§ Amendments reported (according to Order).
§ THE EARL OF HALSBURY moved to leave out Clause 1, which ran—
§ Unlimited jurisdiction subject to right of removal.
§ 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, if the defendant or one of the defendants makes an application for the purpose within such time and in such manner as may be prescribed by rules of the Supreme Court, be removed into the High Court and shall proceed in London or in a district registry as provided by such rules.648
§ (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 of a class for the time being assigned to the Chancery Division or the Probate, Divorce, and Admiralty Division of the High Court, nor shall anything in this section affect any revenue proceeding or appeal.
§ (5) Where, in an action commenced in, or remitted to, a county court, the defendant or one of the defendants counter-claims 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 eighteen of the Supreme Court of Judicature Act, 1884, the following provisions shall have effect:—
- (a) The plaintiff may, in accordance with county court rules, apply to the judge for an order refusing permission to the defendant to avail himself of the counter-claim, and if on such application the judge is of opinion that the counter-claim cannot be conveniently disposed of in the pending action, or ought not to be allowed, he may make an order refusing permission to the defendant to avail himself thereof.
- (b) If no such application is made, or the judge refuses to make an order refusing such permission, the whole proceeding shall, in accordance with rules of the Supreme Court, be removed into the High Court, and shall proceed in London or in a district registry as provided by such rules.
§ (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 one hundred and sixteen of the County Courts Act, 1888 (hereinafter referred to as 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 or by agreement, but not otherwise.
§ (8) Section sixty-four 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 appreciate the difficulty that a great many of your Lordships are in in having to discuss this Bill without sufficient information from those who are familiar, 649 not only with the law, but with the administration of the law, and I think those noble Lords who are members of the profession to which I have the honour to belong would do well if they would give us the result of their experience. Happily I think I may say that this Bill is beyond the reach of Party controversy; and I would equally welcome from the other side of the House information on the subject. It is not desirable that we should again discuss this matter at great length, and I will, therefore, put the broad points as shortly as I can before your Lordships.
§ My first broad point is that County Courts are already too crowded, and that the effect has been to crowd out the small people for whose sake the County Courts were originally instituted. On the last occasion a most valuable piece of information was given to your Lordships by an ex-Attorney-General (Lord Robson), and I would desire no better advocate than himself of the view that I take. I believe his experience is the experience of almost everybody in the County Courts. On the last occasion that this matter was before your Lordships my noble and learned friend Lord Gorell mentioned that this Bill was the outcome of a Report of a body of Commissioners in the year 1872. My noble and learned friend mentioned one or two great names as recommending this change, but I do not think he sufficiently distinguished between those who approved of it and those who did not.
§ THE EARL OF HALSBURY
A man does not always remember what he said. I think I caught the name of Lord Cairns.
§ LORD GORELL
If the noble and learned Earl will refer to the Official Report he will see that I mentioned no names at all. I merely mentioned that a majority of the Commissioners were in favour of the Report.
§ THE EARL OF HALSBURY
I am now told that it was the Lord Chancellor who mentioned the names. Whoever it was, I am bound to say that it would have been as well to have mentioned the names of those who disagreed. Among those were 650 Lord Cairns, Lord Penzance, Chief Justice Erle, Mr. Justice Blackburn, and the then Attorney-General, Mr. R. P. Collier. They all disagreed, and gave reasons for their disagreement. Some of those reasons, I think, are very relevant. Lord Penzance wrote—I am entirely opposed to the substitution of Registrars for County Court Judges in the hearing of contentious cases, however small the amount in dispute. … The economy to be effected by these changes would not, in my opinion, prove great in the end, and would be too dearly purchased by lowering the standard of Judicial excellence.The authority of Lord Penzance is somewhat high. Mr. Justice Blackburn wrote—I have great doubts as to the expediency of establishing any such intermediate class of Courts at all. I attach much importance to the keeping up of the great central Bar of England. The only real practical check on the Judges is the habitual respect which they all pay to what is called 'the opinion of the profession,' and the same powerful body forms, as I think, the real and the principal check on the abuse of patronage by the Government.Sir Robert Collier, afterwards Lord Monkswell, said—The County Courts were established as Courts for the trial of small causes, and as such have been successful; if they be raised to a position intermediate between superior and inferior Courts and be entrusted with the trial of a large number of important causes in substitution for the Courts of Assize, I doubt the continuance of their success. I think that their jurisdiction has already been extended somewhat too far, and that it at the least deserves consideration whether under an improved circuit system some portion of that jurisdiction might not, be conveniently re-transferred to the superior Courts.I have other authorities, but I do not want to pursue this. I may add that I had a very large practice in the County Courts and know of what I am speaking, and I would be glad if any lawyer familiar with the County Courts would give your Lordships such information on the subject as he possesses.
Consider what it is proposed to do. You are about to add to the jurisdiction of the County Court every ease of litigation in the State. The noble and learned Lord on the Woolsack says, "Yes, but the defendant can have the case removed to the High Court if he desires." There comes in the vice of costs, which largely depend upon these interlocutory proceedings. Does anybody believe that a person who is sued in the County Court will himself apply to have the case removed to the High 651 Court? He will go to an attorney, whose advice will cost him money. That is one of the difficulties. Then the noble and learned Lord pointed out that anybody could bring a case of the kind in question in the County Court by consent, but he added that it was necessary that there should be a little pressure. The object of this Clause is to force upon litigants something which you cannot get them voluntarily to do, and to then place upon the defendant the obligation of objecting and having the case transferred to the High Court. Then the noble and learned Lord on the Woolsack adds a provision which would enhance to an infinite degree the amount of costs and delay, because one of the sources of difficulty is as everybody knows the number of appeals. The noble and learned Lord now opens the door to the whole inquiry being taken over again, for he proposes to enact in this clause that there shall be a right of appeal upon questions of fact in cases above £50. It appears to me that if you want to destroy the system of County Courts you could not go a greater way in that direction than by passing this provision. At present when once you have the facts found by the County Court Judge they are, as it were, facts found by an arbitrator; you cannot go behind. Now it is proposed to give a right of appeal upon questions of fact in all cases above £50, and we know how considerable is their number. I protest against that very much.
