HL Deb 01 May 1928 vol 70 cc907-13

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.)

On Question, Motion agreed to.

House in Committee accordingly:

[The EARL OF DONOUGHMORE in the Chair.]

Clause 1:

Qualification of probate and district probate registrars, and tenure, etc., of district probate registrars.

(2) In Part I. of the Third Schedule to the principal Act after the words "Registrar, Probate Division" there shall be added the words "(not including a district probate registrar)," and the principal Act shall be deemed as from the commencement thereof to have had effect as if the said words had been contained therein as originally enacted.

(3) The following subsection shall be added at the end of section one hundred and nineteen of the principal Act:— (3) This section shall in relation to a district probate registrar have effect as if for the words 'if appointed since the commencement of the Supreme Court of Judicature Act, 1884,' there were substituted the words 'if appointed since the first day of June, nineteen hundred and twenty-eight'.

VISCOUNT BERTIE OF THAME moved, in subsection (2), after "probate registrar," to insert "appointed after the first day of June, nineteen hundred and twenty-eight." The noble Viscount said: This Bill is known as the Administration of Justice Bill, and yet in the clause under consideration an act of injustice is sought to be perpetrated by depriving certain individuals of the rights given to them in the Act of 1925. People who have been appointed between 1925 and the present time may have relied upon those rights. I do not think there has been any adequate quid pro quo for taking away those rights. The noble and learned Lord may say that they are made officers of the Court under the new Section 128A, but to make any difference between these officers and the Registrar of the Court is, I think, unfair, and I therefore beg to move.

Amendment moved— Page 2, line 11, after ("registrar") insert ("appointed after the first day of June, nineteen hundred and twenty-eight").—(Viscount Bertie of Thame.)


I should be very sorry to suppose that under this Bill we were taking away rights conferred upon any persons, but I think I can relieve the fears of the noble Viscount, and of your Lordships' House, in that regard. The position is this. Under the Act of 1925 there is a provision in the Third Schedule that certain persons, including Registrars, are not to be in the same position as ordinary civil servants, and are to have certain special rights as regards pensions and date of retirement. Nothing is said about the district probate registrars, and I think there can be very little doubt that the term "registrar" would not be held to include a district probate registrar. No claim has yet been made by any district probate registrar that he does come within the term "registrar," and there is no possible reason, on merits, why this special provision should be applied to district probate registrars. The provision was intended to cover persons who are exercising judicial functions, such persons as Masters of the Supreme Court, and the Registrars, who do have to perform judicial duties. The district probate registrars have no judicial functions, but purely administrative functions, and therefore there is no reason why they should be put in the same position as judicial personages under the provision of Schedule 3; but as we were bringing in this measure, and it is desirable there shall be no possible doubt left upon the point, we thought it right to remove any doubt by including this clause, which makes it clear that Registrars, and Registrars only, are included by the term, and that district probate registrars are not included.


After the explanation given by the noble and learned Lord, I ask leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clauses 2 to 5 agreed to.

LORD PHILLIMORE had given Notice to move, before Clause 6, to insert the following new clause:— . At the end of section fifty-six of the principal Act there shall be inserted the following paragraph:— (d) Notwithstanding the provisoes in paragraphs vii and xii of section twenty-two, subsection (1) any claim for necessaries supplied to a ship and any claim arising out of an agreement relating to the use or hire of a ship, or relating to the carriage of goods in a ship, or any tort in respect of goods carried in a ship may be assigned to the Probate Division. But the jurisdiction so exercised shall not be 'deemed to be Admiralty jurisdiction, and must be exercised in personam only and not in rem.'

The noble and learned Lord said: I do not propose to move this Amendment. On the Second Reading I troubled your Lordships' house with a few reasons for this Amendment, but the object to be attained was not very easy when it came to drafting the Amendment. I put down this Amendment, but I was very much relieved when I found the Amendment which stands in the name of the Lord Chancellor, which seems to me to be not only better than my own but good in itself, and one which I hope the House will adopt. That being so I do not propose to trouble the House with a speech now, but I am prepared to support the principle, and to support the Amendment of the Lord Chancellor, if there should be opposition to it. I trust, however, there will be none, and at any rate I reserve myself till then.


Before the Lord Chancellor moves the Amendment standing in his name I should like to ask him whether he takes the view which Lord Phillimore takes, and which I take, that his Amendment covers the ground which had been intended to be covered by Lord Phillimore's Amendment, and whether it deals with a difficulty which has arisen by reason of a decision in the Court of Appeal to which Lord Phillimore referred.


The Amendment which I am proposing to move does in my view deal with the difficulty to which my noble and learned friend has referred. I do not think it deals with it in precisely the same way as the Amendment in the name of Lord Phillimore. For example, as I read Lord Phillimore's Amendment, if an action were commenced in the Admiralty Division that is at present outside its jurisdiction—an action about claims arising out of agreement relating to the use or hire of a ship and so on—Admiralty rules would apply to the action which at present do not apply; and therefore, for instance, the rule under which interest is recoverable, as I think it is in the Admiralty Court, from the date of the cause of action, instead of, as in the Common Law Courts, from the date of the judgment, and similar rules, would apply. The Amendment I am moving does not have the same effect.

