HL Deb 05 April 1911 vol 7 cc1049-62

[SECOND READING.]

Order of the Day for the Second Reading read.

THE LORD CHANCELLOR. (LORD LOREBURN)

My Lords, I have very few words to say in moving the Second Reading of this Bill, because this is really the same Bill as was brought forward by me and read a second time in your Lordships' House two years ago. I think the general scheme of it commends itself to all of your Lordships who have considered it, but there is one part which caused the wreck of the Bill two years ago to which I must advert for a few moments. It is this. The first clause proposes that any action which otherwise belongs to the King's Bench Division may be brought in the County Court by any plaintiff if he pleases, but that there should be an absolute right on the part of the defendant, if he does not wish it to be tried in the County Court, to remove it to the High Court. The only difference that is made between the existing law by that is this, that whereas the plaintiff and the defendant may now, if they like, agree to try the case in the County Court, if this Bill passes the plaintiff will be able to put it down in the first instance without agreement, subject to the absolute right of the defendant to remove it to the High Court. The object in allowing the plaintiff to enter it in the County Court without agreement is that it is perhaps not likely that parties who are in litigation with each other will care to come to any agreement, but if the one takes the step without having to consult; the other it is presumed that the other will agree. That, my Lords, is the whole scope of the Bill.

The Bill does not go nearly so far as a proposal made by Lord Cairns thirty years ago upon a recommendation of a Select Committee. The Select Committee on that Bill consisted of Lord Cairns, Lord Selborne, Lord Blackburn, Lord Hatherley, and the present Marquess of Lansdowne. My proposal does not go so far as theirs did. It has also received the approval, within the last three or four years, of a Committee presided over by my noble friend Lord Gorell I am almost ashamed to waste so much time in presenting so small an amendment to your Lordships, but when this Bill was last brought before the House of Lords it was objected to in Committee—as I am bound to say nearly every legal reform is—more strenuously. I am sorry to say, by members of my own profession than by any lay member of your Lordships' House. I am very sorry to say that a most distinguished law reformer as well as a very great legal authority, the noble Earl who preceded me on the Woolsack, disapproves of this clause. I shall be prepared to try and meet him in arguing it when the Bill goes into Committee, but I may say with great sincerity how deeply I regret that I am hot able to have his support on this occasion, because I recognise to the full, not only his great authority, but also the distinguished services he has rendered to the law. All I would say further is that the Bill which I say goes further than this Bill—Lord Cairns's Bill—is to be found at page 359 of the House of Lords Bills of 1878 and 1879. I venture to hope that the-Second Reading of this Bill will be given now, and that your Lordships will kindly consider the Bill in the interval and enable me to retrieve the disaster that I suffered two years ago.

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

THE EARL OF HALSBURY

My Lords, I very much regret that the noble and learned Lord on the Woolsack will not acquiesce in deleting the clause which seems to me to be entirely unnecessary for his Bill, and which I think will add a great deal to the jurisdiction of the County Courts, and detract from their value as the poor man's Court. I think one ought to know what the noble and learned Lord proposes to do. Not altogether respectfully, I think, to your Lordships' House after the discussion we had on the previous Bill—and there was a very full discussion of the subject when this clause was negatived—the noble and learned Lord dropped the Bill entirely, and I should like to know what is going to happen on the occasion of the present Bill if your Lordships again negative the clause. The reason I ask that is this. There are a great many provisions in this Bill which I think are extremely useful, and which I should be very glad to see added to the law; but the noble and learned Lord insists upon having an additional amount of jurisdiction given to the County Courts. I do not know whether it formed part of Lord Cairns's Bill, and I really do not care; because that which makes me oppose the present proposal is that it has inflicted a great deal of injustice upon the poorer class of suitors to have had jurisdiction piled on the County Courts from time to time so that occasionally it is absolutely impossible for a poor suitor to get his case heard in the County Court within a reasonable period. Probably we shall have to discuss this at greater length hereafter, and therefore I will not weary your Lordships at present with any further discussion of it.