I dare say your Lordships hardly know the class of work that is done by a County Court Judge, and it was upon that point that what the late Attorney-General (Lord Robson) pointed out when this Bill was last before us was so useful. He referred to a case where the time of the County Court Judge was occupied until 3 o'clock in the afternoon hearing judgment summonses. Now do your Lordships know what that means? It means an examination into the pecuniary resources of every man who was summoned before him, into how much the people earned, and how much they could afford to pay. In view of the, nature of the work which County Court Judges have to do, to force every other kind of litigation into the County Court seems to me a monstrous abuse. This clause would prove a destruction to the Junior Bar, and besides that it would, in my i opinion, entirely destroy the real purpose for which County Courts were instituted.
652 It has become quite a common thing for a County Court case to be adjourned over and over again. In saying that, I must allude to one observation made by Lord Gorell. He referred to the statistics that had been collected, and I think he was a little hard upon those who had supplied those statistics. They were I collected, I think, at the instance of a Commission appointed in connection with the proposal to confer upon County Courts jurisdiction in regard to divorce. Lord I Gorell presided over that Commission, and perhaps his tendency towards this may have been a little tinged by his desire to show that County Courts were efficient to be entrusted with divorce jurisdiction. However that may be, those statistics were given by gentlemen who had no interest whatever one way or the other. The information was given to the best of their belief, and they are entitled to have the evidence which they gave at the instance of the Commissioners treated with respect and treated as if it was accurate, as I believe it to be. I do not wish to argue this matter over again as it has been several times before your Lordships. I therefore conclude by moving the Amendment standing in my name.
To leave out Clause 1."—(The Earl of Halsbury.)
§ LORD GORELL
My Lords, I shall not venture to trouble your Lordships with a speech at any length because I spoke on this subject very fully a short time back, but I should like to summarise quite shortly what I conceive to be the real position of this matter. May I say at once, with regard to the statistics to which the noble and learned Earl has referred, that I have never questioned their accuracy for one moment. They were supplied for the purpose of the Divorce Commission to show what was the state of business in the County Courts.
The summary of what I should like to say about this clause is this. In substance it only changes consent into want of objection, which gets over difficulties where people are asked to consent who do not like to consent to anything in law. If a case is started against them and they are asked to consider whether it is easier, cheaper and more convenient to try it in the County Court, they have to face the 653 question of transferring it to the High Court if they object to its being taken in the County Court. There will be no additional expense necessarily than if the suit had been entered in the first instance in the High Court. Next, this proposal has been before the country for a very long time. As to the Report of the Judicature Commissioners of 1872, to which reference has been made, the noble and learned Earl is quite correct in saying that there were five or six objectors. But the fact remains that there were eighteen signatories on the other side. I do not propose to mention names, because all that it came to was that a majority decided to report in favour of a proposal practically on the same lines as the noble and learned Lord on the Woolsack has put into this Bill. It is also important to remember this. I stated on the last occasion that this clause met with favour from the various law societies in the country. Since then I have received a communication from the secretary of the Law Society which practically amounts to saying that it meets with the approval of the Law Society and, what is perhaps more important still, of all the provincial law societies in the country.
The next point is this. The real objection to this clause is the block which it is suggested it will create in the County Courts. The noble and learned Earl has suggested that the experience of those engaged in the County Courts should be brought forward on this point. I have received a communication from Sir Mackenzie Chalmers. He was on the Committee over which I presided, and he was for twelve years County Court Judge at Birmingham. He had also had other Judicial experience, for he was a Commissioner of Assize, and I think he held a Colonial Judgeship for some time. At any rate for twelve years he held the position of County Court Judge at Birmingham. He found exactly the difficulty which is set forth in the reports of the gentlemen who furnished the statistics to the Bar Council and he instances exactly the kind of thing that happened and which I venture to suggest is met by this Bill. When he went to Birmingham, one of the largest County Courts in the country, ho, found a case which had to be adjourned and the result was that eight months went by before it was finished. He thought that a great scandal, and he did exactly what this Bill if carried would bring about. He 654 proceeded at once to institute for the heavy cases a counsels' list and set apart a week for it, and by giving a week in each month he was able, without any interference with the ordinary work of the Court, to dispose of all the substantial business which the Court had before it. Clause 7 of this Bill is drawn for the special purpose of meeting the difficulty of the heavier class of work being brought to these Courts, and it provides machinery by which substantial cases shall be taken at special sittings for the purpose of getting rid of the block referred to. And if at the larger centres where the Judge is continuosly sitting that can be done, the only difficulty to consider is what is to happen in the smaller places. The answer to that is again suggested in this Bill. It is that cases which are of substance shall not be taken necessarily at each tiny County Court, which only requires a visit of a day once a month, but shall be concentrated at the nearest county centre so that the Judge can there make a list which will enable him to deal with that class of case; and if that is done the difficulty of blocking and the danger of expense and adjournments of cases will be got rid of. That, it seems to me, is the answer to the whole of the statistics which have been put forward on this point. There ought not necessarily to be any great difficulty in the concentration of this work; and I think, with all respect to those who take a contrary view, it would be an immense advantage to the Bar. They would be able to concentrate their energies at one spot, and convenience would be immensely increased to all parties.
I wish to say that I was in error on the last occasion when I said that the only changes that had been made lately in regard to the High Court were at the last places on circuit. I was not aware that an Order in Council had been passed a day or two before I spoke which made changes of a substantial character advantageous to the general administration of the circuit system. What I was aiming at was that, although I firmly believe that the Lord Chief Justice and those who assist him are ready to make every change which can be made to work the circuit system as it stands properly, an adequate change is not possible while the present system endures on its present footing. As far back as 1892 the Judges of the King's Bench Division recommended that the fifty-six places, I think it is, at which Assizes are 655 held for civil business all over the country should be concentrated in eighteen. Local opinion was against that, and nothing was done. In 1896 a further attempt was made and some changes were brought about, though they did not amount to very much. And in the Report which my Committee prepared on this question we expressed the opinion that the circuit system should be entirely remodelled, that the principle of the concentration of civil business should be applied, and that so far as possible, having regard to the convenience of access afforded by railway communication, civil cases should be grouped at suitable centres. And we pointed out that this would have the effect of giving almost continuous sittings locally at those centres. That is a suggestion which cannot be met by preserving civil Assizes at places where the work is trifling. If that is not done it seems to me that the proposal as to County Courts would be a great advantage, because it would enable these eases to be brought fairly continuously and at much less expense. Therefore I venture to suggest that this clause would be an advisable one to pass, and that the difficulties where they exist are got rid of by the provisions to be found in the later part of the Bill.
§ LORD ROBSON
My Lords, I am glad that the noble and learned Earl opposite has drawn attention to the fact that this is in no sense a Party measure. I am not ashamed to confess that by conviction and habit I am accustomed to obey Party calk, but this is a matter within my own personal knowledge as to which I have a strong sense of responsibility, and I feel bound to give such assistance as I can to your Lordships in dealing with a matter of this kind.
We have to consider this matter from two aspects, as to one of which little need be said. The Bill proposes to transfer a large quantity of business from the High Court to the inferior Court. As far as the High Court is concerned, no one has suggested that there is the slightest necessity for any transfer of business. Owing to the increased Judicial staff the High i Court is able to get through its business with expedition. That is the state of things in the High Court from which this work is proposed to be taken. Now look at the state of things in the County Courts, to which the work is proposed to be trans- 656 ferred. That was the main subject of discussion when your Lordships dealt with this Bill in Committee. There was then produced a body of evidence on this point which has been rather obscurely referred to to-day. Reference has been made to a statement issued by a number of barristers at the request of the Bar Council. The suggestion having been made that jurisdiction in divorce proceedings should be given to County Courts, my noble and learned friend Lord Gorell asked the Bar Council to collect for him statements as to how far the state of business in the County Courts would admit of this increase of jurisdiction.
What the Bar Council did was to approach twenty-eight barristers having County Court practice and ask them to give their own personal experience, collected from their fee books, and to state what they thought of the proposal to increase the jurisdiction of the County Courts. As my noble and learned friend has stated, the statements made by these gentlemen have not been impeached. They cannot be impeached. They are accounts of specific cases with specific dates, and the time over which the cases ranged is given in each particular case. These twenty-eight barristers have shown how in each of the cases mentioned there was delay, costs, trouble and inconvenience owing to cases suitable for the High Court being taken in these small debt Courts for which their machinery and time are not adequate. My noble and learned friend Lord Halsbury has said that these statements were not interested statements on the part of the Bar. I would go further. Not only were these gentlemen not making their statements from interested motives but they were making them against their own interests, for they were. County Court practitioners and the more business the County Court had the better it would be for them. The proposal to allow divorce proceedings in the County Court was professionally to their benefit; but the whole twenty-eight of them to a man pointed out, in the most explicit and careful way, what the result has been of the many recent increases of County Court jurisdiction. Their experience is unanimous.
I mentioned the other day the evidence of the first two, and I took them simply because they were the first two. One of those instances contained the experience 657 to which the noble and learned Karl opposite has referred, where a batch of counsel with heavy cases proper to the High Court were kept waiting while 200 judgment summonses were being tried. Those summonses were dealt with with great rapidity—at the rate of fifty per hour, or nearly one a minute—and then at three o'clock one counsel's case was taken and at six o'clock was adjourned, and the hearing extended over three or four successive days. As I have said I took the first two cases when I addressed your Lordships last upon this subject. I will take the last two on this occasion. One barrister says—My experience in the County Courts in and about London is that there is great congestion and considerable delay. Rarely is a case heard on the original return day, while a case of any magnitude has to be taken piecemeal. The County Court Judge's engagements on his circuit preclude him taking a lengthy case de die in diem. In a fairly recent case in which I was engaged we spent one day without being reached, and five subsequent days were given to the case by way of special sittings prolonged over a period of six weeks.And here is the final case. The barrister states that the case was down for hearing at the County Court on a particular circuit on November 28, 1908. It was not reached. He then goes through a series of dates which end in judgment being delivered on October 11, 1909. It is beyond all doubt that the primary purpose of the County Courts, which is to give to the poorer classes in this country a rapid and cheap means for the settlement of their disputes for small amounts, is already being adversely affected by the enormous mass of work which has been thrown on the County Courts. Therefore the proposal to take work from the not overworked High Court and throw it upon the very heavily overworked County Court in particular districts is not exactly what strikes me as a model law reform.
What is the difference which Clause 1 makes? Many of your Lordships might think from the course which this debate has taken that this is a clause to enable persons to have their cases tried in County Courts who are not able at present to have their cases so tried. That is not the object of this clause. At present County Courts have full jurisdiction up to £100, and beyond £100 they have unlimited jurisdiction by consent. Now how is consent signified? It is signified by a mere letter. The plaintiff before putting his case down 658 writes to the defendant and says, "I am going to sue you. You have to be sued somewhere. Will you take it in the County Court?" The defendant says "Yes" or "No" to that, and the matter is ended. But under this clause the defendant is not asked for his consent beforehand. The plaintiff is permitted, I might almost say invited, to put down his case in the County Court—the writ is cheaper and the practice would become common—and then instead of the jurisdiction of the Court depending on the defendant giving his assent, the Court has only jurisdiction where the defendant does not dissent.