THE LORD CHANCELLOR moved, before Clause 6, to insert the following new clause:—

Jurisdiction of Divisions of High Court.

". The following subsection shall be inserted at the end of section four of the principal Act:— '(4) Without prejudice to the provisions of this Act relating to the distribution of business in the High Court, all jurisdiction vested in the High Court under this Act shall belong to all the Divisions alike.'

The noble and learned Lord said: The Amendment I am moving is directed to remove what some of your Lordships, I think, regarded as the unfortunate effect of the decision in the Sheafbrook case. That was an action which was heard ultimately in the Court of Appeal, and in which the Court of Appeal decided that on the true construction of the Act of 1925—which was a Consolidation Act and did not alter the law—the Admiralty Division was in a different position from the other Divisions of the High Court, and that whereas under the Judicature Act, 1873, and again under the Act of 1925 all the Divisions of the Courts which were amalgamated were combined into one Court, and each of them exercised the whole jurisdiction of the High Court, yet, when you came to the Admiralty Division, the position was not the same, and there was no jurisdiction in the Admiralty Division to hear any cases except those which were expressly assigned to it.

That seemed to me, and I think to some of your Lordships, to have an unfortunate result and to put the Admiralty Division in a position of inferiority which it certainly was neither intended nor desired that it should occupy. Whether or not it was a right decision I do not think it is necessary to discuss, but the object of my Amendment is to make it clear that that decision is wrong, and that in future the Admiralty Division, equally with the other Divisions of the High Court, exercises all the jurisdiction which is vested in the High Court of Justice. I think the Amendment which I move secures that object, and it is confined to securing that object.

Amendment moved— Page 6, line 27, at end insert the said new clause.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clauses 6 to 10 agreed to.

Clause 11:

Provisions as to bonds given under order of court.

11. The following section shall be inserted after section two hundred and nineteen of the principal Act:— (3) Where it appears to the satisfaction of the court that the condition of a bond given in accordance with the provisions of this section has been broken, the court may, on an application in that behalf, order that the bond shall be assigned to such person as may be specified in the order and the person to whom the bond is assigned in pursuance of the order shall be entitled to sue thereon in his own name as if it had been originally given to him, and to recover thereon as trustee for all persons interested the full amount recoverable in respect of the breach of the condition thereof.

THE LORD CHANCELLOR moved, in subsection (3), to leave out "assigned in pursuance of the order" and to insert "ordered to be assigned," and, after "entitled," to insert "by virtue of the order." The noble and learned Lord said: These are drafting Amendments to make it clear that there will not have to be a deed of assignment as well as an order that a bond should be assigned. It is purely for that purpose that we have put down these Amendments.

Amendments moved— Page 9, line 30, leave out from ("is") to ("shall") in line 31, and insert ("ordered to be assigned"). Page 9, line 31, after ("entitled") insert ("by virtue of the order").—(The Lord Chancellor.)

On Question, Amendments agreed to.

Clause 11, as amended, agreed to.

Clause 12 [Power to appoint Indian, Judges, etc.]:


The Amendment I move in this clause is purely drafting. It is to correct a slip in grammar.

Amendment moved— Page 11, line 2, leave out ("that section") and insert ("those sections").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 12, as amended, agreed to.

Clauses 13 to 20 agreed to.

Clause 21:

Short title, repeal, construction and printing.

21.—(1) This Act may be cited as the Administration of Justice Act, 1928.

(2) The enactments set out in the Second Schedule to this Act are hereby repealed to the extent specified in the third column of that schedule.

(3) This Act (except so much thereof as amends Part II of the Administration of Justice Act, 1920) shall not apply to Scotland or Northern Ireland.

THE LORD CHANCELLOR had on the Paper an Amendment, after "1920," in subsection (3), to insert "or amends the Guardianship of Infants Acts, 1886 and 1925." The noble and learned Lord said: I am sorry to say I have to move this Amendment in a slightly different form from that which appears on the Paper. The Amendment is designed to correct a slip under the Bill as submitted to the House. Your Lordships will remember there is provision made that courts of summary jurisdiction are to have the same jurisdiction on applications by fathers as they have on applications by mothers. It is an anomaly which has long been noticed, and which wants putting right. Unfortunately the wording of Clause 21, which provides for the application of parts of this Bill to Scotland and Northern Ireland, would, as drafted, have omitted the benefit of that clause for Scotland, and accordingly the Amendment which I had put down was intended to make it clear that that applied to Scotland as well. But, as drafted, the result would be to apply it to Northern Ireland, where it is inapplicable; therefore I am moving in a slightly different form, so as to secure that the Guardianship of Infants Acts Amendments shall be applicable to Scotland, but that they shall not be applicable to Northern Ireland. I move to leave out the words "or Northern Ireland," at the end of subsection (3), and to add a new subsection, which will be subsection (4), in exactly the form of the present subsection (3), but leaving out the word "Scotland."

Amendment moved—

Page 15, line (3), leave out ("or Northern Ireland,") and insert: ("(4) This Act, except so much thereof as amends Part II of the Administration of Justice Act, 1920, shall not apply to Northern Ireland.")—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 21, as amended, agreed to.

First Schedule: