§ Order of the Day for the House to be put into Committee, read.
§ Moved, That the House do now resolve itself into Committee.—(The Lord Chancellor.)
§ LORD MUIR MACKENZIE
My Lords, I had not the opportunity of saying anything upon the subject of this Bill on the Second Reading, although it is a subject with which I have been all my life very intimately connected, and I think I should occupy less of your Lordships' time by saying a few words on going into Committee than by interrupting the proceedings upon the clauses as they arise. In this Bill I recognise several very familiar friends—clauses that have been very much considered in recent years, and which have been several times before you Lordships' House, but which, unfortunately, when dealt with in another place have, like 352 many other Bills, not been heard of again. I gather from the character of the clauses that the noble and learned Lord on the Woolsack has endeavoured to make the Bill as far as possible non-controversial, and I think he has succeeded in that to a very great extent. If there are any clauses that are open to discussion, at any rate I should hope that they will not be looked upon as controversial; and for my own part I should have liked to have seen this Bill pass without amendment. But that is not to be.
The noble and learned Lord himself has put down some Amendments to meet suggestions thrown out by the noble and learned Lord. Lord Buckmaster. Lord Buckmaster suggested that the first clause of the Bill was not clear, and that it could not be said upon the construction of it whether or not those actions connected with libel, slander, and other things, which are excluded from the County Court, did or did not come in under the language of the clause. With great deference to the noble and learned Lord, I do not think that this is the construction of the words. I think it is clear that the Bill did not intend as originally drawn to alter the law as to that jurisdiction; but I see that the noble and learned Lord on the Woolsack has tabled Amendments which will have the effect of bringing in that jurisdiction. As I myself have always been strongly in favour of the direct increase of the County Court jurisdiction, I certainly am not prepared to say anything against that, and I shall not propose to say anything more about it in this debate.
There is another Amendment which I am sorry to see put down by my noble and learned friend near me, upon a subject that also has been for many years very familiar, but it has always been regarded as a controversial subject; therefore I am sorry to see the attempt made to put it into this Bill. I do not think there can be any doubt that it is contrary to the old tradition of the County Court jurisdiction and that it must bring a further burden on the High Court of Justice at a time when we have reason to think it is suffering a good deal from overwork and arrears.
I should have been glad to see a general introduction of the extension of County Court jurisdiction, but that, of course, would not have been consistent with the character of the Bill which the noble and learned Lord has brought in. It is a curious 353 thing that when a Bill is introduced for dealing directly with County Court jurisdiction there is always resistance to the increase of that jurisdiction, but Bill after Bill comes up upon general subjects and you find that the jurisdiction of the County Court is increased without any hesitation. I should have been glad to see something done, either in this Bill or in the other of which the noble and learned Lord has charge, to improve the salaries of the County Court Judges, but that, again, is inconsistent with the views of drastic economy that are supported now (and certainly deserve all support), and I do not see how it could have been done.
§ There is another subject in which I feel a very deep interest and in regard to which I should have liked to see a clause, but I know it is quite impossible. That is on the subject of jurisdiction in divorce. Holding, as I do, that it is essential for doing justice to the poor to have some change of that sort, I should have been glad to see it brought into a County Court Bill, but the matter is so controversial that it is quite clear it ought to be dealt with in a separate measure and not in a County Court Bill. The only other matter to which wish to call attention in connection with the Bill, which seems in all respects a most valuable one, is that there are two clauses at the end dealing with the Workmen's Compensation Act. I think these are admirable clauses, but whether they ought to be in the Bill may be doubted. There are some words in the title which may be supposed to bring those clauses in, and if the noble and learned Lord thinks so I should not venture to differ from him, but I do call his attention to the point.
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL Or DONOUGHMORE in the Chair.]
§ Clause 1:
§ Transfer of actions of contract, of tort, and for recovery of land from High Court to county court. 51 & 52 Vict c. 43.
§ "In any action commenced in the High Court where—
- "(1) the plaintiff's claim is founded either on contract or on tort and the amount claimed or remaining in dispute in
354 respect thereof does not exceed one hundred pounds, whether the defendant does or does not set up or intend to rely on a counter claim and whether the counter claim (if any) is founded on contract or on tort and whether the amount claimed on the counter claim exceeds or does not exceed one hundred pounds; or
- "(2) the only matter remaining to be tried between the parties is a counter claim, whether founded on contract or on tort, and the amount claimed or remaining in dispute in respect of the counter claim does not exceed one hundred pounds; or
- "(3) the plaintiff's claim is for recovery of land, with or without a claim for rent or mesne profits, by a landlord against a tenant or any person holding or claiming by, through, or under a tenant, whose term has expired or has been duly determined by notice to quit or has become liable to forfeiture for non-payment of rent, and the action could have been commenced in a county court;
- "(a) to any county court in which the action might have been commenced if the amount thereof had been within the jurisdiction of the court; or
- "(b) if the only matter remaining to be tried is a counter claim, to any county court in which the counter claim might have been commenced if it had been an action; or
- "(c) to any county court which the court or judge may deem the most convenient to the parties;
§ THE LORD CHANCELLOR moved, in subsection (1), after "pounds" where that word first occurs, to insert "whether the action could or could not have been commenced in a County Court and." The noble and learned Lord said: This is the first of several Amendments, to which the others are consequential. It may be convenient for me to explain quite briefly their cumulative effect. The first Amendment is to insert the words "whether the action could or could not have been commenced in a County Court and," after the word "pounds" in line 12; the next is in subsection (2), to insert, after "tort," the words "and whether the counter claim if it had been an action could or could not have been commenced in a County Court"; the third is in paragraph (a), after "if," to 355 insert "the subject matter and"; and the fourth in paragraph (b), after "action," to insert "and the subject matter thereof had been within the jurisdiction of the Court."