You might say that that is so small a matter as not to be worth troubling about. But the defendant is not allowed to intimate his dissent by merely writing a letter. He is compelled under this clause to go into the High Court at once and to make in the High Court, or in some district registry of the High Court, an application to have his case transferred—a purely superfluous interlocutory proceeding, and precisely the class of proceeding which law reformers are anxious to get rid of. He is thereupon as I have said, compelled to make an application to have the case removed, and such application the High Court must grant. It is a purely superfluous, expensive and unnecessary proceeding to put upon the defendant in order that he may be discouraged from entering the Court which exists for the purpose of trying his case. And notice this also. His lawyer is obliged to be put into operation at once, because the application has to be made in accordance with rules of the Supreme Court within so many days and in a manner to be prescribed. And if the defendant fails to obey these rules then he is compelled to have the case tried in a Court to which he does not wish the case to go.
It is suggested that the defendant would only want to get into the High Court for the purposes of delay. The defendant who desires delay is not afraid of extra interlocutory proceedings. He will take them gladly. That is not the defendant you would hurt by this Bill, but the defendant who seriously and honestly wants to have his case tried in the High Court. He is the man who will find it inconvenient, expensive and troublesome to have this extra interlocutory proceeding 659 unnecessarily put upon him. A man who has an important case which may involve his fortune or his character wants to go to the High Court where he can get the case fully tried, or it may be a case involving the technique of his trade or business. He would naturally desire to have the case tried in a Court where he could get continuous sittings, and not in a Court where he was badgered by judgment summonses one day and workmen's compensation cases the next. The plaintiff may have a very different wish. He may prefer a Court where the justice is not only summary but very unsatisfactory. Plaintiffs get a great advantage in English Courts of Justice. They get the first word and the last word. The defendant's lot in an English Law suit is not a happy one, and the defendant is far more interested in the excellence of the tribunal than is the plaintiff. He wants a Judge who can keep his mind open, and that is not such a common faculty as is generally supposed. By this clause the defendant is to have put upon him this absolutely superfluous proceeding for the purpose of preventing him from getting his case heard in the High Court. *It is true that the law societies, which are composed of solicitors, are not unwilling to have the business of the High Court transferred to the tribunals in their own localities, but their evidence must be weighed a little, and I am not aware that they have more than expressed their own opinion. My noble and learned friend has an excellent provision in this Bill for special sittings. I do not, however, think that they will cure the evil. But still it is a good provision. The law societies, however, do not approve of special sittings and have expressed their disapproval.
There has been a good deal of discussion on the Report of the Judicature Commissioners of 1872. I would like to take the Report of the Committee appointed by the Lord Chancellor to inquire into certain matters of County Court procedure and presided over with such distinction by Lord Gorell. It is dated 1909, and this is the last Report, according to Lord Gorell's statement, on which this Bill is founded. Lord Gorell told us on the last occasion that he thought those who were opposed to this clause had not given that Report adequate consideration. I am prepared to base my case upon this Report. There is a little inconsistency between the premise and the conclusion which not infrequently 660 happens. The Report begins with a long list of Acts which have increased the jurisdiction of, and thrown extra burdens upon, County Courts The list contains something like seventy Acts. Then under the heading "Effect of in crease of work and added duties" I find this passage—It is not surprising to find that, with the increase in the ordinary work and the numerous duties cast upon the County Court Judges in many Courts, the amount of work to be done has reached a point at which the strength of the Courts as a whole is heavily taxed to cope with it, and the information which the Committee has been able to obtain shows clearly that attempts to try cases of any length have frequently resulted in serious inconvenience and waste of money.The statements get stronger as material accumulates. On page 15 the Committee 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 eases 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.Then the Committee submit this conclusion—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 us 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 hare 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.Then a little lower down the Committee say—The conditions under which a local Judge must work in a Court with a district which is necessarily limited in order to deal with the aforesaid primary business of the Court, are not likely to make such 661 a Court prove a satisfactory tribunal for the trial of cases of legal difficulty or of importance. In most cases he is out of touch with the other Judges and leaders of the legal profession, without opportunities of discussing legal cases with them, will not have any, or hardly any, opportunity of hearing cases argued by eminent counsel, and, as a rule, has not an adequate library with books or works of authority at hand.Again they say—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 case which it is reasonable should be both commenced and continued in it.Those are the opinions of the Committee, and I am glad to think they are the opinions of Lord Grorell and of Sir Mackenzie Chalmers. But what was the recommendation which the Committee made? And I ask your Lordships to notice the difference between the Committee's recommendation and Clause 1 of this Bill. In this Report it was not suggested that the defendant should be driven to make this unnecessary interlocutory application. What was suggested was that the plaintiff might be empowered to issue a plaint in the County Court, but that the defendant should have an absolute right, to be indicated to him in the plaint—there is nothing of that sort in this Bill—to have the case removed to and tried in the High Court, and to effect this all he had to do was to give notice thereof to the Registrar of the County Court out of which the plaint was issued. So that in their recommendation the Committee keep as nearly as possible to the letter. There would be no necessity for the defendant to make an application to the High Court. He could send a letter to the Registrar of the County Court to say that he was not entering an appearance in the County Court. But instead of that we have in the clause this interlocutory application, which casts upon the defendant an unnecessary burden, and a burden which I really think under all the circumstances can scarcely be called quite fair to him.
It is only Clause 1 to which we object. We have no objection at all to the rest of the Bill. I think no case whatever has been made out for this clause. The noble and learned Lord on the Woolsack said on 662 the last occasion on which we discussed this subject that the average sittings of County Court Judges numbered 153 days in the year. I pointed out at the time that there are, of course, many underworked Courts. Courts in rural districts are underworked; Courts in districts where the Judges do not happen to have found favour with the business community are underworked; but that is not so in the large and important centres. Moreover, County Court Judges have to do a great deal of travelling. A County Court Judge often leaves home at six o'clock in the morning to travel to his Court and gets home late at night. A man cannot keep that up every day in the week. These are considerations which I invite your Lordships to take into account in dealing with this clause. As I have said, if this clause is deleted there is no reason why the rest of the Bill should not have a safe and easy passage.
§ LORD MERSEY
My Lords, may I say a few words about Clause 1? It is the only clause in the Bill to which any real objection can be taken, and I will state what I understand the effect of that clause to be. Hitherto the jurisdiction of the County Court has properly been limited to comparatively small cases. Clause 1 of this Bill opens the doors of those Courts to all actions whatever the amount involved may be. I am going to say nothing as to the block which such an introduction of new work into the County Courts would cause. It is sufficient to remind your Lordships that the County Courts were originally instituted, and in my opinion are still intended, for the cheap, satisfactory, and speedy disposal of poor men's cases. I turn to the particular provision in this clause. The Lord Chancellor on the last occasion, if I may say so, quite accurately stated that the clause gave to a defendant who was brought into the County Court an opportunity of at once taking the case out of that Court, for he could by an intimation to the plaintiff claim to have his case tried in the superior Court. So he could. But in my opinion that protection, if it can be called a protection, is quite illusory. I will tell your Lordships what in my opinion would happen, and I speak from considerable experience. The plaintiff is represented by an advocate-solicitor in the County Court district out of which the Summons is issued. The solicitor for the defendant—a defendant 663 who probably also resides in that district—is himself practising in the district and in that County Court. It is to the interests of both the solicitor for the plaintiff and the solicitor for the defendant that the case should be retained in the Court in which they practise. The lay defendant will never know that he has an opportunity of having his case removed from the County Court into the High Court. It is not to the interests of his solicitor that it should be removed, and the result will be that the so-called protection will be illusory and the defendant will know nothing of it. That is all I have to say about this matter. I think the Bill in other respects a most excellent measure; but I do hope that this driving of large cases into the County Court against, as I believe, the will of defendants, will not take place.
§ LORD ALVERSTONE
My Lords, I argued this matter at length the other day and I only rise on the present occasion to make one or two observations on points which are really new. I must first be allowed to make a correction, although there bus been a slight withdrawal by Lord Gorell to-day of the statement which went out with the great weight of his authority as to the reluctance of the King's Bench Judges to meet the necessities that had arisen. The noble and learned Lord stated that nothing had been done except altering some dates at the last places of Assize. On the contrary, we have arranged for extra civil assistance at a large number of places on circuit. The point I make is that the proper place for the trial of these cases is the High Court. Nobody suggests that they ought not to be tried by a Judge of the High Court, by juries of the High Court, and with the advantage of the Bar of the High Court. I respectfully submit that no case has been made out for taking King's Bench actions, and King's Bench actions alone, and sending them to be tried in the County Court. If the circuit system requires alteration and amendment, by all means let us have legislation to alter it. But the circuit system stands, and there is no reason why a poor person in the | North or in the West should be deprived of the opportunity of having the advantage of a High Court Judge going down and trying his case at his own door. I submit that no case has been made out for this special and sudden interference with the jurisdiction of the Court of King's Bench. The more I think over this proposal and 664 the more I learn from all parts of the country the feeling regarding it, the more I am satisfied that this clause ought not to stand in the Bill.
§ THE LORD CHANCELLOR (LORD LOREBURN)
My Lords, this discussion, apart from the speech of Lord Gorell, shows once more how lawyers are against law reform. I remember that the same dreadful forecasts were indulged in with regard to the Criminal Appeal Bill when it was before your Lordships, but that Act had not been a week in operation when it was proved to be a great success, as would this Bill also. We have heard a speech lasting three-quarters of an hour from Lord Robson, but if I may have six or seven minutes I will endeavour to put my reasons before the House for asking you to allow this Bill to become law.
The clause in question, as has already been explained, means nothing beyond this—that if a plaintiff likes he can begin his case in the County Court, but that if the other side desire to do so they can remove the case to the High Court by an application provided for by a rule of Court. A letter would suffice; the defendant could remove the case to the High Court, and the arguments about interlocutory proceedings are all stuff and nonsense. I ask, Who is in favour of this clause? The Judicial Commissioners of 1872 were in favour of it. Lord Cairns, Lord Selborne, Lord Hatherley, Lord Blackburn, were all in favour of it. The Committee over which my noble and learned friend Lord Gorell presided were in favour of it. The law societies are in favour of it. I have received many letters from chambers of commerce and other commercial bodies all in favour of it. And why? For this reason, that it means cheap justice. I do not complain of the justice administered in the High Court, but it is a very expensive luxury. You may have £150 or £200 to sue for, or even a larger sum; but it is an expensive luxury to have the case tried in the High Court. The costs are treble in the High Court. Cheapness is all that I want to secure, and I know very well that the commercial community and the solicitors are in favour of this clause. In fact, the only people against this clause are the Bar Council, but I think none of those eminent lawyers would pretend to have any personal knowledge of the County Courts. All they do is to quote the statements of 665 twenty seven barristers, who are not named, and whose opinions were collected by the Bar Council in reference to another matter—namely, divorce business.
