HL Deb 17 March 1926 vol 63 cc625-34

EARL RUSSELL rose to call attention to the observations of Mr. Justice Rowlatt in a Revenue appeal heard on 4th March, and to inquire why the case had taken four years to come to trial, and whether in the circumstances the Crown propose to insist upon claiming their costs? The noble Earl said: My Lords, this Question relates to a matter about which I know nothing except that which has appeared in the public Press. In The Times of March 5 there were reported some very severe observations by Mr. Justice Rowlatt in a Revenue appeal. I do not propose to quote the observations, and I regret that I cannot give the name of the case, as it was not mentioned in the report. The Judge made some very severe observations upon the fact that the case had taken four years to come into Court from the time when the Commissioners had considered it, and he also suggested that he would have liked to deprive the Crown of their costs but, since the Crown had asked for their costs, he felt, bound to give them.

The question that I should like to ask is whether there is any reasonable explanation why this case took so long to come on. I may point out that counsel who appeared for the Crown had not been instructed in that point, for they were obviously quite unable to reply to the learned Judge's criticism or to explain the reasons. I should also like to know whether, in the circumstances, the Crown think that they would be right to press for their costs from the other party, or whether they would be prepared to remit them. Since I put the Question on the Paper I have been told that on a subsequent occasion the learned Judge to some extent modified his remarks. I regret to say that I did not see this in the newspaper and, if I had done so, I am not quite sure that I should have put my Question down. I do not know to what extent the criticism was modified, for I have not been able to find out, but I understand that there was still some comment and, whatever the learned Judge says, I think possibly the House would like to know why a case should take four years to come on. This is a very long period and it does inflict some injustice upon people and possibly a considerable expense as well. Accordingly I have put the Question down merely to ask for an explanation.

LORD BUCKMASTER

My Lords, I think it would be right that I should intervene before the noble and learned Viscount on the Woolsack replies, lest some of the criticisms that I have to make might be urged at a time when he was not in a position to reply. I greatly regret that this Question has come before your Lordships' notice at a time when it will receive less ample consideration than it might have enjoyed at an earlier stage of this afternoon's proceedings because, to my mind, although this seems a simple matter, it is a matter of the greatest and of the gravest consequence. The root of the question does not merely depend upon the particular illustration which the noble Earl's Question involves. It depends upon a general principle as to whether or not the subjects of the Crown are being harassed and distressed by the needless prolongation of litigious proceedings in which they are involved.

For some eleven years I had experience of judicial work in the highest tribunals of this country and I hope that it may not, be impossible that my experience may be in the future renewed. The one thing that disturbed and distressed me beyond anything else was the delay with which I constantly found that causes had been beset from the time when they were instituted until the time when they were heard. I have myself, in similar cases in which the Crown has been involved, found periods of delay that were wholly inexplicable and that caused a litigation which, if promptly prosecuted, could, I am quite satisfied, have been amply considered and concluded from the earliest court to the last in eighteen months, to extend to three years.

Whenever questions are asked of counsel as to the explanation of this delay they have no answer that they can possibly give you. They generally say that they will make inquiries, and of course they are most polite, but the Judge who is presiding in the Court knows that he is defenceless and can do nothing. He does not know what the real facts are and, unless he is going to have a day fixed for their hearing, he will never be able to ascertain them. Consequently he has to assent to something which I have always thought to be one of the gravest defects connected with the administration of the law.

The "law's delay" which, to people who are professionally engaged in it, means nothing but the passage of a little time between one case and another, is to the unfortunate litigant a period of anxiety and distress which it is very difficult indeed for people properly to realise. I have always felt, and always said, that if you want to consider these questions properly you must look upon them from the point of view of the litigant, and not from that of the solicitor, or the counsel, or the Judge. It is the litigant who has invoked the protection of the Courts, and it is his interest which ought to be first considered.

Now, I think this question of delay may well be involved with another matter which is often concerned with it. At the present time it is the practice of all Government Departments to have their own legal advisers, and with them rests the pursuit of the litigation in which that Department is involved. Who is it that looks after the legal offices? I suppose the real answer is that it is the Minister in charge of the Department, but can you imagine the Minister in charge of any great Department examining what is the course of the litigation in which his Department may be involved? One must know perfectly well that nothing of the kind can take place, and the consequence is that you have not got behind the solicitor that driving power which should exist to compel every step to be properly and effectively taken at the earliest possible moment. The solicitors engaged in the work are men of the highest possible quality, and I have no desire to say anything to depreciate their skill or zeal, but I say that in all such cases, unless you have some individual whose interest it is to see that the matter is pushed forward, it is very apt to slide backward and never get pushed forward at all.