§ The object of these Amendments is to deal with a doubt expressed and a suggestion made by my noble and learned friend Lord Buckmaster on the Second Reading. The doubt expressed by him was as to whether the result of the Bill, as drafted, was not to make certain actions for libel, slander, seduction, and breach of promise of marriage triable in the County Court. I had taken the view not that there was not a great deal to be said for the proposal that I should depart from my primary object, which was to collect into one Bill all those non-controversial clauses in the County Court Bill which, in my judgment, would be of extreme advantage to the ministration of justice, if they became law, and not, by undue ambition, share the fate of many of my predecessors in their attempted legislation; but I have consulted many of the County Court Judges and others whose opinion is of value in this matter, and they share the impression which I had generally formed, and the conclusion which my noble and learned friend had clearly reached, that it would on the whole be a great advantage if these matters were made triable in the County Court.
§ This class of action is of a kind which, in my judgment, may very properly be remitted. Many of these actions are no doubt substantial and they involve very serious issues of character, but many of them are purely speculative matters. They are set on foot on trumpery pretexts; they occupy a great deal of the time of the Law Courts; and, as my noble and learned friend pointed out, they fill an undue position in the columns of the newspapers; and I am, on the whole, unable to see why what has been called the ordinary "pot-house slander" should not go to the County Court. If discretion is wisely exercised, and this action does go there, it will receive the summary treatment which the experience of the County Court judges admirably qualifies them to give, instead of dragging on for several days in the Law Courts. It is expected that this modification, introduced at the last moment, will very considerably assist what is one of the principal objects of this Bill—namely, to remove the undue congestion of work in the Law Courts. I beg to move.356
Page 1, line 12, after ("pounds") insert ("whether the action could or could not have been commenced in a county court and").—(The Lord Chancellor.)
§ LORD BUCKMASTER
I desire to express my satisfaction that the noble and learned Lord has seen his way to extend the operation of this Bill. There can be no doubt that the class of action which can now be brought within the jurisdiction of the County Court is frequently of the most worthless character and occupies far longer time in the High Court than I think it is likely to occupy in the County Court. County Court judges are certainly of a standard well able to deal with these trumpery disputes, and I am glad indeed that the Lord Chancellor has found himself able to include this provision in the Bill.
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Page 1, line 20, after ("tort") insert ("and whether the counter claim if it had been an action could or could not have been commenced in a county court")
§ Page 2, line 11, after ("if") insert ("the subject matter and")
§ Page 2, line 16, after ("action") insert ("and the subject matter thereof had been within the jurisdiction of the court").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 1, as amended, agreed to.
§ Clauses 2 and 3 agreed to.
§ Clause 4:
THE LORD CHANCELLOR
The three Amendments which I move on this clause should be read together. They are purely drafting.
§ Amendments moved—
§ Page 3, line 36, after ("Act") insert ("an order is made directing")
§ Page 3,line 37, leave out ("is directed")
§ Page 3,lines 37 and 38, leave out ("directing the issue").—(The Lord Chancellor.)
§ On Question, Amendments agreed to.
§ Clause 4, as amended, agreed to.
§ Clauses 5, 6, and 7 agreed to.357
§ Clause 8:
§ Default summons.
8.The following section shall be substituted for section eighty-six of the principal Act:—
(1) County court rules may provide for the issue, under the prescribed conditions, of a default summons, in the prescribed form or to the prescribed effect, in any action for a debt or liquidated demand in money, and may provide for the manner in which such a summons is to be served and the conditions (if any) under which the defendant is to be entitled to defend the action; and, where such conditions are not complied with, it shall be lawful for the registrar to enter up judgment summarily for the plaintiff in manner prescribed by the rules.
(2) The rules may provide for different procedure and different conditions according to the amount of the claim or the nature thereof or the position or occupation of the defendant, for the exclusion of any actions from the procedure by default summons, and for the amendments to be allowed in the case of a default summons, and the procedure consequent on any such amendment.