It is said that business in the County Courts is congested. That is the sole argument that there is. I say that the County Courts are not congested. It is part of my duty as Lord Chancellor to look after the business of the County Courts and to inquire into complaints of congestion of business there. I have had complaints from time to time since I have been Chancellor, and my noble and learned friend Lord Halsbury in his time no doubt received complaints. Population shifts or increases and one County Court gets more congested with business than another, or the County Court is not judiciously managed and the business gets mixed up. As I say, some complaints in this respect have been made to me, but they have been few. There is one before me at the present moment with which I shall deal in due time. If all this knowledge and information about congestion would come to anybody, would it not come to me? Of course, I would be the very first person to hear of it, because it is part of my duty under the Act of Parliament to rearrange and reorganise the County Courts when such rearrangement or reorganisation is required. The congestion spoken of is this, that too many cases are put in one day's list, that there are different classes of cases put in the same list, the long and the short together. The remedy is to put different cases in different lists and take a few more days to try them. The average work done by County Court Judges is 153 days in a year—that is all.
§ THE LORD CHANCELLOR
Yes, actually sitting. You may have to add a few days in the year for travelling. Will any one suggest that there ought to be added more than eight or ten days for travelling? Why they all live in their counties and have the easiest time in the way of days of work that you could have. I have come across a County Court Judge who sat 170 days in a year and made a grievance of it. But no County Court Judges except two in this country have ever complained to me of excessive work. 666 Those two cases I investigated, and there was nothing in them. What is the proper remedy? This congestion is mere fancy. I say there is no County Court in the country—I suspend judgment as to one case now before me—in which it would not be perfectly easy, by adding a few days sittings a year, to make the whole thing work. I ask your Lordships, Are you prepared to lay down for County Court Judges that their critics can speak of congestion when they have an average of 153 days, and when nobody is able to quote a case of a single County Court Judge who sits for more than 170 days in the year? Surely we have not become such a degenerate and effeminate race that we cannot do a little more work than that!
What is the real reason of this opposition as to which we have heard such clouds of words repeated over and over again and dealing with technicalities which your Lordships cannot be expected to understand, and which to my mind are more appropriate to pleadings in a County Court than to speeches in the High Court of Parliament? The real reason is that the Bar have the sole audience in the High Court and no solicitor can plead. But in the County Courts the Bar are confronted with the competition of solicitors. I should greatly regret if the putting of work into the County Courts had the result of injuring my own profession; but I know it would not. There would be more work to do in the County Courts, and the High Court would be left more free to do really important business which is required of a Court of greater authority and with the highest training. That is the bottom of this opposition. It is an interested professional opposition, and I feel it my duty to say so. I ask your Lordships to treat this matter as you think fit, and I will respectfully bow to your decision.
§ THE MARQUESS OF LANSDOWNE
My Lords, I am sure your Lordships will not suspect me of any intention to inflict upon the House arguments of my own with regard to the legal aspect of this matter, but I do not like to give a silent vote if we are indeed to divide on the Amendment of the noble and learned Earl. This clause has been for some time in suspense before your Lordships' House, and I can say honestly that it has been to me a kind of nightmare that I should be called upon as 667 a layman to decide between the high legal authorities who are ranged on either side in this controversy. The noble and learned Lord on the Woolsack was good enough to remind me the other day that I had had the honour of serving, I think in 1879, upon a Select Committee of this House on which many illustrious members of the legal profession also served. I must apologise to the noble and learned Lord, but I have to admit that my memory is a blank upon the subject, and I am perhaps not altogether surprised at that because I find that the Select Committee in question only sat for one day, and I have been quite unable to find any trace of the proceedings which took place. The noble and learned Lord on the Woolsack is quite right, however, in saying that the result of our investigations was to report a Bill which I believe was more stringent than that now upon the Table. But, my Lords, thirty-two long years have passed since the proceedings of that Select Committee, and I may say, in passing, that it does occur to me that if the matter was quite obvious and plain sailing it is rather remarkable that during those thirty-two years nothing should apparently have happened in the direction which was then suggested.
What can we laymen take note of in regard to this matter? In the first place, I think it is generally conceded that the Bill is a good and useful Bill. I think my noble and learned friend (Lord Halsbury) said that at any rate the greater part of it has his hearty support. It is a Bill which obviously represents a great expenditure of time and trouble, and most of us would, I conceive, desire that it should take its place upon the Statute Book. Then we also note that there is a considerable amount of concurrence as to the objects with which the first clause which we are now considering has been framed. It has been defended as an attempt to cheapen litigation in the interests of those poorer litigants who, as has been said, are bled by heavy costs and whose grievance we should all desire to mitigate. But we find diametrically opposite opinions as to whether the clause will or will not produce the desired effect. It is held, I understand, by my noble and learned friend and by others to whose authority we cannot be impervious, that the Bill, far from producing the results anticipated by its authors, will produce results of an entirely different character.
668 In these circumstances I admit that it would have been a great relief to many of us if the noble and learned Lord on the Woolsack had been content to take his Bill without the first clause. But I gather from what happened with regard to this Bill two years ago and from the noble and learned Lord's language this evening that nothing is further from his intention than to abandon the clause. May I also say, in passing, that there is a reason—I do not know whether it is entitled to any weight—which might lead some of us to desire to suspend our judgment with regard to this clause. It is the case that a Royal Commission presided over by Lord Gorell is at this moment inquiring into the whole question of divorce and matrimonial causes. Unless I am wrong, that Commission arose from a Resolution in this House, moved, I think, by the noble and learned Lord himself (Lord Gorell), in favour of conferring upon County Courts jurisdiction in regard to divorce. It is, therefore, it seems to me at least conceivable that the result of the Report of that Commission may be to throw upon the County Courts new and additional work, and if that be so, might it not be desirable and prudent to allow this question of extending the jurisdiction of the Courts and the question of their staffing to stand over until the Report of the Royal Commission is before us? I confess that I say that really because I am anxious to find a pretext for not being called upon to vote "Yes" or "No" on the Amendment of my noble and learned friend. If, however, the Lord Chancellor does adhere to his clause and if my noble and learned friend behind me insists upon his Amendment, I feel that, in view of the great division of authority upon the subject and the doubts whether this clause really will effect the purpose which its authors have in view, I should not be justified in giving my vote for a proposal which would impose new duties upon already overburdened tribunals. For that reason if my noble and learned friend goes to a Division I shall, though I admit not without misgiving and doubt, feel it my duty to vote with him.
