§ Order of the Day for the Second Reading read.
LORD BALFOUR OF BURLEIGH
My Lords, the Preamble of this Bill states very clearly the reasons on account of which it has been introduced. According to an old Scottish custom poor litigants have certain privileges. Those privileges date back to the time of King James I, and if your Lordships care to see a specimen of the Scottish language of the day you will find it printed in tile Schedule to the Bill. It is now a custom which has lasted nearly 500 years, and it seems to me one which ought to be preserved. The Preamble of the Bill recites the facts, but by the Act of King James, confirmed and extended by sundry subsequent Acts of Sederunt of the Supreme Court of Scotland poor litigants have certain privileges, and are awarded costs if they win their case. But a practice has grown 993 up by which, by the rules of your Lordships' House, these costs have been refused. It seems to me just and equitable that appellants to the House of Lords, suing in forma pauperis, should have the right granted to them in accordance with the Scottish custom, and the object of this Bill is to restore the Scottish system in those cases.
As a fact, the Bill has been passed by another place absolutely without opposition, and on that representation I undertook to bring it before your Lordships. Since the Bill was printed my attention has been called to an Order under the Appellate Jurisdiction Act, 1876, which gives the Appellate Court power to make proper rules for matters which come before them. It occurs to me it is quite possible that this Bill, passed by another place, may not technically be the right way to remedy what is a real grievance. If that is so, I shall be told by noble Lords learned in the law who know much more about the matter than I do. But I do put before your Lordships that there is a grievance, and I know, as a fact, that certain very hard cases have happened under these Rules during the last few years. I could very easily quote two of them, but I do not wish to take up your Lordships' time with details of that kind unless it is absolutely necessary.
I think it is a hardship that those who sue in forma pauperis should be prevented from getting costs, if they win their case, and there is this safeguard against that power being abused, that there is a Court in Scotland which looks after the probable cost of litigation, if any one wishes to sue in forma pauperis, and there is no power to bring the case under those ciremnstances before the Scottish Courts unless that tribunal has certified that there is a probable chance of success. If this grievance is continued it is likely to give rise to real social discontent. I cannot imagine anything more harmful to order, or good feeling, or to social agreement titan that the idea should get abroad that, because an individual is poor, he is therefore handicapped in his right to appeal to the law. It is simply to give those who are poor the same privileges as those who can afford to pay for them that this Bill is introduced.
§ Moved, That the Bill be now read 2a.—(Lord Balfour of Burleigh.)994
§ THE LORD CHANCELLOR (LORD BIRKENHEAD)
This matter is extremely technical, but, although technical, I think I can explain its substance reasonably shortly. The Bill owes its existence, I imagine, to a decision of the House of Lords in a case known as McAlinden v. Nimmo & Co., where this House refused expenses to a successful appellant suing in forma pauperis. In so deciding the House was following its rule made in 1892 under the powers conferred by the Appellate Jurisdiction Act, 1876, section 11. That section is in these terms—After the commencement of this Act error shall not lie to the House of Lords, and an appeal shall not lie from any of the courts from which an appeal to the House of Lords is given by this Act, except in manner provided by this Act, and subject to such conditions as to the value of the subject-matter in dispute, and as to giving security for costs, and as to the time within which the appeal shall be brought, and generally, as to all matters of practice and procedure, or otherwise, as may be imposed by Orders of the House of Lords.Standing Order X, made pursuant of these powers, concludes with these words—When the payment of costs is so ordered to a successful appellant in an appeal in forma pauperis, the taxing officers shall not on taxation allow the fees of the House, nor the fees of counsel, but shall allow to the solicitor his costs out of pocket, with a reasonable allowance (such allowance to be taken as three-eighths of the solicitors' charges in 'Dives' appeals other than out of pocket costs to cover office expenses including clerks, etc.The position, therefore, is that the matter has been dealt with by your Lordships. It has been dealt with under statutory powers, by those members of this House to whom these matters by long practice are committed. I do not think it is desirable at this moment to discuss the merits of this proposal, but I will point this out. It is obvious from what I have said that what is involved is fees to counsel and five-eighths of the solicitors' fees. That may be a good proposal or a bad one, but what is abundantly plain is that the method of this Bill is wholly wrong. What it means is that the House of Commons is to send up to your Lordships a proposal which, in form as well as in substance, repeals a Standing Order of the House of Lords. I could never be a party to such a thing.
As to the merits of it, I am well content that they should be considered when a proper application is made by your Lordships, sitting in the capacity which is committed to them, and it appears to me on 995 the merits that there is something—perhaps a good deal—to be said for the Scottish contention. In the Quarter Sessions of Scotland a pauper litigant is entitled to obtain a decree for expenses, if successful. He then states the counsel's fees (which, of course, are not found de facto), his own fees, which are in the same position, and also Court fees, which equally are not actually found. These Court fees, when recovered, have to be paid to the ordinary Court official. If the pauper litigant is unsuccessful, a decree may be pronounced against him, and this decree would be available if the pauper succeeded to funds within the prescribed period, which is forty years. A decree for money against a pauper is not, I believe, usually looked upon in Scotland as a popular investment, and it is certainly not often asked for, but it is the right of the adversary of the successful litigant to get it.
I have always taken the view very strongly that the House of Lords is to be looked upon in Scottish cases as the Supreme Scottish Court, and therefore I approach the proposal of the Bill with the prima facie impression—without committing myself to a final conclusion —that, being the Supreme Scottish Court of Appeal, where habit and inveterate custom have developed a certain rule and practice, it is very convenient that this House should give expression to such a rule. I reserve any final opinion, but upon one point I speak with the utmost explicitness—it would be impossible to give the slightest encouragement to a Bill proceeding from the House of Commons to prescribe to your Lordships the methods and rules by which it should conduct the business of this House.