§ LORD PHILLIMORE moved, at the beginning of subsection (1), to insert "In any action in a court for a debt or liquidated demand for money." The noble and learned Lord said: The Amendment which I propose looks merely like a transposition of words, but if I rightly understand the clause—and I have very grave doubts whether I do and very great hopes that I do not rightly understand it—then they make a very great difference. At present what is called Procedure by Default Summons, an extremely drastic procedure but a valuable one where there is no defence, is applied in the County Courts for sums not exceeding£100. It is followed by a procedure which brings a case, if the defendant defends, within the jurisdiction of the County Court. If he has a defence he raises it and it is argued and decided in the County Court.
§ As I read this clause—I hope I have misread it—it will bring default summonses for thousands of pounds, tens of thousands of pounds, into the County Court. Can it be intended that this should be done? And what is to be done if the defendant appears and says lie has a defence? You might as well shut up the High Court of Justice altogether and send all cases in the first instance to the County Court. I cannot conceive that it can be the intention of the Government that default summonses should be issued in the County Court for tens of thousands of pounds, and, if the man does not put in a defence within eight days, judgment shall be signed against him, which, I understand, is irremediable. If he 358 does put in a defence then the County Court is thereby seised of the question and may decide a matter of the highest importance.
Page 5, line 24, at the beginning of the line insert ("In any action in a court for a debt or liquidated demand for money").—(Lord Phillimore.)
THE LORD CHANCELLOR
If on a pure question of drafting the noble and learned Lord thinks the clause will be improved if the words are inserted where he wishes—
§ LORD PHILLIMORE
My object in inserting them is to prevent this jurisdiction; it would then leave the jurisdiction of the County Court where it is.
THE LORD CHANCELLOR
I am not at all sure whether the Amendment would produce that effect. As a matter of fact, I have not with me the section of the principal Act, and I rather wish my noble and learned friend had told me the apprehensions he entertained in putting down the Amendment. On its face it appeared to deal only with the transfer of words, and I had no reason to suppose he would bring forward any objection of substance. Therefore I am not as well prepared to deal with the point that he has raised as I otherwise should have been. My impression is that no such unlimited jurisdiction as he supposes was ever intended. Certainly at no conference which I had with experienced County Court Judges to discuss the matter was any such suggestion put forward, and I entertain little doubt that when we examine the clauses of the principal Act and the present measure these apprehensions will be removed. Before the Report stage this matter shall be carefully considered, and I will discuss with my noble and learned friend whether he or I should make substantial proposals if they are necessary.
§ LORD PHILLIMORE
The pressure of business prevented my communicating with the Lord Chancellor on this subject, and the Committee stage has been rather hurried. I shall, however, be quite satisfied if the matter is under his consideration.
§ LORD BUCKMASTER
I agree with the view of the Lord Chancellor, and suggest 359 that if the noble and learned Lord pursues his Amendment in the Report stage in the form in which it now stands, he will reintroduce the difficulty he suggests.
§ LORD MUIR MACKENZIE
I cannot see that the Amendment would achieve the object of the noble and learned Lord, but if there is ground in the language of the Acts for believing that unlimited jurisdiction will obtain, undoubtedly some Amendment ought to be introduced. This clause will depend mainly upon the framing of the rules under it. It is one of those clauses—there are several others—in the Bill where large powers are given of making rules for carrying the clause into effect, and I should like to take this opportunity of saying what a very great loss County Court jurisdiction has lately sustained by the retirement of Sir William Lucius Selfe, who is one of the best Judges who ever sat in any Court. He was chairman of the County Court Rules Committee; almost every existing rule of the Court was drawn by his own hand. I cannot conceive how the Lord Chancellor will be able to get on without him with his immense knowledge of every detail of County Court practice, and his extraordinary skill in drafting.
§ Amendment, by leave, withdrawn.
§ Clause 8 agreed to.
§ Clauses 9 and 10 agreed to.
§ Clause 11:
Page 6, line 36, after ("tort") insert ("than"). —(The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 11, as amended, agreed to.
§ Clause 12 agreed to.
LORD PHILLIMORE moved, after Clause 12, to insert the following new clause—
Section one hundred and twenty of the principal Act shall read as if after the words "any evidence" the following words were added, "or upon the facts if the amount in dispute exceeds fifty pounds.
The noble and learned Lord said: I have had an opportunity of pressing on the Lord Chancellor my view on this matter. It
is one of very great importance and gravity. It is a proposal to give an appeal on facts as well as on law in cases of considerable importance which come into the County Courts. When the County Courts were originally established their jurisdiction was so petty that it was not thought worth while to give any appeal from them. They were intended to be cheap—as old practitioners used to say, "cheap and nasty." They are not nasty, and I am not so Sure that they are always cheap; but as their jurisdiction was extended, an appeal has been given and is now given on points of law, but no appeal on points of fact.