I will say definitely only this, that from time to time every County Court in the country is over loaded with work. County Court Judges have a circuit to go, and from time to time they are required to announce months beforehand the period that they will occupy with the administration of their Courts. The result of that is that from time to time the County Court Judge is unable to perform the circuit in the specified time. These addings to the jurisdiction operate in this way, that the County Court Judge cannot finish his Court on such and such a day, and has to go back again, and on the occasion when he goes back he may have to adjourn once more. I have heaps of statistics here which perhaps hereafter I may have to call your Lordships' attention to, from which it appears that sometimes as many as three or four times the County Court Judge has to go back again to finish the cause. When one looks at what County Court Judges were instituted for and sees the mode in which every kind of jurisdiction has been heaped upon them, it will be seen that they cannot help adjourning their cases as they have to do, and I am not complaining of the County Court Judges for doing so. It is absolutely impossible for them to alter the periods that have already been mapped out by them, and which have been made operative by law. They have to keep their appointments, and they cannot help adjourning. The tendency has been from time to time to increase and add to the jurisdiction, so that the poor man's Court is now absolutely absorbed by persons for whom the County Court was never intended. I do not know whether the noble and learned Lord himself is the author of the Bill. I cannot help suspecting that there is a Treasury scent about it. There is a sort of notion of sparing some expense.

THE LORD CHANCELLOR

It is my own.

THE EARL OF HALSBURY

Well, I am sorry. I have the greatest possible confidence in and respect for the noble and learned Lord's views. I think he was good enough to say the last time we discussed this Bill that I did not know much about County Courts. He is entirely mistaken. I may inform him that the greater part of my earlier career as a barrister was occupied almost continually in County Courts. I had a general retainer for the London and North-Western Railway, and from time to time I was occupied in County Courts in every part of the country. I do not think the noble and learned Lord's own experience of County Courts is so great. His was a much higher and loftier course of practice. But be that as it may, the undoubted fact is that the County Courts are now congested in almost every place, and I have received earnest remonstrances from the Bar Council on the subject. I noted what the noble and learned Lord said with regard to lawyers, and undoubtedly he was able to raise a laugh at the expense of lawyers who were not law reformers. But, my Lords, I think he is mistaken. I think that the greatest law reformers we have seen in our time have been lawyers. But be that as it may, there is a great and crying injustice at present going on from time to time with regard to our County Courts, as I will show hereafter. The amount of business to be done in the County Courts is so great that the Judges have not time to do it. I have one case here in which it took eighteen months, and three different visits to the County Court Judge's jurisdiction, to finish one case. There is no reason for increasing the jurisdiction of the County Courts at all. I have the best authority for saying that the superior Courts are quite abreast of their work, and there is no reason, therefore, why you should endeavour to relieve the superior Courts and thrust this additional work upon the County Courts and so absolutely prevent and hinder that jurisdiction which was intended primarily for the poor.

There is another question which seems to me very much allied, and which requires serious attention. From time to time those who were intended to be really clerks and registrars are made into Judges for the smaller class of eases. Then you have another jurisdiction given as to the amount which people can pay, what their means are, and how much they can pay within such and such a time. That has been remitted to another class of persons. Then there is, what I think is still more objectionable, in order to relieve the congestion which has been created, a set of Judges appointed pro hac vice, and when their Judicial duties are over they return to the Bar. I can hardly conceive anything more objectionable than this continual oscillation between an advocate looking for business and a Judge enjoying a Judgeship for a week or a month. That seems to me to be calculated to—I will not use so strong a phrase as corrupt—but at all events to deteriorate the tone of the Bar. I say sincerely that I have great respect for the Bar. I believe it to be most useful in all respects for the administration of justice; but I do not think that this practice is calculated to increase either the honour or the usefulness of the Bar.

In regard to this Bill I think one ought to know what the situation is. If the Lord Chancellor says he will not pass this Bill, notwithstanding a great many of the useful sections which are in it, unless he has this primary provision which involves an alteration of the whole system of the administration of justice, it seems to me to be neither respectful to this House nor calculated to aid the spirit in which I am sure the Lord Chancellor himself would desire the debate to be conducted.

LORD ALVERSTONE

My Lords, I am not going to inflict any discussion upon your Lordships with regard to the merits of this clause. This is not the right time to do so. There are many arguments in addition to those which have been mentioned by my noble and learned friend Lord Halsbury which require to be considered. But it is quite impossible for me to remain silent at the present stage after the speech which was made by the Lord Chancellor, because it places me in an extremely difficult position. This first clause has nothing to do with County Court administration properly so-called. It. is a clause which relates to the business of the High Court, as to which I ought, of course, to know something; and I do respectfully enter my protest, not for the first time, against the attempt to discount what may be said by those who have convictions on this matter by saying that they only oppose this clause because they are lawyers. I can say, speaking for myself, that that is not a just observation. There is no instance in my career, either in the House of Commons or here, which would justify the Lord Chancellor in suggesting that I would oppose any reform in the law or that I would oppose this particular clause in his Bill because I, as a lawyer, oppose every legal reform. The whole of my record is contrary to that. Therefore I respectfully protest against what we may say, from our convictions, being discounted on the ground that we oppose because we are lawyers. It is an observation the injustice of which I feel deeply, and I am sorry that it has been introduced to-night.