§ On Question, whether the clause proposed to be left out stand part of the Bill.
§ Their Lordships divided: Contents, 37; Not-contents, 21.669
|Canterbury, L. Abp.||Allendale, L.||Haversham, L.|
|Loreburn, L. (L. Chancellor.)||Armitstead, L.||Herschell, L. [Teller.]|
|Balfour, L.||Ilkeston, L.|
|Winchester, M.||Barnard, L.||Lucas, L.|
|Blyth, L.||MacDonnell, L.|
|Burghclere, L.||Pentland, L.|
|Beauchamp, E.||Charnwood, L.||Reay, L.|
|Carrington, E.||Colebrooke, L. [Teller.]||Ritchie of Dundee, L.|
|Craven, E.||Courtney of Penwith, L.||Rotherham, L.|
|Crawshaw, L.||Shaw, L.|
|Desborough, L.||Southwark, L.|
|St. Aldwyn, V.||Dunmore, L. (E. Dunmore.)||Swaythling, L.|
|Glantawe, L.||Welby, L.|
|Gorell, L.||Willingdon, L.|
|Bangor, L. Bp.||Hamilton of Dalzell, L.|
|Devonshire, D.||Knutsford, V.||Hindlip, L.|
|Bath, M.||Kinnaird, L.|
|Lansdowne, M.||Knaresborough, L.|
|Alverstone, L.||Lamington, L.|
|Cathcart, E.||Brodrick, L. (V. Midleton.)||Mersey, L. [Teller.]|
|Cromer, E.||Clonbrock, L.||Muskerry, L.|
|Halsbury, E. [Teller.]||Ellenborough, L.||Robson, L.|
|Waldegrave, E.||Heneage, L.||Sanderson, L.|
§ Resolved in the affirmative, and Amendment disagreed to accordingly.
§ Clause 14—
§ Amendment of provisions of the principal Act as to appeals.
§ 14.—(1) 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.
§ (2) Section one hundred and twenty-one of the principal Act shall not apply to any action or matter in which an appeal is brought by virtue of this section, and in lieu thereof the following provisions shall apply to such an appeal:—
- (a) Upon the entry of an appeal under this section on a ground involving a question of fact alone or of mixed law and fact, the judge shall, on the application and at the expense of any party to the appeal, furnish a copy of the notes taken by him at the trial or hearing, or allow a copy to be taken of the same by or on behalf of such party, and shall sign such copy, and the copy so signed shall be used and received at the hearing of the appeal:
- (b) If there are no notes, or the notes appear to the High Court to be defective in any material point, the court shall have power to hear and determine the appeal upon any other evidence or statement of what occurred before the judge which the court may deem sufficient.
§ (3) 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 questions of fact, such evidence to be either by oral examination in court or by affidavit or by deposition taken before an examiner or commissioner or a registrar of a County Court as the High Court shall direct."
§ (4) Notwithstanding anything in section forty-five of the Supreme Court of Judicature Act, 1873, and subsection (5) of section one of the Supreme Court of Judicature (Procedure) Act, 1894, contained in all cases (except cases in bankruptcy or under the Workmen's Compensation Act, 1906) where there is an appeal to the High Court from a County Court, the appeal shall be heard and determined by a Judge of the High Court in such manner as may be prescribed by rules of the Supreme Court, and his decision shall be final unless he reverses or alters the decision of the County Court Judge whose decision is appealed from, or unless the Judge of the High Court hearing the appeal or the Court of Appeal gives leave to appeal.
§ THE EARL OF HALSBURY
I move to leave out subsection (4) of Clause 14. This subsection, I believe, is universally condemned.
Page 10, line 34 to line 3 on page 11, leave out subsection (4).—(The Earl of Halsbury.)
§ THE LORD CHANCELLOR
I do not agree that this subsection is universally condemned, but it is not one that I should think it right to insist upon against the opinion of the noble and learned Earl. I therefore accept the Amendment.
§ On Question, Amendment agreed to:
§ Clause 20:
§ Appointment of Registrars.
§ 20.—(1) At any place where there is a district registry of the High Court the district registrar shall, notwithstanding anything in section twenty-five of the principal Act, be the registrar of the County Court, unless the Lord Chancellor by reason of the amount of business to be transacted otherwise directs.
§ (2) On any vacancy occurring in the office of district registrar after the passing of this Act, the right of filling the vacancy shall be vested in the Lord Chancellor, and any person qualified to be appointed a Master of the Supreme Court shall be qualified to be appointed a district registrar.
§ (3) A person appointed to be district registrar may be removed from his office by the Lord Chancellor, and the Lord Chancellor may make it a condition of appointment that the whole of his time shall be given to the public service.
§ (4) Section sixty of the Supreme Court of Judicature Act, 1873, from "and Her Majesty" to the end of the section, and section twenty-two of the Supreme Court of Judicature Act, 1881, down to "of not less than five years' standing," are hereby repealed.
§ (5) This section shall come into operation on the passing of this Act, but nothing in this Act shall affect the tenure of office of any district registrar or registrar of a County Court who holds office at that time.