§ VISCOUNT FINLAY (who was indistinctly heard)
My Lords, I was glad to hear the remarks of the Lord Chancellor with regard to this Bill. If the matter is to be dealt with, I think it will be obvious to every one that evils may be created by dealing with it rashly or crudely. The Bill proposes in the first clause that any one suing in forma pauperis in the House of Lords on appeal shall have the same right to a judgment for costs as if he were not suing in forma pauperis. These are costs which, in fact, have not been paid; and the proposal in the Bill is to my mind a very striking one. Then it is said, on the other hand, that if he fails in his suit there is to be judgment given against him for costs. Of what use is it to obtain such a judgment against a 996 Pauper? That provision could not be of the slightest service except in the rarest cases. Upon the whole, I entirely agree with what the noble and learned Lord, the Lord Chancellor, has said as to the propriety of this matter being dealt with by your Lordships' House. There is power to deal with it, but in dealing with it great caution is certainly needed. It will be necessary in providing for anything similar in this House to the Scottish practice that it should be done in such a way as to prevent the House being flooded with a good deal of heavy work which otherwise would not come, but which might be brought with the prospect of getting costs if the case succeeded. The whole matter requires very temperate and cautious handling. The framework of the Bill seems to me to be extraordinarily crude. For the reasons I have given, I hope the noble Lord will not press your Lordships to read the Bill a second time.
§ LORD BUCKMASTER
My Lords, with the statement of the Lord Chancellor I find myself in entire agreement. It appears to me to be quite inappropriate to ask your Lordships by this process to revise and change the standing procedure of your Lordships' House. But having said that, I should like to add that the statement made by the noble Lord who introduced this Bill, and also the statement made by the noble and learned Lord on the Woolsack, lead me to think that there is outstanding a matter which requires immediate attention. I do not think that the urgent warnings from the noble and learned Viscount who has just sat down, as to the necessity for proceeding with grave caution in this matter, need deter your Lordships from considering what those questions are. As I understand the noble and learned Lord on the Woolsack, a pauper litigant in this House is bound to pay the fees of this House. If that is the case I think it ought to be altered at once; because the whole basis of proceedings in forma pauperis depend upon this.
§ LORD BUCKMASTER
I am sorry I misunderstood the noble and learned Lord. As long as it is plain that there are no fees payable in connection with the litigation, part of the objection of the noble Lord 997 who introduced this Bill is met. For the rest, I think this needs consideration. If I understood the practice aright, counsel is assigned to a pauper litigant upon condition that he neither asks, nor has any right to ask, for fees. If those be the conditions, no harm is done when an order is made which prevents his recovering those fees from the other side. Indeed, in such a case the literal language of the ancient Statute is obeyed to the uttermost; because all that this Statute provides is that the pauper is to be held seathless against expense— and so he would be. If those be the circumstances, it may be that the provision is not as necessary as I thought it was. But the noble Lord who introduced the Bill evidently has in his mind certain cases of hardship, and if those cases, on examination, depend upon matters that are remediable, I sincerely hope he will take further steps to bring them up in the proper quarter. To my mind there is nothing more distasteful than the thought that a man is barred from access to the Courts of Justice by inability to provide the necessary costs.
§ THE LORD CHANCELLOR
With the leave of your Lordships I desire to say this, and I ought to have made it clear when I spoke before. It is my purpose to bring this matter up for consideration at an early date before those of your Lordships who are specially concerned. Perhaps that may satisfy the noble Lord.
LORD BALFOUR OF BURLEIGH
The pledge of the noble and learned Lord on the Woolsack is, of course, entirely satisfactory; and after what has been said I will not press for the Bill to be read a second time now. if some noble Lord will move the adjournment of the debate no date need be fixed; and I shall have served my purpose by drawing attention to the position. I am satisfied, by what has been said by the Lord Chancellor and by Lord Buckmaster, that this matter will not be lost sight of, and I will not go into the particular cases that have been brought to lily notice. I do not think there was any demand made for fees, but it was impossible to find any one in London to take up the poor litigant's case without some guarantee as to costs, and a very real injury to the persons who won their case would have been incurred if it had not been for the philanthropic conduct of a Scotsman in London, and of a Scottish counsel who pleaded the case and won it 998 before the House without, of course, any hope of getting fees. Perhaps some noble Lord would now move the adjournment of the debate.
§ THE LORD CHANCELLOR
I hope that on reflection the noble Lord will not think that is the most convenient cours to adopt. This is a proposal coming from the House of Commons, but I do not think that your Lordships would in any circumstances give effect by legislation in a Bill of this kind to a rule made by those of your Lordships who attend to legal business in this House. The purpose of the noble Lord has been fully obtained, and I will discuss the whole point with my colleagues.
My Lords, I came down to the House with the intention of moving the rejection of this Bill. I am not going to make a speech, because I cannot compete with the noble and learned Lord on the Woolsack or with the other noble and learned Lords who have spoken; but I think it would be convenient to the House and carry out the purpose of the noble and learned Lord on the Woolsack if I move that the Bill be read this day three months.
Leave ("now") and insert at the end of the Motion ("this day three months").—(Lord Saltoun.)
§ THE LORD CHANCELLOR
I am reminded that the noble Lord who moved the rejection of this measure must give notice.
LORD BALFOUR OF BURLEIGH
Of course, if the Bill is rejected there is an end to it, and I simply ask permission to withdraw my Motion. I think that would probably be the better course. It would, I suppose, leave it technically possible to renew the Motion on another occasion, but, after what has been said by the noble and learned Lord on the Woolsack, I should not think of taking that course.
§ Motion, by leave, withdrawn.