We ought in fairness to know whether or not this Bill is again going to be wrecked because we cannot agree with this clause. I have the greatest respect, and the Lord Chancellor knows it, for his judgment, and would gladly co-operate with him in every way I could; but I cannot subordinate all I know about this matter into a mere position of obedience. I wish this Bill to be read a second time. There are many clauses in it which I think ought to be passed. I support the greater part of them, and I deeply regretted that useful amendments which are wanted in the law with regard to our County Courts were withdrawn when the Bill was last before your Lordships' House because of the view taken with regard to the first clause, which, as I have said, has nothing to do with County Court administration at all but which is really a question entirely of High Court work. There are many things I could say about this Bill, but I am not going to inflict them upon you to-night. I would ask the Lord Chancellor, however, whether it is quite just not to tell us whether we are afterwards to be held up as having wrecked this Bill unless we agree to the first clause of it. We never have wrecked the Bill. We have discussed a clause, a clause of very great importance, and have not agreed with it.

I can assure the noble and learned Lord on the Woolsack that there are great objections to this proposal—objections which I shall be able to bring before your Lordships' house at a later stage. They may or may not commend themselves to the Lord Chancellor. I hope they will; but I trust at any rate, that he will understand that I am not here opposing the clause because I am a lawyer, and that he will give a little consideration to the reasons which I shall have to urge against this clause when the Bill goes into Committee. But, my Lords, I must say that the position does not seem to me right or just to those of us who feel greatly the responsibility of opposing the Lord Chancellor in such a matter as this. The noble and learned Lord comes down to your Lordships' House with all the weight of his great position, and the lay members of the House must naturally think that the opinion of the Lord Chancellor on such a matter is worth a great deal more than the opinion of anybody else. Therefore it is most difficult to be in a position of opposition, and I feel it most keenly. I feel that I have to approach this discussion with a sort of sword of Damocles suspended over my head—"if you do not agree to this clause the Bill does not go on, and you will again be held up as the persons who wrecked the Bill." I most respectfully protest. I have no wish to wreck the Bill, and I am not a wrecker of the Bill in arguing against this clause. On the contrary, I desire to see the Bill made law.

My Lords, I cannot shelve my responsibility on to other people's shoulders. I have now for eleven years had the great honour of being the head of the King's Bench Division, and I know perfectly well the needs of that Division. I know perfectly well what difficulties there are, and I am grateful to the Lord Chancellor and to the recommendations of his Committee which have enabled us and other Judges to come abreast of the work; but I do enter my most respectful protest against the speech which he made, with all the weight and authority of the Lord Chancellor, which practically is intended to—or if it is not intended to it will have that effect—discount any arguments that we may put forward to the House against this particular clause of the noble and learned Lord's Bill.

LORD GORELL

My Lords, perhaps I may ask your Lordships' indulgence for a few moments, as I was Chairman of the Committee which reported on the question of the improvement of the County Courts. The effect of this Bill, as I read it, is to embody the main points which the Report of our Committee put forward as valuable for the improvement of County Court procedure, practice, and jurisdiction. Therefore I would like to say a few words at this stage as to why I think the first clause should be retained, even though there are many other clauses independent of it which might be considered and which would be of value without Clause 1.

The first clause really goes further hack than even my noble and learned friend on the Woolsack thinks—or perhaps it has escaped his recollection. It goes hack really to the year 1872, and is taken from the first Report of the Judicature Commissioners of that year. The majority of those Commissioners reported at that time that the County Courts should be constituent parts of the High Court, and, in effect, should have unlimited jurisdiction, with a right of removal over a certain limit. I do not know whether they fixed upon the limit at that time, but substantially the clause that was framed as a result of the Report of that Committee goes back as far as 1872. If anybody studies with care what is called by some the evolution of the County Courts, he will find that these Courts began by being Courts for persons who claimed something like a sum not exceeding£20. That was in the year 1846. From that time to the present there has been a development in the powers, jurisdiction, and proceedings of County Courts, which was in answer, I think, to a demand for local facilities of an economical character. There are in the Report which we framed something like four pages cataloguing the Acts which have given additional jurisdiction to the County Courts. There are, in addition to these detailed Acts, the Acts which give jurisdiction of an unlimited character to the County Courts in bankruptcy, which is of a very extensive character. There are also Acts which give a large Admiralty jurisdiction to the County Courts. That has been the movement of the last fifty years, and it is a movement, based, I venture to suggest, upon economic and local facilities.

