constituent parts or branches of the High Court of Justice. They also recommended that those Courts, as constituent parts or branches of the High Court, should, subject to the power of transfer, have jurisdiction unlimited, and that if the parties to a dispute were content that it should be decided in the County Court it should be dealt with accordingly. The proposal then was that the County Court should become a constituent part of the High Court, that there should be a power to sue therein to an unlimited extent, but with an absolute right of removal. That proposal was not at that time adopted, but there can be no doubt, I think, that the general drift of the legislation which has taken place since has been to confer a very wide jurisdiction upon County Courts, and, therefore, to show the confidence that the country has in the administration of justice in these Courts.
I agree with the noble Earl that there is an enormous mass of Acts which confer jurisdiction in one form or another upon County Courts, but when the statistics are looked through that great mass of Acts does not produce a vast amount of work. Some Acts do, such as Admiralty Acts, and there are large powers given to County Courts under the Rivers Pollution Act, the Agricultural Holdings Act, and the Employers' Liability and Workmen's Compensation Acts, and an enormous number of cases come before them much exceeding the amount which we considered should give the defendant the right of removal; and, lastly, they have a most extensive bankruptcy jurisdiction. They deal with all bankruptcy work outside London. The effect of that is to show that they have been entrusted with very large and extensive powers in the way of dealing with judicial business. The last extension was in 1903, when their jurisdiction was increased to £100. All this suggests that there has been an answer made to demands for conferring this jurisdiction, and the great reason why those facilities have been so much appreciated is that the cases come on quickly, and that they are carried through exceedingly cheaply.
The jurisdiction having been thus extended, I will show to what extent the extended jurisdiction has been acted upon. I find that in 1907, that is after the jurisdiction had been extended to £100, 2,409 cases were disposed of between £50 and £100, and 740 573 cases over £100 were taken in these Courts by agreement. That is a very remarkable figure, because the whole of the cases tried on the Circuits of the High Court in England during that year were only 580 —that is to say, nearly as many cases were taken by consent in the County Court as were taken as of right in the High Court throughout the whole of the Circuits. There is, in addition, the City of London Court, where, in 1907, 586 actions of over £50 and under £100 were taken, and 151 actions over £100 by consent. I do not quote these figures as showing anything more than this, that the legislation which has conferred this position on the County Courts has shown in its result a tendency to resort to these Courts, and that agreement to try cases there is extending with considerable rapidity.
The proposals made in this Bill have also been put before your Lordships' House on a previous occasion. Lord Cairns's Bill of 1879 had much more drastic clauses in it than are contained in this Bill. The proposals in that Bill were that cases up to £200 should, as of right, be dealt with in the County Court; that any case over that sum could be brought, but that there should be a right of removal if it exceeded £200. The position, therefore, is that this is not a novel proposition, and it is one which I should venture to suggest ought to commend itself to the Committee. That it is not a very remarkable thing in legislation may be illustrated by this fact. In Scotland the whole of the Sheriff Courts have unlimited jurisdiction over all contracts and all torts, with a right of removal into the Court of Session when the claim is over £50; and I am informed that in Glasgow five Sheriff-Substitutes are daily at work dealing with cases of unlimited amount and disposing of the business in that way. That is in no way different from the proposal put forward in this Bill, except that there is a right of removal there at £50 and here it is proposed that the right of removal should be at £100. The Committee over which I presided came to the conclusion that there was great dissatisfaction in the country as to the way in which the High Court work was being done, because of the inconvenience that was felt at Assizes and the shortness of time that could be allowed, the point being that the work of the Assizes had to be fitted to the time allowed instead of 741 the time being fitted to the work that ought to be done. We accordingly recommended that the circuit system should be entirely remodelled, that the principle of concentration of civil business indicated by the Council of Judges in 1892 should be applied, and that so far as possible country civil cases should be grouped at suitable centres in the country. That was the basis of this Report, and that necessitated in our view a greater increase of strength for the purpose of carrying out that recommendation.