§ *LORD GORELL had three Amendments to this clause. He first moved to omit from subsection (1) the words "notwithstanding anything in Section 25 of the principal Act" and to insert "if a solicitor." The noble and learned Lord said: Clause 20 gives rise to considerable difficulty. I have been studying it for some time and am not sure in some respects what its effect will be. The Amendments which I propose are substantially to leave the position as it is at present until it has been further considered, with this one exception of the Lord Chancellor's power of appointment. The clause deals with the appointment of Registrars. There are three lots of Registrars in the country. There is the County Court Registrar, who must be a solicitor of five years' standing and is appointed by the County Court Judge with the approval of the Lord Chancellor. The second set of Registrars are the High Court Registrars, and they 672 may be appointed from three or four different classes of people, but I believe as a matter of fact the High Court District Registrars are practically appointed from the County Court Registrars. But there is a further provision that if the nature and the amount of business show that it is expedient to appoint, a person not so qualified, the Lord Chancellor may, with the concurrence of the Treasury, appoint a solicitor of live years' standing. The Lord Chancellor, in effect, has practically to appoint the County Court Registrar and does so in nearly all cases. Then there are the third class of Registrars—the District Registrars of the Probate Court. The Probate Court has forty Registries throughout the country, and according to the Statute of 1857 the District Registrars are to be appointed from advocates, barristers, proctors, solicitors, and, under another Act, from clerks of the principal Probate Registry who have been clerks for five years. The result is that there are three different sets of Registrars; and in some cases difficulties, I think, will arise if this provision is adopted. I will point out one. A Probate Registrar in the country may now be appointed a High Court District Registrar, and that has been done at Manchester and Liverpool with advantage so as to combine the offices, and he may be and is in one of those cases a solicitor and in the other he was a clerk from the Probate Registry. This clause as it stands would to a certain extent prevent the power to amalgamate the offices of the District Probate Registry with the High Court District Registry. That power to consolidate seems to me to be affected by the provisions of this clause. The second effect is this. County Court Registrars are all solicitors at present, and the High Court District Registrars are solicitors, or may be appointed, as I have said, from the Probate Registry. This clause opens the power of appointment to persons who may be Masters of the Supreme Court, and that includes the Bar. I should be glad to see the appointment entirely open to both branches of the profession, though it may meet with opposition, but I cannot see how this clause would work out having regard to the points I have mentioned. There might be a chance of giving rise to difficulties, and therefore I think the better course would be to consider the position of these three different sets rather more fully and carefully in some subsequent Bill.673
Page 12, line 12, leave out ("notwithstanding anything in section 25 of the principal Act") and insert ("if a solicitor")—(Lord Gorell.)
§ THE LORD CHANCELLOR
I really have nothing to add to what my noble friend has said. I think he is right in regard to these Amendments. On the whole it would be better if we could get what we desire in this Bill, but I do not think it is at all vital, and I have no wish to create unnecessary friction in a matter of this kind. I therefore accept the Amendment.
§ On Question, Amendment agreed to.
§ LORD GORELL
I now move to delete from subsection (2) the words, "and any person qualified to be appointed a Master of the Supreme Court shall be qualified to be appointed a District Registrar." I also move to leave out subsection (4). These two Amendments form part of the same Amendment.
Page 12, line 19, leave out from ("Lord Chancellor") to the end of the subsection.
Page 12, line 19, lines 26 to 30, leave out subsection (4).—(Lord Gorell.)
§ On Question, Amendments agreed to.
§ Clause 33:
§ 33.—(1) The persons in whom the power of making rules under section one hundred and sixty-four of the principal Act is vested shall, in addition to the five judges appointed by the Lord Chancellor under that section, include four persons appointed by the Lord Chancellor, of whom one shall be a representative of the Treasury, one a barrister, one a registrar of a county court, and one a solicitor.
§ (2) Rules made under the said section, as amended by this Act (which rules are in this Act referred to as County Court rules), shall be laid before Parliament, and section one of the Rules Publication Act, 1893, shall apply accordingly.
§ (3) The power of making rules under the said section shall extend to making rules—
- (a) for carrying this Act into effect:
- (b) as to the procedure and practice in actions as to which jurisdiction is conferred on County Courts by the County Courts Act, 1903, or by this Act, when the debt demand or damage claimed or counterclaimed, exceeds fifty pounds, and also, if it shall be thought expedient, in actions as to which jurisdiction
674 is conferred by the principal Act where the debt, demand, or damage claimed or counterclaimed exceeds twenty pounds, and in particular for the purpose of providing that each party shall state the nature of his claim or defence in writing in sufficient time before the trial in the form of particulars, or otherwise; and the provisions of the principal Act as to the procedure and practice in actions in the County Court shall have effect, subject to such modifications therein as may be made by such rules:
- (c) for referring to a special referee or arbitrator, or to an officer of the Court, any questions arising in causes or matters in County Courts which, if such causes or matters had been brought in the High Court, might be so referred.
§ LORD COURTNEY OF PENWITH
I move the insertion of a new subsection at the end of Clause 33, but I have no desire to press it. I move it formally, because I hope I may induce my noble and learned friend on the Cross Bench (Lord Gorell) to make a statement which will be of interest with respect to the subject-matter of my Amendment.
§ Amendment moved—
Page 17, line 5, after ("referred") insert the following new subsection—
(4) Special rules shall be made with respect to the bearing of suits for the enforcement of agreements of separation between husbands and wives, and such rules shall provide that the practice, procedure, and costs in and of such cases shall be assimilated, as near as may be, to the practice, procedure, and costs in and of the hearing by courts of summary jurisdiction of applications for the enforcement of orders made under the Summary Jurisdiction (Married Women) Act, 1895.—(Lord Courtney of Penwith.)
§ LORD GORELL
This Amendment deals with the question of the enforcement of agreements of separation between husbands and wives, and that subject forms part of the matters which are being considered by the Divorce Commission. It is a matter which is being very carefully considered, and I hope that suggestions will be made which will meet with the approval of the noble Lord. It would certainly at present be premature to embark on an Amendment of this kind.
§ Amendment, by leave, withdrawn.
§ Bill to be read 3a on Thursday next, and to be printed as amended. (No. 147.)