I could give illustrations, but I have no desire to mention names or to involve individuals in the dispute. I believe it is the system which is wrong. I believe that the right way to conduct Government litigation is to put each business in the hands of a firm of solicitors known to be best qualified to deal with it, and they will be interested in pursuing it diligently, because if they act well and efficiently for the Government Department they will not only have the work renewed but also, I should hope, receive due recognition when rewards and honours are being distributed, as having rendered great public service. You stimulate ambition and competition ii you do that, and by the other system you destroy it.

That is one thing, but there is another. The procedure relating to Revenue cases, to my mind, is obsolete and antiquated and ought to be abolished. There is no reason whatever why you should proceed by information, and why these eases should be brought in the King's Beach Division, as they are. All the Courts are open, and the Chancery Courts are not so crowded. Why should they not have seizin of these cases? They are just as competent and the procedure might be accelerated by such a step. I venture to think that all of us are much toe prone to accept things as they exist, and as if they must be all right. I believe that is wrong. Whenever you find there is a hitch in the machinery you should set the machine clear and examine it carefully, and see if it is not possible that the difficulty or trouble may be removed.

I am sure we shall have an illuminating and candid answer from the Lord Chancellor, and I feet also pretty certain that we shall have that smooth answer which, we are told on the highest authority, turneth away wrath; but so far as I am concerned there is nothing which stimulates my wrath more than a smooth answer. I would much rather have something which is acrimonious, because then I should know exactly what I should have to do; but I earnestly entreat the noble and learned Viscount on the Woolsack, in whose hands the matter is now vested, to see whether it is not possible to remove from our Courts what I regard as a scandal. That there is no reason for such delay I think I can show your Lordships in one instance. When I held the position which is now filled by the present occupant of the Woolsack we determined in this House a dispute with regard to an accident to a man, where the accident itself had happened within twelve months of the decision of your Lordships' House. I believe that speed can be maintained in nearly every law suit, if only the parties can be made active and prompt in taking the necessary steps. It is because I feel that the law's delays are one of the reproaches from which the law suffers, but which it is wholly capable of remedying, that I am anxious to have an answer to the Question of the noble Earl.

THE LORD CHANCELLOR (VISCOUNT CAVE)

My Lords, the attention of the Government has, of course, been called to the observations made by Mr. Justice Rowlatt in the case to which the noble Earl has referred. The learned Judge seems to have said that the case had taken four years. He is not quite right there. The time which had elapsed between the first hearing of the case by the Commissioners and the decision in the High Court was not four years but three and a half years. Before I deal with the particular case I want to say this, that it is not right to assume in every ease where delay occurs, or indeed in any one particular ease, that the Crown and the Crown alone is to blame. In fact, it is usually the other way. When a decision has been given by the Commissioners either party may express dissatisfaction. Thereupon the Commissioners state a case for the opinion of the High Court, and it is the custom, and I think a reasonable custom, to submit the draft ease to both sides. It is in the settlement of the draft case that the greater part of the delay occurs. I do not think that the Crown is usually slow in sending in its observations upon the draft, but of course the taxpayer is generally in no hurry at all. The question is whether he shall be called upon to pay a considerable sum in taxes, and he is in no great hurry to have that question determined by a Court, because it may result in a heavy charge being imposed upon him. Therefore it is only natural that in many cases the taxpayer takes his time before approving the draft case.

That this is often so is, I think, shown by the later observations of the learned Judge, to which the noble Earl referred. I will read what it was that Mr. Justice Rowlatt said in two later cases, on, March 10. He said this:— These two cases relate to claims for taxation for the years 1914 up to 1916, and it is obvious that there has been very great delay in bringing them forward. I said something the other day about the delay in these cases, which seems to have attracted a great deal of attention, and the position put—and it is repeated this morning in a very prominent journal—is that the taxpayer, having won his case before the Commissioners, is subjected to appeal on the part of tine Inland Revenue, and then that appeal is delayed, to the prejudice of the taxpayer. Now I wish to point out that that is not an accurate statement of fact, and it is not an accurate report of what I said, and it is not quite fair. As a matter of fact, the appeals which come to this Court are just as often on the part of the taxpayer as they are on the part of the Revenue, and in these present eases that I have before me now, and in the two cases which I had yesterday, the taxpayer was the appellant, and the delay was even worse than in the case in which I made the remarks of which so much notice has been taken. I do think it is a great pity that these delays occur. It is very prejudicial to the public, and it defeats what is the object of the tax, that the tax for the year should be collected in the year for which it is imposed, but I do not know whether these delays are the fault of the appellant (whether the Crown or the subject), or whether they are the fault of the respondent (whether the Crown or the subject), or whether they are the fault of both put together, or whether they are purely the fault of the Commissioners, who are probably very greatly overworked. Therefore, whatever remarks anybody may make about delay, I hope they will not cite me as an authority for saying that it is a matter for which the Crown is solely and obviously to blame. I think it is only fair to make that clear. So much for the general statement, but I have made inquiries about the particular case, and I have details here.