But when we came to consider the position which finds itself stated in the first clause of this Bill, we thought that these facilities should be given for the reasons which I will state shortly. We reported that—There is at present power in these Courts to try any Common Law action without limitation of amount by written consent of the parties, and this has been used to the extent shown in the statistics above given, so that it is incorrect to say, as some do, that this power is practically useless. There is no reason why, if parties are content, and wish to try in the County Courts they should not continue to do so, provided that time can be found to hear their cases, and that larger and longer cases do not interfere with the primary duties of the Courts, and it may be that if that which can now be done by consent were to be carried through unless objected to, a certain percentage of persons might be found who, while they would not consent, would not object. But if a case be a proper one to be heard in the High Court, can it be doubted that the defendant would at once appear in the High Court and assert his right to a transfer? 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 these 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 ease 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 further facility to try in the 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 the written consent is sometimes refused merely because asked for by the opponent.We went on to say—We think that no change in the extent of the jurisdiction of the County Courts should be made, but that a better method of working the system and combining it with the High Court system should be adopted, and that if the fourth suggestion, which we deal with later on, were acted on, a means may be found which would meet most of the present difficulties.".742 Those who took the view that I took about this matter, feeling that the difficulty was that the High Court at the time was not in a position to give that satisfaction on Circuit that it should do and that to extend the jurisdiction at all the County Courts might have the effect of driving people to the County Courts, thought that if the proposals made in this Report as to the substantial improvement of the High Court were carried through, this provision should be added. There is a demand that the County Court should have the facilities suggested. There is no danger of overworking the Courts if adequate facility is provided elsewhere, and the Lord Chancellor, with the assistance of the Lord Chief Justice, has taken steps to remove the want of facility that has existed on the Circuits. Some of the proposals suggested in this direction have already been adopted, and if it should be thought that any further increase of strength is wanted, then comes in my Amendment introducing a subsection enabling the clause to be brought into force as soon as it is shown that the High Court is working satisfactorily. The Committee, with the exception of one, were entirely in favour of the suggestion on which the clause was based, though there was a division of opinion as to whether it should be dependent or not dependent upon the approval of the proposals as to the High Court.
The point is that, by consent, the County Courts now have this jurisdiction; but you cannot always get consent. This clause reverses the position. Under it a case can be put down, and, unless the other party objects, it goes on in the County Court, but, if he does object, it is removed to the High Court. Two-thirds of the whole of the cases tried and disposed of in the High Court are under £200. I conceive it must be very difficult to discriminate between the capacity of a Judge to try a case up to £100 and his capacity to try one up to £200. It is said, first of all, that these Courts are not suited because they will have too much work. This matter so far as regards the question of time formed the subject of a report by ten County Court Judges to my Committee. An estimate was given by which it was shown that if the proposals found in the other parts of this Bill were carried into effect, a very considerable amount of the time of County Court Judges would be 743 saved and would be available for the particular work which would arise under the extended jurisdiction; and these ten Judges signed a Report including this proposition, that any action, other than certain excepted ones, might be commenced in the County Court but should be removable if required.
Let me point out how this Bill proposes to meet the points raised. First of all it is said that there will not be time. The Bill proposes to eliminate sittings at certain small places unless it is absolutely necessary to go there. That would effect an economy of time. It proposes to concentrate cases above £50 at certain specified centres in the country. The other proposals in the Bill will be found to be directed to rearrangements of County Court Circuits so as to make the work more equal, and in that way there is great possibility of adding to the amount of time at the disposal of the Judges. There are other points of great importance. The first is that the Bill proposes to give opportunities to Registrars to dispose of the business which is so largely the work of County Courts. It does not propose to give Registrars any jurisdiction to decide disputed cases unless the parties agree. And when it is found that something like ninety-eight per cent. of the verdicts in cases in the County Courts are for the plaintiff, and that the average verdict is for under £5—in most cases it is under £3—it is perfectly obvious that the great bulk of the work is debt collecting. The proposal in the Bill is that the Registrars shall deal with all those cases unless the parties want the Judge to deal with them. The result of relieving the Judge of this small work will be to give him more time to devote to the larger work; and if the question of committal for debt were dealt with, and if that were abolished, the time at the disposal of the Judges would be enormously increased. I hold that there is a clear demonstration, from the course of legislation, that the County Courts have been entrusted with more and more work because they give rapid and cheap facilities; that if those facilities are desired by the people they should have them; that it does not in the least affect the position if the defendant has his right to remove his case if it is over a certain sum; and that, in fact, this clause carries out a scheme which has been proposed from time to time and one which 744 cannot really be detrimental in any way to the administration of justice.
§ THE LORD CHANCELLOR
My Lords, any one who tries his hand at law reform has one great discouragement. It is that the public take very little interest in it because they do not understand it. He also has this further disadvantage, that he often gets but slender encouragement from those of his own profession who do understand it. I will endeavour, as shortly as I can, to try and persuade your Lordships not to wreck this Bill by striking out a vital part of it in regard to which I cannot understand how any unfairness can be alleged. May I say one word more in preface? I have said that my own profession has nearly always opposed reforms in law, and history will bear me out in every particular if you choose to study it. But I have always admitted that the noble and learned Earl has brought forward many valuable law reforms, to which I have always done justice, and which he will remember I invariably supported to the utmost of my power in the other House of Parliament. Nor will I ever endeavour the vain task of setting myself up as a rival to him in the matter of law reform.
We are told that this is a portentous and unprecedented change. The evil of litigation is that it is so expensive, and it is expensive because justice is not localised. What is our remedy? We have in the County Courts, which are situated all over the country, a tribunal which has now by law, if the parties sign a preliminary consent, power to try almost any kind of case. People who are litigating seldom will sign a preliminary consent before the action is commenced, and if an action is commenced by the issue of a writ it is outside the jurisdiction of the County Court. What is proposed in this Bill—and I do not deny that it is likely to make a very effective change—is to say, You can begin your action in the County Court if you like, subject to this, that the defendant has an absolute unqualified right to remove it to the High Court if he thinks proper, without any interlocutory proceedings whatever, simply by entering appearance in the High Court instead of in the County Court.
§ THE LORD CHANCELLOR
With all respect to the noble and learned Earl, 745 it is in the Bill. At any rate, in my opinion it is in the Bill, and I will justify that statement when we come to the clause. If it is not in the Bill then it is the first time I have heard it suggested, because that is the scheme. The defendant has an absolute right to this under the Bill. That being the case, what possible harm can there be in the proposition? I deny that there is anything portentous in it or that it can work any possible hardship. I really fail to appreciate the severity of the criticism of the noble and learned Earl. Is it contended that the County Courts are incompetent? That can hardly be said. Surely if the parties choose to trust the County Court Judge, this House is not going to say that the County Court Judge is not fit to be trusted in a matter within his department. In Scotland, as my noble and learned friend Lord Gorell has pointed out, the Sheriff Court has unlimited jurisdiction; nearly all the business is conducted locally, and to the universal satisfaction of the community. These Sheriffs are paid about one-half the salaries that County Court Judges receive. Then it is said that the County Court Judge will be too much occupied if you give him this work. We propose that he shall be relieved of petty cases by giving a jurisdiction up to £5 to the Registrar, subject to rules. We say that, with consent, the Registrar may have jurisdiction up to £5. The noble and learned Earl cannot himself complain of that, because he introduced a Bill giving jurisdiction up to £5 to a good many Registrars.