This clause continues that idea by doing very little more than using a certain amount of play upon human nature to avoid the difficulty which exists if you proceed to ask for consent. There is absolutely no increase of jurisdiction implied in this Bill. It is a mistake to think that there is. Parties can agree at this moment to take any Common Law case they please in the County Courts without any limit whatever, with the exception of a few cases such as libel and slander cases, which are expressly exempted from the operation of this Bill. What does the Bill propose? Your Lordships are not asked to do anything more than to facilitate what parties wish to do. It only proposes that the plaintiff shall begin his action in the County Court, and the defendant, if it is over the present limit, may say, "I object to that; you must go on in the High Court." In other words, it gives power to object instead of requiring consent. It is perfectly obvious why that should be done. It is because it is a most difficult thing to approach a solicitor, or a party with whom you are in litigation, and ask for consent to anything; but if you begin the action in a local Court, which would mean economy, it is much more natural that the defendant would not object to it going there than give his consent if he were asked to give it before hand. That is the whole change which is so much objected to.

I venture to ask, Why is it objected to? It is objected to because it is said—I say this with the greatest deference to what was said by the noble and learned Earl opposite—that it would swamp the poor man's Court and prevent his cases from being heard. So far from doing that, it will get rid of those very difficulties to which the noble Earl referred, and to which the Bar Council has referred. When those cases are examined into I venture to say they will be found to be exceedingly small in number, and to arise entirely from the present working of the County Courts. At the present time County Court Judges are obliged to nominate in advance specific days for their sittings. I think it is once a month they have to be at every place on their circuit. They cannot possibly know what work they will get there. They find ordinary business, such as committing people to prison, small debts to be enforced, and so on, and then they suddenly find a large case put into the day's list. By that system it is perfectly impossible that there will not be difficulties and lengthy adjournments. That is the present system. But if this Bill is carried, the procedure which is suggested is that any case which is of a larger class of case should be taken at a special sitting with lists arranged and at a central place selected for the purpose of taking that particular kind of case. That system, instead of increasing the difficulty of work of the County. Courts, would in my opinion decrease it. Then with regard to the point that the County Court Judges are overworked, I do not think it will be found that County Court Judges are by any means overworked. I believe the average total number of days in the year on which the County Court Judges sit is about 150.

THE LORD CHANCELLOR

153.

LORD GORELL

I do not believe, even if there was some extra time allotted for special sittings to deal with such cases as they are likely to get, that there would be any material difficulty, by proper adjustment, in County Court Judges coping with that class of work. The third alteration that is made by this Bill is an important one. It is proposed that Registrars should, unless the parties object, have power to deal with all debts under£5. Anybody who studies the statistics of the County Courts will find that an enormous percentage of the cases are under£5; and if jurisdiction to deal with those cases—many of them being undefended—were conferred upon the Registrars, the time of the County Court Judges for heavier cases would be largely increased, and they would be able to cope with better work than simply dealing with little undefended matters which do not take them more than a moment or two to decide. Another matter is this. If these cases should happen to be of any length, it is quite easy to provide that, on application to the Judge, they should be transferred, or sent: to an Official Referee if the Judge finds the intricacies of the case such as to require a longer hearing than can be allowed without delaying his smaller cases.

If this matter is investigated I think it will be found that there is no real difficulty in carrying out the proposals which this Bill puts forward. Secondly, are they wanted? The answer seems to be this. There is the development of the County Court which I have already indicated, and there is this further point that since the Act of 1903 introduced by the late Government extending County Court jurisdiction from£50 to£100, there have been a large number of cases taken above the£100 limit, amounting to 573 three years ago—those are the last statistics I have—in the County Courts, and 151 in the City of London Court. The total of those is more than the total number of cases disposed of by the High Court on circuit—that is to say, the consent jurisdiction, as it exists, has produced something like 700 cases which are taken by consent in the County Court at the present time, and all that this Bill proposes is to change that consent into a want of objection. I have dealt with this part of the question because one of the main grounds of objection appears to be that you will overwork the County Courts and prevent them from operating on their proper work. For the reasons I have given, I cannot believe that that is so at all; and as to the rest of the Bill, there are most valuable provisions in it which might very well go through, subject to some criticisms, even though the first clause were not adopted. I am sorry to have spoken so long, but some of these matters that I have dealt with are matters of importance, and it is worth while to bring them out now at an early stage of the proceedings with regard to this Bill.

THE LORD CHANCELLOR

My Lords, may I say a very few words in reply. In the first place I would say that I have made no attack upon any profession, least of all upon my own, of which I am immensely proud. But if you look at the history of legal reform I am sure you will find that any one, however experienced in the law, who proposes law reform never receives much encouragement from the lay public, and not infrequently his proposals are met with objections—perfectly conscientious objections, I have no doubt—from members of the legal profession; and that is the reason why so many things in the administration of the law are a reproach to-day. May I give your Lordships one illustration in all goodwill. Your Lordships will remember three or four years ago when I brought forward the Criminal Appeal Bill how my noble and learned friend came down to the House and said, I have no doubt honestly believing it, and speaking on behalf of all of His Majesty's Judges, that it would be destructive of the administration of justice in criminal cases in this country.

LORD ALVERSTONE

I beg the noble and learned Lord's pardon. I did not say that. I referred entirely to appeals on question of fact, which have never been lawful before.

THE LORD CHANCELLOR

My noble friend is under a misapprehension. The whole point was with regard to appeals on questions of fact. That was what the Bill was for. Yet it had not become law a week before every man in the country knew that it was a success and was necessary for the administration of justice, and no one admitted more generously than my noble friend himself that the Bill was indispensable to the administration of justice. That, my Lords, is an illustration of the kind of difficulty which any one bringing forward law reforms has to meet at the hands of the legal profession. After all, this clause is a very small thing. It simply means that one person may do a certain thing to begin with and the other person may object if he chooses to do so. It is said that this will overwhelm the County Court Judges with work. Your Lordships will find the statistics with regard to the daily work of the County Court Judges in the Judicial Statistics published every year. I examined them last year and found, unless my recollection fails me, that the County Court Judges do on an average 153 days' work in the course of the. year. I wish I only did 153 days' work in the year. I should be very well satisfied to do 300 days' work in the year and very much improve my present work, and so would most of the working people of the country. Is it tolerable to be told that in the case of Judges who only do 153 days' work in the course of the year that they are so overwhelmed that their work cannot be added to? It cannot be supported.

Might I ask the noble and learned Earl, if he will, to let me know beforehand the statistics that he intends to rely upon when the argument comes on in the Committee stage. If they are right, I will admit them at once; but I should like very much to have an opportunity of knowing what those statistics are, because I know, not only front the statistics which I possess but also from my communications with County Court Judges themselves, that it is not the case that there are any arrears in the work of the County Courts. If there were arrears, we should very soon have notice taken of them. I am very sorry to have occupied so long with this, but we are most anxious to try and make justice cheap in this country if we can, and enable people to try their cases in Courts near at hand and not compel them to incur the expense of coming to the High Court with cases of the kind with which this Bill deals. We want people to be able to have their cases tried cheaply, if we can, and this Bill only enables people to do it who are willing to do it. I venture to predict that, unless we take some step of the kind in the way of law reform, your Lordships will find the Chambers of Commerce and the commercial classes of this country becoming vocal on the matter before long. I have had experience of this feeling from deputations I have received on the subject.

Then the noble and learned Earl, Lord Halsbury, asked me if I would say whether I was going to drop the Bill if this clause was not passed. If I do not proceed with the Bill there is nothing to prevent anybody else from taking it up. It is not a fair thing to say to a Minister who brings in his considered proposals in the shape of a Bill, "We propose to excise some of the clauses, but we ask you to be good enough to proceed with the rest." if this clause is omitted I do not propose to proceed with the rest. But that does not prevent my noble and learned friend Lord Halsbury or any other member of your Lordships' House taking up my Bill. I have not the least objection to that being done; but I do not think it is fair to say to a Minister, "We will cut out the best and most important part of your Bill and you must be content with the rest." It seems to me to be treating him more like a schoolboy than a responsible person.

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