I will not trouble the House as to the exact dates when the several steps were taken, but the result of the information which I have is this. The decision was given against the taxpayer. A draft case for appeal was sent out and the Crown returned the draft case approved about six months after the decision was given, and, of course, nobody can much complain of that delay—nobody can impute that delay especially to the Crown. But, unfortunately, the taxpayer was not so prompt. He desired to have the case tried with some other case which was coming on, or to await the decision of some other case, and another year passed before the taxpayer sent in the draft of the case approved. Some time was occupied in sending the thing backwards and forwards, with the result that it was almost another year before the case was finally approved and signed by the Commissioners. So far as I can understand the dates the greater part of that delay was due, not to the Crown, but to the taxpayer. Then, I am sorry to say, it took almost another year after the case had been signed before everything was adjusted, and the Revenue paper came on early this year and the case was heard. I have given those dates, not as a favourable example of litigation at all, but as showing that there is no ground in this case to impute special delay to the Crown. If there is a question of blame the blame rests rather upon the other side.

What is to be done? I agree entirely with the learned Judge in what he said. I think it is true that it is desirable in these eases that the decision should be as prompt as possible. It is desirable for the litigant, and even more desirable for the Revenue, which desires to have its tax at the earliest possible date. I think we must see whether we cannot expedite things considerably. I am sure that the Crown authorities will do their best to press these eases on. I do not think the taxpayer will, but I think the Commissioners should take their part and should constantly press the parties to take steps from time to time, so that the matter may be ready for hearing. It is possible, as the learned Judge hinted, that the Commissioners are overworked. They are extremely able men, but they have a very difficult task to perform, and it may be that the labour put upon them is greater than they can well bear. Whether that is so or not I will enquire, because to add further Commissioners would be a very serious expense. But I shall certainly make it my business to see whether anything can be done to get these appeals expedited.

The noble Earl asks about costs. I think he will see from what I have said that there really is no reason why the Crown should not have its costs in this case. They were given after discussion. The delay was not due to the Crown in the main, and did not increase the costs, and there is certainly no reason why in this case they should be withheld. It does sometimes happen that when a taxpayer is held to be not liable the Crown appeals, even when the sum is small, so as to get an important question of principle settled, and then the Crown very often and very properly pays the costs, saying, "Well, it is we who want this question settled. Whatever the result we will bear the costs of both sides." That happened the other day and has happened in a good many other cases, and I am sure it is reasonable that whenever that occurs the same course should be taken.

So much about this particular case. I must add a word about my noble and learned friend Lord Buckmaster. I hope he will not think me too conciliatory, but I must express my satisfaction at the hint which he gave that he may before long come back to us and again take part in the hearing of these appeals. We much regret his temporary absence, and the sooner he comes back the better his colleagues will be pleased. But, having said that, I will try not to give him any further satisfaction. I am not quite sure that I agree with what he said about the solicitors. I think that on the whole the practice of having advisers to particular Departments, who have become familiar with the work of those Departments and are able to deal with the questions which arise, has worked well. It is too great a question to discuss to-day, but the noble and learned Lord must not think that I entirely agree with him. But I am afraid I must agree with him on one point, that is, in what he said about the Revenue cases not always being heard in one Court. I quite hold his view that these cases might as well be heard in the Chancery Division as in the King's Bench Division. It has long been in my mind and in the. minds of others, but I am sure he will understand what I mean when I say that under the present arrangements the cases are so well dealt with, and dealt with in such a manner, by the learned Judge who has charge of them, that no change could be made without very careful consideration. Subject to that, I myself think that the time may come when some arrangement will be made which would make it possible for some of the cases to be heard in another Division, and so relieve the King's Bench Division. I think I have answered all the questions, and I hope the noble Earl will be satisfied with the assurance I have given.

House adjourned at twenty minutes past six o'clock.