§ If a High Court Judge sits and tries an action, as very often he does, and as I have done myself during my sixteen years experience in the High Court, involving sums of fifty pounds or less, there is an appeal from his decision on fact to the Court of Appeal, and in some cases even to your Lordships' House. Why should a County Court Judge sit and try sums up to one hundred pounds, give judgments for sums of one hundred pounds or more —and under this Bill give judgments for sums considerably more than that—and be utterly exempt from correction or examination by any tribunal? My noble friend beside me has told me that in Ireland the corresponding Court always has an appeal on fact, and whereas I believ[...] there is no appeal from the Sheriff in Scotland there is an appeal from the Sheriff's Substitute—who occupies much the same position as the County Court Judge—to the Sheriff. I believe it is in England alone that the County Court Judge is allowed to be sovereign, unexaminable, when he decides questions of fact, which as I say may now amount to several hundreds of pounds.
§ It may be said that this is a very controversial matter, and that we do not want controversial matters in this Bill. The Bill becomes controversial if this clause is not put in. It becomes in my judgment, and in the judgment of other people, of eminence and worthy of respect, extremely undesirable to increase the jurisdiction of County Court Judges unless there is some power of reviewing their decisions on fact in important cases. All of us who have been in the profession have as advocates before County Courts, and I at any rate sitting in the King's Bench Division of the High Court to which County Court appeals are usually brought, and I and others sitting in the Court of Appeal, have been accustomed 361 to instances of the greatest injustice owing to some mistake having been made by the County Court Judge and his judgment on questions of fact not being open to review. We are all aware of the temptation—all of us are fallible—to a County Court Judge to support his decision on law, as to which he may have some doubt, by saying that he finds the matter as a question of fact. One has even known, in moments of judicial irritation, a County Court Judge throw out the threat or taunt to the advocate that he has the power of finding the matter as a question of fact, and that as a question of fact he will so find it. I am making no imputation upon County Court Judges. If a Judge of the High Court had the same power he would do the same thing in moments of bunion weakness. What I complain of is that County Court Judges are put in a position of great superiority to Judges of the High Court. You do not trust Judges of the High Court to decide questions of fact without appeal, and why should you allow Judges of the County Court to decide sometimes very important questions of fact without appeal?
§ Before I sit down I should like to deal with one suggestion which has been made. It is asked upon what evidence, and upon what materials, will the Court of Appeal act when it reviews a decision of a County Court Judge. The County Court Judges can take notes as well as the Judges of the High Court, and they have often been told that they ought to take notes, at any rate in all cases of importance. I have sat in the Court of Appeal on many appeals from County Court Judges in Workmen's Compensation cases. We always had a note, and generally a good one, and quite a sufficient one to enable us to see what the witnesses had said. Of course, there is always power to have a shorthand writer, and when a case involves some hundreds of pounds there is no reason for not having a shorthand note taken. But the materials before the Court of Appeal when dealing with questions of fact on appeal from the County Court judge may be just as good as the materials before the Court of Appeal when dealing with questions of fact on appeal from the High Court; and after my long experience as an advocate and a Judge I am convinced that it is necessary that there should be this power of appeal front County Court Judges. I therefore move my Amendment.362
Insert the Said new clause.—(Lord Phillimore.)
§ LORD BUCKMASTER
The noble and learned Lord who has just sat down was kind enough to send me notice of his intention to move this Amendment. I regret the more that I find myself quite unable to support his Motion that it should be inserted in the Bill; indeed I feel very strongly the other way. There are, to my mind, three great difficulties which one always has to encounter in the administration of justice. One is the delay in litigation; the second is the uncertainty of judgment; and the third is expense. Those are the great reproaches to which our present system of administering the law is open. So far as delay is concerned it has been practically removed. So far as expense is concerned, in the County Court it is subject to strict and severe limit, which has not been altered although the whole scale of expense has changed during the last few years. So far as expense in the High Court is concerned, it is beyond control. So far as uncertainty of judgment is concerned we have been unable to settle that, and for this reason —that in the High Court it has hitherto been regarded as impossible to bind a man by the finding of one Judge, either on fact or on law, but the Courts of Appeal, and notably your Lordships' House, have gone a long way to secure that by considering as sacred the verdict of a jury on questions of fact. Once a jury has decided a question of fact, however severely it may have been contested, from that moment a person is secure in his verdict unless there has been misdirection or fault in law.
In the County Court, up to the present, an appeal on a question of fact has always been refused on this ground, as I understand: The normal litigants in the County Court are poor people, and to allow one of these parties to obtain in his favour the judgment of the Judge, and then to be dragged by the other side from Court to Court, in order that it may be ascertained whether other people would have regarded the facts in a light different from the light in which they were regarded by the County Court Judge, has been regarded, and I so regard it, as an oppression. I think it is far better that in cases of mistake, and mistake must always arise, the decision should be final, and that people should not be subject to the hazard of appeal, than 363 that you should enable people to complain of findings of fact and use the power, which is undoubtedly possessed and exercised by people of wealth, to drag poor litigants from Court to Court in the hope that they may be able to tire them out.