§ THE LORD CHANCELLOR
If the proposal to give a jurisdiction up to £5 to Registrars is thought to be going too far, let the noble and learned Earl move an Amendment to that effect, and if he pressed it I would agree, although surely all Registrars are competent to try cases under £5. This kind of criticism, I hope, will not prevail in your Lordships' House, although I recognise the weight which Lord Halsbury's opinion does hold in this House and does justifiably hold. My noble and learned friend says that everyone ought to have the right of trial before a High Court Judge. But he has that right under the proposals of this Bill, because all he has to do is to enter an appearance in the High Court to remove the case to that Court. I think I have answered all the points that were put 746 by the noble and learned Earl. He also referred to the fact that the consent of some members of Lord Gorell's Committee was contingent upon an increase of the staff of the High Court. That matter has gone to a Joint Committee of both Houses. If that Committee think that there ought to be more Judges then I suppose that opinion would probably prevail, but I may be permitted to say, with the greatest possible respect to His Majesty's Judges, that I, for my part, have declined to recommend that this step is necessary. I do not think it is necessary, but at the same time I am so far from pretending to anything like infallibility in this matter that if the Joint Committee of both Houses report in favour of such increase I should be willing, as I have said, to accept their recommendation.
I would point out that the proposal in this clause has been recommended by a Committee of representative men of great experience and knowledge, and Lord Gorell has informed your Lordships that the very strong Royal Commission in 1872 recommended this. He has also told you that Lord Cairns introduced into and passed through this House in 1879 proposals compared with which my modest proposals are comparatively insignificant. Lord Cairns proposed the same kind of machinery, though slightly different in form. Under his Bill any action could be commenced in the County Court, but he required that a Motion should be made to remove it. I propose that it should be capable of removal simply by entering an appearance. Lord Cairns did more. He proposed to give the same facilities in every kind of action, both in Common Law and Chancery. I have been so terrified by opposition that I have put my proposals in more modest form. Lord Cairns also proposed to increase the compulsory jurisdiction of County Courts up to £200. I feel that it would be too dangerous for me to make any such revolutionary proposal.
The opinion of the Bar on this proposal has been referred to. I have a most sincere affection for the profession to which I owe everything, and I am quite certain that the interests of the Bar will never be furthered and will never abide if they are not consonant to and harmonious with the interests of the public, and I am confident that the Bar will never really desire to hinder a reform which is in the interests of the public. I also believe that in respect to these special sittings set up all over England with the 747 County Court Judges trying important cases the Bar will find it to be of advantage, because this measure will give facilities for the kind of litigation to which the majority of people would wish to have recourse in the desire to obtain justice.
§ Resolved in the negative.
§ THE LORD CHANCELLOR
My Lords, may I be allowed to move that the House be resumed? I make this Motion in order that I may have an opportunity to consult my colleagues as to the future of this Bill, the prospects of which, I am afraid, have been destroyed by the vote of your Lordships. I do not wish to say more now than to ask leave to move that the House be resumed.
§ Moved, That the House be resumed.—(The Lord Chancellor.)
§ LORD ALVERSTONE
My Lords, on the Motion that the House do resume I hope I may make an earnest appeal to the Lord Chancellor to consider carefully the course he intends to adopt. I did not speak upon the clause, which was one that I could not have supported by argument. In my opinion the clause which has just been struck out is only possible, and by Lord Gorell's Committee was supposed only to be possible, if there is an increase in the number of King's Bench Judges, and I am sorry that
§ On Question, whether the clause proposed to be left out stand part of the Bill?
§ Their Lordships divided:—Contents, 32; Not-contents, 37.747
|Canterbury, L. Abp.||Althorp, V. (L. Chamberlain.)||Herschell, L.|
|Loreburn, L. (L. Chancellor.)||James, L.|
|Crewe, E. (L. Privy Seal.)||Colebrooke, L. [Teller.]||Lucas, L.|
|Courtney of Penwith, L.||MacDonnell, L.|
|Wellington, D.||De Mauley, L.||Marchamley, L.|
|Denman, L. [Teller.]||Pentland, L.|
|Ashburnham, E.||Digby, L.||Pirrie, L.|
|Carrington, E.||Glantawe, L,||Poltimore, L.|
|Craven, E.||Gorell, L.||Ribblesdale, L.|
|Cromer, E.||Granard, L. (E. Granard.)||Sanderson, L.|
|Onslow, E.||Haversham, L.||Welby, L.|
|Russell, E.||Hemphill, L.|
|Devonshire, D.||Morton, E.||Clonbrock, L.|
|Northumberland, D.||Plymouth, E.||Collins, L.|
|Vane, E. (M. Londonderry.)||Ellenborough, L.|
|Bath, M.||Waldegrave, E. [Teller.]||Hindlip, L.|
|Lansdowne, M.||Kenyon, L.|
|Salisbury, M.||Cross, V.||Kilmarnock, L. (E. Erroll.)|
|Goschen, V.||Lawrence, L. [Teller.]|
|Albemarle, E.||Hill, V.||Ludlow, L.|
|Bathurst, E.||Hutchinson.V. (E. Donoughmore.)||Macnaghten, L.|
|Cathcart, E.||Northcote, L.|
|Cawdor, E.||Alverstone, L.||Penrhyn, L.|
|Doncaster, E. (D. Buccleuch and Queensberry.||Ashbourne, L.||Ravensworth, L.|
|Barrymore, L.||Sinclair, L.|
|Halsbury, E.||Calthorpe, L.||Waleran, L.|
§ there has been this misunderstanding as to what was the recommendation of Lord Gorell's Committee. My object in rising, however, is not to revive the controversy, but to point out to my noble and learned friend the Lord Chancellor that there are thirty-two clauses in this Bill and that at least twenty-six or twenty-seven of them contain most valuable suggestions for the improvement of County Court practice. There are one or two contentious clauses, but as to some I have the satisfaction of knowing that the Lord Chancellor has actually put down Amendments to give effect to objections which I raised on the Second Reading of the Bill. I am most anxious to co-operate in this matter with the Lord Chancellor, and I trust that because it has seemed to the majority of this House that it is not a wise thing to extend by this side wind the jurisdiction of County Courts to the extent proposed, the Lord Chancellor will not sacrifice the Bill.
§ THE LORD PRIVY SEAL AND SECRETARY OF STATE FOR THE COLONIES (THE EARL OF CREWE)
749 My Lords, I do not desire, and it would not be in order to do so, to enter into any discussion on the merits of the clause which has just been thrown out or the merits of the Bill generally. I have no doubt that my noble and learned friend will pay due regard to the appeal which has been made by the noble and learned Lord the Lord Chief Justice, and will take into careful consideration whether it is worth while to proceed further with this Bill. As regards the whole matter, and in connection with the desire of my noble and learned friend not to proceed further at this moment, I should like to say this. The Bill has, at any rate, lost what I think may be called its principal limb, and some surprise may be felt that, in the circumstances, it was allowed to go through a Second Reading at all. The noble and learned Earl opposite seemed to use the argument that these proposals had not been sufficiently considered, and that there was no evidence of popular support. I just desire to point out this, that we make it our endeavour to introduce Bills into your Lordships' House when we can. There are a large number of Bills which, as your Lordships are aware, cannot be introduced in this House, and it is a somewhat poor encouragement to us to introduce Bills here at all if they are liable to be more or less strangled at birth by the intervention of noble Lords opposite. We shall be bound to bear that in mind when it is a question of introducing 750 Bills of similar importance into your Lordships' House in the first instance.
§ THE EARL OF HALSBURY
I venture to protest against the irregularity of the speech just delivered by the Leader of the House. On the question whether the Bill should be further considered or dropped altogether it was not, in my opinion, relevant, or in order, to discuss a question which has just been determined with a sort of intimation or threat that no Bills will be introduced in this House unless we agree to accept them.
§ On Question, Motion agreed to, and House resumed accordingly.