Therefore I sincerely hope that your Lordships will not alter what I regard as a most useful and salutary rule of the County Court. I speak as a man who for years of his life practised in these Courts. I doubt if any member of your Lordships' House has ever had as close and intimate experience of the methods of the County Court as I have had, and I say with assurance that I should regard it as the greatest misfortune for my clients had it been possible for me, at the end of a case which had been decided against me, to advise them that there was an opportunity on appeal to overthrow the verdict. Finality is kindness to the litigant, and I doubt if any one is more convinced than the occupant of the Woolsack that what we want to secure is the highest standard of men upon the Bench—upon every Bench—in order that their judgments may carry the greatest possible weight. Having secured those men the next thing you want to do, within all reasonable limits, is to secure that their judgments shall be final. It is multiplication and not repression of appeal that is part of the scandal Of our litigation, and I hate often wondered what the feeling of the litigant must be who has found that the scale has swung alternately from Court to Court, only ultimately to rest it may be on a majority of one in your Lordships' House.
§ LORD SHANDON
I should be very slow to interfere in the discussion of a Bill if it applies only to England and to English jurisdiction, but the remarks which fell from the noble and learned Lord who has just sat down open up a question of principle as to which I certainly do not feel myself altogether in agreement with him. As a practical matter I quite admit that poor litigants should not be harried by oppressive appeals, but all this, as was mentioned by the noble and learned Lord who proposed the Amendment, arose in Ireland where certainly we cannot say that we have wealthy litigants. On the whole I should think that they were rather poorer than even here, and their system—which is much older than the English system, going back to the eighteenth century—after it had been over a century in use, showed that it was desirable to give a practically unrestricted 364 right of appeal from a County Court Judge. In practice these appeals are not found oppressive, because the rules that are made under the Act restrict the costs which can be paid to a very small sum indeed. And they are restricted not only in the Civil Bill Court, as we call it, but they are restricted on appeal. I should add that the appeal is not to the High Court but is only to one High Court Judge. There are very many cases indeed, owing to the difficulties of poor litigants especially getting their witnesses to these places, where—
THE LORD CHANCELLOR
Would my noble and learned friend tell me—I am ignorant about Irish appeals—how far an appeal can go? Can it go beyond the one Judge?
§ LORD SHANDON
Only to the one Judge, and no further on questions of fact, but he may state a case for the Court of Appeal in some cases, and for the King's Bench in others. This has worked well, and I suggest that it might be worthy of imitation as the jurisdiction is proposed in this Bill to be extended to £100 and, as I understand, it is only in the big cases that an appeal is suggested. The difficulty with regard to the poor litigant would not really arise in practice, and by adopting some such method as we have found workable in Ireland I think that a compromise might be effected between the views of the noble and learned Lords.
THE LORD CHANCELLOR
The noble and learned Lord who introduced this Amendment in a weighty speech was replied to with very great vigour by my noble and learned friend who sits opposite, and I cannot help thinking that the circumstance that two Judges of such experience should hold views so diametrically diverse and should be prepared to state them in terms of such sharply contrasted argument is the best justification that I can bring forward of my omission to make any such proposal in the Bill, the only justification of which, every one is agreed, was that it was to be a measure which did not contain any controversial matter.
If I may express an opinion upon the point which has been raised and so much disputed, I am bound to say plainly that I agree entirely with my noble and learned friend who spoke from the other side of the Table, and I am bound to point out 365 to the noble and learned Lord who spoke last that it is not really accurate to say that this Bill increases the jurisdiction of the County Court. It does nothing of the kind. It is only in one utterly immaterial particular that the jurisdiction of the County Court is increased. I am sure that my noble and learned friend the late Lord Chancellor of Ireland knows that in the Act of 1903 the jurisdiction of the County Courts was extended to £100. All that the present Bill does is to penalise those persons who might have brought actions in the County Court and who insist on bringing them in the High Court by depriving them of costs if they do not recover a certain proportion of their total claim. Therefore the only question before us is, Has the experience gained in the sixteen years since 1903 been such as to render necessary the granting of an appeal on fact in cases in which no such appeal has hitherto been allowed?
§ LORD SHANDON
I took it that the Amendment to Section 1 did create a new jurisdiction, and in a class of case to which possibly it might be very desirable to have an appeal.
THE LORD CHANCELLOR
I am speaking of the statement that I understood the noble and learned Lord to make, that this Act did increase the jurisdiction of the County Court.
THE LORD CHANCELLOR
That is the only statement that I was controverting. The other actions of which I have spoken—cases of slander, libel, and so forth—would be remitted in proper instances and with proper securities, and therefore the effect of this Bill would be to penalise those persons who did not avail themselves of the facilities afforded by the Act of King Edward VII. The real question and the only question is, Has the experience of the last sixteen years been such as to render it necessary to grant an appeal in cases where hitherto no appeal has been allowed?
I listened with great care to the speech of the noble and learned Lord who introduced this subject to your Lordships, and I really could not see that he made out any real case at all in experience of the past. The noble and learned Lord did indeed argue that in common sense and 366 in consistency of judicial system one ought not to allow an appeal on questions of fact from a Judge of the High Court and deny it in the case of a County Court Judge. I am bound to say, in answer, that that distinction was deliberately faced many years ago. It was faced in deference to the considerations just urged by my noble and learned friend Lord Buckmaster, that the one thing that was fundamentally essential in these matters was to get a decision and to get finality of decision. We ought not, I think, to forget that in a great many cases in the County Court—many of them relating to comparatively trivial and small matters—you have a powerful and wealthy person on the one side and you have a small and humble person on the other, and to allow the wealthy person, to whom the cost of repeated suits is of no consideration, to take such a matter first to the Divisional Court, then perhaps to the Court of Appeal, and then to your Lordships' House, is to render possible a practice which, whether it be theoretically defensible or not, was certainly never in the minds of those who first of all framed the regulations under which our County Court system came into existence.
I agree that you can, if you chose to draw a logical dilemma close, argue the case that my noble and learned friend did in reference to the contrast between the High Court system and the County Court system, but I am sure that the balance of advantage in this matter must be, not on the side of those who are perhaps most strictly logical, but on the side of those who would still maintain the safe character and advantage of our present County Court system. I am quite sure that the passage of this Bill into law will effect an enormous improvement in this system, and that the introduction into it of the noble and learned Lord's proposal, which is so much resisted by many of the most experienced of our County Court Judges, would imperil greatly the prospects of the Bill in another place. I hope, therefore, that these considerations will disincline my noble and learned friend to pursue his Motion.
§ LORD SUMNER
This may be a non-controversial Bill, but it is at any rate proposed to introduce a not uncontroversial change into the existing law, and I should have thought that any changes which became desirable in consequence of this alteration were changes that it was 367 proper to ventilate and perhaps press upon your Lordships at this stage. I would not have entered upon this discussion but for two things. As I agree with the Motion of my noble and learned friend Lord Phillimore, I hardly think it right to see him demolished without endeavouring to come, however feebly, to his assistance, and my own experience, such as it is, has led me to believe that either rumour has been more than usually a lying jade or there have been County Court Judges in the past—I should say they are not in the present—who have misused this power of finding facts so as to preclude any question of their own decisions being upset.
I do not think that it can be assumed—I do not wish that your Lordships should assume—that those of us who have some little legal experience all think one way upon this point. And I greatly deprecate that upon a question which is, after all, a dry one of legal reform, the test should be hastily resorted to of assuming that there is the conventional poor man seeking justice in the poor man's Court and being resisted by the conventional rich man, who is always in the wrong and who avails himself of his riches to drag the poor man from Court to Court, until he exhausts him.
I think the argument pressed by the noble and learned Lord Lord Buckmaster really amounts to this, that if the poor man manages to get a wrong decision on the facts, no one has a right to take, it away from him. That does not appear to me to consist with ideal justice. And, if it rests upon the conjecture that there is a negligently small number of such cases, quite a small number of such cases go a good way to make the public dissatisfied with the Courts, in which they ought to have every confidence. I am quite sure, though my experience of County Courts cannot hope to rival his, that every one of us who knows much about County Courts and has sat without a brief there waiting for the day when perhaps there might be a brief, will have observed plenty of cases in which the rough and tumble manner of conducting an inquiry into the facts was not at all likely to lead to a conclusion satisfactory to both sides.
I have not one word to say against County Court Judges—a body of men of whom all those who know them will be glad to speak in the highest terms—but at the same time it does seem to me that, when you are to have an amendment in 368 the law framed for the purpose of increasing the number of actions between £50 and £100 which will be tried in County Courts and not in the High Court, you ought not to refuse to consider as being too controversial an Amendment which endeavours to preserve the situation, as far as the merits and justice of the case are concerned, which exists at present, namely, the possibility of having the facts—which, after all, are the foundation of the case—revised in case there has been any error in finding them. And therefore I personally would lend whatever weight my experience enables me to offer to the support of my noble and learned friend's Amendment.
§ LORD PHILLIMORE
I should like to say a word in reply to the two Goliaths who have been trying to slay David on this Occasion. If my noble and learned friend opposite had been kind enough to study the whole of the short Amendment that I proposed to introduce he would see that I had not left the poor man earning a small sum or recovering a small judgment to be haled from Court to Court. I had limited the case of appeal to cases where the sum of £50 was awarded, a sum which is in excess of that which the County Courts could originally decide at all, and up to the amount which the County Courts could decide for a very considerable time. I had not made small cases appealable.
If my noble friend will permit me, I should say that his argument was an argument against appeals altogether. He spoke of the desirability of settling the case once for all. Why then give an appeal in law? Why give an appeal on fact and law in the High Court? If it is so desirable to have one final decision that you trust the County Court Judge gladly, why not trust a Judge of the High Court with it? And if it is so desirable to have a final decision that you will not allow the question of fact to be raised again, why allow the question of law to be raised again? O sancta simplicitas! The noble and learned Lord spoke as if he did not know that County Court cases on points of law had been brought from the County Court to the House of Lords. They can go as of right to the Divisional Court, they can go by leave to the Court of Appeal, and, when they have once got there, they can go as of right to your Lordships' House. I have known County Court cases so brought and so fought.
369 And, with all respect to the Lord Chancellor, the ground on which I justified this Amendment was that you are extending the jurisdiction of the County Courts by this Bill. Not only by the Amendments which he has made to-day but, unless I am mistaken, in the very first lines of the Bill—I may be wrong—jurisdiction is given where the plaintiff's claim is founded either on contract or tort and the amount remaining in dispute does not exceed £100. I may be wrong but I thought that the limit in tort was £50 and that we have extended it now from £50 to £100. I do not know that it is of very much importance, but I think sub-clause (3), which gives a right to a landlord to recover against his tenant, is also a clause in which the jurisdiction has been extended. There was also my fear—which I am glad to hear is a nugatory fear—with regard to Clause 8. There are two or three other minor cases, and this Bill all through is a Bill extending the jurisdiction of the County Courts, and it is because it is a Bill extending the jurisdiction of the County Courts that I think this corrective should be administered.
THE LORD CHANCELLOR
I do not desire to attempt to answer the two speeches that have been delivered—both the noble Lords are admirably qualified to offer counsel upon such a matter—but I do rise to remind your Lordships of this, because some were not present here when this Bill was discussed on the occasion of its Second Reading. I described in detail on that occasion the deliberate and the most careful steps which had been taken to elicit from all those who are most highly qualified to give guidance on this measure an expression of their opinion as to those reforms which in the past history of attempted legislation had excited the least controversy—for all those proposals failed in the course of their Parliamentary history —and at the same time those which were the most universally admitted to be demanded in the cause of the improvement of the administration of justice in this country. This Bill is the result. After all, I have the responsibility for securing its passage into law both here and elsewhere. It is produced as the result of discussion not only with the judicial authority in this country but also with those who are as responsible for passing this Bill into law in the other House as I am for passing it through its stages in this; and I would most earnestly appeal to your Lordships not to withdraw support 370 from the Minister who, after all, has the responsibility.
§ On Question, Amendment negatived.
§ Clauses 13 and 14 agreed to.
§ Clause 15:
§ Power to registrars to act for more than one court, and place of residence of registrars.
§ 15. Notwithstanding anything in section twenty-five of the principal Act—
- (a) the same person may, with the consent of the Lord Chancellor and subject to such conditions as the Lord Chancellor may impose, be appointed registrar of more than one court; and
- (b) the registrar of a court may, with the consent of the Lord Chancellor and subject to such conditions as the Lord Chancellor may impose, reside outside the district of which he is the registrar.
§ THE LORD CHANCELLOR moved, in paragraph (a), after "conditions," to insert "(including conditions as to salary)." The noble and learned Lord said: This is an Amendment to meet a point taken by the Treasury, and the proposal here is made in order to meet a case where a registrar is appointed for three or four Courts which between them have a very small business, and in those cases the salary, reckoned by aggregating the minimum of £100, it is thought by the Treasury might be excessive. This Amendment is made with the object of giving the Lord Chancellor discretion.
Page 8, line 30, after ("conditions") insert ("(including conditions as to salary)").— (The Lord Chancellor.)
§ On Question, Amendment agreed to.
§ Clause 15, as amended, agreed to.
§ Clauses 16 to 24 agreed to.
§ Clause 25:
§ Rules as to examination and discovery, &c., in workmen's compensation cases. 6 Edw. 7, c. 58.
- (a) making orders for the examination of witnesses and persons, and for discovery, interrogatories, and inspection of documents and for further particulars; and
- (b) of granting a new trial
LORD SHANDON moved to insert the following new subsection—
(2) Rules made under the Workmen's Compensation Act, 1906, relating to proceedings in the County Courts in Ireland, may provide for conferring on the Judge similar powers to those which may be conferred under this section on a Judge or registrar in England.
The noble and learned Lord said: With your Lordships' permission I will deal at the same time with the two Amendments I have put down—the insertion of this new subsection and the insertion of a new clause after Clause 26. Unfortunately I was not able to be here on the, Second Beading or I should have mentioned the matter at the time, and I have to apologise for having put down these two Amendments without having previously indicated what was in my mind. The whole of this Bill down to Clause 25 would apply, of course, only to County Courts in England; but Clauses 25 and 26, especially the latter, deal with matters which might affect, and perhaps ought to affect, the jurisdiction under the Workmen's Compensation Act which, of course, is the same in the two countries, ruled by the same principles of law, and for the most part ruled by the same procedure.
§ There is a difference between Clauses 25 and 26 in this respect. Clause 25 proceeds on the assumption that the Court in respect of which rules have to be made is regulated by the English County Court Act referred to in Clause 27, and that I take it could hardly in any case apply to a proceeding under the Workmen's Compensation Act in an Irish County Court. It refers to rules under the Act of 1906 and to "making orders for the examination of witnesses and persons, and for discovery, interrogatories and inspection of documents and for fruther particulars; and of granting a new trial in proceedings under that Act as are exercisable as respects actions in county courts." In our Irish County Courts, except possibly on what may be called the Equity side, there are no powers of interrogatory, and discovery, and so forth. That, however, is a matter of procedure, and it is possible that we may get along in the future as we have in the past without those special powers; though I must say that when framing the rules at present in force in Ireland I myself noticed that it would be desirable if some such powers existed.
With regard to Clause 26 the matter is more important. That clause provides for a special method of distributing compensation
on the death of a dependent. If the clause were taken simpliciter it would be taken to apply to any County Court, because "County Court" in Ireland is defined by the Definition Act as "Civilian Court" in Ireland. Clause 26 says—
In the event of the death of any person entitled as a dependant to money paid into a county court under the Workmen's Compensation Act, 1906, then, if no direction has been given as to the disposition thereof for the benefit of other dependants
certain distribution is to be made. That, if I may say so, would be a most beneficial alteration in the law with regard to the distribution of these sums under the Workmen's Compensation Act, and it certainly ought to apply in Ireland as well as in England. However, it would be a debatable matter because—although Clause 27 exempts the Workmen's Compensation Act, 1906, in these words, "This Act may be cited as the County Courts Act, 1919, and this Act, except so far as it amends the Workmen's Compensation Act, 1906, shall be construed as one with the principal Act"—I thought on reading it at first somewhat hastily that possibly the effect of Clause 27 would leave Clause 26 to operate in any County Court either in England or in Ireland; but on reflection I remembered that a somewhat similar question arose under the Land Transfer Act. Part I of the Land Transfer Act is in general terms, and deals with real estate vesting in executors for special purposes. A question was raised as to whether it could possibly refer to Ireland or whether under the Irish law it was altered, and I think it was held that Part I did not apply because the words were general, and that Parts II and III dealt only with land in England. As the matter would be doubtful, I would press on the noble and learned Lord in charge of the Bill that, as it would be most desirable certainly with regard to Clause 26 for the law to be the same in England as in Ireland, some such Amendment as I have put down is necessary.
§ With regard to Clause 25, I hardly think that would apply in Ireland owing to the fact that it deals solely with English County Court Acts, and Clause 27 provides that the Act has to be read with the English County Courts Acts. It is a matter I could certainly have wished to have brought to the attention of the noble and learned Lord on the Woolsack at an earlier date, and, as I have said, I apologise for not having done so; 373 but if there be (as I conceive there is) a good deal in my point, I would ask him to give the matter further consideration, and that, if he cannot accept my Amendments now, they might be dealt with on Report.
Page 11, after line 23, insert the said new subsection.—(Lord Shandon.)
THE LORD CHANCELLOR
As I fully accept the explanation of my noble and learned friend with regard to the late stage at which his proposal is brought forward, he equally will realise that this circumstance makes it impossible for me to accept the proposal. I communicated with the Irish Office as soon as I read the terms of my noble and learned friend's Amendment, and until last night they had not heard anything about them. They professed themselves as quite unable to sanction in any way the insertion of these words until they had consulted the Irish authorities.
THE LORD CHANCELLOR
There is another difficulty which will have to be carefully considered. This Bill was really designed to be an English Bill. The Title does not limit it to England, but on reading it through I myself entertained no doubt that it was intended to apply only to England—the framework of the Bill seems to me to suggest that very clearly. The first twenty-four clauses are, by Clause 27, to be construed as one with the principal Act—that is, the County Courts Act, 1888, which, of course, is a purely English Act. I am not at all sure that on the technical sides these Amendments would not be held to be, or ought not to be held to be, outside the scope of the Bill. However, I agree with what has been said by the noble and learned Lord—though I am sorry to say I know little of the Irish County Court system—that the proposal contained in Clause 26 is one which one would expect to find would be equally beneficial in the case of Ireland.
Until I have considered the matter more carefully I cannot give the noble and learned Lord my final answer as to the point about the framework of the Act being English, but I will consider that and give him a clearer opinion between now and the Report stage; and it is possible that I 374 may by then be able to obtain some authoritative expression of opinion from Ireland. In any case, if this Bill becomes law this session (as I have cause to hope it will) there is no reason whatever why a small and non-controversial Bill, introducing both this change and one or two others which I have reason to know are desired, should not be the subject of legislation.
§ LORD SHANDON
I thank the noble and learned Lord for his reply, and I ask leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 25 agreed to.
§ Remaining clauses agreed to.